A Comparative Study of State Laws on Social Gambling
by Bob Ciaffone
The purpose of this study is to draw attention to the wide variations in state laws pertaining to social gambling. This hopefully will help highlight poor laws in certain states that do not seem to be taking a realistic approach. It will also ease the task for someone who wishes to improve a state's gambling laws by directing him where to look.
A comparison of state gambling laws shows a number of very large differences. Some states take the view that any form of gambling, even private games in someone's home, should be prevented by law. Other states allow contests for prize money, as well as social gambling. Penalties vary widely from state to state. A violation that gets a small fine in one state can theoretically result in a sentence of ten years of jail time in another state. There does not appear to be any significant differences in the internal gambling situations faced by each state to explain or justify such a wide gulf in approach. They cannot all be right. This study takes a close look at the specifics of gambling laws to see what these differences are and what should constitute a reasonable approach.
This analysis only looks at the laws pertaining to social gambling, and the holding of games and sporting contests for prize money. It does not delve into charity gambling, lotteries, carnival games, racetracks, bookmaking, or casino gambling. This survey is also limited to laws that are made at the state level. There are also city and county laws that regulate gambling. These are often stricter than the state law. Therefore, information presented in this survey does not necessarily mean that a form of gambling is definitely legal in a particular locality.
The information for this study was obtained by going to the "state statutes" section of the law library. All the states were represented, and each state has an index of its laws. By looking up "gambling" in the index, the appropriate laws can be located. Copies of the gambling laws of each state were assembled, studied, and categorized.
Although the author considers this study to be useful, it is not likely to be error-free, for the following reasons:
The author is not a lawyer, and has no formal training in legal research. This deficiency may prove to be meaningful in tracking down updates and amendments to state laws.
With a few states, all their laws on gambling are not grouped in a single concise section. Thus, some laws may have been overlooked in this research.
There are two states not mentioned in this survey. Nevada and New Jersey are absent because their legalization of casino gambling has produced too many laws on gambling to be reasonably integrated into this study. The author apologizes for this shortcoming.
WHAT CONSTITUTES GOOD GAMBLING LAWS?
What characteristics should be expected from a gambling law to make it a "good law?" Here are some guidelines:
Is the law in tune with the general sentiment of the citizenry? Many state laws on gambling are much more strict than prevailing attitudes, mores, and practices. Therefore, although these laws are on the books, they seldom actually come into play. Furthermore, when some laws on gambling are perceived as unrealistic, this can inhibit the enforcement of other laws that do have value.
Will the law be properly enforced? A poorly conceived gambling law puts unreasonable pressure on law enforcement. Can the law be enforced without making a value judgment about its appropriateness? To do so inevitably brings the cry of why law enforcement is not out chasing real criminals. On the other hand, can law enforcement officials ignore a complaint made about an activity that violates the law? An unreasonable law will usually be only enforced sporadically, which opens law enforcement to the charge that the manner of enforcement is capricious in nature.
Will the enforcement of the law bring discredit on the legal system? A Pennsylvania decision said: "Until legislature makes some distinction between gambling which is considered harmless or primarily for amusement and that which is considered harmful to public, or makes some distinction as to degrees of gambling, courts have no option but to enforce the law when gambling is established according to meaning of statutes" [Petition of Hewman, 49 Lack. Jur. 77, 1948].
With a bad law on gambling, there is always the possibility of a serious injustice occurring. For example, a complaint is made, perhaps by an irate spouse or someone with a grudge. The police act on the complaint, and arrest a group of people that includes the target of the complaint. The court has no choice but to enforce the law. The result is that a group of citizens have an arrest and gambling conviction that becomes a black mark on their personal record, which must then be noted on job applications and other forms. This type of injustice can and does happen. The best solution is to improve the law.
Will the law create expensive litigation? Vague and poorly worded laws are not in the public interest. They cost the taxpayers money by bringing about unnecessary court cases. Many gambling laws should be changed in their wording to more clearly define which types of gambling activity are legal and which are illegal.
BADLY WORDED LAWS
Is it a "game of chance" or a "game of skill?" These phrases are frequently found in gambling statutes. Unless they are properly defined, trouble in the form of expensive litigation can ensue.
How should such games as backgammon, poker, and bridge be classified? In the short run, there is a strong element of luck in each of these; in the long run, skill predominates. Even a game where the effectiveness of a good player over an average player is not large, there can still be a huge advantage against a very weak player. For example, consider two players playing blackjack, where one of them adopts the ridiculous strategy of hitting until he either makes 21 or goes bust. He would clearly do very poorly against any opponent of even mediocre quality.
Nearly all the states using the phrase "contest of chance" have a good definition for it. Here is the excellent wording used by New York state: "'Contest of chance' means any contest, game, gaming scheme, or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that the skill of the contestants may also be a factor therein." Some other states using virtually identical wording are Alabama, Alaska, Hawaii, and Maine.
The only states that could be found using the phrase "contest of chance" without bothering to define it at all were West Virginia and North Carolina. In North Carolina the phrase was defined in a court decision. That decision said "a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one where the element of skill predominates over the element of chance" [State v. Eisen, 16 N.C. App. 532, 192 SE 2nd 613 (1972)].
This poor definition for "contest of chance" is used with alarming frequency in local ordinances throughout the United States. The lesson is simple: jurisdictions should give a good definition of any unclear terms used in constructing a law.
There does not seem to be anyone claiming that athletic games have chance as a material factor, at least in law cases. Of course, there is an element of luck in any game. For example, two golfers each hit a shot into a tree. One of them has his ball ricochet into the fairway, and the other into deep rough. Obviously, one was lucky, and the other unlucky. Nevertheless, speaking in a legal sense, there is not considered to be any element of luck or chance in a game such as golf. To have an element of chance in a legal sense, there needs to be some luck that is introduced as an integral part of the game. This would be done by using dice, cards, tiles, or some other "randomizing agent."
Perhaps the most expensive gambling litigation has taken place in the state of California. The California law reads in part: "Every person who deals, plays, or carries on ... any banking or percentage game played with cards, dice, or any device ... is guilty of a misdemeanor ..." [Title 9, section 330]. This law could have been ruled unconstitutionally vague by a court case in the late 1800s; however, the court upheld the law by a two to one decision. The dissenter said: "If the state of California wishes to use those words, let it define what it means by them."
