UNITED STATES DISTRICT CO URT
SO UTHERN DISTRICT OF FLO RIDA
CASE NO . 13-61089-ClV-CO HN/SELTZER
BOARDW ALK BROTHERS, INC ., a
Florida corporation and PLAY IT AGAIN
FLA, LLC, a Florida lim ited liability com pany,
M ICHAEL SATZ, State Attorney for the 17th
Judicial Circuit, in and for the State of Florida,
ORDER DENYING PLAINTIFFS’ MO TION FO R PRELIM INARY INJUNCTIO N
THIS CAUSE is before the Coud upon Plaintiffs’ Motion for Prelim inary
lnjunction (DE 5) (”Motion”).1 The Court has carefully considered the Motion, Defendant
Seminole Tribe’s Response (DE 12) (”seminole Tribe Responsen), Defendant Michael
Satz’s Response (DE 13) (1$Satz Response”), Plaintiffs’ Reply (DE 19J (1′RepIy”), the
argument of counsel at the M ay 31, 2013 hearing, the record in the case, and is
otherw ise advised in the prem ises.
L BACKG ROUND
On April 18, 2013, Plaintiffs Boardwalk Brothers, Inc. and Play It Again Fla, LLC
(collectively ”Plaintiffsn), operators of amusement game arcades, filed a complaint in the
Circuit Coud for the 17th Judicial District in and for Broward County which challenges
the constitutionality of newly enacted Chapter 2013-2. The statute excludes from the
The text of the M otion is actually found within the papers attached to
Defendant Satz’s notice of rem oval. See DE 1-2 at 17-22.
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 1 of 19definition of am usement gam es or machines d’casino style gam es in which the outcom e
is determ ined by factors unpredictable by the player or gam es in w hich the player may
not control the outcom e of the gam e through skill.”Fla. Stat. j 849. 161(1)(a). On April
24, 2013, Plaintiffs filed the instant Motion which seeks a preliminary injunction
enjoining enforcement of the statute. A copy of the Complaint and the Motion were
mailed and em ailed to Defendant M ichael Satz, State Attorney for the 17th Judicial
Circuit in and for the State of Florida (‘$Satz”) and the Florida Attorney General on April
24, 2013. Defendant Satz was personally served w ith the Com plaint on M ay 7, 2013.
Defendant Satz rem oved the case to this Court on M ay 14, 2013. Notice of Rem oval
(DE 1). On May 15, 2013, the Court granted the Seminole Tribe of Florida’s (‘lseminole
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 Com plaintz, Plaintiffs contend that Chapter 2013-2 w hich am ends Fla.
Stat. jj 849.16 and 849.161 is ”arbitrary, irrational, not reasonably related to a
Iegitim ate governm ental purpose, and void for vagueness.” Com pl. % 1 1 . Plaintiffs
argue that because am usem ent gam es are not illegal under Florida Iaw , Iim iting
operation of the m achines to d’insedion of a coin” is vague, arbitrary, and not rationally
related to any Iegitimate government purpose.” Id. 11 12. The Plaintiffs also allege that
2 O n May 29, 2013, after Defendants’ responses to the M otion were filed,
Plaintiffs filed an Am ended Com plaint. The Am ended Com plaint adds a single
paragraph to the Complaint. This paragraph alleges that (1) Plaintiffs’ arcades provide a
social gathering and entedainment 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. j 849.16(1)(a). Am.
Compl. (DE 20) !1 3.5.
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 2 of 19the definition of ‘dm erchandise” under the statute is vague, arbitrary, and not related to
any Iegitim ate governmental purpose as is the exclusion of ”gift cards or certificates”
from this definition. Id. $ 13. Plaintiffs contend that the statute’s exclusion of ”casino
style games in which the outcom e is determ ined by factors unpredictable by the player
or gam es in which the player m ay not control the gam e” from the definition of
amusement games or machines is void for vagueness. Id. :1 14. Finally, Plaintiffs
argue that the phrases ”lolutcome is determined by factors unpredictable to the player,”
id. 11 15, and ”lglames 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. j 849.161 on the grounds that Fla. Stat. j
849.161(1)(a) is facially unconstitutional because it is void for vagueness.3 Defendants
Satz and Sem inole Tribe oppose the M otion.
II. DISCUSSIO N
A. Legal Standard.
Federal procedure governs whether a preliminary injunction is appropriate in this
case. See Ferrero v. Associated Materials lnc., 923 F.2d 1441, 1448 (1 1th Cir. 1991).
