I. Definition of Gambling

The Florida Code provides definitions for both illegal lotteries and illegal gambling.

1. The Florida constitution prohibits lotteries, except for state-sponsored lotteries and pari-mutuel betting. A lottery is not present when skill predominates over chance. 90 Fla. Op. Att’y Gen. 179 (1990); 91 Fla. Op. Att’y Gen. 06 (1991); 90 Fla. Op. Att’y Gen. 98 (1990).

2. “Gaming is an agreement between two or more to risk money on a contest of chance of any kind, where one must be loser and the other gainer.” Creash v. State, 179 So. 149, 150 (Fla. 1938). “Anything which induces men to risk their money or property without any other hope of return than to get for nothing any given amount from another is gambling . . . .” Creash v. State, 179 So. 149, 151 (Fla. 1938); Bellamy v. State, 347 So.2d 419, 420 (Fla. 1977).

3. Whether the element of chance is inherent in a game will determine whether it is chance based. In re Forty-Seven Video Redemption Games, 799 So.2d 221, 222 (Fla. Dist. Ct. App.2001). It is unclear whether “inherent chance” means that chance is a significant factor, or just that any amount of chance exists; however, even betting on skill games is prohibited in Florida. Fla. Stat. Ann. § 849.14 (1997).

Florida Code regarding exemptions

1. An alternative free method of entry does not seem to remove an activity from the definition of gambling in Florida. A telephone card sold with an attached “sweepstakes” ticket is not made valid by this section; it is still an illegal lottery even though free entry was available. 98 Fla. Op. Att’y Gen. 07 (1998). There is a statute allowing charity bingo raffles; there must be a free method of entry for the raffles to be valid. If the free entry alone could save the games, then the statute wouldn’t be needed. Fla. Stat. Ann. § 849.0935.

2. Contest where the participants had only to mail their address to become eligible to win was illegal because a list of possible customers could possibly be made from the addresses mailed in. 060 Fla. Op. Att’y Gen. 117 (1960). The only consideration needed is that sufficient for a simple contract. Blackburn v. Ippolito, 156 So.2d 550, 554 (Fla. Dist. Ct. App.1963).

3. There is, however, a statute that specifically allows promotional games associated with consumer products. Fla. Stat. Ann. § 849.094. A free method of entry must be available.

II. Definition of Bookmaking

“[B]ookmaking means the act of taking or receiving, while engaged in the business or profession of gambling, any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of human, beast, fowl, motor vehicle, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.” Fla. Stat. Ann. § 849.25. The statute contains several acts, the performance of which may constitute evidence of bookmaking.

III. Specific Gaming Device Definitions

“Any machine or device is a slot machine or device within the provisions of this chapter if it is one that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated and if the user, by reason of any element of chance or of any other outcome of such operation unpredictable by him or her, may:

(a) Receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or

(b) Secure additional chances or rights to use such machine, apparatus, or device, even though it may, in addition to any element of chance or unpredictable outcome of such operation, also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.” Fla. Stat. Ann. § 849.16.

Reverse vending machines (pop can deposit return machines) are excluded from the definition.

IV. Bucket Shop Laws

Florida had bucket shop laws in Fla. Stat. Ann. §§ 851.01 through 851.04 (2006). These statutes have been repealed. The statutes regulating dealings in futures and margins have also been repealed. Fla. Stat. Ann. §§ 850.01 through 850.10.

V. Prohibition of Games of Skill

1. Poker/Card Games

Card games are allowed at racetracks, but there are strict betting limits. There is also an exception for “penny-ante” games. The games are otherwise prohibited.

2. Dice

Florida does not have statutory, attorney general opinions, or case law governing games using dice.

3. Billiards

Florida does not have statutory, attorney general opinions, or case law governing billiard games.

4. Bowling

Bowling tournaments, with entry fees and prizes, are exempted from the criminal statutes. Fla. Stat. Ann. § 849.141.

5. Darts

Florida does not have statutory, attorney general opinions, or case law governing dart games.

VI. Express Exemptions

1. Social

“Penny-ante” games are exempted from the criminal statutes. The exception covers “games of poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or mah-jongg in which the winnings of any player in a single round, hand, or game do not exceed $10 in value.” Fla. Stat. Ann. § 849.085(2)(a). Other requirements must also be met, as laid out in the statute. Debts incurred in such a game are not legally enforceable.