After 100 years of hindsight, one wishes the court had struck down the statute's wording as too vague. In the years between 1987 and 1990, enormous sums of money were spent by the California Card Club Association and the Office of Attorney General in disputing the meaning of these terms. So far, cases have only been decided at the local level, and the end is nowhere in sight. The terms "banking game" and "percentage game" are used by two other states in anti-gambling laws, Arizona and Oklahoma; however, neither defines them.
The state of Louisiana outlaws gambling "as a business," but fails to define that crucial term. This omission almost resulted in a major lawsuit when a two-week poker tournament was held as an annual event in Lafayette, Louisiana. It had been held for three straight years without a problem. However, after it had run for five days in the fourth year, federal and state authorities decided to close down the tournament. Over a thousand people were in attendance. The litigation that could have stemmed from a raid was mind-boggling. Fortunately, the organizer was merely threatened, and he closed down voluntarily. As in this case, it seems foolish for a state to use the phrase "as a business" without clarifying what it means.
Social gambling is common in virtually all societies. Many people feel that a game or sporting event becomes "more interesting" if something of monetary value is at stake.
"Serious" gambling activities are either banned outright or closely regulated in every state of the United States. There are many different approaches taken in the wording of each state's laws on gambling. Some states distinguish social gambling from "serious" gambling; others do not. In this analysis, states are classified by their legal treatment of social gambling.
It is perhaps easier to look at individual cases to see whether or not they are "social gambling," than to draw up a broad definition. For example, Joe bets Bill $50 on the Super Bowl. Bob bets John a "$ 10 Nassau" on their golf match. Alice and her girlfriends have a weekly poker game. Strictly speaking, to be considered social gambling, each of these harmless-sounding activities should in the author's opinion comply with the following suggested criteria to be considered "social gambling":
Nobody other than the parties themselves should derive any monetary benefit from it. For example, if someone were to run a "golf match booking agency" to which was paid a fee for arranging a money match between Joe and Bill, their actions would take on more serious weight.
Nobody may be paid a commission for making or taking a bet. An important distinction between a social bet and bookmaking is the fee paid to the bookmaker for accepting the wager.
Nobody may advertise the activity in a formal manner. Were Alice to place an ad in the classified section of the newspaper, "poker players wanted," the nature of her activity would change.
It should not be held in a public business-place.
In some states, Alice could have a poker game at her house and not be in violation of the law. She would not be allowed to advertise her game, rake the game, or have a built-in house advantage, such as "Alice always deals." Perhaps she could charge a small amount for playing to cover the expenses such as food and beverages, but nothing beyond that.
In other states, the mere fact that Alice and her friends were betting on the outcome of their game would make such activity illegal. No distinction is made in state law to exempt "social gambling." While police departments do not ordinarily spend much time and energy busting home poker games, they are still obligated to enforce the law. Were someone to complain about Alice's game, law enforcement would probably feel obligated to take some action.
Some states have a law which permits social gambling, but do not define the term. For example, Alabama law 13A-12-21 reads as follows:
(a) A person commits the crime of simple gambling if he knowingly advances or profits from unlawful gambling activity as a player.
(b) It is a defense to a prosecution under this section that a person charged with being a player was engaged in a social game in a private place. The burden of injecting the issue is on the defendant, but this does not shift the burden of proof."
Other states that explicitly allow "social gambling" without defining that term extensively include Alaska, Colorado, Connecticut, Kentucky, Minnesota, New York, Texas, Virginia, and Wyoming.
It is better to clearly define what is meant by a term such as "social gambling." Four states which do so are Hawaii, Maine, Oregon, and Iowa. The following three examples are spelled out in their entirety, because they all seem to be reasonable and thoughtfully conceived.
"Hawaii, Law 712-1231. Social gambling; definition and specific conditions, affirmative defense.
(a) Definition. 'Social gambling' means gambling in which all of the following conditions are present:
1. Players compete on equal terms with each other; and
2. No player receives, or becomes entitled to receive, anything of value or any profit, directly or indirectly, other than his personal gambling winnings and
3. No other person, corporation, unincorporated as
sociation, or entity becomes entitled to receive, anything of value or any profit, directly or indirectly, from any source, including but not limited to permitting the use of premises, supplying refreshments, food, drinks, lodging or entertainment; and
4. It is not conducted or played in or at a hotel, motel, bar, nightclub, cocktail lounge, restaurant, massage parlor, billiard parlor, or any business establishment of any kind, public parks, public buildings, public beaches, school grounds, churches or any other public area; and
5. None of the players is below the age of majority; and
6. The gambling activity is not bookmaking."
The state of Maine injects its definitions of social gambling by the way it defines "player."
"Maine, Law 17-A 952
'Player' means a person who engages in social gambling solely as a contestant or bettor on equal terms with the other participants therein without receiving or becoming entitled to receive something of value or any profit therefrom other than his personal gambling winnings.
'Social gambling' is gambling, or a contest of chance, in which the only participants are players and from which no person or organization receives or becomes entitled to receive something of value or any profit whatsoever, directly or indirectly, other than as a player, from any source, fee, remuneration, connected with said gambling, or such activity as arrangements or facilitation of the game, or permitting the use of premises, or selling or supplying for profit refreshments, food, drink service or entertainment to participants, players or spectators.
A person who engages in 'bookmaking' as defined in subsection 2 is not a 'player."
The author's personal preference for a model definition of social gambling is that used by the state of Oregon. It reads more like plain English than lawyers' jargon. In Oregon, "social game" means:
"(a) A game, other than a lottery, between players in a private home where no house player, house bank or house odds exist and there is no house income from the operation of the social game.
(b) If authorized pursuant to ORS 167.121, a game, other than a lottery, between players in a private business, private club, or place of public accommodation where no house player, house bank or house odds exist and there is no house income from the operation of the social game."
The ORS 167.121 referred to says "Counties and cities may, by ordinance, authorize the playing or conducting of a social game in a private business, private club or in a place of accommodation." Of the states which defme "social gambling," we see that Oregon has the most liberal definition. It permits, under certain conditions, games at country clubs, offices, and the like.
