Florida/Georgia Personal Injury & Workers Compensation

...o receive [money] [credit] [allowance] [a thing of value] [an additional chance or right to use the slot machine or device] [any [check] [slug] [token] [memorandum] entitling the holder to receive [money] [credit] [allowance] [or] [thing of value]]. § 849.16, Fla....

...Cyphers and McKinney (Defendants) were charged with keeping a gambling house, contrary to section 849.01, Florida Statutes (2003), and possession of coin-operated devices (slot machines), contrary to section 849.15, Florida Statutes (2003). Because sections 849.01, 849.15, and 849.161, Florida Statutes (2003), are not impermissibly vague, we reverse the trial court's orders granting Defendants' motions to dismiss and remand for further proceedings. Defendants operated an arcade amusement center with at least fifty amusement games, which Defendants believed to be permissible as part of the section 849.161 arcade amusement center exception to chapter 849, Laws of Florida....

...l the machines, but there was also an element of chance affecting the outcome. Defendants challenged the informations, alleging that the statutory scheme under which they were charged is unconstitutionally vague. Specifically, Defendants argued that section 849.161(1)(a)(1)'s arcade amusement center exception for machines involving the "application of skill" is vague when read in conjunction with section 849.15, which prohibits slot machines involving "any element of chance." Additionally, Defendants argued that section 849.161(1)(a)(1) is vague in its requirement that points or coupons awarded to players could only be exchanged for merchandise, excluding cash and alcoholic beverages. The trial court agreed with Defendants' constitutional vagueness challenges and dismissed the informations, finding that the language of sections 849.01, 849.15, and 849.161 does not provide adequate notice of the prohibited conduct, leading to arbitrary and selective enforcement of the law....

...nduct clearly proscribed by the plain and ordinary meaning of the statute. Id. at 637; see also State v. De La Llana, 693 So.2d 1075, 1077 (Fla. 2d DCA 1997). In this case, the record shows that Defendants' conduct is clearly not protected under the section 849.161(1)(a)(1) exception to gambling prohibitions. Thus, Defendants cannot sustain a void for vagueness claim, and we do not reach Defendants' argument that section 849.161(1)(a)(1) is vague when read in conjunction with section 849.15. Section 849.15 prohibits possession of any slot machine, defined in section 849.16(1), Florida Statutes (2003), as [a]ny machine or device ......

...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: ... [r]eceive or become entitled to receive any ... thing of value ... or ... [s]ecure additional chances.... Pursuant to section 849.161(1)(a)(1), however, section 849.15 shall not apply to an arcade amusement center with amusement games or machines "which operate by means of the insertion of a coin and which by application of skill may entitle the person playing or op...

...nty-five cents per game. Defendants do not argue that their conduct does not fall within the gambling prohibitions of sections 849.01 and 849.15. Rather, Defendants argue that they believed their conduct to be exempt from prosecution pursuant to the section 849.161(1)(a)(1) exception. We find, however, that Defendants' conduct is clearly not protected under the section 849.161(1)(a)(1) exception because Defendants' machines were not coin operated, as required by the plain and ordinary meaning of the statute. The definition of slot machine includes a machine that may be operated by the insertion of "any piece of money, coin, or other object." In contrast, section 849.161(1)(a)(1) refers specifically to machines which operate by the insertion of "a coin." Furthermore, section 849.161(1)(a)(2), creating an exception pertaining to truck stops, refers to machines operated by the insertion of "a coin or other currency." The legislature's use of different terms in different sections of the same statute is "strong evidence that different meanings were intended." Clarke v....

...not imply it where it has been excluded." Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995). In addressing this issue, the Florida Attorney General's Office concluded that "the Legislature's use of only the term `coin' in section 849.161(1)(a)1., reflects an intent that only those machines that operate by use of a coin fall within the exception to the prohibition against slot machines." Op....

...Rather, Cyphers testified that the machines did not accept quarters and were operated by cash bills, with some machines accepting up to a hundred dollar bill. We find, based on the plain and ordinary meaning of the statute, that Defendants' *474 conduct is not protected by the section 849.161(1)(a)(1) exception to the gambling prohibitions of sections 849.01 and 849.15. Accordingly, Defendants' vagueness challenge to sections 849.01, 849.15, and 849.161 must fail....

...player, upon an unpredictable result, may become entitled to receive as a reward two or more ‘free plays’ or additional rights to use such machine, rendered lawful by the provisions of Section 19, Chapter 20956, Laws of Florida, Acts of 1941?” Section 849.16 Fla. Statutes, 1941, provides: “849.16....

...laces of business and dispensing only nuts, citrus juice and other food products.” (Emphasis supplied) This brings us to the controlling question in this case, which is: Whether or not the provisions of Sec. 19, supra,, supersede the provisions of Section 849.16, supra, which must be answered on determination of whether or not the feature of the operation of the machine which provides for the winning of free chances to operate the machine constitutes the dispensing, in any form, of prize or reward....

...One of the definitions given in Webster’s New International Dictionary (2nd) is that dispense means “to give” and here we have the giving of free chances, upon the condition that the machine shows certain combinations. A machine of this sort is in terms condemned by Sec. 849.16 Fla....

...The statute excludes from the definition of amusement games or machines “casino style games in which the outcome is determined by factors unpredictable by the player or games in which the player may not control the outcome of the game through skill.” Fla. Stat. § 849.161 (l)(a)....

...On May 15, 2013, the Court granted the Seminole Tribe of Florida’s (“Seminole Tribe”) unopposed motion to intervene as a Defendant in this matter. See Order Granting the Seminole Tribe of Florida’s Motion to Intervene [DE 4], In the Complaint 2 , Plaintiffs contend that Chapter 2013-2 which amends Fla. Stat. §§ 849.16 and 849.161 is “arbitrary, irrational, not reasonably related to a legitimate governmental purpose, and void for vagueness.” Compl....

...dictable to the player,” id. ¶ 15 , and “[g]ames in which the outcome of the game through skill” are void for vagueness. Id. ¶ 16 . Plaintiffs have now moved for a preliminary injunction in which they seek to enjoin enforcement of Fla. Stat. § 849.161 on the grounds that Fla. Stat. § 849.161 (l)(a) is facially unconstitutional because it is void for vagueness....

...Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir.2003) (quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998) (internal citations and quotations omitted)). Here, Plaintiffs raise a facial challenge to the constitutionality of Fla. Stat. § 849.161 (l)(a). See Motion at 6 (“The facial unconstitutionality of Florida Statute section 849.161(l)(a) requires that it be invalidated.”)....

...In order to successfully bring a facial challenge, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” Id. (quoting United States v. Salerno, 481 U.S. 739, 745 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987)). Specifically, Plaintiffs argue that Fla. Stat. § 849.161 (l)(a) is void for vagueness....

...ted). Indigo Room, Inc., 710 F.3d at 1301 (footnote omitted). B. Whether Plaintiffs Can Raise a Facial Challenge to the Statute. In the Motion, Plaintiffs contend that they are entitled to a preliminary injunction enjoining enforcement of Fla. Stat. § 849.161 because section 849.161(l)(a) is void for vagueness....

...r vagueness. Motion at 2. As a result, Plaintiffs contend that they “are subject to arrest and prosecution under a legislative regime that fails to provide the definiteness that is required in criminal statutes.” Id. at 5 . Additionally, because section 849.161(l)(a) is void for vagueness, Plaintiffs posit that the entirety of Fla. Stat. § 849.161 should be enjoined because there is no severability clause in the statute and the statute’s subparts are incapable of severance....

