BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1439
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          Date of Hearing:   April 29, 2014

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER  
                                     PROTECTION
                               Susan A. Bonilla, Chair
             AB 1439 (Salas, Bonta, and Frazier) - As Amended:  March 24,  
                                        2014
           
          SUBJECT  :   Unfair business practices: contests and sweepstakes.

           SUMMARY  :   Prohibits any person operating a contest or  
          sweepstakes from using an interactive electronic video monitor  
          to simulate gambling or play gambling-themed games in a business  
          establishment that implements the predetermination of cash,  
          cash-equivalents, or other prizes of value, or connects a player  
          or participant with cash or prizes. Specifically,  this bill  :  

          1)Prohibits any person operating a contest or sweepstakes from  
            using or offering for use an electronic video monitor that  
            simulates gambling or play gambling-themed games in a business  
            establishment that directly or indirectly implements the  
            predetermination of, or connects a sweepstakes player or  
            participant with, sweepstakes cash, cash-equivalent prizes, or  
            other prizes of value.

          2)Prohibits any person operating a sweepstakes from committing,  
            by act or omission, various unfair acts or practices, as  
            specified.

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

          4)Declares that nothing in this bill shall be deemed to render  
            lawful any unlawful act, including but not limited to, the  
            operation of lotteries, slot or card machines, and controlled  
            game, as specified.  

          5)Declares 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.









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          6)Declares that no reimbursement is required by this bill  
            because the only costs that may be incurred by a local agency  
            or school district will be incurred because this act creates a  
            new crime or infraction, eliminates a crime or infraction,  
            changes the penalty for a crime or infraction, or changes the  
            definition of a crime.

          7)Makes other technical and clarifying amendments.

           EXISTING LAW:  

          1)Regulates false advertising and specifically prohibits certain  
            unfair acts or practices undertaken by, or omissions of, a  
            person in the operation of a contest, including  
            misrepresenting the odds of winning a prize or failing to  
            award and distribute all prizes.  Prohibits misrepresenting in  
            any manner, the rules, terms, or conditions of participation  
            in a contest, or failing to clearly and conspicuously disclose  
            the exact nature and approximate value of the prizes when  
            offered, or failing to award and distribute all prizes of  
            value.  A violation of this provision is a misdemeanor.   
            (Business and Professions Code (BPC) Section 17539.1)

          2)Defines a "lottery" as "any scheme for the disposal or  
            distribution of property by chance, among persons who have  
            paid or promised to pay any valuable consideration for the  
            chance of obtaining such property or a portion of it, or for  
            any share or any interest in such property, upon any  
            agreement, understanding, or expectation that it is to be  
            distributed or disposed of by lot or chance, whether called a  
            lottery, raffle, or gift enterprise, or by whatever name the  
            same may be known." (Penal Code (PEN) Section 319) 

          3)Declares that "every person who contrives, prepares, sets up,  
            proposes, or draws any lottery, is guilty of a misdemeanor."  
            (PEN 320)

          4)Prohibits a person to have in his possession or under his or  
            her 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  








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            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 the machine, when the  
            result of action or operation of the machine, contrivance,  
            appliance, or mechanical device is dependent upon hazard or  
            chance . . . ." (PEN 330(a))

          5)Prohibits "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." (PEN 330(b))

          6)Prohibits "any person to make, or permit the making of an  
            agreement with another person regarding any slot machine or  
            device, by which the user of the slot machine or device, as a  
            result of the element of hazard or chance or other  
            unpredictable outcome, may become entitled to receive money,  
            credit, allowance, or other thing of value or additional  
            chance or right to use the slot machine or device, or to  
            receive any check, slug, token, or memorandum entitling the  
            holder to receive money, credit, allowance, or other thing of  
            value." (PEN 330(b))

          7)Defines a "slot machine or device" as "one that is, or may be,  
            used or operated in such a way that, as a result of the  
            insertion of any piece of money or coin or other object the  
            machine or device is caused to operate or may be operated or  
            played, mechanically, electrically, automatically, or  
            manually, and by reason of any element of hazard or chance,  
            the user may receive or become entitled to receive anything of  
            value . . . ." (PEN 330.1(f))