The only state to have a specified amount of winnings or losses in its legal definition of social gambling is Iowa. That state's law says one of the qualifications of social gambling is:
"h. No participant wins or loses more than a total of fifty dollars or other consideration equivalent thereto in all games or activities at any one time during any period of twenty-four consecutive hours or over that entire period. For the purpose of this paragraph, a person wins the total amount at
stake in any game, wager or bet, regardless of any amount that person may have contributed
to the amount at stake."
This law could easily be violated in the following scenarios:
(b) Eight people sit down to play poker, each with $25 in chips to start.
(c) A penny-a-point bridge game or Hollywood gin match is played.
(d) A golf game is played at $20 Nassau stakes.
One can imagine some interesting conversations produced by the law:
(a) "Better not invite Alice to our poker game any more; she plays so loose that she's liable to exceed the $50 loss limit."
(b) "Partner, we can't bid any higher than game on this hand, or Joe will be stuck over 50 dollars."
(c) "Well, Tom, I've got you on a blitz, but I'm going to have to keep drawing cards and let you score, even though I have gin in my hand, so the 50 dollar limit won't be exceeded."
Obviously, the idea of a $50 dollar win-or-loss limit being an integral part of social gambling was not conceived of by someone who had much gambling experience. It seems better to follow the concept used in all other state laws that social gambling is not determined by the stakes at risk, but by other factors such as where it takes place.
It is apparent that excluding social gambling from the scope of anti-gambling statutes is an important part of state policy on gambling, for many states. I believe those states who make all forms of gambling illegal, without considering the social setting where that gambling takes place, are being unreasonably strict in their gambling laws.
CONTESTS AND TOURNAMENTS
This section will not concern itself with racetracks, lotteries, merchandising schemes, or amusement park games. Since the focus of this study is on social gambling, the scope is confined to looking at the legality of competing for money at various sports and games.
There are an enormous number of competitions staged in the United States - and other countries - where prizes can be won. There are sporting contests such as bowling leagues, golf tournaments, fishing contests, dance contests, and shooting competitions. There are tournaments at games of pure skill such as chess and checkers. Games having a blend of luck and skill that are often played in competition are bridge, backgammon, Monopoly, Scrabble, and dominoes. There are many other activities that could be added to the list, because one can have a competition at virtually any human endeavor. It is evident that competing for prizes at sports and games is an enjoyable recreation that is frequently indulged in by mainstream America.
One of the shocking findings of this survey is that there are still a lot of states that consider competing for prizes in a competition to be illegal gambling. An example can be found in Mississippi, Law 97-33-1. Gambling - wagering generally - carries the following penalty:
"If any person shall encourage, promote or play at any game, play or amusement, for money or
other valuable thing, or shall wager, promote or encourage the wagering or betting any money or other valuable things, upon any game, play, amusement, cock-fight, Indian ball play, or duel, or
upon the result of any election, event or contingency whatever, upon conviction thereof, he shall
be fined in a sum not less than five dollars nor more than five hundred dollars: and, unless such
fine and costs be immediately paid, shall be imprisoned for any period not more than twenty
days nor less than five days." It is a safe bet that the letter of the law is not firmly enforced in Mississippi!
The tool used by many states to allow competing for prizes is the "bona fide contest" clause.
In defining "bet," Kansas Law 21-4302 is typical when it says a bet does not include:
"Offers of purses, prizes, or premiums to the actual contestants in any bona fide contest for
the determination of skill, speed, strength or endurance or the bona fide owners of animals
or vehicles entered in such a contest." Illinois is even more direct. Illinois Law 38-28-1 says:
"Participants in any of the following activities shall not be convicted of gambling," and then it
gives the bona fide contest clause. Some other states using the bona fide contest clause
method of allowing for competition for prizes are Colorado, Connecticut, Indiana, Iowa, Michigan, Minnesota, Nebraska, New Mexico, North Dakota, Texas, Virginia, Wisconsin, and Wyoming.
A tool used by a number of other states to allow competition for prizes is the way they define gambling. For example, Alabama law 13A-12-20; definitions, reads:
"Gambling. A person engages in gambling if he stakes or risks something of value upon the outcome of a contest or chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome." This implies if a person bets on himself, he is not gambling. Some states using the "not under his control or influence" clause are Alabama, Alaska, Hawaii, Maine, Missouri, New York, and Oregon.
It seems to the author that a state wishing to allow contests for prize money is better advised to
say so explicitly via a "bona fide contest" clause, rather than by the rather artificial method
of declaring that betting on yourself is not gambling. The "bona fide contest" method also has
the advantage of making it obvious that people associated with the organization and running
of a contest are not breaking the law.
Table 1 presents a listing of the status of all the states with regard to allowing social gambling and bona fide contests. It is the author's opinion that any state that does not allow social gambling and bona fide contests has a fundamental flaw in its gambling laws. The number of states in this situation is 28, and half of those have neither social gambling nor bona fide contest laws.
STATES ALLOWING SOCIAL GAMBLING AND/OR BONA FIDE CONTESTS
State Law and the Unlawful Online Gambling Act
(Poker News Article courtesy of: Card Player)
State vs. Federal ConstitutionPrior to analyzing how the new federal law interacts with state gaming law, it is necessary to have a basic understanding about the two constitutions by which we are all bound.
Every state has a constitution that is a body of laws that the citizens of that state must follow. There is also a federal Constitution that all citizens of the United States must follow. (The federal Constitution and the US Constitution mean the same thing.) We are each subject to both the laws of our state and federal laws.
The Tenth Amendment to the United States Constitution states that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted that powers not granted to the United States were reserved to the states.
Historically, the states have successfully regulated gambling within their borders, as that is seen to be a power reserved to the state. Almost every state has some form of legal gambling, be it a casino, lottery, video, lottery terminal, horse wagering, bingo, or other forms of gambling.
As to the issue of which law applies (state or federal), the US Supremacy Clause states that the "Constitution and the laws of the United Statesshall be the supreme law of the landanything in the constitutions or laws of any State to the contrary notwithstanding." This means of course, that any federal law even a regulation of a federal agency trumps any conflicting state law.
