Florida Senate - 2009 PROPOSED COMMITTEE SUBSTITUTE Bill No. SB 788 Barcode 230330 580-03118A-09 Proposed Committee Substitute by the Committee on Regulated Industries 1 A bill to be entitled 2 An act relating to a gaming compact between the State 3 of Florida and the Seminole Tribe of Florida; defining 4 terms; providing that the a previous compact between 5 the Tribe and the Governor is not approved or ratified 6 by the Legislature; directing the Governor to 7 negotiate a gaming compact with the Tribe; specifying 8 requirements and minimum standards for the compact; 9 specifying the date on which the authority of the 10 Governor to negotiate a compact expires; specifying 11 games that may be authorized for play pursuant to the 12 compact; specifying revenue sharing between the state 13 and the Tribe; requiring the release of certain gaming 14 revenues to the state; providing for the reduction of 15 the Tribe’s net win on which revenue sharing is based 16 if additional Class III games are authorized under 17 certain circumstances; providing for completion of the 18 term of the compact in the event that the voters 19 repeal a constitutional provision authorizing slot 20 machines at certain pari-mutuel facilities; providing 21 that the compact becomes void as the result of a 22 judicial decision or decision of the Secretary of the 23 United States Department of the Interior invalidating 24 certain provisions of the compact; specifying limits 25 on the term of a compact; limiting the number of 26 facilities at which gaming may occur; specifying 27 requirements for a central computer system on gaming 28 facility premises; requiring that the system provide 29 the state with access to certain data; specifying the 30 authority of the state to oversee gaming activities by 31 the Tribe; requiring medical professionals employed at 32 the Tribe’s gaming facilities to have certain minimum 33 qualifications; requiring access for municipal or 34 county emergency medical services; specifying minimum 35 construction standards for the Tribe’s gaming 36 facilities; specifying minimum environmental 37 standards; requiring the Tribe to establish procedures 38 to dispose of tort claims; requiring the Tribe to 39 maintain a minimum amount of general liability 40 insurance for tort claims; prohibiting the Tribe or 41 its insurer from invoking sovereign immunity under 42 certain circumstances; requiring the Tribe to waive 43 its sovereign immunity for disputes relating to the 44 compact; requiring presuit arbitration of disputes 45 relating to the compact; requiring the Tribe to 46 maintain nondiscriminatory employment practices; 47 requiring the Tribe to use its best efforts to spend 48 its revenue in this state; providing legislative 49 intent to review the compact; directing the Governor 50 to negotiate agreements with Indian tribes in this 51 state, subject to approval by the Legislature, 52 relating to the application state taxes on Indian 53 lands; providing a contingent effective date. 54 55 Be It Enacted by the Legislature of the State of Florida: 56 57 Section 1. As used in this act, the term: 58 (1) “Agreement” means the document executed by the Seminole 59 Tribe of Florida and the Governor on November 14, 2007, 60 published in the Federal Register on January 7, 2008, 61 subsequently invalidated by the Florida Supreme Court in the 62 case of Florida House of Representatives, et al., v. Crist, No. 63 SC07-2154. 64 (2) “Class II gaming” means the forms of gaming defined in 65 25 U.S.C. s. 2703(7) and by the regulations of the National 66 Indian Gaming Commission in effect on January 1, 2009. 67 (3) “Class III gaming” means the forms of Class III gaming 68 defined in 25 U.S.C. s. 2703(8) and by the regulations of the 69 National Indian Gaming Commission in effect on January 1, 2009. 70 (4) “Compact” means the compact between the Seminole Tribe 71 of Florida and the State of Florida executed by the Tribe and 72 the state pursuant to the provisions of the Indian Gaming 73 Regulatory Act of 1988 and this act, and approved or deemed 74 approved by the United States Department of the Interior 75 pursuant to 25 U.S.C. s. 2710(d)(8). 76 (5) “Net win” means gross gaming revenue for Class III 77 games, as such games are defined by the federal Indian Gaming 78 Regulatory Act of 1988, which is the difference between gaming 79 wins and losses, before deducting costs and expenses. 80 (6) “Revenue sharing cycle” means a 12-month period, with 81 the first such cycle beginning on the day the compact executed 82 pursuant to this act is approved or deemed approved by the 83 Secretary of the United States Department of the Interior, as 84 evidenced by the date of publication in the Federal Register. 85 (7) “Tribe” means the Seminole Tribe of Florida. 86 Section 2. The agreement executed by the Governor and the 87 Tribe is not ratified or approved by the Legislature. 88 Section 3. (1) The Governor is hereby authorized and 89 directed to execute a compact on behalf of the State of Florida 90 with the Tribe pursuant to the federal Indian Gaming Regulatory 91 Act of 1988, 18 U.S.C. ss. 1166-1168, and 25 U.S.C. s. 2701 et 92 seq., and this act for the purpose of authorizing class III 93 gaming on Seminole lands within this state. 