2. Charity

Fla. Stat. Ann. § 849.0931 allows charitable organizations to conduct bingo games. The statute regulates the games right down to the rules used to play the game.

The charitable organization must control every aspect of the game and must receive all the proceeds. 2000 Fla. Op. Att’y Gen. 27 (2000).

FLA. STAT. ANN. § 849.0935 allows charitable organizations to conduct raffles. The organizations that qualify are defined differently than for the bingo statute. The raffle tickets must be available for free, although minimum donation amounts may be suggested.

Private promoters may conduct the raffles for organizations and may also profit from the raffles as long as some of the proceeds benefit the charitable organization. 93 Fla. Op. Att’y Gen. 85 (1993). The prize money must exist before ticket sales begin; proceeds from ticket sales cannot be relied upon to supply the prizes.

3. Chucky Cheese

Fla. Stat. Ann. § 849.161 exempts arcade games from the gambling statutes. The cost value of merchandise awarded by any game may not exceed seventy-five cents. The exemption is for arcade amusement centers, which is defined as a place having at least 50 arcade games.

The machines must operate by insertion of a coin; a bill collector makes them illegal. 04 Fla. Op. Att’y Gen. 12 (2004).

4. Commercial

Gas stations are permitted to give away prizes by lot, without fear of violating lottery laws, if they abide by the requirements of Fla. Stat. Ann. § 849.092. There must be a free method of entry.

Promotions associated with consumer products are allowed and regulated by Fla. Stat. Ann. § 849.094. A free method of entry must be available. For games with certain prize levels, a trust account must be established containing money sufficient to pay for all prizes offered in the game. A surety bond in that amount may satisfy the requirement.

A telephone card sold with an attached “sweepstakes” ticket is not made valid by this section; it is still an illegal lottery even though free entry was available. 98 Fla. Op. Att’y Gen. 07 (1998).

5. Lottery

FL Const. art. 10, § 7 prohibits lotteries with an exception for pari-mutuel wagering. But FL Const. art. 10, § 15 allows a state lottery and dubs it the Florida Education Lottery.

Fla. Stat. Ann. § 20.317 creates the Department of the Lottery. The Secretary, who is appointed by the Governor, is the head of the department.

Fla. Stat. Ann. § 24.101 begins the Florida Public Education Lottery Act. The act contains legislative purpose, definitions, powers, duties, age restriction, advertising, promotion, security, emergency rulemaking power, venue for suits against lottery, vendor requirements, retailer requirements, minimum level of minority participation mandate, control of funds, prize payouts, prohibited acts, restriction on use of the word “lottery” in a corporate name, revenue and funds handling, audits, reporting, and related matters. Fla. Stat. Ann. §§ 24.102 through 24.124.

6. Horseracing & Other Pari-mutuel

Fla. Stat. Ann. § 550.001 begins the Florida Pari-mutuel Wagering Act and the sections continue through 550.913. Fla. Stat. Ann. § 550.002 is a definition section. Horse racing, greyhound racing, and jai alai are covered under these statutes.

The act is very long and covers many aspects of pari-mutuel racing. The topics covered include the following: licenses, bonds, charity racing days, racing days, age restrictions, elections for ratifying pari-mutuel permits, taxes, fees, penalties, purse requirements, occupational licenses, reporting requirements, fund disposition, controlled substance prohibitions, facilities leasing, simulcast, and state-to-state compacts. An exceptionally large number of the statues in the act have been repealed, making the act somewhat un-cohesive.

FL Const. art. 10, § 23, added in November of 2004, allowed for two counties to vote on whether to allow slot machines in the local racetracks. Fla. Stat. Ann. § 551.101 et. seq. implement section 23 and allow for slot machines at racetracks (racinos) under certain conditions. The machines must be approved by a countywide referendum. For purposes of this act, “slot machine” includes games of skill, chance, or a combination. Fla. Stat. Ann. § 551.102(7). Significant control is vested in the Division of Pari-mutuel Wagering.

