If a court eventually agrees, it could upend the ban, theoretically allowing storefront gambling parlors to reopen. FILE PHOTO
BY JAMES L. ROSICA Tribune staff
Published: July 12, 2013
TALLAHASSEE - A recent lawsuit suggesting Florida's Internet cafe ban also bans every computer in the state has gotten national headlines and social media attention. A closer look shows the same suit also holds out Internet cafes as the "public phone" of the 21st century. And it argues the state may also have outlawed "on-line auctions, March Madness pools (and) library book reservation systems." The most famous claim of Incredible Investments vs. Fernandez-Rundle is that, under the ban, "any device, system, or network like the plaintiff's computers that displays images of games of chance is an illegal slot machine." On Thursday, the attorney behind the suit said winning that argument is beside the point.
"Whether it's that argument, which is the worst-case scenario side of the argument, or another is immaterial to what our client must prove to prevail," said Miami lawyer Justin Kaplan. "It's an illustration of how poorly the law is written." In other words, he just has to show the ban is "overbroad," meaning that it unjustly outlaws other legal activity. If a court eventually agrees, it could upend the ban, theoretically allowing storefront gambling parlors to reopen. Similar lawsuits have been filed elsewhere in the state. Kaplan's client, who ran an Internet cafe in Miami-Dade County, sued over the law last month, seeking to overturn the ban as unconstitutional. It ran "game promotions" that it says aren't illegal. In March, a multistate illegal gambling investigation resulted in dozens of arrests and the resignation of Lt. Gov. Jennifer Carroll. Before her election, Carroll had provided public-relations representation to the company at the center of the probe. She was not accused of wrongdoing. Weeks later, the state banned the strip-mall casinos known as Internet cafes. It prohibits any "device or system or network of devices" that plays like a slot machine, which was already illegal. About 1,000 cafes in Florida had to shut down because of the new law, Gov. Rick Scott said in April. In Hillsborough County, which earlier enacted its own ban, the vast majority had gone out of business by April, County Attorney Chip Fletcher said. But the ban passed by state lawmakers was "miserable," said A. Michael Froomkin, who teaches Internet law at the University of Miami School of Law. "By doing it so sloppily, they opened the door to this lawsuit, which isn't frivolous," he said. "But that doesn't mean it's a slam-dunk win, either." Courts don't interpret laws "to mean something ridiculous," he said. "If we can construe a law to be sensible, we usually do that." Another way is to read laws in a way that avoids constitutional problems: "If there's a way of reading (the law) that makes it constitutional and avoids tough questions, courts have an obligation to try to read it that way," Froomkin added. A court may well agree with Kaplan's lawsuit that "Internet cafes are primarily in the business of delivering customers a conduit to the Internet ... similar to how phone companies formerly provided public telephones and sold the time to use same." Or it could decide the state was trying to ban online slots. As Froomkin put it, "We all know what this Legislature was trying to do." [email protected] (850) 765-0807 Twitter: @jlrosicaTBO