Florida/Georgia Personal Injury & Workers Compensation

...Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee. ALDERMAN, Justice. This cause is before us on direct appeal to review the judgments of the County Court of Orange County upholding the constitutionality of Section 849.231, Florida Statutes (1975), which makes the manufacture, sale, purchase or possession of gambling devices unlawful. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. Two issues are presented: first, whether Section 849.231 is unconstitutionally vague and indefinite or overbroad; and second, whether the trial court erred in not allowing the defendants to present evidence to show that certain equipment, alleged by the State to be unlawful gambling paraphernalia, was not "ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments," and by instructing the jury that the items specifically named in Section 849.231 are illegal regardless of whether they are "ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments." The defendants were charged by information with possession of gambling paraphernalia *418 contrary to Section 849.231. Upon entering pleas of not guilty, they each filed motions to dismiss, alleging that Section 849.231 is unconstitutionally vague and overly broad....

...business in Orlando to the Hyatt House, where they watched the truck being loaded with the alleged gambling devices. The officers then followed the truck back into Orange County, where it was stopped and the equipment seized. The relevant portion of Section 849.231 provides: 849.231 Gambling devices; manufacture, sale, purchase or possession unlawful....

..."or any other device, implement, apparatus or paraphernalia." We do not agree with the trial court's construction, but rather, we find that this phrase also modifies the items expressly enumerated in the statute. With this construction, we hold that Section 849.231 is neither unconstitutionally vague or overbroad....

...es it to the courts to step inside and determine who is being lawfully detained and who should be set free. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); State v. Wershow, 343 So.2d 605 (Fla. 1977). The construction given Section 849.231 by the trial court renders this section unconstitutionally overbroad....

...Since, when reasonably possible and consistent with legislative intent, we must give preference to a construction which will give effect to the statute over another construction which would defeat it, we hold that the items expressly identified in Section 849.231 as "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" are modified by the phrase "ordinaril...

...They assert, and we agree, that whether the equipment was ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments is relevant to the determination of whether the items in question were gambling devices under Section 849.231....

...also conclude that the trial court erred in instructing the jury that it need not consider whether the equipment was ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments. Accordingly, we hold that Section 849.231, Florida Statutes (1975), as construed, is neither unconstitutionally vague and indefinite nor overbroad, reverse the judgments of the trial court and remand for new trial consistent with our construction of Section 849.231....

...uch activities may be enjoined as nuisances. SUNCRUZ argues that its activities are legal under the provisions of both federal law, as embodied in 15 U.S.C. 1171 et seq. (commonly known as the "Johnson Act"), and state law, as provided in Fla. Stat. § 849.231....

...ons. One of the specific exceptions provided by the Johnson Act is that gambling devices may be possessed and used on day cruise voyages unless the state from which the vessel departs and returns has enacted a law which bans such cruises. Fla. Stat. § 849.231 prohibits the manufacture, sale, transport, and possession of a large variety of gambling equipment....

...ndisputed that SUNCRUZ has registered under the Johnson Act since 1997. The Johnson Act specifically permits possession of gambling equipment, and use of such equipment while outside of the boundaries of the State, on day cruises voyages. Fla. Stat. § 849.231 specifically exempts possession of such equipment in Florida by those who register under the Johnson Act and do not display the equipment to the general public. Because Fla. Stat. § 849.231 is a statute of specific application to the activities of SUNCRUZ, this Court applies the well known rule of construction that a statute of specific application controls over a statute of general application. Therefore, the other statutes which BUTTERWORTH seeks to use to enjoin possession of gambling equipment in the State of Florida do not apply to SUNCRUZ's day cruise operations. BUTTERWORTH has argued that even if the exception of Fla. Stat. § 849.231 applies to day cruise operations, SUNCRUZ has lost the protection of the statute by violating the condition in the statute that the gambling devices may not be "displayed to the general public." BUTTERWORTH has submitted the affidavit of Joseph J....