To obtain a preliminary injunction, a plaintiff must establish: (1) a substantial Iikelihood
of success on the merits’, (2) a substantial threat of irreparable injury if the defendant is
not enjoined; (3) the threatened injury to the plaintiff outweighs the harm an injunction
Although Plaintiffs raise additional constitutional challenges to Fla. Stat. j
849.161 in their Complaint, the Motion is Iimited solely to whether Fla. Stat. j
849.161(1)(a) is void for vagueness, and therefore, whether enjoinment of the entire
statute is proper. See Satz Response at 4. Accordingly, the Coud will restrict its
analysis solely to whether Fla. Stat. j 849.161(1)(a) is void for vagueness.
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 3 of 19may cause defendant’, and (4) the injunction would not disserve the public interest. See
Levi Strauss & Co. v. Sunrise Int’l Tradinc Inc., 51 F.3d 982, 985 (1 1th Cir. 1995). ”(A)
preliminary injunction is an extraordinary and drastic remedy not to be granted unless
the m ovant clearly established the burden of persuasion as to each of the four
prerequisites.” Four Seasons Hotels & Resods. B.V . v. Consorcio Barr, S.A., 320 F.3d
1205, 1210 (11th Cir. 2003) (quoting McDonald’s Corn. v. Robertson, 147 F.3d 1301,
1306 (1 1th Cir.1998) (internal citations and quotations omittedl),
Here, Plaintiffs raise a facial challenge to the constitutionality of Fla. Stat. j
849.161(1)(a). See Motion at 6 (”The facial unconstitutionality of Florida Statute section
849.161(1)(a) requires that it be invalidated.”), $’A facial challenge, as distinguished
from an as-applied challenge, seeks to invalidate a statute or regulation itself.” Indigo
Room. Inc. v, City of Fod Myers, 710 F.3d 1294, 1302 (1 1th Cir. 2013) (quoting Hodon
v. City of St. Augustine, 272 F.3d 1318, 1329 (1 1th Cir. 2001) (internal quotation marks
omittedl). In order to successfully bring a facial challenge, ”the challenger must
establish that no set of circum stances exists under which the Act would be valid.” Id.
(quoting United States v. Salerno, 481U.S. 739, 745 (1987)).
Specifically, Plaintiffs argue that Fla. Stat. j 849.161(1)(a) is void for vagueness,
M otion at 2. ”As generally stated, the void-for-vagueness doctrine requires that a penal
statute define the crim inal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a m anner that does not encourage
arbitrary and discrim inatory enforcem ent.” Gonzales v. Carhad, 550 U.S. 124, 148-49,
(2007) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). ”lT)he more impodant
aspect of vagueness doctrine is not actual notice, but the other principal elem ent of the
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 4 of 19doctrine-the requirem ent that a Iegislature establish m inim al guidelines to govern Iaw
enforcem ent. . . . W here the Iegislature fails to provide such m inim al guidelines, a
criminal statute may permit a standardless sweep (that) allows policemen, prosecutors,
and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358 (internal
quotation marks omitted).
”Facial vagueness occurs when a statute is utterly devoid of a standard of
conduct so that it sim ply has no core and cannot be validly applied to any conduct.”
High Ol’ Times. Inc. v. Busbee, 673 F.2d 1225, 1228 (1 1th Cir.1982). However, ”if
persons of reasonable intelligence can derive a core m eaning from a statute, then the
enactment m ay validly be applied to conduct within that m eaning and the possibility of a
valid application necessarily precludes facial invalidity.” Indigo Room . Inc., 710 F.3d at
1302 (quoting Busbee, 673 F.2d at 1228 (internal quotation marks omittedl). As the
Eleventh Circuit has recently stated:
Etlhe coud ”reviewls) statutes for vagueness concerns only when a Iitigant alleges
a constitutional harm .” Bankshot Billiards, 634 F.3d at 1349. These harm s com e
in two form s. ”ln the first form , a person violates the vague law, is indicted, and
then m oves the trial court to dism iss the indictm ent … arguing that he did not
receive notice that his conduct was proscribed.” Id. The constitutional harm in
this context is ”the deprivation of Iibedy.” ld. at 1349-50. The second form is
im plicated when a Iitigant asks the court to review a vague statute before it is
enforced. Id. at 1350. Such claim s are reviewed because ‘dthe Iitigant is chilled
from engaging in constitutionally protected activity. j ‘ ‘ Id. Thus, the second type of
vagueness challenge ”provides Iaw-abiding citizens with a m iddle-road between
facing prosecution and refraining from otherwise constitutional conduct.” Id. If
one of the two constitutional harms delineated above is im plicated, the coud
Iooks to w hether the ordinance ”forbids or requires the doing of an act in term s
so vague that men of com m on intelligence m ust necessarily guess at its
m eaning and differ as to its application.” Ga, Pac. Com . v. Occupational Safety &
HeaIth Review Comm’n, 25 F.3d 999, 1005 (1 1th Cir.1994) (internal quotation
lndigo Room. Inc., 710 F.3d at 1301 (footnote omitted).