...The State of Florida (“State”) prohibits the use or possession of slot machines. See Fla. Stat. § 849.15 (l)(a). In order to allow the operation of certain arcade games, the legislature created a safe harbor to the general prohibition against operation of slot machines: Fla. Stat. § 849.161 . See Satz Response at 2 (citing Rowe v. Cnty. of Duval, 975 So.2d 526, 527 (Fla.Dist.Ct.App.2008)). Fla. Stat. § 849.161 (l)(a) provides: *1226 “Amusement games or machines” means games which operate by means of the insertion of a coin, and which by application of skill may entitle the person playing or operating the game or machine to receive points or...

...h may be exchanged for merchandise. The term does not include casino-style games in which the outcome is determined by factors unpredictable by the player or games in which the player may not control the outcome of the game through skill. Fla. Stat. § 849.161 (l)(a)....

...For example, a private house of worship would be able to prohibit license holders from carrying firearms on their property. Id. at 1261. Because Plaintiffs here have simi *1227 larly failed to establish that there are no set of circumstances under which Fla. Stat. § 849.161 would be constitutional, their facial challenge fails....

...Defendant Satz similarly argues that the challenged phrase is not void for vagueness because “the core meaning of the amended statute is apparent.” Satz Response at 13. The Court finds that Plaintiffs have failed to demonstrate a likelihood of success on the merits of their vagueness claim because Fla. Stat. § 849.161 (l)(a) is not unconstitutionally vague....

...These prior Florida cases clearly put Plaintiffs on notice of the meaning of the phrase “outcome is determined by factors unpredictable by the player or games in which the player may not control the outcome of the game through skill.” See Fla. Stat. § 849.161 (l)(a); see also Martin v....

...public interest. See Satz Response at 20; Seminole Tribe Response at 10. For the reasons discussed above, the Court finds that Plaintiffs have failed to meet their burden to establish this element. As Defendant Seminole Tribe points out, Fla. Stat. § 849.161 “was enacted to regulate the operation of skill-based arcade games offered at specified arcade amusement cen *1232 ters and truck stops if they comply with the requirements of law and was not provided as a vehicle for the conduct of casino-style gambling.” Seminole Tribe .Response at 10 (quoting Ch....

...This paragraph alleges that (1) Plaintiffs' arcades provide a social gathering and entertainment venue for senior citizens; (2) Plaintiffs enjoy a special relationship with these senior citizens; and (3) that the First Amendment right of association of these senior citizens is threatened by Fla. Stat. § 849.16 (l)(a). .Am. Compl. [DE 20] ¶ 3.5. . Although Plaintiffs raise additional constitutional challenges to Fla. Stat. § 849.161 in their Complaint, the Motion is limited solely to whether Fla. Stat. § 849.161 (l)(a) is void for vagueness, and therefore, whether enjoinment of the entire statute is proper. See Satz Response at 4. Accordingly, the Court will restrict its analysis solely to whether Fla. Stat. § 849.161 (l)(a) is void for vagueness....

...ions and quotation marks omitted). . Defendant Seminole Tribe discusses the preliminary injunction elements for all allegations in the Complaint. As stated previously, the Court has confined its analysis solely to Plaintiffs’ claim that Fla. Stat. § 849.161 (l)(a) is void for vagueness, the sole claim raised in the Motion....

...sonville Sheriff's Office, the State of Florida, and Harry Shorstein, State Attorney for the Fourth Judicial Circuit. [1] Owners and operators of amusement centers in Duval County, appellants [2] contend they fall within the safe harbor provision in section 849.161(1)(a)(1.), Florida Statutes (2006), and therefore outside the ban on gambling houses and slot machines....

...ve points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages, provided the cost value of the merchandise or prize awarded in exchange for such points or coupons does not exceed 75 cents on any game played. § 849.161(1)(a)(1.), Fla....

...on, relying on State v. Cyphers, 873 So.2d 471, 473 (Fla. 2d DCA 2004), and Delorme v. State, 895 So.2d 1252, 1256 (Fla. 5th DCA 2005), which it read as holding that the phrase "games or machines which operate by means of the insertion of a coin" in section 849.161(1)(a)(1.) reflects a legislative intention to limit the exception to machines that operate by coin only....

...also operate by means of the insertion of bills. The trial court's reliance on Cyphers and Delorme was misplaced. Neither case decided the question presented here where machines that can take bills also "operate by means of the insertion of a coin." § 849.161(1)(a)(1.), Fla....

...-operated. " 895 So.2d at 1254-55 (emphasis supplied). The safe harbor provision at issue here dates to the original enactment of the statute. See Ch. 84-247, § 3, at 1101, Laws of Fla. The difference in wording between the "safe harbor provision," § 849.161(1)(a)(1.), Fla. Stat. (2006), and the "truck stop provision," § 849.161(1)(a)(2.), Fla....

...But the safe harbor provision does not apply unless the machines in question are also such that, not mere chance, but "application of skill may entitle the person playing or operating the game or machine to receive points or coupons . . . [worth not more than] 75 cents on any game played." § 849.161(1)(a)(1.), Fla....

...construed, not strictly construed, in the "lawful exercise of the police power of the state for the protection of the public welfare, health, safety and morals of the people of the state." § 849.46, Fla. Stat. (2005). Accordingly, when interpreting section 849.16(1)(a)1., which creates an exception to this prohibition for amusement games or machines at arcade amusement centers which operate by means of "insertion of a coin," we are obligated to narrowly construe this exception....

...s did not take bills and the legislature subsequently amended section 894.161(1)(a)2. in 1996 by creating the so-called "truck stop exception" that allowed the use of coins and bills, the legislature did not intend to retain the limited exception in section 849.161(1)(a)1....

...Respectfully, I cannot agree. In examining 96-320, § 159, at 1683-84 and chapter 96-323, § 79, at 1848, Laws of Florida, when the legislature created the truck stop exception, it was also required to address the safe harbor exception by renumbering section 849.161(1) to *530 849.16(1)(a)1....

...whether games or machines utilized by adult arcade amusement centers could legally operate by means of the insertion of a coin as well as the insertion of paper currency. That opinion concludes that "the Legislature's use of only the term `coin' in section 849.161(1)(a)1., reflects an intent that only those machines that operate by use of a coin fall within the exception to the prohibition against slot machines." Id....

...2004-12 (2004)). The Cyphers court employed much of the same reasoning as the Attorney General and implicitly accepted that opinion's further conclusion that "[t]hose machines which operate by use of a coin or paper currency (which are permitted under section 849.161[1][a]2., Florida Statutes, for truck stops) would not qualify . . . for the exception afforded for arcade amusement centers." Op. Att'y Gen. Fla.2004-12 (2004). When the legislature reenacted section 849.161(1)(a)1....

...hat legislative intent. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984); see also State v. Ashley, 701 So.2d 338, 343 (Fla.1997)(interpretation of language in statute cannot be based on the court's own view of the best policy). "[I]nsertion of a coin," section 849.161(1)(a)1., means just that. It does not mean "insertion of a coin or other currency." § 849.161(1)(a)2....

...[3] Relying on an opinion of the attorney general, see Op. Att'y Gen. Fla.2004-12 (2004), the Cyphers court stated in obiter dicta: The definition of slot machine includes a machine that may be operated by the insertion of "any piece of money, coin, or other object." In contrast, section 849.161(1)(a)(1) refers specifically to machines which operate by the insertion of "a coin." Furthermore, section 849.161(1)(a)(2), creating an exception pertaining to truck stops, refers to machines operated by the insertion of "a coin or other currency." The legislature's use of different terms in different sections of the same statute is "strong evidence that different meanings were intended." Clarke v....

