Existing Hard Rock Bet customers in Florida have suddenly found themselves able to place online bets again after a blackout of nearly two years, but the window of opportunity may be small. West Flagler Associates, the principal legal opponent of Florida online sports betting, has petitioned the Florida Supreme Court to use its “All Writs” powers to suspend the law that makes it possible. The Seminole Tribe of Florida, which owns Hard Rock, is also preparing to launch in-person betting at its retail casinos while adding craps and roulette tables. However, these activities wouldn’t immediately be affected if the court sides with West Flagler.
The Florida government authorized sports betting using a novel strategy that combines a tribal gaming compact and an Implementing Law. The latter makes some necessary tweaks to existing laws to make the compact work.
West Flagler is now waging a war on two fronts in the state and federal Supreme Courts. The federal battle focuses exclusively on the compact since it falls under the jurisdiction of the Department of the Interior. The state case addresses both halves of the model, as the Florida Supreme Court’s purview includes ensuring that legislation complies with the Constitution.
On October 26, the federal Supreme Court lifted a temporary stay it had granted West Flagler. The Seminoles responded last week by saying they would proceed with retail betting and the new casino games beginning December 7. These require only the compact, while the Implementing Law pertains to online betting.
There was no mention at the time that they planned on resuming online betting. West Flagler reacted to the surprise by demanding that the state Supreme Court intervene by suspending the Implementing Law.
Why a Separate Implementing Law?
Florida’s state Constitution forbids gambling. Any new gambling law, therefore, needs a referendum to amend the Constitution. Tribal gaming compacts aren’t laws, per se, so that requirement doesn’t apply. They’re contracts between the state and tribes as sovereign entities, with the federal government overseeing the deal.
However, the federal Indian Gaming Regulatory Act (IGRA) only considers gaming activities that take place on tribal land. Florida’s Implementing Law clarifies the relevant definitions to say that online bets are considered to “take place” wherever the servers receiving them are. In other words, the user can be anywhere in the state, and IGRA still applies as long as the betting servers are within Seminole territory.
Commercial operators like West Flagler object to this because it cuts them out of the market. They also say it’s a violation of Florida citizens’ constitutional right to have a say in the matter.
In denying West Flagler an indefinite stay, Supreme Court Justice Brett Kavanaugh hinted that its fight to invalidate the compact is likely to fail. However, he suggested an attack on the Implementing Law might bear more fruit. That dovetails with remarks by the District of Columbia Court of Appeals that the legal questions of the case might be more appropriate for state-level judges to answer.
At the state level, West Flagler is seeking a writ of quo warranto. In plain English, it wants the state Supreme Court to conduct an inquiry into whether Governor Ron DeSantis and state lawmakers were acting within their authority in creating that law and compact.
The Power of ‘All Writs’
The Florida Supreme Court, like its federal counterpart, holds the power of “all writs.”
Essentially, this means that the Court can issue whatever orders are necessary to preserve the status quo while carrying out its duties. In this case, the status quo is no online sports betting in Florida. If the Court believes that allowing online betting to occur while the case proceeds will cause irreparable harm, it can issue a writ suspending the law until the proceedings conclude.
West Flagler’s petition frames the issue as one of protecting citizens’ constitutional rights:
The extraordinary actions of the Respondents to side-step the will of hte citizens of Florida and the Florida Constitution, enabling the Tribe’s actions, mandates the immediate exercise of the Court’s ‘all writs’ power as requested in the Petition.
Elsewhere, it references the “irreparable harm” the citizenry will suffer on account of not having had its say in a referendum.
West Flagler asks for immediate intervention because it acknowledges the case is not likely to reach any sort of conclusion until some time next year. DeSantis and the other respondents have until December 1 just to file their response to the original petition.
No New Users for Hard Rock Bet, With a Few Exceptions
Hard Rock Bet (then known as Hard Rock Sportsbook) launched in Florida in November 2021 but was only active for a matter of weeks before West Flagler’s litigation resulted in it shutting down.
Early adopters will be happy to know they can once again place their bets through the app, at least for now. Depending on the Florida Supreme Court’s response, the next suspension of service could come even more swiftly than the first.
However, most Florida residents who did not sign up for Hard Rock’s app during that first window in 2021 will not be able to do so now. The app is not taking new registrations, except from “select members” of the Hard Rock Rewards program. That might change if the Supreme Court declines West Flagler’s petition, but given the way the Seminoles have been playing their cards close to their chest, we may not know until it actually happens.
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