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HomeMy WebLinkAbout7.4 MuniCode Gaming CITY CLERK File # Dl3J~~-~[Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 6, 2008 SUBJECT: Amendment of Dublin Municipal Code Chapter 5.48 (Gaming) Report Prepared by John Bakker, City Attorney and Stephen Muzio, Associate Attorney ATTACHMENTS: 1. Ordinance Amending Chapter 5.48 of the Dublin Municipal Code relating to Gaming. "Clean" version of Ordinance Amending Chapter 5.48 without strikethrough notations. Text of Penal Code Sections cited in Chapter 5.48. 2. 3. RECOMMENDATION: ~ 1. Waive reading and ADOPT the Ordinance Amending Chapter 5.48 of the Dublin Municipal Code relating to Gaming (Attachment 1). FINANCIAL STATEMENT: None. DESCRIPTION: At its March 22, 2006 Goals and Objectives meeting, the City Council reviewed and approved with high priority the comprehensive update to certain chapters ofthe Dublin Municipal Code (DMC). One chapter proposed for review is DMC Chapter 5.48, which prohibits gambling or gaming in any public place within the City, and provides that it is unlawful for an owner or lessee to permit such gaming activities to take place on his or her property and for any person to knowingly visit premises where a violation of the chapter is occurring. Gaming and gambling are currently defined in Section 5.48.010 as "any card game played for currency, check, credit or any other thing of value." State Law-Gambling in General California case law indicates that the subject of gambling has been preempted to some extent by the State. Generally speaking, cities may not duplicate State law. This is one aspect of the legal doctrine of state preemption. When a local law is identical to state law, courts will view this as an "inevitable conflict of jurisdiction" and the local law will be held to be invalid. This is why Section 5.48.010 states in part that any "game, gambling or gaming not mentioned or included in Section 330 or 330a of the Penal Code of the state of Cali fomi a is prohibited in any public place. . . ." For the same reason, Section 5.48.060 states that "[n]othing in this chapter includes or applies to any act which is made a public offence by Sections COPY TO: ITEM NO. 7'/- ~ ~ (\ I Page 1 of 4 318, 331, or 336 of the Penal Code of the state of California or by any other section of the Penal Code or by any other law of the state of California." It is helpful, then, to understand what exactly is prohibited under these Penal Code sections. Penal Code Section 330 prohibits any person from operating or playing "any game of faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a-half, twenty-one, hokey-pokey, or any banking or percentage game played with cards, dice, or any device for money" or other representative of value. Courts have construed "banking or percentage game" to be games in which the house or a person acts as the 'bank,' as is often the case with blackjack, or receives a percentage of wagers made or sums won in a game. Penal Code Section 330a prohibits any person from operating, controlling or working at premises at which people use slot machines or play "card dice, or any dice having more than six faces or bases" for money or other representative of value. State Law - Card Rooms Notwithstanding the prohibition on "banking" or "percentage" games, it is possible, under state law, to operate a gambling establishment at which gambling takes place, provided that the local government has, by ordinance or the affirmative vote of its electors, approved the operation of gambling establishments in its jurisdiction. Penal Code Section 337j prohibits any person to maintain premises at which "controlled games" take place without having the proper state-issued license. A "controlled game" is defined in part as "any poker or Pai Gow game . . . and any game of chance . . . played for currency . . . or any other thing of value that is not prohibited and made unlawful by statute or local ordinance." (Penal Code Section 337j(e)(1).) Games "played with cards in private homes or residences, in which no person makes money for operating the game, except as a player" are specifically excluded from the definition of "controlled game." (Penal Code Section 337j(e)(2)(D).) . Card rooms and the ability of municipalities to authorize or permit card rooms within their boundaries, are subject to the Gambling Control Act, enacted by the Legislature in 1983. (Business and Professions Code Section 19800 et seq.) Section 19801 states that it "is the policy of this state that no new gambling establishment may be opened in a city, county, or city and county in which a gambling establishment was not operating on and before January 1, 1984, except upon the affirmative vote of the electors of that city, county, or city and county." A "gambling establishment" means any room or rooms where any controlled game is played. (B&P ~ 19805(f), 19805(m).) However, the Act also provides that "neither the governing body nor the electors of a county, city, or city and county that has not authorized legal gaming within its boundaries prior to January 1, 1996, shall authorize legal gaming" before January 1,2015. (B&P ~ 19962.) The current Section 19962 is only