...(Gator Coin) and Blue Sky Games, LLC (Blue Sky Games), appeal the trial court’s Order on Motion for Rehearing and Final Declaratory Judgment, challenging its determination that Blue Sky Games Version 67 (Version 67) is a “slot machine or device” as that term is defined in section 849.16(1), Florida Statutes (2015). For the following reasons, we agree with the trial court’s conclusion and, therefore, affirm. FACTUAL AND PROCEDURAL BACKGROUND Blue Sky Games developed Version 67 with the goal of making it...

...After Appellee, the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issued official notices to two of Gator Coin’s machine lessees, notifying them that the machines may be considered illegal slot machines under section 849.16 and directing them to remove the machines from their premises, Gator Coin filed against Appellee a Complaint for Declaratory Judgment, seeking a declaration that Version 67 is not an illegal slot machine pursuant to sections 849.15 and 849.16, Florida Statutes (2015), and is instead a legal amusement machine....

...There is nothing a player can do to change the outcome that is randomly generated by the machine from among millions of potential outcomes. The only dispute at trial was whether Version 67 involves skill or any element of chance or any other outcome unpredictable by the user so as to fall under the purview of section 849.16(1). Appellants contended that Version 67 does not involve any skill and that the mandatory preview feature eliminates all chance and unpredictability. Following rehearing, the trial court vacated its original declaratory judgment in Appellants’ favor and concluded that Version 67 is an illegal slot machine pursuant to section 849.16(1). The trial court found that Version 67 is presumed to be a prohibited slot machine because it falls within the parameters of section 849.16(3) and the evidence did not overcome that presumption....

...Ctr., Inc., 71 So. 3d 828, 838 (Fla. 2011). Chapter 849, Florida Statutes, governs gambling and makes it unlawful to manufacture, own, store, keep, possess, sell, rent, or lease any “slot machine or device.” § 849.15(1), Fla. Stat. (2015). In section 849.16, the term “slot machine or device” is defined and a rebuttable presumption is created as follows: (1) As used in this chapter, the term “slot machine or device” means any machine or device or system or network...

...evice, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value. § 849.16, Fla. Stat. (2015) (emphasis added). 1 Chapter 551 governs slot machines, and the term “slot machine” is defined for the purpose of that chapter as follows: 1 Prior to the latest amendment to section 849.16, in 2013, the statutory definition of slot machine or device did not include the application of skill and there was no statutory presumption. See § 849.16, Fla....

.... unpredictable by [the player],” and concluded that “inasmuch as the machine itself is on trial,” “it should not be condemned unless” the element of chance or unpredictability is inherent in its operation. 53 So. 2d 873, 874-75 (Fla. 1951) (en banc) (applying section 849.16, Florida Statutes (1941), which did not prohibit games involving skill, and concluding that a miniature bowling alley that did nothing except register the score that depended entirely on the player’s skill was not an illegal slot machine)....

...led by, the player”); In re Forty-Seven Video Redemption Games, 799 So. 2d 221, 222 (Fla. 2d DCA 2001) (deciding whether certain “machines operated ‘by reason of any element of chance’ so as to fall within the definition of a slot machine in section 849.16” and finding that “the testimony provided a sufficient probability to warrant a reasonable belief that there was an element of chance inherent in the Florida Skill machines”). Turning to the present cases, the resolution of the issue of whether Version 67 is an illegal slot machine under section 849.16(1) turns on whether the user may receive something of value “by reason of any element of chance or any other outcome unpredictable by the user.” See § 849.16(1), Fla....

...While it is true that the user is advised of the outcome of the game at hand ahead of time through the preview feature, the user cannot predict that outcome until it is randomly generated and then displayed by the machine. Nor can the user predict the outcome of Game 2 while playing Game 1. As the trial court recognized, section 849.16’s definition of slot machine is satisfied regardless of when the outcome is generated or when it is made known to the user, and nothing in the statute requires that each game be analyzed in isolation without considering its relationship to subsequent games. Therefore, pursuant to the plain language of section 849.16(1) and well-established case law, Version 67 is an illegal slot machine....

court held that a slot machine, as defined in section 849.16, Florida Statutes, "is gambling paraphernalia

...We hold that it does, and reverse the order of the trial judge denying forfeiture. The machine involved in this case is called a Video Hi-Lo Double Up Joker Poker machine. At the outset, we note that the appellees present no argument that the machine is not a slot machine as defined in section 849.16, Florida Statutes (1983)....

...could not be constitutionally regarded as gambling paraphernalia unless modified by the statutory language “ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments.” A slot machine, as defined by section 849.16, does not have the quality of possible innocence....

that satisfies the description provided in section 849.16, Florida Statutes. Section849.16 describes

...thing of value] [an additional chance or right to use the slot machine or device] [any [check] [slug] [token] [memorandum] entitling the holder to receive [money] [credit] [allowance] [or] [thing of value]]. § 849.16, Fla....

...to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value. Give if applicable. §§ 849.16(1)(b), 551.102(8), Fla....

...terminal, machine, or other device. Slot machines may use spinning reels, video displays, or both. [A slot machine is not a “coin-operated amusement machine” as defined in § 212.02(24), Fla. Stat. or an amusement game or machine as described in § 849.161, Fla. Stat.] Instruct on § 212.02(24), Fla. Stat. or § 849.161, Fla....

...as applicable. Give if applicable. § 849.094(8)(a), Fla. Stat. Compliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device. Give if applicable. § 849.16(3), Fla....

...BACKGROUND Plaintiff owns or operates one or more internet cafés where consumers purchase the use of internet-capable terminals on a time-basis. Plaintiff alleges that it promotes its sales in part through Game Promotions which have now been prohibited by Fla. Stat. §§ 849.094 & 849.16 (2013). On June 28, 2013, Plaintiff filed a 19-count complaint in the Circuit Court for the Eleventh Judicial Circuit mounting a constitutional challenge to Fla. Stat. §§ 849.094 & 849.16 (2013)....

...4 of the Florida Constitution because it bans Plaintiff from utilizing Game Promotions as a method by which to market and promote the sale of a service, ie. internet usage, unless it nationally advertises its Game Promotions (Counts III & IV); (in) Fla. Stat. § 849.16 prohibits commercial speech in violation of the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution because it proscribes the methods by which the Plaintiff may engage in commercial speech, namely its Game Promotions (Counts V & VI); (iv) Fla. Stat. § 849.16 violates the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution because it proscribes expressive conduct — here, Plaintiffs Game Display methods of communicating the results of its Game Promotions (Counts VII & VIII); (v) Fla. Stat. § 849.16 proscribes expressive conduct — here, Plaintiffs Game Display methods of communicating the results of its Game Promotions — and in so doing, violates the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution by interfering with Plaintiffs access to the internet to communicate information and ideas (Counts IX & X); *1323 (vi) Fla. Stat. § 849.16 includes a rebut-table presumption that imposes a prior restraint on protected speech, the sale or purchase of internet time on computers that display images of games of chance, in violation of the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution (Counts XI & XII); (vii) Fla. Stat. § 849.16 is unconstitutionally vague in violation of the Fifth Amendment of the Constitution and Art....

...I, Sec. 9 of the Florida Constitution because the definition of slot machine fails to adequately describe the prohibited machine or device such that a person of common understanding cannot know what is forbidden (Counts XIII & XIV); (viii) Fla. Stat. § 849.16 (3) creates an evidentiary presumption that relieves the State of Florida of its burden of persuasion beyond a reasonable doubt of every essential element of a crime in violation of the Due Process Clause of the Fifth Amendment to the Constitution and Art. I, Sec. 9 of the Florida Constitution (Counts XV & XVI); (ix) Fla. Stat. § 849.16 is overbroad in violation of the First Amendment of the Constitution and the Florida Constitution because it covers both constitutional and unconstitutional applications and prohibits speech and expressive conduct, including the speech engaged in by Plaintiff in the form of the sweepstakes games (Counts XVII & XVIII); and (x) Fla. Stat. § 849.16 is overbroad in violation of the Dormant Commerce Clause of the Constitution because it excessively regulates interstate commerce in relation to the putative local benefits (Count XIX)....

