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‘Good faith’ at issue in Seminole Tribe blackjack trial

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Questions of “good faith” were the nub of the first day of trial between the state and the Seminole Tribe over its ability to keep offering blackjack to casino customers across Florida.

Lawyers for both sides Monday focused on the elemental question of who was right and who was wrong in the beginning of this week’s trial in Tallahassee.

Or rather, who really broke the deal.

The state and tribe are suing each other after lawmakers earlier this year failed to approve a renegotiated agreement that would have meant continued “exclusivity” — or freedom from competition — to offer blackjack in return for a $3 billion payout to state coffers over seven years.

The original five-year deal brought a total of nearly $1.7 billion to the state.

U.S. District Judge Robert Hinkle will render the verdict; he is hearing the case in what’s called a “bench trial,” meaning without a jury.

It’s arguable who’ll be the bigger loser: A verdict against the tribe, which owns the Hard Rock hotel-casino brand, could cost it hundreds of millions in card game revenue and threaten the jobs of over 3,600 casino workers. But the state would also lose that future revenue share and take a hit to its unemployment numbers.

Seminole Gaming CEO Jim Allen Monday testified blackjack still is being played at the tribe’s casinos, even without a new agreement.

That’s because the state broke its promise by allowing pari-mutuels, the horse and dog tracks, to offer games like electronic blackjack, played with buttons instead of cards and a dealer who appears on a TV screen.

The tribe now faces “precisely the same kind of competition that they were paying not to have,” attorney Barry Richard told Hinkle. “… Just because blackjack is played on a computer doesn’t make it OK.”

The 20-year “compact” agreed to in 2010 granted blackjack rights for five years, with a right to renew, but allowed for the tribe to keep card games if the state allowed others the same games. And e-blackjack is the same as physical-card blackjack, Richard suggested.

But lawyer J. Carter Andersen, representing the state, said such games have never been considered card games precisely because they don’t use “tangible cards.” Instead, they’re a permissible form of slot machine. He did later say, however, that many pari-mutuels “push the limit of state law … to what they can get away with.”

Attorney Leigh-Anne Moe, also for the state, made the point in her cross-examination of Allen that slot machine exclusivity was never promised to the tribe. It couldn’t have been because voters had earlier OK’d slots for other interests in South Florida.

Even if their exclusivity had been breached, she added, that didn’t excuse the tribe from honoring another part of the deal to shut down its blackjack tables last year if no new agreement was reached.

Indeed, Moe tried to tease out the tribe’s own pattern of acting in bad faith over the years. She got Allen to say the tribe had installed dozens of blackjack tables in its Tampa and Hollywood facilities even after an earlier 2007 compact was challenged in court. It was later struck down.

Allen explained the tribe thought it still had a valid agreement at the time. But Moe also pointed out that the tribe did its own version of gaming the system years ago before it had permission to offer slots: Allen said during questioning that the Seminole Tribe designed a machine that looked a slot machine but really played bingo.

When Moe asked if the tribe would honor the court’s decision if it ruled to shut down blackjack, Allen — a 37-year veteran of the business who once worked for GOP presidential nominee Donald Trump’s casino operations — said he would have to defer to the tribal council’s wishes.

The trial now is expected to go through Wednesday.

Before joining Florida Politics, journalist and attorney James Rosica was state government reporter for The Tampa Tribune. He attended journalism school in Washington, D.C., working at dailies and weekly papers in Philadelphia after graduation. Rosica joined the Tallahassee Democrat in 1997, later moving to the courts beat, where he reported on the 2000 presidential recount. In 2005, Rosica left journalism to attend law school in Philadelphia, afterwards working part time for a public-interest law firm. Returning to writing, he covered three legislative sessions in Tallahassee for The Associated Press, before joining the Tribune’s re-opened Tallahassee bureau in 2013. He can be reached at jim@floridapolitics.com.

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