BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   April 23, 2014

                   ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
                                 Isadore Hall, Chair
             AB 1439 (Salas, Bonta, and Frazier) - As Amended:  March 24,  
                                        2014
           
          SUBJECT  :   Sweepstakes

           SUMMARY  :   Prohibits any person, when conducting a contest or  
          sweepstakes, from using an electronic video monitor to simulate  
          gambling or play gambling-themed games that offers the  
          opportunity to win sweepstakes cash, cash equivalent prizes, or  
          other prizes of value.  Specifically,  this bill  :  

          1)Prohibits a person, in operation of a sweepstakes or contest.  
            from using or offering to use any method intended to be used  
            by a person interacting with an electronic video monitor to  
            simulate gambling or play gambling-themed games in a business  
            establishment that directly or indirectly implements the  
            predetermination of sweepstakes cash, cash-equivalent prizes,  
            or other prizes of value, or otherwise connects a sweepstakes  
            player or participant with sweepstakes cash, cash-equivalent  
            prizes, or other prizes of value.

          2)Defines "sweepstakes" as a procedure, activity, or event, for  
            the distribution, donation, or sale of anything of value by  
            lot, chance, predetermined selections, or random selection  
            that is not unlawful under other provisions of law. 

          3)Specifies that nothing in this bill shall be deemed to render  
            lawful any activity that is unlawful pursuant to any other  
            law. 

          4)Specifies that nothing in this bill shall be deemed to render  
            unlawful or restrict otherwise lawful games and methods used  
            by a gambling enterprise licensed under the Gambling Control  
            Act or operations of the California State Lottery.

          5)Clarifies that sweepstakes are bound to the same prohibitions  
            on unfair business practices as contests.

           EXISTING LAW  

          1)Prohibits certain unfair acts or practices undertaken by, or  








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            omissions of, any person in the operation of a contest,  
            including, among other things:

             a)   Misrepresenting the odds of winning any prize or failing  
               to award and distribute all prizes;

             b)   Misrepresenting in any manner, the rules, terms, or  
               conditions of participation in a contest;

             c)   Failing to clearly and conspicuously disclose the exact  
               nature and approximate value of the prizes when offered.

             d)   Failing to award and distribute all prizes of the value  
               and type represented.

             e)   Representing directly or by implication that any  
               particular person has won any money, prize, thing, or other  
               value in a contest unless there has been a real contest in  
               which a meaningful percentage, which shall be at least a  
               majority, of the participants in such contests have failed  
               to win a prize, money, thing, or other value.

          2)Prohibits a person to have in his or her possession or under  
            his or her control, any slot or card machine or mechanical  
            device, upon the result of action of which money or other  
            valuable thing is staked and which is operated, or played, by  
            placing or depositing any coins, checks, or other articles or  
            device, or as a result of the operation of which any  
            merchandise, money, or any other thing of value is won or  
            lost, when the result of operation of the machine or  
            mechanical device is dependent upon hazard or chance. 

          3)Makes it unlawful for any person to manufacture, repair, own,  
            store, possess, sell, rent, lease, let on shares, lend or give  
            away, transport, or expose for sale or lease, or to offer to  
            repair, sell, rent, lease, let on shares, lend or give away,  
            or permit the operation, placement, maintenance, or keeping  
            of, in any place, room, space, or building owned, leased, or  
            occupied, managed, or controlled by that person, any slot  
            machine or device, as defined. 

          4)Defines a "slot machine or device" as a machine, apparatus, or  
            device that is adapted, or may be readily be converted, for  
            use in a way that, as a result of the insertion of any piece  
            of money or coin or other object, or by any other means, the  








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            machine or device is caused to operate or may be operated, and  
            by reason of any element of hazard or chance or of other  
            outcome of operation unpredictable by him or her, the user may  
            receive or become entitled to receive any piece of money,  
            credit, allowance, or thing of value, or additional chance or  
            right to use the slot machine or device, or any check, slug,  
            token, or memorandum, whether of value or otherwise, which may  
            be exchanged for any money, credit, allowance, or thing of  
            value, or which may be given in trade, irrespective of whether  
            it may, apart from any element of hazard or chance or  
            unpredictable outcome of operation, also sell, deliver, or  
            present some merchandise, indication of weight, entertainment,  
            or other thing of value. 