...8 U.S.C. § 2201 . Plaintiff need not continue to operate its business and expose itself to liability in order to challenge the constitutionality of the statutes. Plaintiff alleges that as a result of its fear of imminent enforcement of Fla. Stat. §§ 849.16 2 *1325 & 849.094, it has been forced to cease promoting the sale of internet access at its internet cafés using Game Promotions because: (i) Fla....

...ervices, the agency charged with promulgating rules and regulations respecting the operation of Game Promotions, is not a defense to a charge of possession of a slot machine or device; (iii) the amended definition of slot machine found at Fla. Stat. § 849.16 (1) now includes Plaintiffs computer terminals and networks in its internet cafés; and (iv) under Fla. Stat. § 849.16 (3) there is a rebuttable presumption that Plaintiffs computer terminals and networks are prohibited slot machines because they are used to display images of games of chance and are part of a scheme involving payment, money or anything of value....

...(internal quotation marks and citations omitted). “State employment is generally sufficient to render the defendant a state actor.” Id. (internal quotation marks and citations omitted). The “under color of state law” requirement is satisfied here because Fla. Stat. §§ 849.16 & 849.094 were enacted and amended by the Florida Legislature and as the State Attorney for Miami-Dade County, the Defendant is charged with enforcing the statute....

...The Complaint is devoid of any allegations to support the argument Plaintiff sets forth in its Opposition to the Motion to Dismiss. Therefore, Count III will be dismissed. Count V In Count V, Plaintiff alleges that its “Game Promotions constitute commercial speech” and Fla. Stat. § 849.16 “unconstitutionally proscribes the methods by which the Plaintiff may engage in such commercial speech, and therefore infringes on protected commercial speech.” (Compl....

...¶¶ 115 & 117.) The Court finds that Count V will be dismissed for the same reasons Count III will be dismissed. As discussed above, Plaintiff has failed to allege any facts to support the conclusion that its Game Promotions constitute commercial speech. Moreover, Plaintiffs allegation that Section 849.16 proscribes the methods by which Plaintiff may engage in commercial speech—Plaintiffs Game Promotions which provide sweepstakes game entries that entitle the consumer to win prizes—is insufficient to show a First Amendment violation. Even assuming that the Game Promotions are commercial speech entitled to some First Amendment protection, the allegations are insufficient to support the conclusion that Section 849.16 unconstitutionally proscribes the methods by which Plaintiff may engage in commercial speech....

...speech must be content neutral, leave open alternative channels of speech, be narrowly tailored and serve a substantial government interest. First Vagabonds Church of God v. City of Orlando, 638 F.3d 756, 761 (11th Cir.2011). Plaintiff alleges that Section 849.16 imposes a restriction on the manner in which Plaintiff carries out its Game Promotions. (Compl. ¶ 117.) Plaintiff does not allege that Section 849.16 completely bans all Game Promotions; instead, Plaintiff alleges that Section 849.16 specifically targets its business practices. (Compl. ¶ 52.) Plaintiffs allegations suggest that Section 849.16 leaves open alternative channels to conducting its Game Promotions because Plaintiff can choose to reveal the results of its Game Promotions without the use of computers (Compl....

...¶ 26) or by using paper entries that reveal the *1328 results through scratch-offs and pull-tabs (Compl. ¶ 29). The requirement that the restriction be content neutral also appears to be satisfied here. Fla. Stat. § 849.15 makes it unlawful to, among other things, own, keep, or permit the operation of a slot machine. Section 849.16 defines a slot machine as a machine, device or network of devices that upon activation by an account number, code, or other information entitles the user, through the application of skill or an element of chance, to receive an item of value. Arguably, Plaintiffs computer terminals fall into the definition of slot machine because they are unlocked by a cashier and the consumer, through an element of chance, may win a prize. (Compl. ¶¶ 16, 21, 32-33.) A plain reading of Section 849.16 shows that Plaintiff is prohibited from using its computer terminals in a manner in which a user, through skill or chance, may receive an item of value. Sections 849.15 and 849.16 target conduct and operate irrespective of the content of the Game Promotions....

...eral prohibitions against gambling.” (Motion to Dismiss at 2 (quoting Fla. Laws Ch. 2013-2, § 1(5) at 2)) (internal quotations omitted). For these reasons, even if the Court were to assume that Plaintiffs Game Promotions are commercial speech and Section 849.16 proscribes the method of carrying out the Game Promotions, the restriction would appear to be constitutional because it is narrowly tailored to prohibit Game Promotions that operate as games of chance, Plaintiff is free to conduct its Game Promotions in an alternate manner, the restriction is content-neutral and it can operate to serve significant government interests. As a result, Count V will be dismissed. Count VII In Count VII, Plaintiff alleges that Fla. Stat. § 849.16 unconstitutionally proscribes expressive conduct in that it proscribes the Plaintiffs Game Display methods of communicating the results of its Game Promotions on its internet-capable computers....

...¶¶ 136-37.) The Plaintiff further alleges that its Game Display “utilizes creative videogames to communicate the results of each entry through the use of interactive artwork, storylines, symbols, and text.” (Compl. ¶ 28.) Before the Court can reach the question of whether Fla. Stat. § 849.16 impinges on Plaintiffs First Amendment rights, the Court must first determine whether the Plaintiffs Game Displays are “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Spence v....

...not inherently expressive to rise to the level of First Amendment protection. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 65-66 , 126 S.Ct. 1297 , 164 L.Ed.2d 156 (2006). *1329 Plaintiff alleges that what is banned by the Section 849.16 is the communication of the results of the Game Promotions through the use of Game Displays. Plaintiff does not allege that Section 849.16 bans the video game aspect of the Game Displays. (“The messages the Game Display graphics communicate are distinct from and independent of the Game Promotion results .... ” Compl. ¶ 36.) Therefore, there is nothing in the record that shows that the communication that is allegedly banned by Section 849.16 is anything more than whether the consumer has won or lost....

...Ass’n, — U.S.-, 131 S.Ct. 2729, 2733 , 180 L.Ed.2d 708 (2011); There to Care, Inc. v. Comm’r of Indiana Dep’t of Revenue, 19 F.3d 1165, 1167 (7th Cir.1994). Moreover, the Court finds that Plaintiff has not alleged sufficient facts to show that Fla. Stat. § 849.16 imposes a ban on Plaintiffs Game Display. As discussed above with respect to Count V, Sections 849.15 and 849.16 target conduct and operate irrespective of the content of the Game Displays. Therefore, Count VII will be dismissed. Count IX In Count IX, Plaintiff alleges that Fla. Stat. § 849.16 proscribes expressive conduct — here, Plaintiffs Game Display methods of communicating the results of its Game Promotions — and in so doing, violates the First Amendment of the Constitution by interfering with Plaintiffs access to the internet for the purpose of communicating information and ideas....

...Plaintiff has alleged only that the “messages the Game Display graphics communicate are distinct from and independent of the Game Promotion results.” (Compl. ¶ 36.) Accordingly, Count IX will be dismissed. Count XI In Count XI, Plaintiff alleges that Fla. Stat. § 849.16 “includes a presumption that any device, system, or network like the Plaintiffs computers that displays images of games of chance is an illegal slot machine.” (Compl. ¶ 184.) Plaintiff further alleges Section 849.16 “attempt[s] to proscribe speech before it occurs” and “imposes[s] a prior restraint on protected expression, resulting in an unconstitutional effect on speech.” Although unclear, Plaintiff seems to be alleging that Fla. Stat. § 849.16 operates as a prior restraint upon the sale or purchase of internet time on computers that display images of games of chance....