94 (2) The Legislature recognizes the efforts of the Governor 95 and the Tribe in the negotiation and formulation of the 96 agreement. The Legislature intends that the compact entered into 97 pursuant to this act conform to the terms and standards in the 98 agreement to the extent that such terms and standards do not 99 conflict with the minimum terms and standards provided in this 100 act. 101 (3) A compact that meets all of the minimum terms and 102 standards specified in this act does not require subsequent 103 approval or ratification by the Legislature. The compact shall 104 specify a procedure for amending the compact. Any amendment to 105 the compact which is consistent with the minimum terms and 106 standards provided in this act does not require subsequent 107 approval or ratification by the Legislature. 108 (4) If any provision of the compact relating to covered 109 games, payments, suspension or reduction in payments, or 110 exclusivity is held by a court of competent jurisdiction or by 111 the Secretary of the United States Department of the Interior to 112 be invalid, the compact is void. 113 (5) The Governor shall ensure that all revenue sharing 114 received pursuant to the compact is deposited into the Education 115 Enhancement Trust Fund. 116 (6) The Governor shall provide a copy of the compact to the 117 President of the Senate and the Speaker of the House of 118 Representatives as soon as it is executed by the state and the 119 Tribe and before or simultaneous with its submission to the 120 Department of the Interior. 121 (7) The Governor shall preserve all documents, if any, 122 which relate to the intent or interpretation of the compact, and 123 maintain such documents for at least the term of the compact. 124 (8) Except for the authority granted to the Governor in 125 section 7 of this act, the authority granted to the Governor by 126 this act expires at 11:59 p.m. on December 31, 2009. 127 Section 4. The Division of Pari-mutuel Wagering of the 128 Department of Business and Professional Regulation is designated 129 as the state agency having the authority to carry out the 130 state’s oversight responsibilities under a compact authorized by 131 this act. 132 Section 5. (1) Notwithstanding any other provision of law 133 to the contrary, the Governor is authorized to negotiate a 134 compact with the Tribe to permit the Tribe to offer for play any 135 of the following games that are permitted in this state under 136 limited circumstances at licensed pari-mutuel facilities: 137 (a) Slot machines, as defined in s. 551.102(8), Florida 138 Statutes. 139 (b)1. Charity celebrity poker tournaments, if the compact 140 specifies the minimum percentage of the net proceeds from each 141 poker tournament which must be donated to a charitable 142 organization organized pursuant to s. 501(c)(3) of the Internal 143 Revenue Code, limits the number of tournaments that may be held 144 each year, limits the maximum number of days that tournaments 145 may be played, and limits the frequency of the tournaments. 146 2. The compact shall permit the Tribe to conduct games of 147 poker without betting limits if such games are authorized in 148 this state to any person for any purpose. 149 (c) Any devices or games that are authorized under state 150 law to the Florida State Lottery, except that the Tribe may not 151 offer such games through the Internet unless others in the state 152 are permitted to do so. 153 (d) Any new Class II game authorized by Florida law for any 154 person for any purpose. 155 (2) Notwithstanding any other provision of law to the 156 contrary, a compact negotiated pursuant to this section shall 157 permit the Tribe to offer for play banked card games, including 158 baccarat, chemin de fer, and blackjack or 21. 159 (3) Notwithstanding any other provision of law to the 160 contrary, a compact negotiated pursuant to this act shall permit 161 the Tribe to offer for play all of the following Class III games 162 if blackjack or 21 is authorized for play at licensed pari 163 mutuel facilities located in Miami-Dade County or Broward County 164 pursuant to s. 23, Article X of the State Constitution and 165 chapter 551, Florida Statutes: 166 (a) Roulette or roulette style games; and 167 (b) Craps or craps style games. 168 (4)(a) In consideration for authority to play the specified 169 Class III games described in this section, the compact shall 170 provide for revenue sharing through periodic payments to the 171 state during the term of the compact. Revenue sharing shall be 172 $400 million each cycle, plus 10 percent of net win above $2 173 billion up to $4 billion, plus 25 percent of net win above $4 174 billion. However, revenue sharing may be: 175 1 Reduced or suspended if the net win in any cycle fails to 176 reach $1.37 billion and shall resume when the net win for a 177 cycle or any subsequent period when revenue sharing is reduced 178 or suspended reaches $1.37 billion. 179 2. Reduced pursuant to subsection (8). 180 (b) The compact shall specify a process for determining the 181 timing and amount of any reduction of revenue sharing payments. 182 The process shall provide the state with at least 30 days to 183 review the Tribe’s projection or determination that the net win 184 for any cycle will or has failed to reach $1.37 billion. 