From the Legal Hotline (1-877-NEWS-LAW)
Q. We recently asked you about the Seminole Tribe compact for sport betting this past session that has prompted inquiries from existing, out-of-state, sports betting sites about advertising on our digital site. You gave us some pointers on what ads we can and cannot accept. Since then, there has been some developments in federal court, so my question is: have there been any changes we should be aware of?
A. As noted last time, despite some online sports betting being legally sanctioned in 2021 through a new compact between the Seminole Tribe and the state, the agreement was successfully challenged in federal court. This means authorization for digital platform sports betting activity is not currently sanctioned for Seminole Tribe betting–and continues to be illegal across the board in Florida. The case has been appealed, however, so it is best to stay informed about the outcome of that appeal. If the district court’s decision is reversed, sports betting through the Seminole Tribe will become legal. The final reply briefs are due Nov. 14, and, thereafter, oral arguments will be set.
In light of this, we continue to advise you against placing advertising for sports betting platforms where users place bets on the actual outcome of a real game or sports contest. In particular, we think ads for platforms like Bet MGM and Pointsbet, which apparently only offer sports betting, would be risky.
On the other hand, there is some grey area regarding the legality of online fantasy sports contests (where participants manage a fantasy or simulation “team” composed of real athletes from a professional sports organization that are not all playing on the same team or in the same game in real life). As a result, there may be more leeway for advertising these contests. In particular, Fan Duel and Draft Kings sites offer fantasy sports contests (in addition to sports betting), and there may be room to accept some advertising from them. However, keep in mind that even for fantasy sports contest sites like these, the law is murky and you should keep up to date about any changes in regulation of fantasy sport betting.
In particular, make a note to look at the newly created Florida Gaming Control Commission annual report that it must published by December 1 of each year (beginning this year, 2022). The report will outline recent events in the gaming industry, such as pending litigation and new and pending rules. Fla. SB 4A, § 4 (2021), FLA. STAT. § 16.712(3)).
Regarding horserace betting, this activity is legal (and considered different from general sports betting), and advertising for this type of gambling is permissible.
Q. We are working to get more information regarding a high profile homicide in our area but the police redacted just about everything in the file. We understand that it’s an active investigation, but is such wholesale secrecy justified? What should they have shared with us?
A. The following information alone cannot be considered criminal investigative or intelligence information; it must be released unless some other exemption applies:
- The time, date, location and nature of a reported crime;
- The name, sex, age, and address of a person arrested (except regarding confidentiality of certain juvenile crime records) or the name, sex, age and address of the victim of a crime (except for information revealing the identity of a victim of a sexual offense, child abuse, or a child victim of human trafficking.)
- The time, date and location of the incident and of the arrest;
- The crime charged;
- Documents given or required to be given to the person arrested, unless the court finds that release of the information prior to trial would be defamatory to the good name of a victim or witness or jeopardize the safety of such victim or witness; and would impair the ability of the state attorney to locate or prosecute a codefendant;
I am unsure exactly what type of information appears in the reports forwarded but if they contain the above info., it cannot be redacted based on the investigative info. exemption alone. If they are relying on another exemption besides investigative, they should cite to the particular exemption, as required by Fla. Stat. § 119.07(1)(f).
Regarding the criminal investigative exemption, keep in mind it extends only to “information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission.” Fla. Stat. § 119.011(3)(b). A record does not become exempt merely because it is used in an investigation. If a record exists prior to and separately from any investigation, it does not become exempt because it becomes part of an investigative file. Therefore, preexisting records should be open unless another exemption applies.
Q. Under the new public notice bill (HB 7049), the governmental agency may use the county website only if the “cost” of doing so is “less” than the cost of newspaper publication. What is meant by cost? What does it include? What will the local government need to consider in evaluating comparable “costs?”
A. The law does not define “cost” so this term can mean any expenditure of money, time, and labor in replacing newspaper notice with a government website. Agency “costs” will likely include but are not limited to the following:
- For counties, staff and technology for setting up the “publicly accessible website” or in procuring a third-party contractor to do so. [Similar technology systems by other Florida agencies have met project delays with multi-year efforts at roll-out and increased expenditures.]
- For counties, maintaining/upgrading the website to reflect rapidly changing technology and providing good user experience and reasonable uptimes.
- For all agencies including counties, staff time in coordinating with/uploading agency notices to the central county website.
- For all agencies, preparation and archiving of agency affidavits.
- For all agencies, the cost of providing first-class mailing. For example, if 10% of the citizens in a larger county (e.g., Pinellas, approx. 1 million) request first class mailing, this would result in postage cost alone of $58,000 ($0.58 x 100,000) PLUS staff time and material costs necessary to prepare the paper notice and mail it.
- For all agencies, costs for training staff on numerous specialized items that MUST be done correctly.
- Liability cost. Since the government will be responsible for certifying notices and providing publisher affidavits, deficiencies in notice content and form will subject it to potential liability and associated legal costs in defending complaints brought by private parties adversely affected by such mistakes.
- Project delay costs. Associated project delays due to any required notice deficiencies or errors will add cost
- Lost efficiency costs. Providing notice will require communications with parties providing notices, including attorneys/paralegals/businesses that place judicial and other notices. Staff will need to answer questions and coordinate with these private parties regarding placement of notices on the agency site. This will entail costs to the government that the private sector currently shoulders.
The total cost to the government must be broken down in detail, and will likely be substantial, easily reaching hundreds of thousands of dollars. That cost will then need to be compared to the agency’s cost of using private sector newspaper publication.
Further, the agency’s costs will need to be accounted for BEFORE the government decides to pursue the government website option–not only because the new law requires a comparison but also for budgeting purposes. Further, the government should be aware that once it opts in, it will be difficult or impossible for it to reverse course later. For example, if technology, mailing or other costs of the new system increase to an untenable level, reversing course may not be feasible.
For the above reasons, the agency’s comparison analysis of “less cost” vis-a-vis newspaper notice will be crucial.