Sections of the act regulate the powers and duties of the Division, licensure, license renewal, fees, taxes, penalties, occupational licenses, dual role prohibitions, criminal law preemption, excluded persons, age restriction, machine limit, posting requirements, daily hour limits, penalties, compulsive gambling prevention, ATM prohibition, alcohol price regulation (no comps), check-cashing prohibition, prohibition on multi-facility progressives, coin-less machine requirement, and Division rulemaking power. Fla. Stat. Ann. §§ 551.101 through 551.123.

There is an Arabian Horse Breeding Fund, to encourage the breeding of Arabian horses, located at Fla. Stat. Ann. § 570.382. Certain breeders can qualify for state funding.

VII. Specific Internet Prohibition

Florida does not have statutory, attorney general opinions, or case law governing Internet gambling activity.

VIII. Gaming Crimes & Penalties for Unlawful Gaming

Fla. Stat. Ann. § 2.01 adopts English common law where not preempted by statute. Gambling activities that were crimes at common law may still be a crime in Florida.

Gambling may be enjoined as a nuisance under Fla. Stat. Ann. § 60.05-.06 and Fla. Stat. Ann. § 823.05. Generally, anything that annoys the public, or is harmful to public health and morals, is a nuisance.

At common law, lotteries and other gambling was not illegal unless it became a public nuisance. Lee v. City of Miami, 163 So. 486, 489 (Fla. 1935).

Unlawful lottery ticket purchase/sale: Minors (under 18), and certain people involved with lottery operations cannot purchase tickets. Fla. Stat. Ann. § 24.116. The person making such sale is also guilty. Fla. Stat. Ann. § 24.117.

Misdemeanor, first degree.

Other Lottery Crimes: Various acts, such as assigning lottery winnings, are crimes under Fla. Stat. Ann. § 24.118.

Trading stamp companies cannot use lotteries to distribute stamps. Fla. Stat. Ann. § 559.02.

Slot machine crimes: Various acts, such as cheating, are illegal and subject a person to various civil and criminal penalties. Fla. Stat. Ann. § 551.109

Public fairs: Fla. Stat. Ann. § 616.09 makes it unlawful to have gambling at a public fair. Fla. Stat. Ann. 616.241 allows a list of permissible games to be promulgated by the department. Games of skill where the player pays to play, and can win a prize, are illegal under Fla. Stat. Ann. § 849.14, which prohibits betting on games of skill. 065 FL Op. Att’y Gen. 139 (1965). But any game listed by the department as allowable is not illegal at a fair; the fair statute overrides criminal gaming statutes. Lamkin v. Faircloth, 204 So.2d 747, 750 (Fla. App. 1968).

Fraudulent Gaming: fraudulently obtaining property (money) from another by means of cards, other implements, three-card monte, or fortunetelling is a crime equivalent to larceny. Fla. Stat. Ann. § 817.28.

Cheating: committing a common law “gross fraud of cheat” is a third degree felony. Fla. Stat. Ann. § 817.29.

Cheating a slot machine: operating any coin-operated machine in an improper manner (i.e. using a slug) is illegal. Fla. Stat. Ann. § 817.32.

Second-degree misdemeanor.

Slugs: make, sell, or give away something intended to be used to defraud a slot machine. Fla. Stat. Ann. § 817.33.

Second-degree misdemeanor.

Touting: encouraging someone to bet on a horserace and asking for money in return for information given. Fla. Stat. Ann. § 817.37.

Second-degree misdemeanor or third degree felony.

Animal fighting: benefiting from, assisting in, or betting on an animal fight. Fla. Stat. Ann. § 828.122.

Third degree felony.

Peddling at camp: engage in gaming or horseracing within one mile of a religious camp. Fla. Stat. Ann. § 871.03.

Second-degree misdemeanor.

RICO: the state’s racketeer statutes are located at Fla. Stat. Ann. §§ 895.01 to 895.09. Gambling offenses can be predicate acts leading to racketeering charges.

Keeping a gambling house: whoever has, keeps, exercises or maintains a gaming table, room, implements, or apparatus or other place for the purpose of gambling or whoever permits any person to play for money or other valuable thing at any game whatever shall be guilty. Fla. Stat. Ann. § 849.01. People helping or working for the guilty person are also guilty of the same crime. Fla. Stat. Ann. § 849.02. Renting to someone a place for the purpose of gambling subjects the owner to the same liability. Fla. Stat. Ann. § 849.03.