Finally, the Commerce Clause makes Congress the guardian of interstate commerce. Article I, Section 8, Clause 3 of the US Constitution states in relevant part: "The Congress shall have power to regulate commerce with foreign nations, and among the several states ."
Every federal law must have a constitutional basis in order to be valid, and the Commerce Clause has been widely used as a constitutional base for federal legislation of every type. It has been predicted that the Commerce Clause will ultimately regulate many activities on the World Wide Web.
Those three constitutional mandates taken together basically mean that any federal law must be constitutionally based. If it is, and if there is a federal law on a subject, it preempts state law. The federal government is to regulate commerce, but powers not granted to the federal government are "reserved to the states. And laws relating to the health and welfare of its citizens usually fall within the purview of state law."
So what powers does the federal government have regarding online gaming law? Traditionally, the federal government has stayed out of the gambling arena and left its regulation to the states. However, when gambling crosses into different states or countries, the federal government has a legitimate interest and therefore gets involved.
The Unlawful Internet Gambling Enforcement Act
As I explained in a prior article, Section 5361(b) of the Unlawful Internet Gambling Enforcement Act specifically states that nothing in this new law shall be construed as "altering, limiting,
or expanding any Federal or State law prohibiting, permitting or regulating gambling
within the US."
In other words, the language of the statute confirms that this new law does not change existing gaming law. The federal government has merely enacted a law that attempts to enforce state or federal laws already in existence.
The operative section of this new legislation states that "No person engaged in the business of betting or wagering may knowingly accept" electronic transfers, credit cards, etc. where a person is engaged in "unlawful Internet gambling." This new law applies, if and only if, the gambling is already illegal under current state or federal law.
Whereas my previous article focused on current federal law, this one addresses applicable state laws.
State Gaming Law
From the letters I have received, I am concerned that some readers do not know the gaming laws of their states.
A few states have passed statutes making it a misdemeanor to participate in Internet gambling. For example, Illinois passed legislation that criminalized the activity of the individual bettor, making it a Class A misdemeanor (720 ILCS 5/28-1 (2001)(a)(c)).
This legislation was ridiculed by deputy district attorneys, who would be the enforcers of this law, causing The Chicago Sun Times to conclude that the legislation "has bark and no bite" and that "without cyber cops monitoring households and their computers, the law will be difficult to enforce."
To my knowledge, there has not been one prosecution in those states that make it unlawful to play online poker in their state.
Problems with Enforcement
In a nutshell, the reason it is almost impossible to enforce a law prohibiting a gambler from playing poker online is because prosecutors are hard-pressed to come up with admissible evidence.
A criminal case must be pleaded and proved with specificity. What this means is that a crime must be alleged to have occurred on a specific date in a specific place, in order that the accused can lodge a defense. How could a state prove that one was playing poker on a certain date and time in its jurisdiction?
First, a county prosecutor would have to have sufficient information to file a lawsuit against an individual and then prove that the crime occurred within that county. With the advent of the Internet and laptop computers, it is almost impossible to prove that someone was playing poker in a certain jurisdiction. Many gamblers travel around the country to different venues. The government would have an extraordinarily difficult time proving from where a poker site was accessed. If a prosecutor cannot prove jurisdiction, the case gets thrown out of court at its inception.
Next, even if it could be proven that a certain computer was used, the identity of the user must be proven beyond a reasonable doubt. To prove the user's identity, the prosecutor would have to provide first-hand knowledge regarding who was at the computer playing poker. Also, subpoena power is not available overseas, meaning that an offshore online site would not turn over its records regarding who was playing and when.
The state cannot come into one's home without "probable cause" to believe a crime was being committed, which would entitle it to have a search warrant signed by a judge. The search warrant must be based upon probable cause, which is defined as objective facts that raise in the mind of a reasonable person the probability that a crime is being committed. It would be nearly impossible to demonstrate probable cause to believe a crime was being committed.
Finally, considering that some people play one- and two-penny poker, it would be embarrassing for a prosecutor's office to dedicate its scarce resources to catch a penny-ante online gambler, while murderers and rapists are on the loose.
The State of WashingtonMakes Online Gambling a Felony!
It is important for our readers to understand that Washington did make it a felony to play online poker in their state. Although no entity appears to be enforcing this law, it does exist.
On March 28, 2006, the state of Washington passed a law prohibiting Internet gambling, which went into effect on June 7, 2006. The Washington bill upgrades online gambling from a misdemeanor to a class C felony.
Gambling Commission Director Rick Day and State Senator Margarita Prentice, who sponsored the legislation, have publicly stated that the aim of the law is not directed toward the online gambler. Day said that jailing small-time online gamblers is "not the focus of our work." Day said his priorities are to go after national and international promoters or operators based in Washington state. Evidently he thinks gamblers are like children, needing protection. He has publicly stated that he wants to protect gamblers from sites that won't pay, colluders, and money launderers.
In my opinion, this offensive, overbearing law is unconstitutional and needs to be challenged in a Washington court. Besides the fact that it attempts to legislate morality, the law is inconsistent with other Washington laws that allow gambling in brick-and-mortar casinos. The prohibition does not include online horse-race wagering, so that certain forms of online gambling are still legal where the state makes money. These issues will have to be hammered out in court. I eagerly await the first lawsuit and hope to be personally involved.
Furthermore, the sentencing scheme is ridiculous. Playing poker online in Washington has been deemed a class C felony, punishable by an amount not to exceed $10,000 and/or confinement in a state correctional institution for up to five years.
Other class C felonies in Washington include certain degrees of rape, child molestation, stalking, bestiality, making deadly threats, failure to register as a sex offender, theft, assault on a child, custodial sexual misconduct, sex and labor trafficking, and the list goes on.
This means that under Washington law, a penny-ante poker player could ostensibly receive the same sentence as one involved in certain types of child molestation. This violates the Eighth Amendment's proscription against cruel and unusual punishment. Allow me to explain.
In 1977, there was a law in Georgia that made rape punishable by death. In the famous case of Coker v. Georgia, the US Supreme Court ruled that a sentence of death for the crime of rape of an adult woman was grossly disproportionate and excessive punishment forbidden by the Eighth Amendment to the US Constitution. A sentence cannot be disproportionate to the crime. This issue will also have to be tested in court.