effective until 2010. However, the Legislature has also enacted a second Section 19962 that becomes effective on January 1,2010, and will remain in effect until January 2015, unless a "later enacted statute. . . deletes or extends that date." Still another section provides that the state may not issue any new licenses for gambling establishments until January 1,2015. (B&P ~ 19963.) Thus, until 2015 at the earliest, the City cannot authorize a gambling establishment to operate in Dublin. Even after the temporary prohibition on the authorization of gambling establishments is lifted, the games cannot be offered for play without a state license. Penal Code Section 337j has two impacts that are especially relevant in the context of Chapter 5.48. First, it establishes that the playing of poker and any "game of chance" in a public place is illegal if the operator or owner of the premises on which such games are played is not licensed by the State. Second, because no person may be licensed to conduct games which are otherwise prohibited by state law or local ordinance, Page 2 of 4 Section 337j, in conjunction with the Gambling Control Act, prohibits cities from permitting new card rooms to be opened. Thus, the "card rooms" that exist in some cities in the Bay Area are legal only (a) because those cities have not made them illegal, (b) because the card rooms have obtained the necessary state license to operate their businesses, and (c) because they were either in existence prior to January 1, 1984 or the cities in which they are located permitted card rooms some time before January 1, 1996. (It is worth emphasizing that a person licensed to operate a card room may not conduct games that are prohibited by Penal Code Sections 330 and 330a. Thus, card rooms may not conduct "banking" or "percentage" games. Card rooms will generally charge players either a flat rate per game, or a "rent" based on the amount of time a player plays.) At its meeting on April 15, the Council directed the City Attorney to determine whether there is a mechanism under state law that would allow the City to permit patrons to play certain "controlled games"-such as poker-for money at the Dublin Senior Center notwithstanding that Penal Code ("PC") Section 337j appears to prohibit such activity. In particular, the City Council inquired whether the City could obtain a state license that would permit the games to be played at the Senior Center for money, even if this was only possible after the moratorium on the expansion of legal gaming expires in 2015. While the City could-after the moratorium is lifted-legalize games not otherwise declared illegal under state law when played in publicly owned recreational buildings, it appears unlikely that the City could obtain a license to permit limited gaming at the Senior Center. The Act defines a "gambling license" as "any license issued by the state that authorizes the person named therein to conduct a gambling operation." (B&P ~ 19805(0).) A "gambling operation" is, in turn, defined to mean "exposing for play one or more controlled games that are dealt, operated, carried on, conducted or maintained for commercial gain." (B&P ~ 19805(P), emphasis added.) The licensing structure established by the Act is exclusively focused on licensing establishments which conduct gambling as a business, as opposed to the type of gaming that the Council would like to permit at the Senior Center. Thus, somewhat oddly, the interaction of Penal Code section 337j and the Gambling Control Act results in a situation in which controlled games that are not operated for commercial gain are entirely prohibited while games that are operated for commercial gain are permitted so long as the operator has a valid state license. Thus, we believe that there is no mechanism under state law-even after the moratorium on the expansion oflegalized gambling is lifted in 2015 (at the earliest)-that would allow the City to permit the patrons of the Dublin Senior Center to play certain "controlled games" for money, because under state law, playing those games outside of private residences requires a state license and because under state law the City is not authorized to obtain a state license. Chapter 5.48 Given the above, Chapter 5.48 achieves two connected results. First, and more obviously, it prohibits the playing of any card game that is not already prohibited by the Penal Code and that is played in a public place for money or something of value. Second, it prohibits the establishment of card rooms in the City. Staffhas consulted with Dublin Police Services regarding this Chapter. Police Services has indicated that they support the continued prohibition of card rooms in the City, due to public health, safety and welfare issues that have arisen in conjunction with such establishments in other communities. Staff recommends several changes to the ordinance. 