...Alexander, 509 U.S. at 550-51 , 113 S.Ct. 2766 . “[T]he threat of criminal sanctions imposed after [an activity] is precisely the kind of restriction that the Court has deemed insufficient to constitute a pri- or restraint.” Cooper, 403 F.3d at 1215-16 . That Section 849.16 is not a prior restraint is underscored by the fact Plaintiff has not alleged that it needs to seek approval from the government prior to its sale of internet time on computers that display images associated with its Game Promotions or even games of chance. In addition, on its face, Section 849.16 does not ban the sale of internet time on computers that display images of games of chance....

...It is only clear from the face of the statute that computers used to display images of games of chance that are part of a scheme involving any payment of money or its equivalent and awarding anything of value is banned. Therefore, Plaintiff has failed to allege sufficient facts to show how Section 849.16 imposes a prior restraint on the sale of internet time on computers that display images of games of chance and as a result, Count XI will be dismissed. Count XVII In Count XVII, Plaintiff alleges that Fla. Stat. § 849.16 is “overbroad in that it covers both constitutional and unconstitutional applications, and prohibits speech and expressive conduct that is otherwise protected by the United States Constitution, including the speech engaged in by Plaintiff in the form of the sweepstakes games.” (Compl....

...It is well settled that the over-breadth doctrine does not apply to commercial speech. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982) (quoting Central Hudson, 447 U.S. at 565 n. 8, 100 S.Ct. 2343 ). And in the event Plaintiff is alleging that Section 849.16 is overbroad because it covers Plaintiffs Game Display methods of communicating the results of its Game Promotions, the Court has already found merely communicating to a consumer whether he or she has won or lost does not rise to the level of First Amendment Protection....

...ion and noting that Florida courts have tended to merge the state analysis with the federal analysis). Counts IV, VI, VIII, X, XII and XVIII will be dismissed. Discussion: Fifth Amendment In Counts XIII through XVI, Plaintiff alleges that Fla. Stat. § 849.16 violates due process guarantees under the federal and Florida Constitution because it is vague and creates an improper evidentiary presumption of illegality. For the reasons set forth below, Plaintiff has failed to allege *1331 enough facts to state a claim for relief and as a result, these claims will be dismissed. Count XIII: Void for Vagueness Claim Plaintiff alleges that Section 849.16 “fails to adequately describe the prohibited machine or device such that a person of common understanding cannot know what is forbidden” and “provides the opportunity for arbitrary and discriminatory enforcement by law enforcement in all its applications, in violation of fundamental notions of due process.” (Compl. ¶¶ 207 & 209.) Plaintiff further alleges that Section 849.16 “unconstitutionally prohibits expressive conduct protected by the Fifth Amendment to the United States Constitution.” (Compl....

...y protected; rather, it is normal business activity.” Indigo Room, Inc., 710 F.3d at 1301 (quoting Bankshot Billiards, Inc., 634 F.3d at 1350 ). Therefore, Count XIII will be dismissed. Count XV: Due Process Claim Plaintiff alleges that Fla. Stat. § 849.16 (3) “creates an evidentiary presumption that relieves the State of Florida of its burden of persuasion beyond a reasonable doubt of every essential element of a crime” and “violates the Due Process Clause.” (Compl. ¶¶ 224-25.) According to Plaintiff, Section 849.16(3) presumes that “any device, system, or network like the Plaintiffs computers that displays images of games of chance is an illegal slot machine.” (Compl....

...persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U.S. 307, 313 , 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985). The focus is on the specific language challenged. Id. at 315 , 105 S.Ct. 1965 . In full, Section 849.16(3) states: There is a rebuttable presumption that a device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value. Contrary to Plaintiffs allegation, on its face, Section 849.16(3) requires more than just a finding that a device, system or network displays images of games of chance in order to conclude that it is an illegal slot machine. It is clear from the statute that the images of games of chance must accompany a scheme involving money, its equivalent or something of value. *1332 Therefore, Plaintiff has not alleged sufficient facts to show that Section 849.16(3) violates the Due Process Clause and as a result, Count XV will be dismissed....

...s on its face against interstate commerce, which means it treats in-state economic interests differently than out-of-state economic interests. United Haulers *1333 Ass’n, 550 U.S. at 338 , 127 S.Ct. 1786 . Plaintiff does not allege that Fla. Stat. § 849.16 is discriminatory. (Opp’n at Idle.) Instead, Plaintiff relies on Pike v. Bruce Church, Inc., 397 U.S. 137, 142 , 90 S.Ct. 844 , 25 L.Ed.2d 174 (1970), in support of its argument that the burden imposed on interstate commerce by Section 849.16 is excessive in relation to the putative local benefits. (Id.) However, Plaintiff fails to allege any facts in support of its conclusory allegations that Section 849.16 excessively burdens interstate commerce. In its Complaint, Plaintiff merely states that Section 849.16 “regulate[s] or proscribed conduct that the State of Florida is powerless to regulate or proscribe such as, for example, on-line auctions, ‘march madness pools,’ or library book reservation systems.” (Compl. ¶ 267.) Plaintiff goes on to state “accordingly [Section 849.16] impermissibly and excessively regulated interstate commerce” and that the “burden imposed on such commerce is excessive in relation to the putative local benefits.” (Compl....

...Declaratory Judgment Act is the same. Compare Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1284 (11th Cir.2012), with State of Florida Dep’t of Envtl. Prot. v. Garcia, 99 So.3d 539, 545 (Fla.Dist.Ct.App.2011). . Fla. Stat. § 849.16 , as amended, arguably defines "slot machine or device” to encompass the computers in Plaintiffs internet cafés....

...We affirm the order with respect to the video redemption machines but reverse the order with respect to the video poker machines. At issue is whether the machines operated “by reason of any element of chance” so as tp fall within the definition of a slot machine in section 849.16, Florida Statutes (2000)....

...ies. Id. at 522. Further, the Florida Statutes continue to differentiate the two. See § 849.09, Fla. Stat. (2003) (prohibiting “persons” from conducting or promoting lotteries); id. § 849.15 (prohibiting ownership or use of slot machines); id. § 849.16(1) (defining “slot machine”)....

...BACKGROUND Plaintiff owns or operates one or more internet cafés where consumers may purchase the use of internet-capable terminals on a time-basis. Plaintiff claims that it promotes its sales in part through Game Promotions which have now been prohibited by Fla. Stat. §§ 849.094 & 849.16 (2013). On December 3, 2013, Plaintiff filed a 16-count Amended Complaint challenging the constitutionality of the 2013 amendments to Fla. Stat. §§ 849.094 & 849.16. Plaintiff seeks a declaratory judgment that Fla. Stat. §§ 849.094 & 849.16 are unconstitutional under the following theories 1 ....

...4 of the Florida Constitution because it bans Plaintiff, a wholly local retailer, from utilizing Game Promotions as a method by which to market and promote the sale of a service, i.e., internet access and usage (Counts II & III); (iii) Fla. Stat. § 849.16 prohibits commercial speech in violation of the First Amendment of the Constitution and Art....

...4 of the Florida Constitution because it contains content and speaker-based restrictions on commercial speech in so far as it restricts who may conduct Game Promotions and how the results of the Game Promotions may be communicated to customers (Counts IV & V); (iv) Fla. Stat. § 849.16 violates the First Amendment of the Constitution and. Art. I, Sec. 4 of the Florida Constitution because it proscribes expressive conduct — here, Plaintiffs conduct of a sweepstakes promotion (Counts VI & VII); (v) Fla. Stat. § 849.16 limits the promotion of a product, i.e., access to the internet, used to communicate information and ideas, and in so doing, violates the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution (Counts VIII & IX); *1278 (vi) Fla. Stat. § 849.16 includes a rebut-table presumption that relieves the State of Florida of the burden of persuasion that the device owned, possessed or operated is a slot machine in violation of the Due Process Clause of the Fifth Amendment of the Constitution and Art. I, Sec. 9 of the Florida Constitution (Counts X & XI); (vii) Fla. Stat. § 849.16 is overbroad in violation of the First and Fourteenth Amendments of the Constitution as well as corresponding provisions of the Florida Constitution because it defines prohibited “slot machines” in a manner that encompasses many types o...