Felony of the third degree.

A person can be charged for two offenses under that section: keeping a house for the purpose of gambling, and permitting gambling in a place under the person’s control. Perlman v. State, 269 So.2d 385 (Fla. Dist. Ct. App.1972).

Minors: the owner of any E. O., keno or pool table, or billiard table, wheel of fortune, or other game of chance, kept for the purpose of betting, who allows a minor or mentally incompetent person to play or bet on such game, is guilty. Fla. Stat. Ann. § 849.04. Mental incompetence includes being drunk.

Felony in the third degree.

Gambling on billiards: the holder of a pool license, permitting gambling on the table, is guilty. Fla. Stat. Ann. § 849.07.

Second-degree misdemeanor.

Gambling: Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance for money or other thing of value shall be guilty. Fla. Stat. Ann. § 849.08.

Misdemeanor of the second degree.

Lotteries: it is illegal to set up, promote, or conduct any lottery for money or for anything of value. Fla. Stat. Ann. § 849.09. The statute also prohibits several other lottery-related activities, such as possessing lottery paraphernalia and aiding in setting up lotteries.

Misdemeanor of the first degree or Felony of the third degree.

Pyramid schemes: chain letters, pyramid schemes, and similar activities are illegal lotteries. Fla. Stat. Ann. § 849.091.

Misdemeanor of the first degree.

Referral selling: where buyer receives a rebate or discount on a purchase because of buyer’s providing names of other potential buyers to seller, if the discount or rebate is contingent on some future event, then it is illegal. Fla. Stat. Ann. § 849.0915.

Misdemeanor of the first degree.

Printing lottery tickets: it is illegal to print, or permit the printing of, lottery tickets or advertisements. Fla. Stat. Ann. § 849.10.

Felony of the third degree.

Playing by lot: Whoever sets up, promotes or plays at any game of chance by lot or with dice, cards, numbers, hazards or any other gambling device whatever for anything of value is guilty. Fla. Stat. Ann. § 849.11.

Misdemeanor of the second degree.

All money involved in an illegal lottery is forfeited. Fla. Stat. Ann. § 849.12.

Conviction of a lottery offense when you have a previous such conviction. Fla. Stat. Ann. § 849.13.

Misdemeanor of the first degree.

Betting on skill games: making or accepting wagers on the result of any trial or contest of skill, speed or power or endurance of human or beast is illegal. Fla. Stat. Ann. § 849.14.

Misdemeanor of the second degree.

That statute does not prohibit playing skill games for prizes. Faircloth v. Central Florida Fair, Inc., 202 So.2d 608 (Fla. Dist. Ct. App.1967). A bowling or golf tournament where entrants pay a fee and can win prizes is not prohibited, provided the entry fees do not directly make up the prize. 066 Fla. Op. Att’y Gen. 41 (1966). Fantasy sports leagues, however, are prohibited by this section. 091 Fla. Op. Att’y Gen. 03 (1991).

Slot machines: illegal to manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport, or expose for sale or lease, or permit the operation of, or permit to be kept in any space any slot machine or device. Fla. Stat. Ann. § 849.15. The purpose of the statute is to prevent all machines that offer a thing of value and involve chance. Moss v. Graves, 200 So. 68 (Fla. 1941).

Fla. Stat. Ann. § 849.16 defines slot machine as one where as a result of inserting a coin or other object, by reason of any element of chance, the operator may become entitled to a prize or more free plays.

The fact that skill is a significant factor is irrelevant; if the game inherently involves chance, then it is illegal. The court differentiated between golf, where a player may not know what score they will get, and a machine that inherently included a chance element; golf is not inherently a game of chance. State, Dept. of Business and Professional Regulation, Div. of Alcoholic Beverages and Tobacco v. Broward Vending, Inc., 696 So.2d 851, 852 (Fla. Dist. Ct. App.1997).

Illegal slot machines are subject to confiscation. Fla. Stat. Ann. § 849.17.

Illegal slot machines, and places where they are operated, are nuisances. Fla. Stat. Ann. § 849.20.

Violation of the slot machine statutes is a misdemeanor of the second degree. A second violation is a misdemeanor of the first degree. Subsequent violations label a person a repeat offender and earn them a felony of the third degree. Fla. Stat. Ann. § 849.23.