Regardless of what we all think about the Washington law, it currently exists. The next question is how it relates to the Unlawful Internet Gambling Enforcement Act.
How Does the Federal Enforcement Act Interact with State Law?
Only in the case where a state makes it a crime to play poker online, the new statute (if signed into law, of course) also makes it a crime for the "person engaged in the business of betting or wagering" to "knowingly accept" funds. As I have stated before, this rule does not apply to the online gambler, but rather, to the online sites.
In other words, where Washington makes it a crime to play poker online, the federal statute makes the operator of a site liable for accepting payment. However, since all gaming sites are offshore and not subject to our laws, this is a law with no teeth.
Recognizing that the US has no jurisdiction offshore, the bill ends in section 803 by saying that the US government should "encourage cooperation by foreign governments." Dream on. People in the gaming world already know that a place like the Isle of Man does not feel sympathy with US laws and refuses to enforce a violation of a US law where no similar law exists there. As a matter of fact, the Isle of Man was one of the first jurisdictions in the world to introduce legislation specifically designed to benefit gambling and e-gaming firms as well as protect consumers. The last thing they would consider is cooperating with US antigaming laws.
In sum, the 2006 Enforcement Act does make it a felony for an owner or operator of a site to accept money for gambling where it is already illegal (that is, Washington), but since all gaming sites are located outside of the jurisdiction of the United States, this portion of the law is, in all practical terms, unenforceable.
SOCIAL GAMBLING OK
BONA FIDE CONTESTS OK
SHOULD PLAYERS BE PROSECUTED?
In any state, it is considered a lesser crime to be a player than a person who takes an active part in the running of a gambling operation. As has already been noted, a number of states exclude a person who bets on himself from their definition of "gambling." Some states go further. They have a clause which exempts players from prosecution.
The following laws provide examples of this:
Kentucky, Law #528.010. "'Player* means a person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity. A person who engages in bookmaking as defined in subsection (2) is not a 'player.' The status of a 'player' shall be a defense to any prosecution under this chapter."
Alaska, Law 11.66.280, in defining the crime of "promoting gambling," says "promoting gambling means that a person, acting other than as a player, engages in conduct that materially aids any form of gambling."
Maine's law parallels this line of reasoning. In defining the crime of "advancing gambling activity," Maine Law 17A-952 says:
"A Person 'advances gambling activity* if, acting other than as a player or a member of a player's family residing with a player in cases in which the gambling takes place in their residence, he engages in conduct that materially aids any form of gambling activity.".
In certain cases, it seems obviously unfair to penalize someone who is a player. If the gambling activity would be legal if the organizer of the activity were not making a profit, and illegal otherwise, how is a player to know if he is breaking the law? Consider the following example. Earlier this study discussed the holding of a poker tournament in Louisiana, where gambling that is not run "as a business" is legal. Is it right that if the players are being overcharged by the organizer, the players then become lawbreakers? This seems neither logical nor fair. This same principle could be extended to a home poker game where everybody contributes some money for food and drinks. If the host is breaking the law by overstating his expenses, should the players now become illegal gamblers? It is the author's opinion that in any situation where the gambling activity is not illegal per se, but has its legality depend on something like the amount players are charged, the players should be exempt from prosecution. Unfortunately, no state has used this differentiation in its gambling laws.
STATES WITH OVERLY STRICT LAWS
Of course, putting a state in the category of having overly strict laws is a value-judgment. It is the author's belief that any state whose laws do not permit any form of social gambling or contests of any kind is deserving of this "overly strict" classification.
There are fourteen states - plus Washington D.C. - that fit into this category. They are Arkansas, Delaware, Florida, Georgia, Idaho, Maryland, Massachusetts, Mississippi, Oklahoma, Rhode Island, South Carolina, Tennessee, Utah, and Vermont.
Though in this list many geographical regions are represented, the heaviest concentrations are from New England and the Deep South. States in the Midwest
and Far West areas are generally more reasonable in their gambling laws.
The following are some examples of strict laws. Florida, Law 849.08 makes it a misdemeanor to bet at any game of chance, and Law 649.14 makes it unlawful on the result of a trial or contest of skill. Arkansas, Law 5-66-113, Games of Hazard or Skill; Betting, reads as follows:
"If any person shall be guilty of betting any money on any game of hazard or skill, he shall on conviction be fined in any sum not less than ten dollars ($10.00) nor more than twenty-five dollars ($25.00)."
Georgia, Law 16-12-21 reads as follows:
(a) A person commits the offense of gambling when he:
(1) Makes a bet upon the partial or final result of any game or contest or upon the
performance of any participant in such game or contest;
(2) Makes a bet upon the result of any political nomination, appointment, or
election or upon the degree of success of any nominee, appointee, or candidate; or
(3) Plays and bets for money or other thing of value at any game played with
cards, dice or balls.
Some other states which prohibit the playing of any game for money, whether it is a game of chance or game of skill, are Mississippi, Tennessee, and Vermont. Three states which deserve especially unfavorable reviews for some aspect of their gambling laws are Tennessee, Oklahoma, and South Carolina. The following should demonstrate why:
Tennessee, Law #39-17-501 defines "gambling" as "risking anything of value for a profit whose return is to any degree contingent on chance, but does not include a lawful business transaction." Tennessee, Law #39-17-502; Gambling, "(a) A person commits an offense who knowingly engages in gambling."
The Tennessee Law means any form of gambling whatsoever is illegal in that state.
It is a safe bet that a law so sweeping will be enforced in a highly selective and arbitrary manner. An aspect the author finds so revolting about this law is it was put on the books
on November 1, 1989. Most bad laws on gambling are a hangover from a darker age; Tennessee actually worsened their laws less than a year prior to this study's undertaking.
Oklahoma, Law #21-941. Opening, conducting or carrying on a gambling game - Dealing for those engaged in game. "Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with cards or any device, for money, checks, credits, or any representatives of value, or who either as owner or employee, whether for hire or not, deals for those engaged in any such game, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine of not less than Five Hundred Dollars ($500.00), nor more than Two Thousand Dollars ($2,000.00), and by imprisonment in the State Penitentiary for a term of not less than one (1) year nor more than ten (10) years."
