BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1369| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 1369 Author: Cedillo (D) and Battin (R), et al Amended: 8/25/08 Vote: 21 PRIOR VOTES NOT RELEVANT ASSEMBLY FLOOR : 66-3, 8/27/08 - See last page for vote SUBJECT : Remote caller bingo SOURCE : California Association of Nonprofits Charity First DIGEST : This bill authorizes remote caller bingo as a game in which specific tax-exempt organizations, as defined, may use audio or video technology to link designated in-state facilities for playing bingo pursuant to a local ordinance and state regulation and oversight. Defines "bingo" as a game of chance in which prizes are awarded on the basis of designated numbers or symbols that are marked or covered by the player on a tangible card in the player's possession and that conform to numbers or symbols, selected at random and announced by a live caller, as specified. Assembly Amendments (1) deleted the Senate version relating to school lunch program application eligibility requirements, (2) added the current provisions which authorize "remote caller bingo" for specified tax-exempt CONTINUED SB 1369 Page 2 organizations, and (3) added Senator Battin as author and added co-authors. ANALYSIS : Existing law: 1. Article IV, Section 19(c) of the California Constitution provides that the Legislature, by statute, may authorize cities and counties to provide for bingo games but only for charitable purposes. 2. Permits bingo games to be conducted "by organizations exempted from the payment of the bank and corporation tax by Sections 23701a, 23701b, 23701d, 23701e, 23701f, 23701g, and 23701l of the Revenue and Taxation Code and by mobilehome park associations and senior citizens organizations," if the proceeds are used only for charitable purposes and the games are conducted in a city, county, or city and county pursuant to an ordinance enacted under the constitutional provision. [Section 326.5(a) of the Penal Code] 3. Permits cities and counties to allow bingo games to be conducted by nonprofit organizations for charitable purposes in accordance with certain conditions. Provides that a violation of these provisions is a misdemeanor, as specified. 4. Requires that the proceeds of bingo games be used only for charitable purposes, with certain exceptions, including an exception providing that no more than 20 percent of the proceeds before the deduction for prizes, or $2,000 per month, whichever is less, may be used for the rental of property and for overhead, and a prize cap of $250 per game. 5. Defines "bingo" as a game of chance in which prizes are awarded on the basis of designated numbers or symbols on a card that conform to numbers or symbols that are selected at random. This bill: SB 1369 Page 3 1. Permits a city, county, and city and county to adopt an ordinance to allow the play of remote caller bingo games, as specified. 2. Provides that remote caller bingo shall only be played using traditional paper or other tangible bingo cards and daubers, and shall not be played using electronic devices, except card-minding devices, as described. 3. Limits the operation of remote caller bingo to specified not-for-profit organizations, as defined, mobilehome park associations, senior citizen organizations and charitable organizations affiliated with a school district. The organization conducting the game shall have been incorporated or in existence for three years or more. The operation of bingo may not be the primary purpose for which the organization is organized. Provides that no more than 750 players may participate in a remote caller bingo game in a single location. No minors shall be allowed to participate. 4. Provides an organization shall not cosponsor a remote caller bingo game with one or more other organizations unless one of the following are true: A. All of the co-sponsors are affiliated under the master charter or articles and bylaws of a single organization, and specified. B. All of the cosponsors are affiliated through an organization, as described, and have the same Internal Revenue Service activity code, as specified. 5. Provides a maximum of 10 unaffiliated organizations, as described, may enter into an agreement to cosponsor a remote caller game, provided the game shall have not more than 10 locations. 