          5)Prohibits lotteries, except for the California State Lottery,  
            bingo for charitable purposes, as specified, and raffles  
            conducted by a non-profit, tax-exempt organization for  
            charitable purposes, as specified. 

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of the bill  :  According to the author, a loophole in law  
          has permitted internet gambling sweepstakes to operate in a  
          "gray area" and evade law enforcement.  These Internet  
          sweepstakes are thinly veiled gambling operations that establish  
          themselves in an economically depressed area, accrue hundreds of  
          thousands of dollars through online gambling, and close when  
          apprehended by law enforcement.  Often, these illegal gambling  
          cafés will then re-open in a new location, threatening to  
          negatively impact another neighborhood in the community.   
          Recently, there has been a growing proliferation of these gaming  
          operations throughout the State.

          The author further states that the law must be updated to  
          prohibit these activities and provide authorities with the  
          necessary enforcement tools to regain local control of the  
          public safety issues that arise because of illegal Internet  
          gambling sweepstakes.  AB 1439 will close the loophole that has  
          allowed these illegal cafés to operate.

          Internet Sweepstakes Cafés:   "Internet Sweepstakes Cafés" also  
          known simply as Internet Cafés are business establishments that  
          give individuals the opportunity to win prizes with the purchase  








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          of some kind of product, usually in the form of telephone cards  
          or Internet access. They began appearing in Southern United  
          States in 2005, but have quickly expanded throughout the rest of  
          the nation, including the State of California.

          Though the business model varies slightly, in general, Internet  
          Cafés are located in storefront strip malls and sometimes can be  
          found in gasoline stations and convenience stores.  In some  
          cases, they can also be found as standalone establishments.   
          Numerous computers are placed in either tables or rows and can  
          number from just a few to over 100 computers. 

          Customers can purchase Internet or phone time that is added to a  
          magnetic striped card that is provided by the Internet Café.   
          With the purchase of Internet or phone time, the customer also  
          receives "entries" or "credits" into the Internet sweepstakes.   
          Though the number of entries per Internet or phone time  
          purchases can vary from establishment to establishment, it is  
          very common to receive 100 "credits" for every $1.00 of Internet  
          or phone time purchased. 

          After the purchase of credits, the customer can then head to one  
          of the computer screens to play several gambling-themed games  
          and place bets with the "credits" they have purchased.   
          Customers can purchase additional "credits" from the Internet  
          Café employee and almost always can purchase additional credits  
          directly at the computer.  Customers who win prizes can cash in  
          any winnings, or use the winnings to purchase additional  
          "credits."  According to the Bureau of Gambling Control, "cash  
          prizes ranging from $1.00 to as much as $4,000 are paid out  
          daily."

           Bureau of Gambling Control: Law Enforcement Advisory:   On  
          December 5, 2012, the California Bureau of Gambling, a Bureau in  
          the Office of the Attorney General released a law enforcement  
          advisory that concluded that Internet Cafés that offer the type  
          of sweepstakes described above to be illegal gambling  
          operations. 

          In this advisory the Bureau stated that, "[the Bureau] will  
          assist California law enforcement agencies working toward  
          prosecution or pursuing civil or administrative actions in  
          connection with Internet Café gambling operations. Assistance  
          may encompass advice, Bureau personnel and equipment, search and  
          arrest warrants examples, and other experienced assistance with  








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          enforcement operations." 

          Though the advisory was for informational purposes only and not  
          intended to be legal advice, it did present a clear message that  
          the types of "sweepstakes" that were being conducted at various  
          Internet Cafés were in fact illegal.  

           Legality of Internet Cafés  :  The proliferation of Internet Cafés  
          throughout California has resulted in dramatically different  
          interpretations as to the legality of such businesses between  
          law enforcement agencies and Internet café owners themselves.  
          While California law enforcement agencies have maintained that  
          such businesses are illegal, not surprisingly, Internet Café  
          owners have maintained that the business they operate are in  
          fact legal.

