Posted on Wednesday, 01.12.11
Miami police, City Hall at odds over game machines
The Miami Police Department and City Hall disagree over the interpretation of a state law on amusement machines.
BY DAVID OVALLE
At Cafe Raul in Hialeah, diners can feed dollars into an All Fruit Bonus video gaming machine. Though it looks like a traditional slot machine, the game — allowed by the city — gives winners nothing more than a free game or two and a few minutes of amusement, says Miguel Rotella, owner of the machines.
But in Miami, police say the machines are illegal — and the owners subject to arrest.
“Everything is legal. We’re not delinquents,” said Rotella, who had 10 similar machines seized by police in Miami cafes in October. “They’re lumping us in with the mafia.”
Whether the video game machines constitute illegal gambling or not is at the heart of an escalating conflict between Miami Police and City Hall.
Miami police say the machines are illegal, that the games are based on pure chance dressed up as “amusement.” But the adult arcade industry insists the machines are legal because they are programmed differently than casino slots, and can be mastered by skilled players.
The flash point came last month when Miami Police Chief Miguel Exposito publicly accused Mayor Tomás Regalado of attempting to interfere with an October raid on establishments that operate the machines.
Last year, the mayor successfully championed an ordinance, modeled after a Hialeah ordinance and crafted with help from the arcade industry, that allows the machines to run as long as operators pay a registration fee. The ordinance stresses the machines cannot be used for gambling.
But police in Miami still say all the machines are contraband. They’ve had mixed success pursuing misdemeanor cases, but have successfully destroyed hundreds of the machines since 2003.
Said Regalado: “I don’t care any more about the machines. For all I care they can seize the machines and we’ll have a hole in the budget.”
Miami Maj. Alfredo Alvarez, who commanded the October “Lucky 7” raid that seized more than 400 machines across the city, said the games “are illegal everywhere.”
“People get addicted to them, especially the senior citizens who live on social security,” he said. “It’s immoral to have these machines out there the way they’re hurting the lower to middle class.”
Other jurisdictions, like Hialeah, see the machines as inherently legal, and target owners only if police can prove illicit cash payouts.
“For law enforcement to spend scarce resources to look into the little cafeterias and their machines is misguided,” said defense attorney David O. Markus, who in 2006 successfully defended a Pompano Beach penny arcade owner accused of running an illegal gambling house.
State law — which allows gaming only in Indian casinos and some pari-mutuels — is murky on so-called amusement machines. A 1984 law allows machines that operate by “insertion of a coin,” require “an application of skill” and limit winnings to merchandise worth no more than 75 cents per game — no cash or alcohol.
But by the mid-1990s, machines geared toward adults — resembling video versions of traditional casino slot machines — began popping up across the state.
In Broward County, that has resulted in so-called senior arcades catering to the elderly. In Miami, the machines often wind up in cafeterias, markets and even barbershops, catering to an older, blue-collar Latin crowd; revenue is split between the machine owner and the businesses.
Players insert money, receive credits and win when they land certain icons like a cherry or star. The industry insists the machines differ significantly from slots.
The internal computer programming does not generate random plays like slots, said Michael Wolf, compliance director of the Florida Arcade and Bingo Association.
Wolf says the machines usually boast a “hold” feature — a player can elect to keep a symbol or two and spin again. Unlike slots, the games are programmed to pay out a certain percentage of the time, meaning a player can gauge when they are due to win.
But some police departments construe the machines as “games of chance” under state law, saying no skill is involved. And therefore, any credits, even for more free games, make the machine illegal.
Bob Sertell, a gaming expert who testifies for Florida prosecutors, says the machines are programmed to cheat players, and can’t be mastered by skill unless programmed to do so.
“The `application of skill’ is bull,” Sertell said. “In actual practice, none of the machines do that.”
Statewide, law enforcement’s approach is scattershot.
Some jurisdictions largely ignore the machines.
Others aggressively bust operators.
In Pinellas County, deputies have used expensive outside experts to examine machines before making arrests. Recently, the department began sending letters to merchants explaining the law, warning they could face a probe if the machines are used illegally.
In a widely watched case in 2006, jurors acquitted Gale Fontaine, owner of the Tropicana Rec Room in Pompano Beach, of keeping an illegal gambling house.
The jury foreman told reporters he believed the machines offered games of skill.
The Broward State Attorney’s Office filed another criminal case against Fontaine and filed a civil public nuisance lawsuit against her; both cases are still pending. Her defense attorney, Markus, said he expects Fontaine to be cleared in both cases.
In Hialeah, said police chief Mark Overton, officers in years past had mixed luck making cases stick. In 2002, the department seized nearly 300 machines but was forced to return all but 42.
So, in 2008, the city passed an ordinance charging occupational licensing fees per machine. Now, nearly 1,800 machine registered with the city boast green city stickers.
Arcades boast a minimum of 50 machines, while restaurants and markets are limited to four. Criminal background checks are conducted on permit holders, who swear not to dole out cash.
In practice, though, it’s easy to flout state gambling law.
At the Arcade Illusion, 4040 W. 12th St., a recent visit by a Miami Herald reporter revealed cash payments made openly to patrons by an employee. A reporter won six dollars playing a dollar on one machine. One patron, named Jose Luis, said he has netted up to $180 playing $25.
“It’s just to waste time,” he said. “I’m not going to go to the Indian casinos. I don’t drive.”
When told of the activity at Illusion, Overton, the Hialeah police chief, said: “That would be illegal. What I’m going to do is put it on my list for our detectives to look into it.” Arcade Illusion owners could not be reached for comment.
Overton added that several gambling investigations are under way, but no arrests have been made.
“We are caught between a rock and a hard place,” Overton said. “It’s the activity [that may be illegal], not necessarily the machines.”
In Miami, the police department began targeting the machines in 2003, when Manny Diaz was mayor, as part of a “quality of life’ task force.
Officers seized hundreds of machines and arrested store clerks and waitresses for misdemeanor possession of a gambling device. A review of nearly 200 cases revealed that about 35 percent were dropped by prosecutors, or resulted in dismissals or acquittals.
The rest mostly ended in withholds of adjudication — in which no conviction was entered but fines were paid — or dismissals after a defendant completed a “pretrial intervention program” for first-time offenders.
Few fight the charges because “typically, the defendants don’t have the money, or don’t have the interest because they don’t own the machines,” said Nova Southeastern law professor Bob Jarvis, who follows gaming issues.
Exposito says he’ll continue targeting the illegal machines. He launched his latest operation 11 days after the City Commission passed the ordinance, essentially emasculating the law — not one permit has been purchased since the operation.
For now, with Maj. Alvarez or other officers serving as expert witnesses, state prosecutors will proceed to trial on more 25 misdemeanor cases.
Miami Herald staff writer Charles Rabin contributed to this report.