6. Provides an organization shall not conduct remote caller bingo more than one day per week. 7. Specifies that receipts of the game shall be used only for charitable purposes and the organization conducting SB 1369 Page 4 the game shall determine the disbursement of the net receipts of the game. 8. Defines "remote caller bingo game" as a game in which the organization conducting the game uses audio or video technology to link electronically any of its in-state facilities for the remote calling of a game from a single location to multiple locations. The audio or video technology used to link the facilities may include cable, Internet, satellite, broadband, or telephone technology, or any other means of electronic transmission, as provided. Remote caller bingo shall not include any site that is not located within the state. 9. Provides prizes for remote caller bingo cannot exceed 37 percent of the gross receipts of the game and overhead may not exceed 20 percent, as defined. 10.Provides an organization authorized to conduct a remote caller bingo game shall conduct the game only on property that is owned or leased by the organization or the use of which is donated to the organization. A remote caller bingo game shall be operated and staffed only by members of the authorized organization that organized it. Those members shall not receive a profit, wage, or salary from any bingo game, as described. 11.Specifies that an organization may contract for certain services and those services are counted toward the 20 percent overhead limit and no one who contracts to provide services shall hold any legally recognized interest in the game, as specified. 12.Prohibits cash prizes, all prizes must be by check and appropriate taxes must be withheld if the prize is above reporting limit requirements, as specified. 13.Makes it a misdemeanor for any person to receive or pay a profit, wage, or salary from any remote caller bingo games. Provides that a violation shall be punishable by a fine not to exceed $10,000, which shall be deposited in the general fund of the city, county, or city and county that enacted the ordinance authorizing the remote SB 1369 Page 5 caller bingo game. 14.Provides that a city, county, or city and county that enacted an ordinance authorizing remote caller bingo game, or the Attorney General (AG), may bring action to enjoin a violation. 15.The California Gambling Control Commission (CGCC) shall regulate remote caller bingo, including but not limited to, its licensure and operation. The CGCC shall establish reasonable regulating criteria, and shall require the licensure and registration of defined persons. Fees and revenue collected for the licensure and registration shall be deposited in the California Bingo Fund for the support of CGCC and the Department of Justice (DOJ) exclusively for the support in carrying out their duties and responsibilities relating to this bill. Requires DOJ to conduct background investigations for licensing purposes and conduct field enforcement as it relates to remote caller bingo and other duties, as defined. 16.Provides CGCC is directed to adopt appropriate emergency regulations concerning remote caller bingo and card-minding devices, as soon as possible, with the initial regulatory action to be filed with the Office of Administrative Law no later than May 1, 2009. CGCC is directed to complete the normal public notice and comment process, considering the comments of all interested parties, as described. 17.Authorizes a loan from the Gambling Control Fund (GCF) to the California Bingo Fund on or after January 1, 2009, in an amount up to $500,000 to fund operating, personnel, and other startup costs incurred by CGCC. Funds from the California Bingo Fund shall be available to the CGCC upon appropriation by the Legislature in the annual Budget Act. The loan shall be repaid to the GCF, as specified. 18.Provides the caller in remote caller game must be licensed by the CGCC. A non-licensed caller may call a game if a licensed caller personally supervises that person. SB 1369 Page 6 19.Requires the organization to provide the CGCC audited records regarding the operations of remote caller bingo, as specified. 20.Provides vendors of equipment used in remote caller bingo shall be licensed and have their books and records audited at least annually by an independent California certified public accountant and shall report the findings to the CGCC, as defined. 21.Provides that if the Governor or the President of the United States declares a state of emergency in response to a natural disaster or other public catastrophe occurring in California, an organization authorized to conduct remote caller bingo games may, while that declaration is in effect, conduct those games, as specified, with more than 750 participants in a single venue if the net proceeds of the games, after deduction of prizes and overhead expenses, are donated to or expended exclusively for the relief of the victims of the disaster or catastrophe, and the organization gives the CGCC at least 10 days' written notice of the intent to conduct those games. 