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Poker don’t leave it to chance…..

Poker may not be the ‘next big thing’ any more but it still remains the current big thing, and despite the growth of interest in other games, such as backgammon and mah-jong – the next ‘next big things’ – poker remains at the top of the popularity charts.

      And that’s where it is likely to stay for some time, as the popularity of poker shows no sign of a betting , and is still spreading around the world.
      All the more surprising then that there remains a certain amount of confusion about the legal status for poker, both online and terrestrially.
      In the US, arguments rage as to whether poker is a game of chance- and therefore constitutes gaming – or whether it is game or skill, in which case it does not.  Many states rely upon case law to determine that question, but unfortunately in some, the point has not yet been tested in the courts.

      In the UK, the televising of poker tournaments and the existence for two years of a dedicated poker venue, the Gunshot Club in London, led to confusion about the legal status of poker and the circumstances in which it can legally be played.
      Although the law on the point is complex, it is time that some of the myths surrounding the legal status of poker were dispelled – even at the risk of depriving my firm of a considerable amount of work…


      Everything flows from the way in which poker is treated under the law.  In the UK, games of chance played for winnings or money’s worth constitute gaming under Section 52(1) of the Gaming Act 1968.  Games of chance include games of chance and skill combined, whether or not the element of chance can be eliminated by superlative skill.  In effect, this means that any games involving either cards or dice will be treated under the law as games of chance.  The regime of the legislation, both the 1968 Act and under the new Gambling Act 2005, makes all gaming illegal unless it either takes place on premises licensed for gaming or falls within one of the limited exceptions, such as playing games of chance at home, or in certain other places falling within the phrase ‘domestic occasion’.
      On this basis, broadcasters have been able to televise poker competitions from their studios which are private premises, to which the public do not have access, and which are not licensed for the sale of alcohol.  Because their income is derived from subscriptions and advertising on their channels, they are not concerned about the inability to make any revenue from the players in fees or brake.  There are provisions which enable poker to be played on certain club premises, but the gaming cannot be the charges which can be made render this an impractical way of operating poker or even occasional poker tournaments commercially.

      It must be remembered that the whole purpose gaming legislation, both in the 1960s and now, is to bring all commercial gaming within the ambit of the regulatory system.  It is therefore not surprising that the only practical way of offering gaming on a commercial basis is to obtain a gaming license.  The same is true whether or not the license is for the operation of casino gaming, or card room gaming, including poker.  This means that a license can presently only be applied for in one of the allocated permitted areas for gaming under present legislation.  Under the new UK legislation, which will come into force next year, the number of new licenses will be restricted to 17 for at least the first three years, and those will all be allocated for casino gaming.
      The upshot is that anyone wishing to operate a commercial poker or other card club in the UK in the next few years would be well advised to apply now, as the deadline for seeking Gambling Commission consent to a license application must be made by the end of April.  At least one such application is anticipated in London, but for the moment, perhaps surprisingly, the only gaming license for a dedicated card room gaming club in the UK is in the small seaside town of Margate.
      So what of the Gunshot Club?  Given that is does not fall within the limited exceptions allowed for in the legislation, does not have a gaming license and it is not in any event within one of the existing permitted areas, it is now the subject of prosecution, and the case has been sent for trial, probably to be heard later this year.  Now that the Gambling Commission has its own powers of enforcement, which the old regulator – the Gaming Board – did not, anyone seeking to take advantage of the poker boom in the UK would be well advised to ensure that their operation falls within the law.

When a nickel can cost a casino US $ 900k

STELLA Romanski found a nickel token in a slot machine tray and won a jackpot, thanks to a runaway jury and judges who think casinos have too much money.  Romanski, 72 and her friends had paid US $ 9 each for bus rides and lunch at the MotorCity casino in Detroit.  After playing nickel slots for an hour with no luck.  Romanski decided to go slot-walking looking in trays for spare change.  She found a nickel token accidentally left by another player.
      What happened next is in dispute.  Romanski claims she was accosted by the casino’s evil security minions, led to an interview room without windows and informed that she had stolen a coin from the slot machine tray.  They even took her nickel.  The trial judge, Lawrence Zatkoff, bought her story, hook, line and sinker.  “Ms Romanski began to cry at the thought that she, a grandmother of nine children, could commit a crime.” Right.
      The testimony of the security officers, under oath, was a little different.  Stella was ‘loud, hostile and belligerent.’  The only security officer at the scene, Marlene Brown, was in plain clothes, not uniform.  She explained the casino’s policy that money left in a tray belonged to the player who won the money or, if not claimed, the casino.  but Romanski became hostile.  Brown testified: “My instinct was to just tell her and let her just go finish gaming, but she was getting kind of loud.”  The eye-in-the-sky surveillance operators sent backup.  But Romanskie was making a scene, so they got her off the floor.