1) As written, Chapter 5.48 does not prohibit playing non-card games for money. Although the Department of Justice has not currently approved any establishments offering games played with dice or tiles, there is nothing in the Act which would necessarily prevent it from doing so in the future. Thus, it is possible that someone could obtain a license to operate an establishment in the City at which games Page 3 of 4 played with dice or tiles are conducted and played for money or other thing of value. For this reason, staff recommends that language be inserted into Section 5.48.010 to indicate that "game," "gambling" and "gaming" include games played with dice and tiles. 2) Section 5.48.050, "Violation - Presumption" provides that any game of draw poker or variation thereof, played publicly in violation of the Chapter shall be presumed to have returned something of value to any person who controlled or permitted such gaming to occur. This presumption does not have any legal effect, since the 'return of something of value' to a person in control of the premises is not an element of any of the offenses described in this Chapter. Staff recommends that the section be deleted. 3) Staff recommends that the word "city" be capitalized where necessary to ensure consistency with the rest of the Dublin Municipal Code. Dublin Police Services has reviewed the chapter and concurs with the recommended changes. On April 15, 2008, the City Council held a public hearing regarding the proposed ordinance. Following the public hearing the City Council waived the reading and introduced the ordinance. RECOMMENDATION Staff recommends that the City Council: 1) waive reading and ADOPT the Ordinance Amending Chapter 5.48 of the Dublin Municipal Code relating to Gaming (Attachment 1). Page 4 of 4 )~ ~ ORDINANCE NO._ AN ORDINANCE OF THE CITY OF DUBLIN AMENDING CHAPTER 5.48 OF THE DUBLIN MUNICIPAL CODE RELATING TO GAMING The City Council of the City of Dublin does hereby ordain as follows: Section 1. Chapter 5.48 of the Dublin Municipal Code is revised as follows, with deletions indicated in strikethrough and additions indicated in underline: 5.48.010 General prohibition. Any game, gambling or gaming not mentioned or included in Section 330 or 330a of the Penal Code of the state of California is prohibited in any public place within the eCity. As used herein, "game," "gambling" and "gaming" mean any--eafd game played with cards. dice or tiles that is played for currency, check, credit or any other thing of value. 5.48.020 Property used in gaming-Prohibited. It is unlawful for any person, either as owner, lessee, agent, employee, mortgagor, or otherwise, to knowingly permit any room, building or premises, or any furniture, fixtures, equipment or other article or anything of value to be used in the eCity for or in connection with any game, gambling or gaming in connection with which a violation of Section 5.48.010 occurs. 5.48.030 Visiting gaming premises-Prohibited. It is unlawful for any person in the eCity to knowingly visit any premises open to the public where a violation of any provisions of this chapter is occurring. 5.48.040 Authority to seize money and property. In addition to any other remedy provided by law, any furniture, fixtures, equipment or article or anything of value, used in violation of this chapter may be seized by any of the officers designated by Sections 335 and 335a of the Penal Code of the State of California, and in such cases shall be disposed of as provided in Section 335a of the Penal Code; provided, however, that the phrase "machine or device" as used in said Section 335a of the Penal Code shall mean any furniture, fixtures, equipment or article or anything of value except money, coin or currency. Any or all money, coin or currency used in violation of this chapter and seized pursuant to this section shall be deposited in the general fund of the eCity. 5.48.050 VialatiaB PresamptiaB. In a trial f{)r a violation of any of the provisions of tlHs chapter, it shall be presumed that any game of <haw poker or any variation thereof 'Nhieh '.vas played pl:lbliely or ill whieh partieipation was open or available to the publio, returned something of "alae to any person who eomrelled or permitted the operation of sueh game and to any person who was in eontrol or possession of the premises in or l:lpon '.vhieh sl:l6h game v.as played. This shall Be a reBl:lttaele presl:lmption. 5.48.05069 Exceptions. Nothing in this chapter includes or applies to any act which is made a public offense by Sections 318, 331, or 336 of the Penal Code of the state of California, or by any other section of the Penal Code or by any other law of the state of California. rfa/vl;, rtYf,'1 Sib feR. l'JXj' ATTACHMENT 1 ( c2 ~ ~ Section 2. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this _ day of ,2008. AYES: NOES: ABSENT: ABSTAIN: Janet Lockhart, Mayor ATTEST: Carolyn Parkinson, Interim City Clerk 2~G ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN AMENDING CHAPTER 5.48 OF THE DUBLIN MUNICIPAL CODE RELATING TO GAMING The City Council of the City of Dublin does hereby ordain as follows: Section 1. Chapter 5.48 of the Dublin Municipal Code is revised as follows, with deletions indicated in strikethrough and additions indicated in underline: 5.48.010 General prohibition. Any game, gambling or gaming not mentioned or included in Section 330 or 330a of the Penal Code of the state of California is prohibited in any public place within the City. As used herein, "game," "gambling" and "gaming" mean any game played with cards, dice or tiles that is played for currency, check, credit or any other thing of value. 