...onic devices that are used to access the internet and thereby prohibits both constitutional and unconstitutional activities, including the speech engaged in by Plaintiff in the form of the sweepstakes games (Counts XII & XIII); (viii) Fla. Stat. § 849.16 is unconstitutionally vague in violation of the Fifth Amendment of the Constitution and Art....

...I, Sec. 9 of the Florida Constitution because the definition of slot machine fails to adequately describe the prohibited machine or device such that a person of common understanding cannot know what is forbidden (Counts XIV & XV); and (ix) Fla. Stat. § 849.16 violates the Dormant Commerce Clause of the Constitution because it excessively regulates interstate commerce in relation to the putative local benefits (Count XVI)....

...(internal quotation marks and citations omitted). “State employment is generally sufficient to render the defendant a state actor.” Id. (internal quotation marks and citations omitted). The “under color of state law” requirement is satisfied here because Fla. Stat. §§ 849.16 & 849.094 were enacted and amended by the Florida Legislature and as the State Attorney for Miami-Dade County, FL, the Defendant is charged with enforcing the statutes....

...Count IV In Count IV, Plaintiff alleges that its “Game promotions constitute commercial speech in that they are a form of advertising or marketing that promote the sale of a product or service and proposes a commercial transaction.” (Am. Compl. ¶ 103.) Plaintiff further alleges that Fla. Stat. § 849.16 “contains content and speaker based restrictions on commercial speech because it delineates not only who may conduct game promotions (retailers who operate both inside and outside Florida and those who engage in national advertising), but...

...its Game Promotions constitute commercial speech. Plaintiff has merely recited the definition of commercial speech and has not alleged the content of the commercial speech that is prohibited. Moreover, the Court finds that Plaintiffs allegation that Section 849.16 *1283 contains content and speaker based restrictions on commercial speech—here, Plaintiffs Game Promotions which provide sweepstakes game entries that entitle the consumer to win prizes—is directly contradicted by the statute and insufficient to show a First Amendment violation for the following reasons. First, a speaker-based restriction distinguishes among different speakers by allowing speech by some but not others. Citizens United, 558 U.S. at 840, 130 S.Ct. 876 . Section 849.16 does not make a distinction as to who may conduct Game Promotions, be it retailers inside or outside of Florida, operators who advertise nationally, or otherwise. In fact, Section 849.16 does not refer to Game Promotions at all and is solely focused on defining a .slot machine or device....

...Alvarez, — U.S. —, 132 S.Ct. 2537, 2543 , 183 L.Ed.2d 574 (2012); Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 536 , 100 S.Ct. 2326 , 65 L.Ed.2d 319 (1980). Plaintiff has not identified the content that allegedly has been restricted by Section 849.16. Furthermore, a plain reading of Section 849.16 shows that Plaintiff is prohibited from using its computer terminals in a manner in which a user, through skill or chance, may receive an item of value. Section 849.16, on its face, targets conduct and operates irrespective of the content of the Game Promotions. Lastly, by its own allegation, albeit contrary to other allegations made in the Amended Complaint, Section 849.16 does not contain a content-based restriction because it “permits the communication of sweepstakes results, but not via computer displays.” (Am....

...ed November 13, 2013, the Court makes the same finding now that this argument lacks merit. See 984 F.Supp.2d at 1327-29 . For these reasons, even if the Court were to assume that Plaintiffs Game Promotions are commercial speech, the Court finds that Section 849.16 does not impose a speaker or content-based restriction on Plaintiffs Game Promotions because it targets conduct and does not include a distinction between speakers. As a result, Count IV will be dismissed. Count VI In Count VI, Plaintiff alleges that Section 849.16 unconstitutionally proscribes expressive conduct—here, Plaintiffs conduct of a sweepstakes promotion that promotes the purchase of internet access. (Am. Compl. ¶¶ 124-25.) Although unclear, Plaintiff seems to be alleging that Section 849.16 unlawfully bans its Game Display, which is used as a way to create excitement so that consumers will purchase access to the internet....

...¶¶ 27, 28, & 30.) Plaintiff does not allege that its other methods of conducting its Game Promotions, a customer asking one of Plaintiffs employees to reveal the results of the Game Promotions or choosing the Quick Reveal option on his or her computer, have been proscribed by Section 849.16....

...�winner’) or in various series that do not have multiple duplicate images adjacent to each other.” (Am. Compl. ¶ 30(1).) The Court makes no ruling on whether Plaintiffs Game Displays are slot machines within the meaning of . Sections 849.15 and 849.16 or a form of gambling because that issue is not properly before the Court....

...at 472-474 , 109 S.Ct. 3028 . Here, Plaintiff does not provide the content of the solicitation, its Game Promotions, or how this content *1285 serves to market internet access. Therefore, Count VI will be dismissed. Count VIII In Count VIII, Plaintiff alleges that Section 849.16 limits the promotion of a product, i.e., access to internet enabled computers, which “are used for the communication of information and ideas, and are central to the exercise of freedom of speech in the twenty-first century world.” (Am....

...ually use the internet versus those who only use its internet cafés to participate in its Game Promotions. (Am. Compl. ¶ 39 n. 1.) Fla. Stat. § 849.15 makes it unlawful to, among other things, own, keep, or permit the operation of a slot machine. Section 849.16 defines a slot machine as a machine, device or network of devices that upon activation by an account number, code, or other information entitles the user, through the application of skill or an element of chance, to receive an item of value....

...Although Plaintiffs computers may have internet capability, they arguably fall into the definition of slot machine because they are unlocked by a cashier and the consumer, through an element of chance, may win a prize (and never access the internet). (Am. Compl. ¶¶ 15, 20-21, 30-31.) A plain reading of Section 849.16 shows that Plaintiff could promote internet access via its computer terminals provided it did not also promote use of its computer terminals in a manner in which a user, through skill or chance, may receive an item of value. In other words, Plaintiff has failed to include any allegations regarding how Section 849.16 has hindered it from promoting access to the internet via its computers by methods other than its Game Promotions. Therefore, Count VIII will be dismissed. Count XII In Count XII, Plaintiff alleges that Section 849.16 is overbroad because “it proscribes the possession in Florida of devices such as smartphones and computers and makes unlawful broad swaths of economic and other activity,” some of which are protected by the First Amendment....

...Compl. ¶ 201.) A statute is overbroad “if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 , 128 S.Ct. 1830 , 170 L.Ed.2d 650 (2008). Plaintiff does not specifically allege how the overbreadth of Section 849.16 affects protected speech in relation to its Game Promotions or its use of a Game Display to communicate the results of the Game Promotion. The allegations center on the scope of Section 849.16 and Plaintiff alleges that Section 849.16 bans the possession of various devices for accessing the internet or the completion of an activity. As the Court discussed above, Section 849.16, in conjunction with Section 849.15, targets conduct (owning, keeping or permitting the operation of a slot machine) and Plaintiff has failed to allege what comprises the protected speech banned by Section 849.16. In the event Plaintiff is alleging that Section 849.16 proscribes commercial speech, it is well settled that the over-breadth doctrine does not apply to commercial speech....

