CITY OF PUNTA GORDA OFFICE OF THE CITY ATTORNEY M E M O R A N D U M

1. Developer Request for a Casino • CITY OF PUNTA GORDA • OFFICE OF THE CITY ATTORNEY • M E M O R A N D U M •  To: Teri Tubbs, Zoning Official • From: David M. Levin, City Attorney • Date: December 31, 2009 • Subject: Legal Opinion—Operation of an Adult Arcade in Seminole Lakes Clubhouse

2. You have requested a legal opinion regarding whether or not it would be legally permissible for the owner of the Seminole Lakes Golf Course Clubhouse to operate a “casino” or “adult arcade” within the clubhouse building. • A representative of the owner of the Seminole Lakes Golf Course Clubhouse, Seminole Lakes, Inc., has advised that the owner would like to lease a portion of the Clubhouse to operate an “Adult Arcade”. The “Adult Arcade” would consist of 50 video arcade games.

3. The “arcade” would be for the primary use of residents of the Seminole Lakes subdivision. There would be no cash payouts from the machines. Instead, “winners” would be given gift cards from such places as local retail stores and restaurants. It was also indicated that the “Adult Arcade” would operate under the provisions of Section 849.161, Florida Statutes. .

4. Pursuant to Section 849.161(1)(a)(1), Florida Statutes, it would not be unlawful to operate an “arcade amusement center having amusement games or machines which operate by means of the insertion of a coin and which by application of skill may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages, provided the cost value of the merchandise or prize awarded in exchange for such points or coupons does not exceed 75 cents on any game played.” (Emphasis Added). • .

5. Assuming solely for the sake of argument that the proposed “Adult Arcade” is a permissible activity from a land use perspective, and assuming that said establishment does in fact operate in the manner specified by Section 849.161(1)(a)(1), Florida Statutes, such an operation would be lawful. • Whether the proposed “Adult Arcade” is a permissible activity from a land use perspective will now be addressed. • .

6. . • By Ordinance No. 1026-91 adopted on August 21, 1991, the City of Punta Gorda approved the Final Plat for Seminole Lakes Phase I & IA, and approved the Final Development Plan (“PUD”) for Seminole Lakes, Inc. The PUD identified the approved uses for the project which included 498 single family lots, an 18 hole golf course, a golf course maintenance area, a clubhouse area, an 8 acre commercial area, and certain additional uses. The PUD was amended by Ordinance adopted on June 2, 1993 to among other things, add an additional 1.14 acres of commercially zoned land. The Golf Course Clubhouse is not located within any of the areas zoned for commercial use.

7. The proposed “Adult Arcade” might be permissible within the commercial areas, however, unless or until the PUD is amended, such use would not be permissible within the golf course clubhouse area. Golf course clubhouses traditionally include a golf pro shop, a snack bar, a restaurant, locker rooms, and similar amenities. It would be difficult to argue that an “Adult Arcade” is a traditional use within a golf course clubhouse. • .

8. . Chapter 26, Article 5, Section 5.9(7)(c), Punta Gorda Code provides that any changes proposed to an approved planned development would need to be adopted by ordinance following the same procedures for the approval of a new Planned Development. Therefore, should Seminole Lakes, Inc. desire to pursue their plan to establish an “Adult Arcade” within the Golf Course Clubhouse, they would need to submit an application including the applicable details required in Chapter 26, Article 5, Section 5.9(b), Punta Gorda Code. The City Council would be required to find that the proposed amendment satisfied the “PD Plan Approval Criteria” specified in Chapter 26, Article 5, Section 5.9, Punta Gorda Code.

9. It should be noted that even if the City Council approves a Planned Development amendment authorizing the use of a portion of the Golf Course Clubhouse as an “Adult Arcade”, Seminole Lakes, Inc. will still have one more legal obstacle to overcome. • While the City of Punta Gorda does not have the authority to enforce private property restrictions, it is observed that the recorded “Declaration of Covenants, Conditions and Restrictions” for the Seminole Lakes, Phase I subdivision may prevent the use of the Clubhouse as an “Adult Arcade”.

10. . • The Golf Course Clubhouse is located within Tract “E” of the Seminole Lakes, Phase I subdivision. Article V, Section 1(B) of the recorded restrictions provides that Tract “E” may only be occupied and used “for Golf Course and Country Club purposes and those uses associated with the development, operation and maintenance of a golf course and country club.”

11. . • Thus, before a portion of the Golf Course Clubhouse may be used as an “Adult Arcade”, pursuant to the requirements of the recorded restrictions, at least two-thirds of the owners of residential property within the Seminole Lakes, Phase I subdivision would need to approve an amendment to the recorded restrictions to allow such use.