185 (5) Revenue sharing required by this section shall be in 186 addition to assessments by the state, consistent with 25 U.S.C. 187 s. 2710(d)(3)(C)(iii), in such amounts as are necessary to 188 defray the costs of regulating activity conducted pursuant to 189 the compact; payments, consistent with 25 U.S.C. s. 2710 190 (b)(2)(B)(v), to help fund operations of local government 191 agencies; any other provision of the compact relating to 192 financial obligations of the Tribe; taxation by the Indian 193 tribe, consistent with 25 U.S.C. 2710(d)(3)(C)(iv), of certain 194 activities in amounts comparable to amounts assessed by the 195 State for comparable activities; and any separate legal document 196 obligating the Tribe to make payments or to share revenues. 197 (6) In recognition of the fact that the Tribe has been 198 conducting gaming consistent with the provisions of the 199 agreement, all revenues shared or anticipated to be shared 200 pursuant to that agreement before the date the compact is 201 approved or deemed approved by the United States Department of 202 the Interior shall be ratified and released to the State of 203 Florida without further obligation or encumbrance. Acceptance of 204 such funds by the state does not validate the agreement or the 205 operation of the Class III gaming by the Tribe during the period 206 a valid compact was not in effect. 207 (7) In consideration for any additional Class III games 208 authorized for the Tribe under subsection (3), the compact may 209 not provide for the elimination or reduction of revenue sharing 210 in the event that blackjack is authorized for play at licensed 211 pari-mutuel facilities located in Miami-Dade County or Broward 212 County. 213 (8) The compact must provide that if one or more additional 214 Class III games not specifically provided for in this act are 215 authorized in this state, such event shall not result in the 216 elimination of revenue-sharing payments under the compact, but 217 shall provide that the Tribe’s net win on which its revenue 218 sharing is based be reduced by an amount reasonably calculated 219 by the parties to equal the net win from any such additional 220 Class III gaming activities that are authorized after the 221 effective date of the compact. However, the compact does not 222 permit a reduction in revenue sharing as the result of an 223 authorization for additional Class III games in Gadsden, 224 Liberty, and Franklin Counties or counties west of those 225 counties. 226 (9) The compact may not provide for the elimination or 227 reduction of revenue sharing based on the authorization of 228 historic racing or additional Class II gaming in this state, 229 including any Class II electronic gaming machines that may be 230 authorized for play at licensed pari-mutuel facilities anywhere 231 in the state. 232 (10) The provisions of the compact, including the revenue 233 sharing provisions, may not be reduced or eliminated by the 234 existence of any gaming activities being conducted in Florida at 235 the time this compact is ratified which are illegal or are of 236 unsettled legal status as long as the state and its local 237 governmental entities maintain at least their current reasonable 238 level of enforcement actions against such illegal gaming 239 activities. 240 (11) If the Florida Constitution is amended to repeal the 241 slot machine amendment in s. 23, Article X of the State 242 Constitution, the Legislature authorizes the Seminoles to 243 continue to offer the play of slot machines under the terms of 244 the compact authorized pursuant to this section during the 245 remainder of the term of the compact. 246 (12) The compact shall provide that the compact is void if 247 any provision of the compact relating to covered games, 248 payments, or reduction or suspension of payments, or exclusivity 249 is held by a court of competent jurisdiction or determined by 250 the Secretary of the United States Department of the Interior to 251 be invalid. 252 Section 6. The compact negotiated pursuant to this act must 253 meet the following additional minimum terms and standards: 254 (1) The compact shall provide for a term of at least 10 255 years and no more than 25 years. 256 (2) The compact shall authorize the Tribe to offer the play 257 of specified Class III games at no more than seven existing 258 Seminole Tribe of Florida gaming facilities. The compact shall 259 identify the specific lands, locations, and existing gaming 260 facilities on which the Tribe is authorized to offer the play of 261 such games under the compact. The compact may permit any 262 identified facility to be expanded or replaced by another 263 facility on the same reservation with advance notice to the 264 State of no less than 60 calendar days, but the number of 265 existing facilities on each reservation shall remain the same. 266 (3) The compact shall provide that all gaming machines on 267 the premises of the authorized facilities will be connected to a 268 central computerized reporting and auditing system on the gaming 269 facility premises. The system shall: 270 (a) Collect on a continual basis the unaltered activity of 271 each gaming machine in use at the gaming facility. 