5.48.020 Property used in gaming-Prohibited. It is unlawful for any person, either as owner, lessee, agent, employee, mortgagor, or otherwise, to knowingly permit any room, building or premises, or any furniture, fixtures, equipment or other article or anything of value to be used in the City for or in connection with any game, gambling or gaming in connection with which a violation of Section 5.48.010 occurs. 5.48.030 Visiting gaming premises-Prohibited. It is unlawful for any person in the City to knowingly visit any premises open to the public where a violation of any provisions of this chapter is occurring. 5.48.040 Authority to seize money and property. In addition to any other remedy provided by law, any furniture, fixtures, equipment or article or anything of value, used in violation of this chapter may be seized by any of the officers designated by Sections 335 and 335a of the Penal Code of the State of California, and in such cases shall be disposed of as provided in Section 335a of the Penal Code; provided, however, that the phrase "machine or device" as used in said Section 335a of the Penal Code shall mean any furniture, fixtures, equipment or article or anything of value except money, coin or currency. Any or all money, coin or currency used in violation of this chapter and seized pursuant to this section shall be deposited in the general fund of the City. 5.48.050 Exceptions. Nothing in this chapter includes or applies to any act which is made a public offense by Sections 318, 331, or 336 of the Penal Code of the state of California, or by any other section of the Penal Code or by any other law ofthe state of California. Section 2. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. ATTACHMENT 2 4%(, Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this _ day of ,2008. AYES: NOES: ABSENT: ABSTAIN: Janet Lockhart, Mayor ATTEST: Caroline P. Soto, Deputy City Clerk tc ..:-' (;/ ~ California Penal Code Sections Cited in Dublin Municipal Code Chapter 5.48 318. Whoever, through invitation or device, prevails upon any person to visit any room, building, or other places kept for the purpose of illegal gambling or prostitution, is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not exceeding six months, or fined not exceeding five hundred dollars ($500), or be punished by both that fine and imprisonment. 330. Every person who deals, plays, or carries on, opens, or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a-half, twenty-one, hokey-pokey, or any banking or percentage game played with cards, dice, or any device, for money, checks, credit, or other representative of value, and every person who plays or bets at or against any of those prohibited games, is guilty of a misdemeanor, and shall be punishable by a fine not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment. 330a. Every person, who has in his possession or under his control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained or kept, in any room, space, inclosure or building owned, leased or occupied by him, or under his management or control, any slot or card machine, contrivance, appliance or mechanical device, upon the result of action of which money or other valuable thing is staked or hazarded, and which is operated, or played, by placing or depositing therein any coins, checks, slugs, balls, or other articles or device, or in any other manner and by means whereof, or as a result of the operation of which any merchandise, money, representative or articles of value, checks, or tokens, redeemable in, or exchangeable for money or any other thing of value, is won or lost, or taken from or obtained from such machine, when the result of action or operation of such machine, contrivance, appliance, or mechanical device is dependent upon hazard or chance, and every person, who has in his possession or under his control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained or kept, in any room, space, inclosure or building, owned, leased or occupied by him, or under his management or control, any card dice, or any dice having more than six faces or bases each, upon the result of action of which any money or other valuable thing is staked or hazarded, or as a result of the operation of which any merchandise, money, representative or article of value, check or token, redeemable in or exchangeable for money or any other thing of value, is won or lost or taken, when the result of action or operation of such dice is dependent upon hazard or chance, is guilty of a misdemeanor, and shall be punishable by a fine not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. ATTACHMENT 3 ~ ':( (, 331. Every person who knowingly permits any ofthe games mentioned in Sections 330 and 330a to be played, conducted, or dealt in any house owned or rented by such person, in whole or in part, is punishable as provided in Sections 330 and 330a. 336. Every owner, lessee, or keeper of any house used in whole, or in part, as a saloon or drinking place, who knowingly permits any person under 18 years of age to play at any game of chance therein, is guilty of a misdemeanor.