22.Provides the CGCC shall submit a report to the Legislature, on or before January 1, 2012, on the fundraising effectiveness and regulation of remote caller bingo, and other matters that are relevant to the public interest regarding remote caller bingo. 23.Defines traditional "bingo" as a game of chance in which prizes are awarded on the basis of designated numbers or symbols that are marked or covered by the player on a tangible card in the player's possession and that conform to numbers or symbols, selected at random and announced by a live caller, as specified. Provides electronics or video displays shall not be used in connection with the game of bingo, except in connection with the caller's drawing of numbers or symbols and the public display of that drawing, as specified. 24.Provides that players who are physically present at a bingo game may use hand held, portable card-minding SB 1369 Page 7 devices, as described, to assist in monitoring the numbers or symbols announced by a live caller as those numbers or symbols are called in a live game, as specified. A card-minding device shall be approved by the CGCC, as defined. On and after January 1, 2010, the CGCC and DOJ may inspect all card-minding devices at any time, as defined. 25.Raises the prize limits on traditional bingo from $250 to $500. 26.Provides in an effort to ease the transition to remote caller bingo on the part of those nonprofit organizations that, as of July 1, 2008, used electronic devices other than card-minding devices to conduct games in reliance on an ordinance of a city, county, or city and county that, as of July 1, 2008, expressly recognized the operation of electronic devices other than card-minding devices by organizations purportedly authorized to conduct bingo in the city, county or city and county, there is hereby created the Charity Bingo Mitigation Fund. 27.Provides that to allow the Charity Bingo Mitigation Fund to become immediately operable, $5 million shall be loaned from the accrued interest in the Indian Gaming Special Distribution Fund (IGSDF) to the Charity Bingo Mitigation Fund on, or after January 1, 2009, to make mitigation payments to eligible non-profit organizations, as specified. Provides that mitigation payments to be made by the Charity Bingo Mitigation Fund shall not exceed $5 million in the aggregate. The Charity Bingo Mitigation Fund shall be administered by CGCC. 28.Provides to reimburse the IGSDF, those nonprofit organizations that conduct a remote caller bingo game, as defined, shall pay to CGCC an amount equal to five percent of the gross revenues of each remote caller bingo game played until that time as the full advanced amount plus interest on the loan, as described. 29.Specifies that each eligible organization may apply to the CGCC no later than January 31, 2009, for the SB 1369 Page 8 mitigation payments in the amount equal to net revenues from the fiscal year (FY) ending June 30, 2008, by filing an application, including therewith documents and other proof of eligibility, including any and all financial records documenting the organization's net revenues for the FY ending June 30, 2008, as the CGCC may require, as specified. 30.Makes various legislative findings and declarations. NOTE: AB 334 (Levine) is a companion measure which appropriates up to $500,000, as determined by order of the Director of the Department of Finance to the CGCC for use in the 2008-09 fiscal year for purposes relating to the regulation of remote caller bingo. Background In 1976, California voters approved an amendment to the Constitution specifying, "the Legislature by statute may authorize cities and counties to provide for bingo games, but only for charitable purposes." [California Constitution, Article IV, Section 19 (c)] The Legislature implemented this constitutional provision by enacting Section 326.5 of the Penal Code. The statute authorizes the playing of bingo where the games are conducted by a specified tax-exempt organization for charitable purposes pursuant to local ordinance. In general, these ordinances specify limitations of days, locations, and hours of operations of bingo games. Local governments have the responsibility to regulate and enforce their ordinances. Furthermore, the federal government requires charitable nonprofit organizations to file annual returns that are subject to audit. Percentage of gross revenue generated for charitable purposes . According to a May 2006 report by the California Research Bureau titled "Gambling in the Golden State - 1998 Forward:" "Charitable bingo can be a big business, as in the case of the Hawaiian Gardens Bingo Club, which is