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 5 of 19B. W hether 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. j 849.161 because section 849.161(1)(a) is void for
vagueness, Motion at 2. As stated above, Plaintiffs raise a facial challenge to the
statute. See id. at 6.4 Specifically, Plaintiffs argue that the exclusion of ”casino-style
gam es in which the outcom e is determ ined by factors unpredictable by the player or
gam es in w hich the player m ay not control the outcome of the gam e through skill” from
the definition of ”am usement gam es or m achines” is void for vagueness. M otion at 2.
As a result, Plaintiffs contend that they ”are subject to arrest and prosecution under a
legislative regim e that fails to provide the definiteness that is required in crim inal
statutes.” Id. at 5. Additionally, because section 849.161(1)(a) is void for vagueness,
Plaintiffs posit that the entirety of Fla. Stat. j 849. 161 should be enjoined because there
is no severability clause in the statute and the statute’s subparts are incapable of
Additionally, as Defendant Sem inole Tribe points out, this case does not
involve an as-applied challenge because Plaintiffs have failed to develop the factual
record necessary to sustain an as-applied challenge. See Sem inole Tribe Response at
10., Georgiacarry.orn, Inc. v. Georcia, 687 F.3d 1244, 1255 n.20 (1 1th Cir, 2012)
(noting that even if an as-applied challenge can be raised in a pre-enforcement review
of a statute, ’1a plaintiff’s com plaint m ust include al1 of the factual allegations necessary
to clearly illustrate the context in which the statute will be applied, which Plaintiffs
cedainly failed to do here.”)’, Harris v. Mexican Specialtv Foods, Inc., 564 F.3d 1301,
1308 (1 1th Cir. 2009) ($’An as-applied challenge, by contrast, addresses whether a
statute is unconstitutional on the facts of a padicular case or to a padicular pady.
Because such a challenge asserts that a statute cannot be constitutionally applied in
padicular circum stances, it necessarily requires the developm ent of a factual record for
the coud to consider.”) (internal citations and quotation marks omitted).
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 6 of 19severance . .$=. at 5-6.Both Defendants, however, argue that Plaintiffs cannot succeed
on a facial challenge to the statute.
The State of Florida (”State”) prohibits the use or possession of slot machines.
See Fla. Stat. j 849.15(1)(a). In order to allow the operation of certain arcade games,
the Iegislature created a safe harbor to the general prohibition against operation of slot
machines: Fla. Stat. j 849.161. See Satz Response at 2 (citing Rowe v. Cnty. of Duval,
975 So. 2d 526, 527 (FIa. Dist. Ct. App. 2008)).Fla. Stat. j 849.161(1)(a) provides:
”Am usement gam es or m achines” m eans gam es which operate by m eans of the
insertion of a coin, and which by application of skill m ay entitle the person
playing or operating the gam e or machine to receive points or coupons, the cost
value of which does not exceed 75 cents on any gam e played, w hich m ay be
exchanged for m erchandise. The term does not include casino-style gam es in
which the outcom e is determ ined by factors unpredictable by the player or
gam es in which the player m ay not control the outcom e of the gam e through
Fla. Stat. j 849.161(1)(a). As Defendant Satz describes, this safe harbor t’does not
itself prohibit any conduct’, it m erely carves out certain gam es from the slot-m achine
prohibition.” Satz Response at 3. Thus, a gam e falls outside the definition of
”amusement games or machines” if ”(i) it does not operate by the insertion of a coin; (ii)
it awards points or coupons wodh more than seventy-five cents on any gam e played’,
and (iii) it is a casino-style game.” ld.