...lorida under Article I, Section 4 is the same as is required under the First Amendment.”). Counts III, V, VII, IX, and XIII will be dismissed. Discussion: Fifth Amendment In Counts X through XI and XIV through XV, Plaintiff alleges that Fla. Stat. § 849.16 violates due process guarantees under the federal and Florida Constitution because it is vague and creates an improper evidentiary presumption of illegality. For the reasons set forth below, Plaintiff has again failed to allege enough facts to state a claim for relief and as a result, these claims will be dismissed. Count X: Due Process Claim, Plaintiff alleges that Fla. Stat. § 849.16 (3) “creates an evidentiary presumption that relieves the State of Florida of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” (Am. Compl. ¶ 169.) According to Plaintiff, Section 849.16(3) “violates the Due Process Clause because the State of Florida has been relieved of its burden of persuasion on one [or] more elements it is required to prove in order to obtain a conviction for violation of Section 849.15, Florida...

...¶ 174.) “[A] violation of procedural due process is not complete unless and until a State refuses to provide due process ... or a means to remedy the deprivation.” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1294 (11th Cir.2007). Plaintiff alleges that it has a “reasonable fear of imminent enforcement of’ Sections 849.16 and 849.094....

...persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U.S. 307, 313 , 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985). The focus is on the specific language challenged. Id. at 315 , 105 S.Ct. 1965 . In full, Section 849.16(3) states: There is a rebuttable presumption that a device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value. Plaintiff alleges that Section 849.16(3) violates the Due Process Clause because the State of Florida does not need to prove that the device owned, possessed or operated is a slot machine. (Am. Compl. ¶ 174.) Whether a device is a slot machine is a legal conclusion and in order to violate the Due Process Clause, Section 849.16(3) must relieve the State of Florida of proving a factual element. Plaintiff has not alleged that Section 849.16(3) relieves the State of Florida from proving a factual element of a crime and as a result, Count X will be dismissed. Count XIV: Void for Vagueness Claim Plaintiff alleges that Section 849.16 “fails to adequately describe the prohibited machine or device such that a person of common understanding cannot *1287 know what is forbidden” and “provides the opportunity for arbitrary and discriminatory enforcement by law enforcement in all its applications, in violation of fundamental notions of due process.” (Am. Compl. ¶¶236-37.) Plaintiff further alleges.that as a result of Section 849.16, “the Plaintiff has become ‘chilled’ from engaging in constitutionally protected conduct; specifically, commercial speech or expressive conduct.” (Am....

...minates on its face against interstate commerce, which means it treats in-state economic interests differently than out-of-state economic interests. United Haulers Ass’n, 550 U.S. at 338 , 127 S.Ct. 1786 . Plaintiff does not allege that Fla. Stat. § 849.16 is discriminatory....

...terstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Plaintiff fails to allege any facts in support of its conclusory allegations that Section 849.16 excessively burdens interstate commerce. In its Amended Complaint, Plaintiff merely states that “Section 849.16 regulates or proscribes conduct that the State of Florida is powerless to regulate or proscribe such as, for example, online auctions, ‘march madness pools,’ airline, hotel, or library book reservation systems, and on-line commerce as a whole, .... precluding residents of Florida or visitors of the State to engage in such activities in the State of Florida.” (Am. Compl. ¶ 254.) Plaintiff goes on to state that Section 849.16 “impermissibly and excessively regulate[s] and interfere^] with interstate commerce” and that the “burden imposed on such commerce [specifically, e-commerce,] is excessive in relation to the putative local benefits.” (Am....

...set forth sufficient facts to state a claim under the First, Fifth and Fourteenth Amendments, the corresponding Florida Constitution provisions and the Dormant Commerce Clause. Absent a showing that Defendant’s enforcement of Sections 849.094 and 849.16 violate Plaintiffs rights under those provisions, Plaintiffs constitutional claims fail as a matter of law....

...It is further ORDERED AND ADJUDGED that for administrative purposes this case is hereby CLOSED and all pending motions DENIED AS MOOT. • . It is unclear from the Amended Complaint whether Plaintiff is bringing a facial or an as-applied challenge to Sections 849.16 and 849.094; however, the relief requested implies that Plaintiff seeks to invalidate the contested statutes. (See, e.g., Compl. at 43 ("Plaintiff, INCREDIBLE INVESTMENTS, LLC, respectfully requests that this Court enter a declaratory judgment that Fla. Stat. § 849.16 , as amended, is unconstitutional, prohibit the State of Florida from enforcing same....”))....

...ase found in Section 849.094(l)(a) was added to Fla. Stat. § 849.094 in 1983 to replace an exemption for operators who conducted Game Promotions in less than 3 retail outlets. See Fla. Laws ch. 83-118. . In the event that Plaintiff is alleging that Section 849.16 proscribes its Game Promotions, the Court has already addressed this issue and found that Plaintiff has failed to allege sufficient facts to show that its Game Promotions rise to the level of First Amendment protection....

...operate or utilize amusement games or machines which may operate by means of the insertion of a coin, but also may operate by means of insertion of paper currency of various denominations, violate sections 849.01 and 849.15 , Florida Statutes, since section 849.161 (1)(a)1., Florida Statutes, refers only to such machines which operate by insertion of a coin? 2. Do adult arcades, adult amusement centers, or other similar facilities having amusement games or machines, act in violation of the requirements of section 849.161 (1)(a)1., Florida Statutes, by awarding points or credits exchanged at the arcade for gift certificates which may be exchanged off premises at other businesses for merchandise that includes alcoholic beverages, or cash which is provid...

..., Florida Statutes? Question One Section 849.01 , Florida Statutes, prohibits a person from keeping a gambling house. 1 Pursuant to section 849.15 , Florida Statutes, it is unlawful to possess or permit the operation of any slot machine or device. 2 Section 849.16 (1), Florida Statutes, defines those machines which qualify as a slot machine or device as "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 devi...

...dication of weight, entertainment, or other thing of value." Thus, if the receipt of a prize is dependent on any element of chance, the machine would fall within the above definition of a slot machine proscribed by section 849.15 , Florida Statutes. Section 849.161 , Florida Statutes, creates a limited exception from the prohibitions of Chapter 849 , Florida Statutes, for an arcade amusement center having amusement games or machines that operate by means of the insertion of a coin....

..."Arcade amusement center" is defined to mean "a place of business having at least 50 coin-operated amusement games or machines on premises which are operated for the entertainment of the general public and tourists as a bona fide amusement facility." 3 Section 849.161 (1), Florida Statutes, provides: "(a)1....

...nt meanings were intended. 4 Whereas the definition of slot machine includes a machine 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, it may be operated, the exception afforded by section 849.161 (1)(a)1., Florida Statutes, refers only to machines which are operated by insertion of a coin. In contrast, section 849.161 (1)(a)2., Florida Statutes, which creates a limited exception for truck stops, refers to machines which operate "by means of insertion of a coin or other currency[.]" Accordingly, it appears that the Legislature's use of only the term "coin" in section 849.161 (1)(a)1., reflects an intent that only those machines that operate by use of a coin fall within the exception to the prohibition against slot machines. Those machines which operate by use of a coin or paper currency (which are permitted under section 849.161 1[a]2., Florida Statutes, for truck stops) would not qualify, in my opinion, for the exception afforded for arcade amusement centers....

...rize is dependent on any element of chance and which may operate by means of the insertion of a coin, but also may operate by means of insertion of paper currency of various denominations, violate sections 849.01 and 849.15 , Florida Statutes, since section 849.161 (1)(a)1., Florida Statutes, permits machines which operate by insertion of a coin only. Question Two As discussed in Question One, section 849.161 (1)(a)1., Florida Statutes, contains a limited exception from the prohibitions of Chapter 849 , Florida Statutes, for arcade amusement centers having games or machines which operate by means of the insertion of a coin and which by app...