the largest non-tribal bingo parlor in the state, operating seven days a week. Between 1997 and 2003, the club brought in more than $200 million in revenue and paid out almost SB 1369 Page 9 $37 million in charitable giving." The percentage of gross revenue paid out for charitable purposes over that time period was approximately 16.5 percent. Recent controversy involving electronic bingo machines . Bingo in California is a significant and cash intensive business enterprise. The revenues generated by not-for-profit and charitable bingo at locations across the state are in the millions of dollars a year. The actual amount of revenues generated and the amounts expended on prizes, rent, expenses and overhead, and given to charities is unclear because there is no statewide reporting requirements in current law. In Sacramento County, it has been reported that hundreds of bingo machines are in use helping bingo operators generate over $50 million in gross revenue. Bingo operators and the charities that they support maintain that electronic bingo machines are popular with the public and are needed to better compete with tribal casinos. Various tribes throughout California have stated that the use of electronic bingo machines by nonprofit groups violate their exclusive right to operate slot machines and their obligation to make revenue sharing payments to the state. The new and amended compacts negotiated by the Schwarzenegger Administration, contain exclusivity clauses that allow tribes to suspend payments to the state if anyone other than another federally recognized tribe is allowed to operate gaming devices in specified areas of the state. Administrative and other recent enforcement actions . In 1987, the AG issued a published opinion that an electronic system of bingo which substituted a hand computer with stored bingo card "matrices" for the traditional paper or cardboard bingo cards did not qualify as bingo within the meaning of Section 326.5(o) of the Penal Code. In 1998, the AG issued an unpublished opinion that a bingo player may use an "electronic aid" in conjunction with traditional bingo cards to notify him or her when a game has been won. At least implicitly, the opinion indicated that physical, paper cards were still required in order for the game to qualify as "bingo" under Section 326.5(o) of the Penal Code. SB 1369 Page 10 In 2004, the AG's Division of Gambling Control issued a notice that, in its view, certain electronic bingo game systems then operating in California were "slot machines" as defined by Section 330(b) of the Penal Code and did not fall within the definition of "bingo" contained in Section 326.5(o) of the Penal Code, and that such games therefore could not lawfully be played in California. On August 10, 2007, the AG's Division of Gambling Control issued a Law Enforcement Advisory notice regarding "Electronic Bingo", stating that it considered "electronic systems of bingo that substitute computers with stored bingo matrices, in lieu of paper or cardboard bingo cards, to be unauthorized by Penal Code Section 326.5." On the same date, the Division of Gambling Control began issuing letters to known users of electronic bingo games notifying them of its conclusion and stating: "If you or your organization operate bingo games not authorized by Penal Code Section 326.5, the devices employed in the play of the game may be subject to seizure and destruction pursuant to Penal Code Section 335a. Further, the party or parties responsible for the operation of such games and devices could also be subject to criminal proceedings. Pending litigation . In Video Gaming Technologies, Inc., et al. v. Bureau of Gambling Control, et al. in the Eastern District of California, Video Gaming Technologies (VGT), a manufacturer of electronic bingo devices, together with two charitable organizations and two disabled persons filed a complaint on June 4, 2008, under the Americans With Disabilities Act, seeking injunctive and declaratory relief against enforcement of Penal Code prohibitions on slot machines or devices by the Bureau of Gambling Control, alleging that enforcement denies reasonable accommodation to the disabled for convenient play of bingo. It appears the substantive legal question is whether the ADA requires a state, in order to comply with its accommodation requirements, to refrain from the enforcement of its criminal laws and permit the use by disabled individuals of devices that are prohibited by those same criminal laws. Upon the filing in Sacramento, a motion for temporary restraining order was held the morning of June 5 and it was granted along with an order to show cause regarding preliminary injunction, to