          Law enforcement agencies have long maintained that Internet  
          Sweepstakes Cafés are engaged in practices that violate gambling  
          prohibitions that currently prohibit lotteries and unlawful slot  
          machines or devices.  On the other hand, Internet Cafés argue  
          that their business establishments merely offer lawful  
          sweepstakes that promote the sale of their products and that  
          even though customers can reveal sweepstakes results by playing  
          a computer game, this does not satisfy the required statutory  
          elements of an unlawful slot machine. 

          Two years ago the differences in opinions finally headed to  
          court when the Kern County District Attorney's Office filed  
          lawsuits against three Internet Café businesses; I-zone Internet  
          Café, Oz Internet Café and Hub, and the A-Z Café.  Kern County  
          Superior Court Judge William Palmer agreed with the DA's Office  
          that these types of sweepstakes were in fact illegal; Internet  
          Cafés immediately appealed that ruling. 

          On March 7, 2014, the Fifth Appellate District Court found in  
          favor of the County and once again ruled that Internet Cafés  
          that offer the type of sweepstakes described above were in fact  
          illegal under California law. In that ruling the court found:

               "All the trappings and experiences involved in playing  
               traditional slot machines are actualized in one form or  
               another by the defendants' sweepstakes software systems and  
               networked computer terminals, since in each case points are  
               received upon making a purchase, a game program is  
               activated by the customer at a terminal, points are used or  








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               bet in selected increments, audio-visual scenes are played  
               out on the screen to create the feel and anticipation of a  
               slot machine or other gambling games, and prizes are  
               won...the mere fact that winnings are based on a  
               predetermined sequence of results programmed into the  
               software system, rather than on a randomly spinning wheel  
               (or the like), does not change the nature and character of  
               devices herein, which as integrated systems function as  
               slot machines."

          Soon after the favorable ruling, the Kern County District  
          Attorney's Office sent a letter to all Internet Café operators  
          ordering them to "immediately cease and desist all gambling  
          activity including the so called sweepstakes," by March 21,  
          2014.  By that date, all Internet Cafés in Kern County had shut  
          down except for one Internet Café that was no longer offering  
          sweepstakes.

          Unfortunately while the cease and desist letter, combined with  
          the favorable ruling, initially seemed to shut down all Internet  
          Cafés in Kern County, less than one month later another Internet  
          Café was shut down by local authorities in Bakersfield.  During  
          the raid, the owners of the Internet Café told authorities that  
          they thought they were operating legally because they were using  
          a different sweepstakes system.  As this example shows, the  
          ruling of the Fifth Appellate District Court has not completely  
          shut down all Internet Cafés in California. It is believed that  
          AB 1439 will help to close the perceived loophole in law once  
          and for all. 

           The McDonalds Argument  : When taken to court, many Internet Cafés  
          have argued that the sweepstakes they offer are no different  
          that the popular Monopoly game that is occasionally offered at  
          McDonalds.  Various courts throughout the country have not  
          agreed with this characterization. 

          First, the look of both games are vastly different.  Nowhere in  
          the Monopoly game is there an interaction by the customer with  
          any sort of gambling themed electronic device.  For Internet  
          Cafés, the use of these gambling theme games is a critical  
          component of their business model. 

          Secondly, the duration of the sweepstakes is vastly different.   
          In traditional sweepstakes, the sweepstakes are for a  
          limited-term with a clear end date that is designed to bring  








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          attention to consumer products.  In the case of McDonalds, this  
          seems to be in order to promote their hamburgers, shakes, fries  
          and the like.  For Internet Cafés, the "sweepstakes" run  
          perpetually with no end in sight.  

          Third, the prizes being awarded are dramatically different.  The  
          prizes that are offered by McDonalds are for the most part a  
          free hamburger, drink, or fries and represent a small amount of  
          the overall company's revenue.  With Internet Cafés there are  
          huge daily cash prizes as previously noted by the California  
          Department of Justice.  

          Lastly, the McDonalds sweepstakes depend on the sale of a  
          product that is consumed by the customer.  Unlike Internet  
          Cafés, which many times allow for the return of unused minutes,  
          McDonalds does not allow for the return of unused products.  In  
          other words, McDonalds does not allow a customer to return half  
          of a consumed drink, hamburger, and/or fries for a 50% return on  
          their money. 