To be successful on a facial challenge to this statute, Plaintiffs ”m ust establish
that no set of circumstances exists under w hich the Act would be valid.” Indigo Room ,
710 F.3d at 1302. $’A facial challenge to a Iegislative act is, of course, the m ost difficult
challenge to m ount successfully, since the challenger m ust establish that no set of
circumstances exists under which the (alct would be valid.”United States v. Brown, 364
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 7 of 19F.3d 1266, 1268 (1 1th Cir. 2004) (quoting Salerno, 481 U.S. at 745). Here, Defendant
Sem inole Tribe argues that Plaintiffs cannot succeed on a facial challenge because
‘lljhe core meaning of the Act is ( ) easy to derivel:) Florida has a policy of not
perm itting m inors to gam ble.” Sem inole Tribe Response at 1 1 . According to the
Sem inole Tribe, the statute is intended to ensure that casino-style games are not
available in arcades, businesses which cater to m inors. Id. Defendant Satz also
argues that Plaintiffs cannot raise a facial challenge to the statute because ‘splaintiffs
cannot demonstrate that the Iaw-even with the allegedly vague provisions-is incapable
of constitutional application.”Satz Response at 8. For exam ple, Defendant Satz
argues, if a business operated gam e m achines that provide points or coupons wodh
m ore than seventy-five cents, the m achines would fall outside the safe harbor, thus
dem onstrating that the statute can be constitutionally applied. See id. at 8-9. Sim ilarly,
if a game machine was operated by credit card, paper currency or some other object, it
would fall outside the safe harbor.Thus, the Court agrees w ith Defendant Satz that
there are constitutional applications of the statute and Plaintiffs have failed to m eet their
burden of establishing that the statute could never be valid.
This result is suppoded by recent Eleventh Circuit precedent. ln Indigo Room v.
City of Fort Myers, for exam ple, the Eleventh Circuit held that a statute that regulated
the adm ittance of underage individuals into alcoholic beverage establishm ents was not
facially invalid. 710 F.3d at 1302. Specifically, the court found that the plaintiff had
failed to establish that the statute was facially invalid where $’(a) core meaning can be
derived from the Ordinance at issue- individuals under the age of 21 are not perm itted
in alcoholic beverage establishm ents in the City of Fort Myers.” Id. Sim ilarly, in
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 8 of 19Georniacarry.o rg, lnc. v. G eom ia, a case cited by Defendant Satz, the Eleventh Circuit
held that a facial challenge to a Georgia Iaw prohibiting firearm s in cedain places such
as houses of worship failed because the Iaw was capable of ”num erous constitutional
applications.” 687 F.3d at 1266. For exam ple, a private house of worship would be
able to prohibit Iicense holders from carrying firearm s on their propedy. Id. at 1261.
Because Plaintiffs here have sim ilarly failed to establish that there are no set of
circumstances under which Fla. Stat. j 849.161 would be constitutional, their facial
Next, Defendant Satz argues that Plaintiffs’ facial challenge also fails because
they cannot prove that the Iaw does not clearly cover their conduct. Satz Response at
9-10. Defendant Satz points out that Plaintiffs have failed to provide details regarding
their businesses or otherwise demonstrate that ”the challenged provisions have any
applicability to their businesses.” Satz Response at 10. The Coud agrees with this
assessm ent. The Com plaint states that Plaintiff Boardwalk Brothers, Inc. operates 60
”amusement machine games.” Compl. 11 2.Plaintiff Play It Again Fla, LLC operates
105 ‘lam usem ent gam e machines.” .4/.. 11 3.The Com plaint fails to describe what type
of games they provide or otherwise adiculate why Plaintiffs fear they will be subject to
prosecution under the revised statute w hile they sim ultaneously claim to have operated
in conformity with a previous version of the statute. See id. $ 8. $’A plaintiff who
engages in som e conduct that is clearly proscribed cannot com plain of the vagueness
of the Iaw as applied to the conduct of others. A coud should therefore exam ine the
com plainant’s conduct before analyzing other hypothetical applications of the Iaw .”
Village of Hoffman Estates v, Flipside. Hoffman Estates. Inc., 455 U.S. 489, 495 (1982)
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 9 of 19(footnote omitted). Accordingly, given the limited record regarding Plaintiffs’
businesses, the Coud cannot determ ine whether the challenged provision even applies
to Plaintiffs’ businesses. Thus, Plaintiffs have failed to dem onstrate that they can raise
a facial challenge.