This law is far different from that in any other state because the penalty is so severe. In Oklahoma, if a person has a poker game in his home that is not raked, he can get a felony conviction and a mandatory jail sentence of at least a year and possibly ten years. Surely Oklahoma stands out negatively for continuing this extremely harsh and unjust law.
South Carolina, Law 16-19-70, is the most ridiculous state law on gambling in the nation. It says:
"Whoever shall keep or suffer to be kept any gaming table or permit any game or games to be played in his house on the Sabbath day, on conviction thereof before any court having jurisdiction, shall be fined the sum of fifty dollars, to be sued for on behalf of, and to recovered for use of, the State."
As can be seen, playing a game at one's house on Sunday, even though no wagering be involved, is declared illegal in South Carolina. Is it constitutional for a state to prohibit people from playing a friendly game of bridge with family-members in their own home on a Sunday afternoon? The author thinks not, and finds it hard to believe such a law could have been passed in any state of the United States of America.
ARCHAIC LAWS STILL ON THE BOOKS
There are a few states which have some gambling laws so old that they appear ridiculous and humorous. Here are a few examples:
(1) West Virginia, Law #61-10-8 - "Gaming at Outhouse Of Hotel:
Penalty. If the keeper of a hotel or tavern let or hire to another person any outhouse or other place, . . . with intent that unlawful gaming be permitted thereat, he shall suffer the same punishment and incur the same forfeiture as if such unlawful gaming were permitted at his own principal house."
Evidently the meaning of "outhouse" has undergone a change since this law was passed.
(2) Vermont, Law #2132 - "Gambling. A person who plays at cards, dice, tables, billiards or other game for money or other valuable thing shall be fined not more than $5.00."
These days, five dollars is not what anyone would consider a stiff fine, although it would still put a conviction on a person's record.
(3) Massachusetts, Law #271-1 - "Gaming or Betting; forfeiture, limitations. Whoever, on a prosecution commenced within eighteen months after the commission of the crime, is convicted of winning at one time or sitting, by gaming or betting on the sides or hands of those gaming, money or goods to the value of five dollars or more, and of receiving the same or security therefor, shall forfeit double the value of such money or goods."
In other words, in this law, the state of Massachusetts frowns on winning at gambling.
In summary, all these laws are evidence that some states go lengthy periods of time without reviewing and revising their gambling laws.
THE ENFORCEMENT OF BAD LAWS
There is something everyone reading this study now probably realizes. Most states have gambling laws so strict that their firm enforcement would surely antagonize a sizable portion of the citizenry. However, it is a mistake to think those laws are not enforced at all. Here are some recent examples:
(1) In Florida, police raided a poker game in a senior citizen trailer park. They arrested eight people and confiscated twenty-two dollars. The people who were arrested had some T-shirts made identifying themselves as the "Largo Eight," and appeared as guests on the "Johnny Carson" television show.
(2) In California, near Los Angeles, some patrons of Dad's Donut Shop were issued citations in 1989 because they were playing chess for 50 cents a game, which violated a local anti-gambling ordinance.
(3) In Michigan - a state that does not exclude social gambling from its anti-gambling laws - a poker game in an apartment building was raided in the early 1970s. A three-man team of inner-city police officers had followed a "suspicious-looking character" to an apartment, saw the game in progress, and decided to raid it. The players were a group of county deputy sheriffs, who thought the game was being hijacked. A gunfight ensued, and the toll was three wounded and one dead before the smoke cleared. Bad gambling laws can actually get people killed.
SOME OTHER APPROACHES
A few states have used approaches to gambling that do not fit into simple categories, as follows:
The state of California has a list of specific games that are prohibited, plus "banking and percentage games." In the author's opinion this approach is fundamentally sound, but suffers from certain drawbacks the way it actually has been put into practice. The games that are banned are in most cases not the ones that should be selected. The banned games listed by name are "faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, stud-horse poker, seven-and-a-half, twenty-one, hokey-pokey."
The main purpose of listing certain games by name is to clarify the law for law enforcement. Unfortunately, California's list has a number of ancient games that people nowadays are unsure of how they are to be played. For example, the legal cardroom industry in California believes "stud-horse poker" to be five-card stud played as a banking game; the Attorney General's office equates it with stud poker. The result has been some expensive litigation.
In the author's opinion, the only games that belong on a banned list are games where the player has no strategic decisions to make after he places his bet; in other words, purely gambling games. The games of roulette and craps, among others, have this character, though craps is omitted from the California list.
The terms "banking game" and "percentage game" are unfortunately not defined in the statute, as was previously mentioned. Questions arise such as: "Is a banking game legal if only players bank, and the bank is rotated?," and "Is a percentage game one in which the house has a built-in advantage, or one where the house varies its rake-off with the amount being wagered?"
The California gambling laws need to be clarified. At present, the lawyers are happy, but cardrooms, players, and law enforcement are not. Were California - or some other state - to ban only pure gambling games, plus banking and percentage games, and have all games and terms clearly defined, that would be a reasonable approach.
Louisiana only bars "gambling as a business." This method of controlling gambling would be satisfactory if one knew with some precision what the term "as a business" meant. Unfortunately, the state has left that task up to the courts.
An observation should be made in the reviewing of gambling laws of the various states, and that is with regard to the tediousness demonstrated in the language of these laws. Bill-drafters often make a single run-together sentence of what any competent writer would break down into several paragraphs. Their punctuation is horrid, and sometimes the result is more than just bad English. For example, in the early 1900s, the Commonwealth of Puerto Rico copied California's law word-for-word. California outlaws stud-horse poker. Unfortunately, some bill drafter managed to get an extra comma between "stud-horse" and "poker," which made them look like two different games. The result was all forms of poker were outlawed in Puerto Rico for a number of years. The error was eventually detected at the trial of a man charged with playing poker!
One trait affecting gambling laws which is annoying is their constant misuse of ordinary words and phrases about gambling. Terms like "gamble," "bet," "player," "banking game," etc. have acquired well-defined meanings in our language. A bill drafter will use one of those terms in the law, and then define it in a manner substantially different than its accepted meaning. Surely the English language is rich enough to write laws in the words and terms that are used in normal communication.