           Rules for the operation of sweepstakes  :  Current law defines a  
          "sweepstakes" as any procedure for distributing anything of  
          value by lot or chance.  A sweepstakes must not violate any  
          provision of law, including the law that prohibits lotteries.  
          The main difference between a sweepstakes and a lottery is that  
          the lottery participants have paid or promised to pay a value  
          for the chance to win a prize.  The main difference between a  
          sweepstakes and a contest are that the contest participants must  
          use at least some skill to win the prize and must pay some value  
          in the contest. 

          Sweepstakes are also prohibited from requiring a purchase in  
          order to enter the sweepstakes and the operator of sweepstakes  
          must treat entries that are associated with a purchase the same  
          as those that are not associated with a purchase. Solicitation  
          offering people in California with the opportunity to  
          participate in a sweepstakes must disclose the odds of receiving  
          each prize offered. 

          Any person who violates the provisions concerning the operation  
          of contests or sweepstakes is guilty of a misdemeanor, and may  
          be prosecuted by the Attorney General or by a district attorney.  
           They can also be enforced by civil court actions, which can be  
          filed by private parties, district attorneys, city attorneys,  
          county counsel, the Attorney General and other agencies of the  








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          State.  Depending on the nature of the action, remedies may  
          include civil penalties of up to $2,500 for each violation. A  
          contest or sweepstakes which violates these provisions may also  
          be subject to an additional civil penalty of up to $2,500 for  
          each violation as an unlawful business practice. 

          It is important to note that even though Internet Cafés are  
          claiming to simply be offering lawful sweepstakes, various law  
          enforcement entities and individuals have claimed that these  
          sweepstakes are lotteries, which are prohibited by current law.   


           Elements of Lottery:   According to California law, a lottery is  
          any scheme for the disposition of property by change among  
          persons who have paid any value for the chance of obtaining the  
          property, with the understanding that it will be disposed of by  
          chance.  California law prohibits lotteries. A lottery consists  
          of three elements: (1) a prize, (2) consideration, and (3)  
          distribution of the prize by chance.  In various court cases,  
          California courts have interpreted these elements broadly.

          The first element, a prize, might be the easiest to describe and  
          includes but is not limited to money, property, or a trip. A  
          prize may also arise from the collection of fees themselves that  
          can be collected into a pool. 

          The second element is a payment of consideration by the  
          participant in order to be eligible to win a prize.  In other  
          words, if an individual needs to purchase something in order to  
          be eligible to win a prize, the scheme is a lottery and thus  
          illegal under California law. Courts have used certain rules to  
          decide whether a scheme includes consideration because it is not  
          always clear. If a person is eligible to win a prize without  
          purchase, there is no consideration and the contest is therefore  
          legal. On the other hand if eligibility is limited to those who  
          have paid money, there is consideration and thus illegal.   
          Similarly, if some persons must pay in order to have a chance at  
          a prize while others do not, there is consideration and again  
          the scheme would be illegal. Internet Cafés have argued that the  
          type of sweepstakes they offer do not satisfy this second  
          element because the customer is purchasing Internet or phone  
          time and simply accepting the sweepstakes entries as a bonus.   
          However, courts have ruled that most customers are entirely  
          uninterested in the Internet and phone time and in fact the  
          customer is paying in order to be eligible to win; thus,  








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          satisfying the second element of a lottery. 

          The final element of a lottery is the distribution of the prize  
          by chance. The element of chance is present in a scheme even if  
          the game contains some element of skill, if chance is the  
          dominant factor in determining an outcome. 

          California law provides for three exceptions to the law  
          prohibiting lotteries; the California State Lottery, bingo for  
          charitable purposes and a raffle conducted by a non-profit,  
          tax-exempt organization for a charitable purpose is also  
          permissible.

           Arguments in support  :  The California Tribal Business Alliance  
          (CTBA) writes in support of the bill claiming that Internet  
          Cafés are criminal gambling operations that pose as storefront  
          businesses with computers that run casino games.  Designed to  
          operate under the guise of state sweepstakes laws, Internet  
          Cafés advertise and claim to sell a product, often telephone or  
          Internet time, so that customers can receive an "entry" into the  
          "sweepstakes."  Customers redeem or reveal the outcome of the  
          "sweepstakes" using computers that depict casino-themed games,  
          such as video slots and video poker.  Customers can win cash  
          prizes through the play of these games, which are paid at the  
          facility.  AB 1439 would bring an end to the ambiguity in state  
          law that has allowed these Internet Cafés to operate illegally  
          by specifically prohibiting these activities under state  
          sweepstake laws.  The bill would also provide state and local  
          authorities with the necessary enforcement tools to regain  
          control of the public safety issues that have arisen because of  
          illegal Internet Cafés. 