“[I]t shall be unlawful for any person to manufacture, sell, transport, offer for sale, purchase, own, or have in his or her possession any roulette wheel or table, faro layout, crap table or layout, chemin de fer table or layout, chuck-a-luck wheel, bird cage such as used for gambling, bolita balls, chips with house markings, or any other device, implement, apparatus, or paraphernalia ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments, excepting ordinary dice and playing cards.” Fla. Stat. Ann. § 849.231. Violation is a misdemeanor of the first degree. Fla. Stat. Ann. § 849.233.

The statute contains an exemption for certain federal Johnson Act machines, which applies to allow “cruise to nowhere” ships to possess slot machines without fearing liability under this section. Butterworth v. Tropic Casino Cruises, Inc., 796 So.2d 1283 (Fla. Dist. Ct. App. 2001).

Antique slot machines (20 years or more old) that are not being used for gambling are exempted from the slot machine prohibition. Fla. Stat. Ann. § 849.235.

Bookmaking: first offense is felony in third degree. Subsequent offenses are felony in second degree. Fla. Stat. Ann. § 849.25.

Property used in violation of the gambling statutes is typically subject to seizure. Fla. Stat. Ann. § 849.36.

IX. Statute of Anne/ Recovery of Debts

“All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, when the whole or part of the consideration if for money or other valuable thing won or lost, laid, staked, betted or wagered in any gambling transaction whatsoever, regardless of its name or nature, whether heretofore prohibited or not, or for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being laid, betted, staked or wagered, are void and of no effect; provided, that this act shall not apply to wagering on pari-mutuels or any gambling transaction expressly authorized by law.” Fla. Stat. Ann. § 849.26. But the statute is preempted, at least in part, when it comes to the bankruptcy code. In re Simpson, 319 B.R. 256, 264-65 (Bkrtcy. M.D. Fla. 2003).

“[A]n agreement which violates a statute or is contrary to public policy is illegal, void and unenforceable as between the parties.” Bond v. Koscot Interplanetary, Inc., 246 So.2d 631, 634 (Fla. Dist. Ct. App. 1971).

Fla. Stat. Ann. § 849.27 and § 849.28 used to allow the loser of an illegal wager to recover the lost amount. Both sections have been repealed. Fla. Stat. Ann. § 849.29 defines whom the money may be recovered from (very broad), but that section has no meaning without a statute authorizing recovery in the first place.

Out of state gambling debs, even where legally created, will not be enforced in Florida. In re Simpson, 319 B.R. 256, 264 (Bkrtcy. M.D. Fla. 2003). But under full faith and credit, judgments from other states based on gambling debts will be enforced. M & R Investments, Co., Inc. v. Hacker, 511 So.2d 1099, 1099 (Fla. Dist. Ct. App.1987).

An old English law making insurance contracts on someone’s life void, where the beneficiary has no insurable interest, is still in effect in Florida. Knott v. State ex rel. Guaranty Income Life Ins. Co., 186 So. 788 (Fla. 1939).

Under the Florida Uniform Commercial Code, even a holder in due course of an instrument (check) is subject to the maker’s defense of illegality. Fla. Stat. Ann. § 673.3051. Comment 1 to the section says that illegality is most often a matter of gambling.

X. Lawful Commercial Casino Gaming

Fla. Stat. Ann. § 551.01 et seq (1992) used to govern slot machines in the state. Those statutes have been repealed, and the area is now governed by § 551.101. Slot machines are authorized at pari-mutuel facilities, provided certain requirements are met. See section VI(6) above for more information on racinos.

Counties have the power, if they desire, to conduct initiative referenda to determine if they want to permit casinos in their jurisdictions. Watt v. Firestone, 491 So.2d 592 (Fla. Dist. Ct. App. 1986).

Fla. Stat. Ann. § 849.086 authorizes cardrooms located in pari-mutuel facilities. The games authorized must be of the pari-mutuel type, which means that the house does not participate; the participants play against each other. The Division of Pari-mutuel Wagering of the Department of Business and Professional Regulation regulates the cardrooms. The maximum bet is $2, with no more than 3 raises in a round ($8 bet total per round). Other requirements, such as licensure, are laid out in § 849.086.