A COUPLE OF SUGGESTIONS
Gambling has always been considered a privilege rather than a right. Accordingly, nearly every state has let local government have the option to put greater restrictions on gambling than are dictated in state law. In our mobile age, this idea ought to be modified. It seems reasonable that social gambling and bona fide contests for prizes should be allowed throughout a state. Otherwise, local jurisdictions can end up with some really wacky ordinances. However, few states preempt the field of gambling control by limiting it to the state level.
Various forms of legalized gambling have been spreading like wildfire in America throughout the 1980s, and the end is not in sight. Law enforcement has in many states not kept pace. Responsibility for gambling matters is only a sideline of the state attorney general's office. Dealing with gambling requires a considerable amount of expertise. A special regulatory commission at the state level is the best way to do this.
For a bad example of gambling regulation, California stands out. There are over 400 legal cardrooms in that state, with no special agency to regulate them. A model state for law enforcement is Washington, where the Washington State Gambling Commission has responsibility for all matters involving gambling. It is no accident that the state of Washington has a very good set of gambling laws. If more states had such a special regulatory commission, state laws would improve accordingly.
SUMMARY AND CONCLUSIONS
We have seen that only a few states have excellent laws on gambling, and over half have serious flaws in their approach. The three commonplace mistakes are:
(1) Leaving certain terms undefined or inadequately defined;
(2) failing to exempt social gambling from anti-gambling laws;
(3) not allowing bona fide competitions for prizes.
It is the author's opinion that those who are well-acquainted with gambling matters have an obligation to work for better laws on gambling, especially those that deal with "social" gambling. People with specific expertise on gambling matters have been too quiet for too long. With the tremendous growth of legalized gambling in the 1970s and 1980s, the present climate surely is suitable for applying their knowledge and expertise to clean up or otherwise eliminate laws that are unworkable, or serve no clear purpose or objective. The author's numerous gambling experiences and friendships made in various competitions have made him keenly aware of the injustice in American state laws on gambling. It is hoped that this research paper will begin the process of correcting these injustices, and actually get some states to consider changing their laws.
(Articles of Authority)
An awful lot of what goes on in the world is about image. The casino industry has over the past decade engaged in a pretty successful image campaign, encouraging the use of the word gaming as opposed to gambling in order to make the business seem more acceptable. Wall Street and the media have pretty much bought into this semantic manipulation, and tend to describe the industry accordingly.
I have often referred to our poker world as being part of the gambling community, in part because poker rooms tend to be located in gambling establishments. In addition, many gamblers also play poker. Furthermore, many poker players treat the game as a gambling experience and approach it from a perspective not significantly different from the way they approach gambling games. The fundamental unit of both poker and gambling is the wager, a sum of money risked with the outcome determined by an event or series of events in which chance is one of the variables. (In most gambling, chance is the only variable.) These are all things poker has in common with gambling.
Regardless of these commonalities, Poker is far more different from gambling than it is similar. They are mathematically, pragmatically, historically, culturally, socially, legally, and, in my opinion, morally differentiated. In the past, this has been for the most part a matter of small consequence, a subject for discussion and debate around the bar, perhaps, but not really important. Poker players explained to their wives and mothers that what they did wasn't really gambling, but a game of skill. Times have changed, however, and the distinction between poker and gambling has become very important to the current and future health of the game.
Internet poker grew by more than 600 percent, both in number of players and volume of money bet, between the end of 2002 and the end of 2003. If poker is lumped with Internet gambling, it now constitutes 10 percent of the online gaming market. After years of sluggish performance and a static supply of players and money, poker is presently enjoying incredible popularity, fueled by the Internet, including Chris Moneymaker's incredible parlay of $40 on an Internet cardroom site into the World Series of Poker title and its $2.5 million first-place prize. The popularity of TV poker, resulting from producer Steve Lipscomb's introduction of the lipstick camera to show players' holecards, has also been a major factor in the current healthy state of poker. The poker world has never seen anything like this, far surpassing the growth in the game when California opened up poker in the early '90s. But this growth is gravely threatened.
There are bills pending in the U.S. House and Senate designed to disembowel Internet gambling. One in particular, introduced by Sen. Jon Kyl, R-Ariz., is very close to coming to the floor and enjoys bipartisan support. The U.S. Justice Department, having plenty of excess resources not allocated to the war on terrorism, is using a 1960s-era law that was designed to inhibit illegal bookies to pressure financial institutions and media who do business with Internet gambling sites, and is promising prosecutions. Fearing competition, many stalwarts of the brick-and-mortar "gaming" industry have, in a strange bedfellows kind of partnership, joined with religious and "family values" groups to lobby for restrictions or prohibition of all forms of Internet wagering, including poker.
If Poker is defined as substantially different from gambling. (as contemplated by existing and proposed laws), the Internet version of the game that has been the engine driving growth can perhaps be insulated from the barrage of present and pending attacks. This approach is somewhat complicated by the reality that some online poker sites and some Internet gambling sites have related ownerships. For them, any regulation of either Internet gambling or poker is a loss, and they may not be happy about the idea of treating the two industries separately. But the best interest of poker is clearly served by legally bifurcating the two, and poker is what matters to me.
Personally, I think that while government regulation of both poker and gambling on the Internet may perhaps be appropriate to protect players from the unscrupulous, prohibition of either is wrong. There is much sentiment in America that government needs to tend to its own business, stick to the big issues like war and health care, and stay the hell out of people's lives. Both the libertarians of the right and the civil libertarians of the left tend to support that philosophy. But as a member of the poker community, and one associated with an Internet poker site, I believe that if the government elects to choose regulation of wagering activity on the Internet, poker's best defense is to make the case that it is not the same as gambling and should not be treated by the law in the same way. The most significant consideration is that poker and gambling are indeed different animals.
The biggest distinction between poker and gambling is that in pretty much all gambling, you are playing against the house. This can be particularly problematic when you are playing a computerized game against the people who control the program. If you win, the house loses. If the house wins, you lose. The games favor the house. In poker, the house has no interest in the outcome, and is an impartial provider of services-for-a-fee, a forum for the players to compete equally against each other.