      Judge Zatkoff refused to throw out the complaint.  He wrote that she had been banned from the casino.  admittedly, she was allowed to return to use a restroom, but was humiliated by having a security officer in the stall with her.  The casino then forced her to stand outside for hours in the hot, humid, Detroit summer.  When she was directed to a bus to take her home, “she discovered that it was not the proper bus, and that her bus would not arrive for another two hours.”  At trail it was shown that, in fact, the female security officer did not enter the bathroom stall with Romanski, and that she was escorted to the valet area, which was  air-conditioned. But never let truth get in the way of a good story.
      He lawyer, Neil H.Fink, sued the casino and agents alleging false arrest and imprisonment, defamation, intentional infliction of emotional distress, violation of federal civil rights, and exemplary damages.  First-year law school students learn that there is no such thing as a ‘count’ for exemplary damages, but Judge Zatkoff reworked the complaint for Fink.

      The jury found no defamation and no intentional infliction of emotional distress, leaving only the civil rights claim, called a 1983, and false arrest.  Damages were thus limited to what happened to Romanski from when she was approached by Brown to when she left the interview room.
      Since there was no evidence that she ever even visited a doctor, let alone needed psychiatric care for this traumatic incident, the jury awarded her $ 9 for the bus trip and lunch, $ 270 for compensatory damages, five cents for the token, and $ 850,000 in punitive damages.
      The legal issue on appeal was the civil rights claims and the size of the punitive damages.
      If a person ‘acting under colour of state law’ deprives another person of her federal civil rights, the victim can sue in federal court.  Fink’s problem was that there was no state agent involved – only the casino’s private security agents.
      But in a two-to-one decision, the 6th Circuit Court of Appeals held that Brown’s conduct could be ‘fairly attributable to the state,’ because she had the power to make arrests on the casino grounds.
      Courts are split on whether a private security guard and employer can be sued under a 1983.  One way to find state action is the ‘public function’ test. This looks to see if the privately-hired guard has the power of a government policeman.  The test is so complicated that tiny differences in the facts and state laws spell the difference between liability for hundreds of thousands or millions of dollars and the claim being dismissed.
      What has been lost is the reason for the tests.  Private guards can be sued for state violations of civil rights only because the state has decided to delegate its police power to that private individual.  Does anyone really think security guards at casinos are acting for the state?
      But having found the casino’s private guards were state agents, the Court concluded they had in fact ‘arrested’ Romanski with no right.  A real cop can make an arrest when there is ‘probable cause’ to believe a crime has been committed.  But here there could be no crime, because the casino was wrong in thinking the nickel token was its property.  The Court ruled the slot token was its property.  Since the real owner could not be found, the law of ‘finders-keepers’ kicks in.  stella had a superior title over everyone else, including the owner of the casino.       The Court held that $ 850,000 was excessive, but $ 900,000 in punitive damages sounded right, by looking at cases where victims had been strip-searched, falsely convicted and even beaten to death.  The Court decided that big money was needed to deter the casino, nothing that Wal-Mart had been hit for $ 900,000 in a case of a pregnant woman falsely convicted and sent to jail, as if that were the same as Stella’s half-hour in the interview room, or that a casino is as rich as the world’s largest retailer.  The Court also ignored the fact that the casino had never done this before.
      But what was really overlooked was that this windfall belongs to Romanski and her lawyer.  With a one-third contingency fee, Fink gets $ 200,000 and Romanski $ 400,000.
      Personally, I would put up with being questioned by security guards, even called a thief, for $ 400,000.

 

 

 

 
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