272 (b) Provide access to the state by a dedicated 273 telecommunications connection, on a “read-only” basis, upon 274 entry of appropriate security codes and permit access to and 275 downloads of the wager and payout data of each machine, 276 electronically captured by the central computer. However, the 277 compact may not authorize the state to alter or affect the 278 operation of any gaming machine or other device on the premises 279 of the authorized gaming facility or the data provided to the 280 central computer. 281 (c) Be constructed and installed at the Tribe’s expense to 282 provide electronic access to the state for the machine wager and 283 payout data collected by the central computer. 284 (d) Be designed in conjunction with the state and the 285 Tribe’s technical staff so as to preserve the integrity of the 286 system and the data contained therein, to minimize any 287 possibility of unauthorized access to the system or tampering 288 with the data, and to minimize any access by the state to 289 information other than machine wager and payout data residing in 290 the central reporting and auditing system. 291 (4) The compact shall designate the Division of Pari-mutuel 292 Wagering of the Department of Business and Professional 293 Regulation as the state agency authorized to carry out the 294 state’s oversight responsibilities under the compact. 295 (5) The compact shall require the state to monitor the 296 Tribe’s compliance with the provisions of the compact, and: 297 (a) Permit the state to have access, during regular hours 298 of operation, to any public areas of each gaming facility that 299 is conducting gaming activities under the authority of the 300 compact without prior notice, or with concurrent notice, and to 301 any nonpublic area of the facilities without prior notice, or 302 with concurrent notice; 303 (b) Permit the state to conduct oversight testing, 304 including random inspections, of any games or devices authorized 305 under the compact; 306 (c) Provide for annual audits by the state or an 307 independent third party to review slot machine and other Class 308 III gaming compliance under the terms of the compact; 309 (d) Require an annual independent financial audit to verify 310 compliance with any obligations of the Seminole Tribe of Florida 311 under the compact, including financial and auditing provisions, 312 which audit shall be paid by the Tribe; and 313 (e) Permit the state to inspect, review, and receive 314 requested copies of any records of the Tribe which it deems 315 necessary to verify compliance with any gaming or financial 316 obligations of the Seminole Tribe of Florida under the compact. 317 (6) The compact may not: 318 (a) Limit the number of times or opportunities that the 319 state may inspect any covered games or gaming devices in 320 operation at facilities on a random basis to confirm that the 321 operation and play of the games or devices conform to 322 manufacturer’s technical standards or to the standards specified 323 in the compact; or 324 (b) Limit the number of times the state may review internal 325 controls and violations by authorized facilities. 326 (7) The compact shall require the Tribe to: 327 (a) Employ, permit, or authorize only medical professionals 328 at its gaming facilities who are licensed by this state; and 329 (b) Allow unimpeded access to the gaming facilities by 330 municipal or county emergency medical services. 331 (8) The compact shall require the Tribe to ensure that the 332 construction and maintenance of gaming facilities will comply 333 with standards that are at least as stringent as the Florida 334 Building Code. 335 (9) The compact shall provide that, at a minimum, the 336 environmental requirements of any federal permit must ensure 337 that the standards established for the state’s environmental 338 resource permitting program as provided for in s. 373.414, 339 Florida Statutes, are met. 340 (10) The compact shall require the Tribe to establish 341 written, reasonable procedures for the disposition of tort 342 claims arising from personal injury or property damage alleged 343 to have been suffered by patrons and invitees of its authorized 344 gaming facilities and to enact such tribal law as is necessary 345 to implement these procedures. The procedures shall include all 346 such tort claims, including claims that exceed the liability 347 insurance limits specified in subsection (11). The procedures 348 shall include all time limits that are applicable to the 349 disposition of the tort claim and a provision that, upon 350 request, the patron or invitee, or the patron’s or invitee’s 351 designated representative, shall be provided with a copy of the 352 procedures as well as the name, address, and telephone number of 353 the operator of the facility and the mailing address and 354 telephone number of the clerk of the Tribe’s tribal court. The 355 Tribe shall not be deemed to have waived its sovereign immunity 356 from suit with respect to such claims by establishing such 357 procedures but must agree not to assert its sovereign immunity 358 with respect to such claims as provided in subsection (11). 359 (11) The compact shall provide that, during the term of the 360 compact, the Tribe shall maintain a policy of commercial general 361 liability insurance which has a combined single limit for 362 personal injury and property damage of not less than $2 million 363 per occurrence and in the aggregate. The compact shall require 364 the amount of the coverage to be adjusted annually based on 365 increases in the Consumer Price Index. The insurance policy 366 shall: 367 (a) Prohibit the insurer or the Tribe from invoking tribal 368 sovereign immunity up to the limits of the policy with respect 369 to any claim covered under the policy and disposed of in 370 accordance with the Tribe’s tort claim procedures. 