...m the prohibitions of the statute against possession of gambling equipment. SUNCRUZ has established that it has registered under the Act, and as a matter of law that the equipment is not displayed to the general public, in compliance with Fla. Stat. § 849.231....

outside of the state.6 Unlike the provisions of section 849.231, Florida Statutes, which recognizes certain

...State, 361 So.2d 416 (Fla.1978), and the appellees rely solely on that case in this appeal. In our view, the decision in the Schultz case is inapposite and its rationale simply does not apply to the issue here. Schultz dealt with the interpretation of an entirely different statute, section 849.231, and reflected the view of the supreme court that certain items listed in section 849.231 could be innocent in nature; therefore, 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...

what has been dubbed, "cruises to nowhere." Section 849.231, Florida Statutes, exempts vessels of foreign

...ser offenses found in sections 849.11 and 849.-231. Section 849.11 makes it a second degree misdemeanor to set up, promote or play “at any game of chance by lot or dice, cards, numbers, hazards or any other gambling device whatever for ...,” and section 849.231 makes it a first degree misdemean- or to possess gambling paraphernalia....

...te to discharge its burden of proof as to the charged offense of conducting a lottery, without first proving that appellants conducted individual acts of gambling or were in possession of gambling paraphernalia. We hold that both section 849.-11 and section 849.231 contain elements separate and distinct from those embraced in section 849.09(l)(a)....

...On the other hand, section 849.09(l)(a) is intended to prohibit the habitual conducting or promoting of a lottery. Ferguson . The supreme court concluded in Ferguson that a single act of gambling is an offense “separate and distinct” from one premised on habitualness. Id., at 711 . Similarly, the elements of section 849.231 are not necessarily included in those of section 849.09(l)(a). It does not automatically follow that one who is conducting or promoting a lottery has in his or her possession gambling paraphernalia. As in the case of section 849.11, establishing a violation of section 849.231 would require proof of elements extraneous to those of section 849.09(l)(a)....

...slot machines are not used or displayed in contravention of sections 849.15 - 849.23 , Florida Statutes (1993), and are ultimately shipped to states where possession of slot machines are legal. 2. Whether slot machines are within the exception under section 849.231 (1), Florida Statutes (1993), if such company is in compliance with the Gambling Devices Act, 15 U.S.C. § 1171 . In sum: 1. A company may not lawfully possess or manufacture slot machines or the component parts for such devices in the State of Florida. 2. The exemption contained in Section 849.231 (1), Florida Statutes (1993), 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....

...tes (1993), is Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Rains, a 1985 Second District Court of Appeal case. 4 In the Rains case the court considered an earlier Florida Supreme Court case which had interpreted section 849.231 , Florida Statutes. The court distinguished these two cases and stated that: Schultz dealt with the interpretation of an entirely different statute, section 849.231 , and reflected the view of the supreme court that certain items listed in section 849.231 could be innocent in nature; therefore, 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....

...any slot machine or device or any part thereof[.]" Therefore, it is my opinion that pursuant to section 849.15 , Florida Statutes (1993), a company may not lawfully possess 9 or manufacture slot machines or the component parts for slot machines in the State of Florida. Question Two Section 849.231 (1), Florida Statutes (1993), provides that: Except in instances when the following described implements or apparatus are being held or transported by authorized persons for the purpose of destruction, as hereinafter provided, and exc...

...ny 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. 10 The list of gambling devices set forth in section 849.231 , Florida Statutes (1993), does not include slot machines. As the court in the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Rains case made clear, the provisions of sections 849.15 and 849.231 are not interrelated and in fact, reflect the dissimilar natures of the gambling devices listed therein. In Schultz v. State, 11 the Florida Supreme Court interpreted section 849.231 , Florida Statutes, and determined that certain items listed in section 849.231 could, under some circumstances, be innocent in nature....

...nce that they were "ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments" was presented. Such is not the case with slot machines. It is my opinion that slot machines do not come within the scope of section 849.231 (1), Florida Statutes (1993), and that the exemption contained in the statute 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....

...olation of ss. 849.15 - 849.233 that the device is an antique slot machine that is not being used for gambling. The statute states that "an antique slot machine is one which was manufactured at least 20 years prior to such action or prosecution." 10 Section 849.231 (3), Florida Statutes (1993), states that while it is unlawful to manufacture, own, or possess the enumerated gambling devices except when they are being held for destruction or by persons who have registered with the U.S....

...“This is an appeal that arises from the granting of the Defendant’s (Appellee) Motion to Dismiss the State’s Information wherein the Defendant asserted that the Information which charged the Defendant with unlawful possession of a blackjack table in violation of Section 849.231, Florida Statutes, did not allege that the Defendant was using the device for gambling, nor that he intended to do so....