Another major difference between poker and gambling is that the rules of poker accord every player a statistically equal chance to win, but the rules of gambling games all give the house a definite advantage against the player, which over time is inexorable and inevitable. In essence, poker is fair, gambling is not.
The mechanics of poker and gambling are different in a fundamental way. In gambling, you post a wager, after which an event occurs over which you have little or no control, and which determines whether you win or lose. At the point where you risk your money, you are always an underdog. In poker, you receive your cards with an equal chance against your opponents, and then make decisions of whether or not to wager or match wagers made by other players as the hand progresses.
Poker is a game of skill. It is a contest of abilities, more akin to bridge or chess than it is to gambling, in that more-talented players will prevail against less-talented players. Chance can and will affect short-term results, but skill separates winners from losers over time. The claims of a few purported card counters and system players notwithstanding, skill can only mitigate your losses when you gamble, and chance rather than skill is the principal determining factor in your results.
A California court said in 1938:
"A game is not to be regarded as one of skill merely because that element enters into the result in some degree, or as one of chance solely because chance is a factor in producing the result. The test of the character of a game or scheme as one of chance or skill is, which of these factors is dominant in determining the result." People v. Settles, 29 Ca App Supp 2d 781, 78 P 2d 274 (Appellate Department, Superior Court, County of Los Angeles, 1938)
There are other arguments that favor poker over gambling that are perhaps intangible but no less real than the ones mentioned above. Poker is a part of the fabric of America, woven into our history from Ulysses S. Grant playing with his fellow junior officers in the Mexican-American War through Harry Truman being interrupted at his poker game to learn that FDR had died and Harry had become president. From Mississippi riverboats to the California Gold Rush to the foxholes of Ardennes, the Chosin Reservoir, and Khe Sang, poker is part of our cultural makeup, our frontier heritage, our individualistic mentality. Presidents Harding, Coolidge, Roosevelt, Eisenhower, Nixon, and Johnson all frequently played poker. In some state capitols, more business of governing has been done at poker tables than in committee.
Beyond being historic, poker much more than gambling is ubiquitous. Kitchen-table poker and weekly poker night are staples of our society. In 1968, a report estimated that 50 million Americans had played some poker. That number has surely grown in the caddy shack, the bowling alley, or after Supreme Court hearings - and of course on the Internet and in hundreds of public cardrooms around the country that didn't exist back in those days. You find poker in hundreds of movies, in the officers lounge of the Starship Enterprise, in the Travis Magee detective novels. And, of course, it's all over cable TV.
Poker is democratic. It matters whether you have the money to play, but the game doesn't care if you're black, white, Asian, Hispanic, male, female, gay, in a wheelchair, or even an obnoxious jerk. You sit down with your buy-in at the green felt and you have all the rights, privileges, and the same chance to win as everybody else at the table. You'll never get to play a pickup game against Michael Jordan or a round of golf against Tiger, or tear up the track against Matt Kenseth, but you can plop your buy-in down and take on Doyle Brunson or Howard Lederer. Where else in America can you parlay a $40 buy-in into a shot at $2.5 million with grit, skill, and a little luck? (And it's not the kind of luck where the odds are rigged against you, I might add.)
Fair. Historic. Ubiquitous. Democratic. It's mighty hard for gambling to make such a case for itself. But, then again, there's no reason it should. Poker is, after all, a different thing.
Perhaps the weightiest relevant distinction between poker and gambling is the legal recognition by many jurisdictions that they are in fact different. A large majority of states prohibit gambling, but at least 37 states have some form of legal poker. California, for example, prohibits games played against the house, but permits poker. Florida has a provision against gambling in its state constitution, but has by affirmative act of its legislature distinguished and permitted poker on a regulated basis. Other examples abound.
I fervently hope the Feds will not further pursue restriction of either gambling or poker on the Internet. I hope the lobbyists who are making the case on behalf of the online casinos prevail and manage to shoot the whole thing down. But you can't take hopes to the bank. To wait for the shoe to drop would be foolhardy and naive. To preserve the flow of new players and new money into poker rooms around the country, the industry must band together and properly define itself as something different and apart from the gambling business.
And aside from the legal issues, it wouldn't hurt our image a bit.
IT'S POKER, NOT GAMBLING
by Roy Cooke
A DOZEN TIPS ON
INFLUENCING POKER LEGISLATION
by Perry Green
Perry Green of Anchorage is Alaska's most famous poker player. Among other things, he was runner-up to Stu Unger in the 1981 poker World Championship. He has been trying for several years to obtain legalized cardrooms in Alaska, and has managed to get a poker bill pending in the legislature. Here are some of Perry's tips with smart political savvy for anyone who hopes to influence poker legislation.
(1) Have a plan showing the advantages for tax purposes and sensitive to the social acceptance of the legislation.
(2) Have a copy of some state's poker laws you wish to emulate. It is easier to obtain something that has worked in another state.
(3) Use some of the other state's Gaming Commission's own reports as to the effects on people, and point out that card playing is not as addictive as other gambling such as slots (which are sometimes referred to by gaming opponents as "the cocaine of gaming").
(4) Emphasize that a poker room brings some new jobs into an area.
(5) Cast poker in the right light. Poker is a social activity much like going to a cafe and having a cup of coffee, and a recreational activity like bowling or golf.
(6) Remind people that the pursuit of happiness is a basic right. Playing cards is the favored recreational pursuit of many people, as important to them as hunting, fishing, and skiing are to others.
(7) Point that it costs a family for memberships and equipment for various recreational activities, and that like those other activities, the emotional reward makes them worthwhile.
(8) Legalized poker makes it possible to run games which are controlled, insuring the honesty of the operation.
(9) Legalizing poker allows the games to be brought out in the open and insures they will be played for the financial benefit of the whole community.
(10) Point out that "Idle hands are the work of the devil" and playing cards keeps people busy and active.
(11) Card-playing is especially needed as a suitable recreational activity for seniors who no longer have the ability for physical gameplaying. When a person ages, one of the competitive activities they are still able to do is play cards, and this is "medically therapeutic" because of the socially interactive nature of the games. Playing in a card game where you can win something does not diminish its attractiveness.