C. W hether Plaintiffs Have M et the Standard for Prelim inarv Iniunctive Relief.
Even if Plaintiffs could raise a facial challenge to the statute, Defendants argue
that denial of the M otion would still be proper because Plaintiffs have failed to m eet the
standard for preliminary injunctive relief.See Seminole Tribe Response at 4-10*, Satz
Response at 1 1-20. ln the M otion, Plaintiffs conclusorily state that they have
established the elements for a preliminary injunction. See Motion at 6. For the reasons
discussed below, the Coud agrees with Defendants that Plaintiffs have failed to m eet
the standard for issuance of a preliminary injunction.
1. W hether Plaintiffs Have a Substantial Likelihood of Success on the M erits.
Defendant Sem inole Tribe contends that Plaintiffs cannot establish a Iikelihood
of success on the m erits on their vagueness claim s because the statute is ”not
unconstitutionally vague.”Sem inole Tribe Response at 7. Defendant Satz sim ilarly
argues that the challenged phrase is not void for vagueness because ”the core m eaning
of the am ended statute is apparent.” Satz Response at 13. The Coud finds that
Plaintiffs have failed to demonstrate a likelihood of success on the m erits of their
vagueness claim because Fla. Stat. j 849.161(1)(a) is not unconstitutionally vague.
Defendant Seminole Tribe discusses the preliminary injunction elements
for aII allegations in the Com plaint. As stated previously, the Coud has confined its
analysis solely to Plaintiffs’ claim that Fla. Stat. j 849.161(1)(a) is void for vagueness,
the sole claim raised in the Motion.
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 10 of 19A statute is not void for vagueness where ‘dthe m eaning of the words used to
describe the (impermissible) conduct can be ascertained fairly by reference to judicial
decisions, com m on Iaw , dictionaries, and the words themselves because they possess
a com mon and generally accepted meaning.” United States v. Eckhardt, 466 F.3d 938,
944 (1 1th Cir. 2006) (citations and internal quotation marks omitted). As b0th
Defendants point out, phrases sim ilar to ”outcome is determ ined by factors
unpredictable by the player” and ”games in which the player m ay not control the
outcome of the game through skill” have previously been considered by Florida couds.
See Satz Response at 13., Sem inole Tribe Response at 7. In Deeb v. Stoutam ire, 53
So. 2d 873 (Fla. 1951), the Florida Supreme Court interpreted the phrase ”any element
of chance or of other outcom e of such operation unpredictable by him .” Id. at 874. In
holding that a m echanical bowling machine was prim arily a gam e of skill, the coud
In the Iast analysis, we m ust decide the nature of the result which is
unpredictable by the player. Cedainly the outcom e of any gam e at aII dependent
upon the exercise of hum an skill is essentially unpredictable. If this were not so,
m atch gam es Iike golf and trap shooting w ould really be dreary, m onotonous
It seem s to us that inasm uch as the m achine itself is on trial, so to speak, it
should not be condem ned unless this element of unpredictability is inherent in it.
True, the player when he ‘activates’ the device by inseding his coin cannot
predict what score he will m ake; but from the standpoint of the m achine there is
no occasion even to predict that there will be an accurate registration of his
control of the pucks as the player slides them expedly or inexpertly toward the
springs form ing contact w ith the scoreboard. Such is a cedainty.
It is our thought that the elem ent of unpredictability is not supplied because a
player m ay not be sure w hat score he can accom plish, but that it m ust be
inherent in the m achine. . . .
W e conclude that in the process from the insedion of a coin until the Iast puck
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 11 of 19has been slid dow n the alley, the score totaled has not depended on chance or
other result unpredictable by the player, except such chance or unpredictability
as is traceable to his own skill, which we interpret the Iaw not to m ean, as
distinguished from the chance or unpredictability of the mechanism , which we
construe the Iaw to proscribe.
Id, at 874-75. Additionally in State v. Broward Vending. Inc., 696 So. 2d 851 (Fla. Dist.
Ct. App. 1997), the Fourth District Court of Appeal held that where ”the game is set to
play itself and to record a certain win/loss ratiol,) . . . the element of chance is inherent
in the gam e.” Id. at 852. These prior Florida cases clearly put Plaintiffs on notice of the
m eaning of the phrase ”outcome is determ ined by factors unpredictable by the player or
gam es in w hich the player m ay not control the outcome of the gam e through skill.” See
Fla. Stat. j 849.161(1)(a)’, see also Madin v. Lloyd, 700 F. 3d 132, 136-37 (4th Cir.