be heard on June 25, 2008. SB 1369 Page 11 United States District Judge John A. Mendez issued a preliminary injunction against the state at the hearing on June 25, 2008. New Vision v. Sacramento County Board of Supervisors . In 2007, New Vision challenged certain provisions of a Sacramento County ordinance authorizing the play of bingo without a paper "card". In making the ruling, Sacramento Superior Court Judge Patrick Marlette reviewed the applicable statute, the challenged provisions of the bingo ordinance, and the various administrative and legislative materials summarized above, and found that Section 326.5(o) of the Penal Code was not intended to, and does not authorize the County to permit electronic bingo, i.e., the playing of bingo without the use of a physical, paper or cardboard card. Specifically, Judge Marlette ruled that the provisions of the County bingo ordinance that purport to authorize "paperless" electronic bingo games are declared to be invalid as contrary to Section 326.5(o) of the Penal Code. However, Judge Marlette also applied a different analysis to the provisions of the County ordinance governing electronic bingo aids. Provisions of the County bingo ordinance also provide that "players must have at their disposal paper cards that electronic cards represent such that a winning bingo could be verified on the paper or cardboard card itself." The requirement that players have paper cards means that the game, when played with electronic bingo aids, is not a "paperless" game. These provisions of the County bingo ordinance that require the electronic bingo machines to produce paper results therefore are not invalid under Section 326.5(o) of the Penal Code. FISCAL EFFECT : Appropriation: Yes Fiscal Com.: Yes Local: Yes According to the Assembly Appropriations Committee, one-time General Fund costs of approximately $500,000 for CGCC to develop regulations and purchase equipment necessary to test and monitor electronic card-minding devices. CGCC estimates that they will need $2.5 million per year for 25 additional staff they believe will be SB 1369 Page 12 necessary to oversee and regulate charitable bingo in the state. These costs should be fully offset by licensing fees. Ongoing costs in excess of $3 million for DOJ to oversee and enforce charitable bingo regulations. Approximately one-half will be for licensing activities, which would be covered by licensing fee revenue. The remaining cost of $1.5 million will be General Fund. SUPPORT : (Verified 8/28/08) California Association of Nonprofits (co-source) Charity First (co-source) Agua Caliente Band of Cahuilla Indians American Legion Archdiocese of Los Angeles Barona Band of Mission Indians California Catholic Conference of Bishops California Narcotic Officers' Association California Tribal Business Alliance Catholic Charities of Los Angeles, Inc. Ewiiaapaayp Band of Kumeyaay Indians Ione Band of Miwok Indians Morongo Band of Mission Indians Pane and Pane Associates, Inc Pechanga Band of Luiseno Indians Pechanga Indian Reservation Picayune Rancheria of the Chukchansi Indians Rumsey Band of Wintun Indians Rumsey Indian Rancheria San Manuel Band of Mission Indians The American Legion (Department of California) Viejas Band of Kumeyaay Indians Viejas Tribal Government OPPOSITION : (Verified 8/28/08) California Charity Bingo Association El Camino High School Boosters Club Lightning Games, LLC Los Coyotes Band of Indians Ramona Band of Cahuilla Rincon Band of Luiseno Indians ARGUMENTS IN SUPPORT : According to the author's office, SB 1369 Page 13 this bill is intended to provide non-profit organizations an opportunity to increase their fundraising ability by authorizing remote caller bingo, which will allow charities across the state to combine their games and offer larger prizes than allowed under current law. The author states, "The demand for services from California charities is increasing due to the economy, unemployment and our state budget cuts. At the same time, charitable donations are down and charities are faced with turning away people for whom it is their mission to serve. Charities desperately need new tools to increase their ability to raise funds to keep up with the demand for their services. SB 1369 does just that by building upon and clarifying the charity bingo statute that was created by the Legislature many years ago." In addition, this bill is intended to clarify current law by clearly prohibiting electronic bingo. The author's office contends that electronic bingo is illegal in the state and that it violates the exclusivity agreements contained in the tribal gaming compacts between the state and various Indian tribes throughout