371 (b) Include covered claims made by a patron or invitee for 372 personal injury or property damage. 373 (c) Permit the insurer or the Tribe to assert any statutory 374 or common law defense other than sovereign immunity. 375 (d) Provide that any award or judgment rendered in favor of 376 a patron or invitee shall be satisfied solely from insurance 377 proceeds. 378 (12) The compact shall provide a reasonable process for the 379 expedited resolution of disputes between the state and the Tribe 380 which arise under the compact. The compact shall: 381 (a) Provide that the Tribe waives its sovereign immunity as 382 to any disputes between the state and the Tribe arising out of 383 the compact. 384 (b) Require presuit nonbinding arbitration before a lawsuit 385 can be filed concerning the dispute. 386 (c) Provide that either party may demand presuit nonbinding 387 arbitration to resolve any dispute between the parties arising 388 under the compact. 389 1. The party demanding the presuit nonbinding arbitration 390 shall immediately ask the American Arbitration Association to 391 furnish a list of 11 arbitrators, each of whom shall have at 392 least 5 years of commercial arbitration experience and no 393 financial interest in or prior relationship with any of the 394 parties or their affiliated or related entities or principals. 395 2. The state and the Tribe shall each select a single 396 arbitrator from the list provided by the American Arbitration 397 Association within 10 days after receipt, and the individuals so 398 selected shall choose one additional arbitrator from the list 399 within the next 10 days. The three arbitrators selected shall 400 constitute the panel that shall arbitrate the dispute between 401 the parties pursuant to the American Arbitration Association 402 Commercial Arbitration Rules and chapter 682, Florida Statutes. 403 3. At the conclusion of the proceedings, which shall be no 404 later than 90 days after the demand for arbitration, the 405 arbitration panel shall present to the parties a proposed 406 agreement that the majority of the panel believes equitably 407 balances the rights, interests, obligations, and reasonable 408 expectations of the parties. 409 4. The parties shall, within 10 days after the arbitration 410 panel’s issuance of the proposed agreement, enter into such 411 agreement or notify the opposing party of its intent to reject 412 the agreement and proceed with a lawsuit to resolve the dispute. 413 5. Each party shall pay its respective costs of arbitration 414 and shall pay one-half of the costs of the arbitration panel. 415 (13) The compact shall provide for the exercise of fair 416 employment practices by the Tribe. The compact shall require the 417 Tribe to maintain employment standards that are comparable to 418 the standards provided in federal laws and state laws which 419 forbid employers from discriminating in connection with 420 employment of persons working at the gaming facilities 421 identified under the compact on the basis of race, color, 422 religion, natural origin, gender, age, disability or handicap, 423 or marital status. The Tribe may give preference in employment, 424 promotion, seniority, layoffs, or retention to members of the 425 Tribe and other federally recognized Tribes. The Tribe shall 426 provide a process for employee disputes which permits the 427 employee to be represented by an attorney or other legally 428 authorized representative. The process shall permit the employee 429 to use language interpreters, including interpreters for the 430 deaf or hard of hearing. 431 (14) The compact shall provide that the Tribe will use its 432 best efforts to spend its revenue in this state to acquire goods 433 and services from Florida-based vendors, professionals, and 434 material and service providers. 435 (15) It is the intent of the Legislature to review a 436 compact entered into under the provisions of this section every 437 5 years. It is the intent of the Legislature to consider the 438 authorization of additional Class III games for operation by the 439 Tribe based upon successful implementation of the compact and 440 the history of compliance with the compact. 441 Section 7. The Governor of this state is hereby authorized 442 and directed to execute an agreement on behalf of the State of 443 Florida with the Indian tribes in this state, acting on a 444 government-to-government basis, to develop and implement a fair 445 and workable arrangement to apply state taxes on persons and 446 transactions on Indian lands. Such agreements shall address the 447 imposition of specific taxes and exemptions from those taxes. An 448 agreement executed by the Governor pursuant to the authority 449 granted in this section shall not take effect unless approved or 450 ratified by the Legislature. 451 Section 8. This act shall take effect on the same date that 452 section 1 of SB 836, or similar legislation, takes effect if 453 such legislation is adopted during the 2009 legislative session, 454 or an extension thereof, and becomes law.