          Similarly, the California State Sheriff's Association argues  
          that current law requires the licensure of individuals and  
          establishments involved in gambling activities.  However, there  
          has been a growing proliferation of Internet Cafés offering  
          gambling themed games and experiences that simulate the slot  
          machine games found in casinos and result in sweepstake cash,  
          cash equivalent prizes, other prizes of value, or otherwise  
          connects a sweepstakes participant with prizes of value.  These  
          businesses often attract drugs and other illegal activities to  
          an area.  AB 1439 will enhance the ability of law enforcement to  
          curb illegal gambling activities and associated crimes by  
          explicitly prohibiting a business from offering electronic video  
          monitor gambling simulations or gambling themed games that  








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          utilize a sweepstakes prize experience. 

          The Kern County District Attorney's Office also writes in  
          support stating that although the Appellate Court's ruling was  
          extremely favorable, we believe the amendments proposed in AB  
          1439 are still very relevant and necessary to the extent that  
          they would directly address the issue and would tend to prevent  
          the gaming industry from trying to circumvent the law by  
          adopting new variations of the sweepstake café business model.

           Arguments in opposition  :  Prepaid Telconnect, Inc. writes in  
          opposition to the bill claiming that the bill seeks to prevent  
          their company from utilizing the lawful and completely  
          acceptable method of "sweepstakes marketing" to promote the sale  
                                                                              of their products and services.  They argue that no member of  
          the committee would consider a long distance calling card an  
          unlawful or illegitimate product.  Nor would any member consider  
          the practices of promotional sweepstakes marketing an unlawful  
          or illegitimate means of advertising. 

          They further argue that AB 1439 seeks to penalize and ban all  
          sweepstakes marketers regardless of the legitimacy of their  
          products or their rights as retailers to promote those products.  
           Penal codes already exist to address every complaint raised  
          about these businesses, their methods of operation and their  
          illegitimate products. 

           Double referral  :  Should AB 1439 successfully pass this  
          committee, the bill would then move to the Assembly Business,  
          Professions, and Consumer Affairs Committee for further  
          consideration.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Police Chiefs Association (Sponsor)
          Agua Caliente Band of Cahuilla Indians
          Association of California Cities Allied with Public Safety
          Association for Los Angeles Deputy Sheriffs
          Attorney General's Office, Kamala D. Harris
          Bakersfield Downtown Business Association
          Barona Band of Mission Indians
          Bicycle Casino
          California Association of Code Enforcement Officers








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          California College and University Police Chiefs Association
          California Contract Cities Association
          California District Attorneys Association
          California Narcotic Officers Association
          California Statewide Law Enforcement Association
          California State Sheriff's Association
          California Tribal Business Alliance
          City of Avenal
          City of Bakersfield
          City of Barstow
          City of Concord
          City of Delano
          City of McFarland
          City of Oakland
          City of Tulare
          City of Wasco
          Commerce Casino
          Communities of California Cardrooms
          Habematolel Pomo of Upper Lake
          Hawaiian Gardens
          Hispanic Chamber of Commerce, Alameda County
          Inaja-Cosmit Band of Mission Indians
          Kern County Board of Supervisors
          Kern County District Attorney's Office
          League of California Cities
          Los Angeles Police Protective League
          Oakland Police Department
          Pala Band of Mission Indians
          Paskenta Band of Nomlaki Indians
          Ramona Band of Cahuilla
          Riverside Sheriff's Association
          San Diego District Attorney's Office
          San Mateo County Police Chiefs and Sheriff Association
          Solano County District Attorney's Office
          Southern California Tribal Chairmen's Association, Inc.
          Viejas Band of Kumeyaay Indians
          Yocha Dehe Wintun Nation

           Opposition 
           
          Prepaid Telconnect, Inc.
           
          Analysis Prepared by  :    Felipe Lopez / G. O. / (916) 319-2531 










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