Bradenton Group, Inc. v. State

970 So. 2d 403
CourtDistrict Court of Appeal of Florida
DecidedNovember 9, 2007
Docket5D05-3338 to 5D05-3341
StatusPublished
Cited by7 cases

This text of 970 So. 2d 403 (Bradenton Group, Inc. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradenton Group, Inc. v. State, 970 So. 2d 403 (Fla. Ct. App. 2007).

Opinion

970 So.2d 403 (2007)

BRADENTON GROUP, INC., et al., Appellants/Cross-Appellees,
v.
STATE of Florida, Appellees/Cross-Appellants.

Nos. 5D05-3338 to 5D05-3341.

District Court of Appeal of Florida, Fifth District.

November 9, 2007.

*405 Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Appellant/Cross-Appellee, Philip Furtney.

Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellants/Cross-Appellees, Bradenton Group, Inc., Eight Hundred, Inc., and Pondella Hall For Hire, Inc.

Bill McCollum, Attorney General, and J. Andrew Atkinson and Erik M. Figlio, Deputy Solicitors General, Tallahassee, for Appellees/Cross-Appellants.

THOMPSON, J.

Pondella Hall for Hire, Inc. ("Pondella"), Eight Hundred, Inc. ("Eight Hundred"), Bradenton Group, Inc. ("Bradenton"), and Philip Furtney ("Furtney") raise 13 issues on appeal arising from an amended final judgment that brought to a close a civil RICO forfeiture action initiated in November 1995.[1] This is the case that resulted in our decision in Bradenton Group, Inc. v. Department of Legal Affairs, 701 So.2d 1170 (Fla. 5th DCA 1997) ("Bradenton I"), and the Florida Supreme Court's decision in Department of Legal Affairs v. Bradenton Group, Inc., 727 So.2d 199 (Fla.1998) ("Bradenton II"). Though we are surprised to see this case again, we reverse the trial court below. In light of our holding, the State's cross-appeal is moot.[2]

Background

In its November 1995 amended complaint, the State sought forfeiture of various real property and proceeds resulting from the defendants' bingo operations, which violated various provisions of section 849.0931, Florida Statutes (1991) (the "Bingo Statute"). It alleged the "Pondella Enterprise" began around 1 January 1991 and continued through 24 October 1995. According to the State, the predicate acts under RICO — bingo — constituted a pattern of racketeering activity under section 895.02(3), Florida Statutes (1991), and were illegal lotteries giving rise to RICO liability.

The court entered a temporary injunction prohibiting the defendants from conducting bingo games, but did not require the State to post a bond. Later, the court granted the defendants' motion to require a $1.4 million bond, which ultimately led to the appeal decided by this court's decision in Bradenton I, which the supreme court approved in part and quashed in part in Bradenton II. The Florida Supreme Court held that a bingo game conducted by an organization not authorized under section 849.0931, or conducted by an authorized organization in violation of various provisions *406 of section 849.0931, did not constitute a "lottery" under section 849.09 and was not racketeering subject to RICO liability. Bradenton II, 727 So.2d at 199. The supreme court explicitly disagreed with the State's argument that the defendants were unauthorized organizations whose violations of the Bingo Statute constituted illegal lotteries subject to punishment and forfeiture under the lottery and RICO statutes. Id. at 201. The court noted that the lottery statute expressly stated it did not apply to bingo. Id. at 202 (citing section 849.09(3), Fla. Stat. (1991)). Furthermore, the RICO statute listed the provisions of the gambling chapter that it punished, which did not include the Bingo Statute. Id. (citing section 895.02(1)(a)(32), Fla. Stat. (1991)). The Florida Supreme Court closed its discussion of the relationship between the Bingo Statute and the RICO statutes, as follows:

Without a clearer signal from the legislature, we are unwilling to create such a distinction and transform routine bingo offenses into lottery and RICO violations. Accordingly, we answer the certified question in the negative and hold that under the present statutory scheme violations of the bingo statute are not punishable under the lottery or RICO statutes.

Id. (emphasis added).

However, the supreme court approved this court's decision to require a bond, stating:

[T]he very broad injunction the state requested — and received — will severely damage the defendants if its entry was improper. . . . As the state thrives under the broad grant of authority to the circuit court in subsection (5), so must it suffer under it.

Id. (quoting Bradenton I, 701 So.2d at 1180) (footnote omitted). When the supreme court denied the State's motion for rehearing, it granted the defendants' motion for award of attorney's fees pursuant to section 60.07, Florida Statutes (1995).

The case was thereafter remanded to the trial court. In response to Bradenton II, the defendants filed motions to dismiss and for summary judgment. The State responded by filing a second amended complaint in July 1999. That complaint changed the dates of the predicate acts, alleged additional predicate acts, and added additional defendants to various charged predicate acts. In addition to alleging additional predicate acts, the "facts common to all counts" portion of the complaint changed the enterprise's start date to 1 June 1990. As to its allegations that members of the enterprise had "conducted bingo games," the State now contended that the members "conducted lotteries and gambling games." These "lotteries and gambling games" allegedly violated 18 U.S.C. § 1955, which prohibited illegal gambling businesses. Again, the State sought injunctions and forfeiture of property and proceeds under the RICO statute.

The State argued that nothing in Bradenton II overturned cases holding that illegal bingo operations could be deemed "keeping a gambling house," violating section 849.01. Furthermore, it claimed lottery violations other than bingo occurred. The court denied summary judgment in August 2003, accepting the State's argument that section 895.02(1)(b) defined racketeering activity as any conduct defined by 18 U.S.C. § 1961(1) as racketeering activity — and § 1961(1) included any act under 18 U.S.C. § 1955, which prohibited an illegal gambling business.

In September 2003, the defendants requested that the court take judicial notice of Lamar v. Pondella Hall for Hire, Inc., 8 Fla. L. Weekly Supp. 830 (Fla. 9th Cir. Oct. 1, 2001). In Lamar, the State Attorney in the Ninth Judicial Circuit filed an *407 August 1994 complaint seeking RICO forfeiture against Furtney and Pondella for their bingo violations in Orange and Osceola Counties.[3] In July 2001, the State moved to consolidate that case with the underlying case, arguing the case below "include[d] and subsume[d] the subject matter" of Lamar and was based on the same bingo operations. The Lamar court denied the motion and granted summary judgment for Pondella and Furtney in the State's forfeiture action based upon the bingo operation in Orange County. It held that Bradenton II controlled, and further held:

2. That the alleged conduct of bingo games and the alleged violations of any regulations dealing with the conduct of those games, including those specifically set out in Section 849.0931, Fla. Stat., do not and cannot form the basis of a racketeering violation or any violation of Section 895.01, et seq., or violations of any of the other gambling laws in Chapter 849.

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Bluebook (online)
970 So. 2d 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradenton-group-inc-v-state-fladistctapp-2007.