2012) (holding that prior South Carolina cases interpreting whether a device is a ‘dgame
of chance” dem onstrate $’da plainly Iegitim ate sweep’ and m ore than a conceivable
application, which is aII that is required to survive a facial challenge to a crim inal statute
where constitutional rights are not implicated.n). As, the Foudh Circuit stated in Madin
v. Lloyd, ”gam bling im plicates no constitutionally protected right.” 700 F.3d at 135
(quoting United Sates v. Edge Broad. Co., 509 U.S. 418, 426 (1993)). Additionally, as
the Eleventh Circuit observed in Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340
(1 1th Cir. 201 1), a plaintiff who is chilled from conducting a business activity in which he
once engaged fails to demonstrate a constitutional injury. ld. at 1350.
In response to Defendants’ criticism that the Com plaint fails to im plicate any
constitutional rights, however, Plaintiffs have am ended the Com plaint to assert that they
have a special relationship with senior citizens w ho patronize their arcades and that
enforcem ent of the statute ”denies those citizens their First Am endment rights of
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 12 of 19association.” Am. Compl. !1 3.5. Assuming arguendo that Plaintiffs have standing to
bring a suit on behalf of their patrons-w hich the Court highly doubts6-plaintiffs have
failed to demonstrate that the statute violates their patrons’ First Am endm ent right to
”association for social purposes.” See Reply at 6.? First, it is doubtful that patrons who
The Coud is not persuaded by Plaintiffs’ reliance on Craic v. Boren, 429
U.S, 190 (1976), for the proposition that they have standing to challenge a statute
which infringes their custom ers’ constitutional right to association. See Reply at 6-8.
As the Suprem e Court held in Caplin & Drysdale. Chartered v. United States, 491 U.S.
617 (1989): ”Iwlhen a person or entity seeks standing to advance the constitutional
rights of others, we ask two questions: first, has the Iitigant suffered some injury-in-fact,
adequate to satisfy A dicle lll’s case-or-controversy requirement’, and second, do
prudential considerations which we have identified in our prior cases point to perm itting
the litigant to advance the claim ?” ld. at 624 n.3. As discussed in Section C.2, infra,
Plaintiffs have failed to demonstrate a cognizable injury. Additionally, Plaintiffs have
failed to establish that prudential considerations support their bringing this action on
behalf of their senior citizen customers. See Caplin & Drvsdale, Chadered, 491 U.S. at
624 n.3 (”The second inquiry-the prudential one-is more difficult. To answer this
question, our cases have looked at three factors: the relationship of the Iitigant to the
person w hose rights are being asseded; the ability of the person to advance his ow n
rights’, and the impact of the litigation on third-pady interests.’). There is no evidence
before the Coud that Plaintiffs’ senior citizen custom ers are unable to bring suit on their
ow n behalf, if they so desire. M oreover, unlike the plaintifrs custom ers in Craic, who
were denied the right to obtain to beer under the challenged Oklahom a statute, if
Plaintiffs’ customers desire to associate and play ”casino-style gam es,” they need only
go to one of Florida’s Iegally-authorized casinos to do so. Thus, Plaintiffs’ failure to
demonstrate a constitutional injury on behalf of their senior citizen customers
demonstrates that they lack/t?s tertii standing.
According to the Supreme Coud:
O ur decisions have referred to constitutionally protected dsfreedom of association”
in two distinct senses. ln one Iine of decisions, the Coud has concluded that
choices to enter into and m aintain certain intim ate hum an relationships m ust be
secured against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is central to our
constitutional schem e. In this respect, freedom of association receives protection
as a fundam ental elem ent of personal Iibedy. In another set of decisions, the
Court has recognized a right to associate for the purpose of engaging in those
activities protected by the First Am endm ent- speech, assem bly, petition for the
redress of grievances, and the exercise of religion. The Constitution guarantees
freedom of association of this kind as an indispensable means of preserving
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 13 of 19are unable to frequent Plaintiffs’ com mercial establishm ents will suffer any First
Amendment harm,As the Supreme Coud, in City of Dallas v. Stanglin, stated, ”lilt is
clear beyond cavil that dance-hall patrons, w ho m ay num ber 1,000 on any given night,
are not engaged in the sort of ‘intim ate hum an relationships’ referred to in Robeds.”
490 U.S. at 24., see also Roberts, 468 U.S. at 621 (holding that Iocal Jaycees’ chapters
w hich were ”neither sm all nor selective” and whose d’activity central to the form ation and
m aintenance of the association involves the participation of strangers” were not entitled
to constitutional protection regarding their decision to exclude women). Second,
Plaintiffs have failed to adiculate how the statute prevents their patrons from
associating w ith one another, given that the statute does not prevent senior citizens
other individual Iibedies.
Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). It appears that Plaintiffs are
raising a freedom of association under the first fine of cases described above. See
Reply at 6. To the extent that Plaintiffs contend that their patrons enjoy some right to
expressive association, this argument has been squarely rejected by the Supreme
The Dallas ordinance restricts attendance at
between the ages
m inors’ ability to dance with adults w ho m ay not attend, and it Iim its the
oppodunity of such adults to dance with m inors. These oppodunities m ight be
described as S’associational” in com m on parlance, but they sim ply do not involve
the sod of expressive association that the First Amendm ent has been held to
protect. The hundreds of teenagers w ho congregate each night at this particular
dance hall are not m em bers of any organized association’, they are patrons of
the sam e business establishm ent. Most are strangers to one another, and the
dance hall adm its alI who are willing to pay the adm ission fee. There is no
suggestion that these patrons dstake positions on public questions” or perform any
of the other sim ilar activities described in Board of Directors of Rotary
International v. Rotary Club of Duarte, 481 U.S. 537, 548, 107 S.Ct. 1940, 1947,
95 L.Ed.2d 474 (1987).
Class E dance halls to m inors
of 14 and 18 and certain excepted adults. lt thus Iim its the
Citv of Dallas v. Stanglin, 490 U.S. 19, 24-25 (1989).
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 14 of 19from congregating elsewhere if Plaintiffs’ businesses are closed.’ M oreover, there is
no evidence before the Court that enforcem ent of the statute would force Plaintiffs out
of business and prevent patrons from associating at their establishm ents. lnstead, the
statute m erely Iim its the types of gam es that m ight be offered. And even if the statute
did force Plainti#s out of business, no citizen enjoys a constitutional right to play
am usement gam es. See M artin, 700 F.3d at 135. Finally 9 , as discussed in Section B,
supra, the challenged statute is not vague in alI its applications. Bankshot Billiards,
Inc., 634 F.3d at 1352 n.18. Accordingly, Plaintiffs have failed to dem onstrate a
likelihood of success on their vagueness claim as to this phrase.
The Coud also agrees with Defendants that Plaintiffs have failed to establish a
Iikelihood of success on the m erits on their vagueness challenge regarding the phrase
S’casino-style gam es.” See Satz Response at 14-15,* Sem inole Tribe Response at 8.
Although Plaintiffs contend that this phrase is ”obscure and perplexing,” M otion at 4,
Plaintiffs also concede that the Court m ay look to a term ‘s com m on or ordinary m eaning
to define it. ld. (citing State v. Nichols, 892 So. 2d 1221, 1227 (FIa. Dist. Ct. App.
2005)). The phrase ”casino-style games” has a common or ordinary meaning that is
known to the general population. See Eckhardt, 466 F.3d at 944 (holding that a statute
is not vague where d’the words them selves . . . possess a com m on and generally
accepted meaning.n). licasino-style games” refers to the types of games that are
lt should be noted, however, that Plaintiffs have not alleged that the
statute has forced them to shutter their businesses.
9 Additionally, as discussed in Footnote 6, supra, if senior citizens desire to
associate and play d’casino-style gam es,” they m ay still m eet at Iocal casinos to do so.
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 15 of 19com m only played in a casino. See State ex rel Chwirka v. Audino, 260 N.W . 2d 279,
284 (Iowa 1977) (finding that ”casino type games” are games such as blackjack, craps,
and roulette). Thus, because this term has a common and ordinary meaning, it gives
the public fair notice regarding w hat gam es fall outside of the statute’s safe harbor.
See Busbee, 673 F.2d at 1229.
The best evidence that the term ‘scasino-style gam es” is not vague, as Defendant
Sem inole Tribe points out, is that the related phrase ”casino-style gam ing” appears in
Plaintiff Play it Again Fla, LLC’S m arketing m aterials. See Exhibit B to the Sem inole
Tribe’s Response (DE 12-24, If this phrase was as ”devoid of meaning,” Reply at 2, as
Plaintiffs contend, Plaintiff Play it Again Fla, LLC would not utilize it within its
advedisem ents. Clearly, at Ieast one plaintiff believes that the average person
understands what the phrase means.