California. Several tribes have notified the Governor that they believe the existence of electronic bingo parlors violates their exclusive right to operate gaming devices. Should this matter not be settled in this legislative session, the author's office argues that hundreds of millions of dollars in state revenue will be lost because the tribes will no longer be required to make payments to the state. Finally, unlike current electronic bingo, which provides less than 10 percent of the games' gross revenues to the nonprofits, the author's office wants to assure that revenue generated by charitable bingo games is used for charitable purposes. Toward that end, this bill requires that a minimum of 43 percent of the gross revenue be used for charitable purposes. In support, the California Catholic Conference of Bishops states, "many Catholic parishes depend on bingo receipts for funding their charitable programs but are unable to find enough volunteers to run local bingo games. SB 1369 would use the economy of scale and modern technology in order to allow bingo players to gather in parish halls near SB 1369 Page 14 their homes - but have the benefit of professional bingo callers running the game." The California Association of Nonprofits, a statewide membership organization of over 2,000 diverse nonprofits states, this bill "provides for a very strictly defined accountability, thus protecting the public, at the same time, it makes charitable bingo more appealing and accessible. Significantly, it also provides the highest return for charitable purposes from bingo of any state in the nation. For decades, bingo has generated many millions of dollars for charitable causes. In recent years, bingo has lost much of its audience. As a result, schools, hospitals, health care, and many other important community needs have suffered a loss of financial support." ARGUMENTS IN OPPOSITION : The California Charity Bingo Association states, "since 1974, charities have been authorized, subject to local control, to offer bingo for charitable purposes. Countless community-based programs have become heavily dependent on contributions from charitable bingo. In order to keep up with the demands placed on charities, new technology has evolved to increase revenues available for charitable purposes. SB 1369 will cut off those streams of revenue and place all programs dependent on charitable bingo revenues in jeopardy." The opposition further maintains, "SB 1369 also eliminates charitable bingo's ability to take advantage of modern technology and provide reasonable accommodations for ADA qualified patrons. This bill prohibits the use of electronic aids to bingo and, instead authorizes a bingo minder of the type in use 20 or more years ago." The opposition maintains, "charities will suffer, community based organizations will suffer, programs will suffer and local governments will experience increased demands on their general funds to pick up the slack." El Camino High School Booster's Club states, "if passed, this bill will blow a hole in the $4.6 million that currently supports charities in Sacramento County, including the El Camino and Mira Loma High School Booster Clubs, the Senior Gleaners, WIND Youth Services, Society for the Blind, Disabled Sports USA, Stanford Home for Children, United Cerebral Palsy and many more. In SB 1369 Page 15 advocating for the passage of this bill, Indian tribes supporting this bill have presented questionable information and attempted to convey a sense of urgency for the measure, as opposed to thoughtful, deliberate consideration by the Legislature." Lightning Games, LLC writes, "this bill takes a dramatic step of outlawing electronic bingo for charitable purposes. This is a major policy matter that deserves deliberative consideration - in the face of the State's declining economy, now is not the time to rush legislation to harm charities." ASSEMBLY FLOOR : AYES: Adams, Aghazarian, Anderson, Arambula, Beall, Benoit, Berryhill, Blakeslee, Caballero, Charles Calderon, Carter, Cook, Coto, Davis, De La Torre, De Leon, Dymally, Emmerson, Eng, Evans, Feuer, Fuentes, Fuller, Furutani, Galgiani, Garcia, Garrick, Hayashi, Hernandez, Horton, Houston, Huff, Huffman, Jeffries, Jones, Karnette, Keene, Krekorian, La Malfa, Laird, Leno, Levine, Lieber, Lieu, Ma, Maze, Mendoza, Nakanishi, Nava, Parra, Plescia, Portantino, Price, Ruskin, Salas, Saldana, Silva, Smyth, Solorio, Strickland, Swanson, Torrico, Tran, Walters, Wolk, Bass NOES: Berg, DeSaulnier, Niello NO VOTE RECORDED: Brownley, DeVore, Duvall, Gaines, Hancock, Mullin, Nunez, Sharon Runner, Soto, Spitzer, Villines TSM:mw 8/28/08 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****