...any game played." 5 According to your letter, the points or coupons received by patrons in the instant inquiry contain no limitation to prevent their exchange for alcohol or cash. This would appear to be contrary to the requirements of the statute. Section 849.161 (1)(a)1., Florida Statutes, clearly prohibits points or coupons awarded being exchanged for cash or alcoholic beverages....

...failed to meet all the requirements for application of the exemption. Therefore, I am of the opinion that adult arcades, adult amusement centers, or other similar facilities having amusement games or machines, act in violation of the requirements of section 849.161 (1)(a)1., Florida Statutes, by awarding points or credits exchanged at the arcade for gift certificates which may be exchanged off premises at other businesses for merchandise that includes alcoholic beverages, or cash which is provid...

...ve any money, credit, allowance, or thing of value or additional chance or right to use such machine or device, or to receive any check, slug, token or memorandum entitling the holder to receive any money, credit, allowance or thing of value." 3 See s. 849.161 (2), Fla. Stat. 4 See State, Department of Revenue v. Central Dade Malpractice Trust Fund, 673 So.2d 899 (Fla. 1st DCA 1996); Clarke v. Schimmel, 774 So.2d 7 , 8 (Fla. 2d DCA 2000). 5 And see s. 849.161 (1)(b), Fla....

..., educational programs, and teachers’ salaries and benefits”; (5) that the voters, having authorized slot machines in their county, either will or will not have an opportunity to reconsider that vote; (6) that "slot machines” are as defined by section 849.16(1), Florida Statutes; and (7) that there would be a collateral effect of passage of the proposed amendment on Indian gaming in the state pursuant to the federal Indian Gaming Regulatory Act, 25 U.S.C....

destruction of slot machines as defined in section 849.16, Florida Statutes, be governed by the procedures

bingo" tickets after insertion of money violate section 849.16, Florida Statutes, such that their use would

appear to constitute slot machines as defined in section 849.16(1), Florida Statutes. Pursuant to section 849

...shall not allow any coin-operated amusement devices[.]” According to the tenants, Vegas Fun employed a network of computers on which customers could play slot machine style games and win prizes such as gift cards. The computerized slot machines were legal until April 10, 2013, when section 849.16, Florida Statutes (2013), was amended to proscribe these types of games outside of designated casinos. 1 A safe harbor exception to this amendment existed for arcade amusement centers that utilized “coin-operated amusement games or machines ... for the entertainment of the general public and tourists as a bona fide amusement facility.” § 849.161, Fla. Stat. (2013). 2 Following the amendment to section 849.16, Vegas Fun closed its doors and vacated the premises. The landlord sued the tenants for eviction, breach of lease, and breach of personal guaranty, and moved for summary judgment. The tenants responded that their performance under the lease should be excused, since the amendment to section 849.16 prevented them from operating legally....

...ntract is destroyed, and the covenants of such lease will not be enforced against either party thereto. *1185 Christopher v. Charles Blum Co., 78 Fla. 240 , 82 So. 765, 767 (1919) (citations omitted). The parties do not dispute that the amendment to section 849.16 rendered the types of games operated by the tenants at Vegas Fun illegal. Although the tenants could have retrofittéd or changed the games at Vegas Fun to comply with sec: tion 849.161 by converting the game machines to coin-operated machines, the subject lease directly prohibited the use of coin-operated games....

...may: (a) Receive or become entitled to receive any ... credit, allowance, or thing of value, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any ... thing of value or which may be given in trade[.] § 849.16, Fla. Stat. . Following the entry of summary judgment, section 849.161 was repealed and replaced by section 546.10, Florida Statutes (2015), the "Family Amusement Games Act,” effective July 1, 2015....

...Kopelousos: On behalf of the Sheriff of Clay County, you have asked for my opinion on substantially the following questions: 1. Whether a machine used to dispense long distance telephone cards and sweepstakes tickets is a machine or device within the scope of section 849.16 , Florida Statutes....

...defined in section 849.094 , Florida Statutes. In sum: 1. A machine from which a long distance telephone card may be purchased along with a sweepstakes ticket that may entitle the recipient to a money prize is a machine or device within the scope of section 849.16 , Florida Statutes....

...Questions One and Two As resolution of these questions involves related issues, they are discussed together. Pursuant to section 849.15 , Florida Statutes, as amended, 1 it is unlawful to possess or permit the operation of any machine or device that satisfies the description provided in section 849.16 . Section 849.16 , Florida Statutes, as amended, 2 describes the prohibited machines or devices in the following terms: "(1) 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...

...n of chance, may entitle the recipient to a money prize. The incidental receipt of merchandise, in this case a telephone card, will not provide justification or authorization for the ownership, sale, or possession of a machine or device described in section 849.16 , Florida Statutes....

...ched sweepstakes ticket that may, purely by chance, entitle the recipient to a prize would appear to satisfy all three elements of a lottery as prohibited by the statute. Therefore, it is my opinion that a machine or device comes within the scope of section 849.16 , Florida Statutes, if that machine dispenses a telephone card and a sweepstakes ticket that may, dependent on the element of chance, entitle the recipient to a prize....

...d prize are present. However, `game promotion' shall not be construed to apply to bingo games conducted pursuant to s. 849.0931 ." As discussed above, the machine or device that is the subject of your inquiry is a gambling device within the scope of section 849.16 , Florida Statutes....

...person is subject to an injunction against committing acts of domestic violence, stalking, or cyberstalking.” See § 790.233(1), Fla. Stat (2018). Lastly, in instructions 22.10, 22.11, and 22.15, on our own motion, we replace the references to a repealed statute, section 849.161, with section 546.10, Florida Statutes....

...joint, that is, two or more persons may possess a [lottery ticket] [coupon, share, or token]. If there is evidence of an exception referred to at the end of § 849.09(1), Fla. Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat., or in § 849.161546.10, Fla....

...eets] [or] [Other Papers, Records, Instruments, or Paraphernalia],. If there is evidence of an exception referred to at the end of § 849.09(1), Fla. Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat., or in § 849.161546.10, Fla....

...- 28 -  [an additional chance or right to use the slot machine or device] [any [check] [slug] [token] [memorandum] entitling the holder to receive [money] [credit] [allowance] [or] [thing of value]]. § 849.16, Fla....

...y, or, in addition to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value. Give if applicable. §§ 849.16(1)(b), 551.102(8), Fla....

...terminal, machine, or other device. Slot machines may use spinning reels, video displays, or both. [A slot machine is not a “coin-operated amusement machine” as defined in § 212.02(24), Fla. Stat. or an amusement game or machine as described in § 849.161546.10, Fla. Stat.] Instruct on § 212.02(24), Fla. Stat. or § 849.161546.10, Fla....

...as applicable. Give if applicable. § 849.094(8)(ab), Fla. Stat. Compliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device. Give if applicable. § 849.16(3), Fla....

...they could not be constitutionally regarded as gambling paraphernalia unless modified by the statutory language "ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments." A slot machine, as defined by section 849.16 , does not have the quality of possible innocence. Thus, the court determined that, in contrast to those devices described in section 849.231 , Florida Statutes, slot machines (as defined in section 849.16 , Florida Statutes) are unlawful regardless of whether they are actually used for gambling....

...atute which authorizes a person who is in compliance with the Federal Gambling Devices Act to hold, sell, transport or manufacture certain gambling devices, does not apply to slot machines. Sincerely, Robert A. Butterworth Attorney General RAB/tgk 1 Section 849.16 , Florida Statutes (1993), defines those machines or devices which come with the scope of the term "slot machine or device" within the provisions of Chapter 849 , Florida Statutes (1993)....

the operation of any slot machine or device.1 Section 849.16, Florida Statutes, defines slot machine or