phrase S’casino-style games” is vague. Accordingly, Plaintiffs have failed to
dem onstrate a Iikelihood of success on the m erits as to their vagueness claim regarding
Thus, it defies Iogic for Plaintiffs to argue that the
2. W hether Plaintiffs Face a Substantial Threat of Irrenarable Iniury.
To be entitled to injunctive relief, Plaintiffs must establish that they face an
irreparable injury. Moreover, the asseded irreparable injury ‘smust be neither remote
nor speculative, but actual and imminent.” Siegel v. Lepore, 234 F.3d 1 163, 1 176 (1 1th
Cir. 2000), Both Defendants assed that Plaintiffs have failed to demonstrate any injury,
Iet alone an irreparable injury. See Satz Response at 17,. Sem inole Tribe Response at
4. The Coud agrees. Although Plaintiffs aver that they dtare subject to arrest and
prosecution,” M otion at 5, they also allege in their Com plaint that their am usem ent
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 16 of 19centers l’com ply with the form er and present Iegislative description” of arcade
amusement centers. Compl. 11 10. Thus, it is unclear to the Court exactly what type of
games Plaintiffs operate and why they might be subject to arrest under the statute.
Additionally, as Defendant Satz points out, Plaintiffs’ decision not to engage in form er
business activity based upon the existence of the statute does not, standing alone,
constitute a constitutional injury.See Satz Response at 18 (citing Bankshot Billiards,
Inc., 634 F.3d at 1351).W ithout a finding of a Iikelihood of an d’actual and imminent”
irreparable injury, preliminary injunctive relief is improper. See Siegel, 234 F.3d at 1 176
(‘lsignificantly, even if Plaintiffs estabfish a Iikelihood of success on the merits, the
absence of a substantial likelihood of irreparable injury would, standing alone, make
preliminary injunctive relief improper.n). Accordingly, this factor does not suppod
issuance of a preliminary injunction.
3. W hether the Balance of the Eguities W eigh in Favor of a Prelim inarv Iniunction.
Defendant Satz argues that Plaintiffs cannot establish that their injury outweighs
the harm to the State, padicularly given that Plaintiffs have failed to dem onstrate a
cognizable injury. See Satz Response at 18. As discussed above, the Court finds that
Plaintiffs have failed to demonstrate that they will suffer an imminent injury if
enforcement of the statute is not enjoined. Additionally, even if Plaintiffs’ fear of
prosecution did constitute a cognizable injury, this injury would not outweigh the State’s
interest. Because gambling l’falls into a category of ‘vice’ activity,” it ‘dclanq be, and
frequently has been, banned altogether.” Edge Broad. Co., 509 U.S. at 426. Thus, the
State has a significant interest in proscribing the behavior regulated in the statute.
Plaintiffs have failed to adiculate any interest they have which overrides the State’s
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 17 of 19substantial interest in regulating gam bling.
4. W hether an Iniunction W ould Serve the Public Interest.
Finally, both Defendants contend that Plaintiffs have failed to establish that an
injunction will benefit the 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 m eet their burden to establish this elem ent. As Defendant Sem inole Tribe
points out, Fla. Stat. j 849.161 ”was enacted to regulate the operation of skill-based
arcade gam es offered at specified arcade am usem ent centers and truck stops if they
com ply with the requirem ents of Iaw and was not provided as a vehicle for the conduct
of casino-style gambling.”Seminole Tribe Response at 10 (quoting Ch. 2013-2, Laws
of Florida j 1(4)). Accordingly, the State has an impodant public interest in Iimiting
gam bling and preventing m inors from gam bling. Thus, the public interest does not
favor enjoinment of the statute.
111. CONCLUSIO N
Based on the foregoing, it is O RDERED AND ADJUDGED as follows:
Plaintiffs’ Motion for Preliminary Injunction IDE 5) is DENIED;
2. On or before June 10, 2013, the parties are directed to m eet and confer
regarding the scheduling of this case; and
3. O n or before June 12, 2013, the parties shall subm it to the Coud a proposed
scheduling order which includes dates for joinder of padies, amendment of
pleadings, fact and exped discovery, m otions to exclude or Iim it expert
testimony, dispositive motions, mediation, motions in Iimine, joint pre trial
stipulation, subm ission of deposition designations for trial, calendar call, and trial
Case 0:13-cv-61089-JIC Document 25 Entered on FLSD Docket 06/04/2013 Page 18 of 19date. If the parties believe that any of the above deadlines is inappropriate for
this case, they should so indicate in the proposed sche Ing order.
4 e DO NE AND O RDERED in Cham bers at Fort Lau rdale, Florida, on this
day of June, 2013.
JAME 1. COHN
unlte states District Judg
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