          8)Prohibits any person as an owner, lessee, or employee to do  
            any of the following without having first procured all  
            federal, state, and local licenses required by law: 

               a)     To deal, operate, carry on, conduct, maintain, or  
                 expose for play in this state any controlled game; 

               b)     To receive, directly or indirectly, any compensation  
                 or reward or any percentage or share of the revenue, for  








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                 keeping, running, or carrying on any controlled game;

               c)     To manufacture, distribute, or repair any gambling  
                 equipment ... or to receive, directly or indirectly, any  
                 compensation or reward for the manufacture, distribution,  
                 or repair of any gambling equipment;

               d)     To knowingly permit any controlled game to be  
                 conducted, operated, dealt, or carried on in any house or  
                 building or other premises that he or she owns or leases;  
                 and

               e)     Any person who violates, attempts to violate, or  
                 conspires to violate this section shall be punished by  
                 imprisonment in a county jail for not more than one year  
                 or by a fine of not more than ten thousand dollars  
                 ($10,000), or by both imprisonment and fine. (PEN 337(j))

          9)Permits Indian tribes to conduct and operate slot machines,  
            lottery games, banking, and percentage card games on Indian  
            land if the Governor and an Indian tribe reach an agreement on  
            a compact, the Legislature approves the compact, and the  
            federal government approves the compact. (California  
            Constitution, Article IV, Section 19)

          10)Regulates the licensure of individuals and establishments  
            involved in gambling activities in California.  Lotteries are  
            prohibited, except for the California State Lottery, bingo for  
            charitable purposes, and raffles conducted by a non-profit,  
            tax-exempt organization for charitable purposes, as specified.  
            (BPC 19800 et seq.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Purpose of this bill  . This bill would prohibit businesses  
            operating a contest or sweepstakes from using interactive  
            video screens that simulate gambling or gambling-themed games  
            for cash or other prizes of value.  This bill is  
            author-sponsored.

           2)Author's statement  .  According to the author, "Internet cafes  
            are setting up computers where customers can wager funds on  
            gambling-themed games.  These businesses are usually decorated  








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            with casino themes, and the games offered simulate slot  
            machine-themed games found in casinos.  The gambling is  
            offered under the guise of marketing internet time and  
            telephone time.

            "A loophole in the law has permitted internet gambling  
            sweepstakes to operate in a 'gray area' and evade law  
            enforcement.  These internet sweepstakes are thinly veiled  
            gambling operations.  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. 

            "Local business owners have voiced concern about the negative  
            consequences of these cafes, including many reports of  
            increased crime.  As a result, nearby businesses are hurting  
            as their customers seek to avoid the crowd and crime that  
            these illegal gambling cafes attract.  These illegal gambling  
            cafes are a threat to both public safety and local business.

            "The pattern of these illegal gambling cafes has been to  
            establish themselves in an economically depressed area, accrue  
            hundreds of thousands of dollars through online gambling, and  
            close when apprehended by law enforcement.  Often, the illegal  
            gambling cafes 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.  AB 1439 will close  
            the loophole that has allowed these illegal cafes to operate."

           3)Simulated gambling in Internet cafes  .  "Internet cafes" are  
            retail business establishments that sell computer use and  
            Internet access by the minute or hour, in addition to other  
            services such as copying, video and telephonic communication,  
            and refreshments. 

          To attract customers and promote the sale of Internet time, some  
            Internet cafes may offer "sweepstakes" to customers whenever  
            they make a purchase of Internet time or other services.  
            Sweepstakes are delivered through computer software on the  
            cafe's computer terminals and the person purchasing Internet  
            time receives sweepstakes points for each dollar spent.  








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            Typically, the customer is given a plastic card with a  
            magnetic strip, or other token of value loaded with  
            sweepstakes points, which is activated by an employee of the  
            cafe and accepted at the business's computer terminals. 

            When accessing a computer terminal, the customer is given the  
            option of using the terminal software with purchased Internet  
            time, or use sweepstakes points to play sweepstakes games.  A  
            customer who chooses to play sweepstakes does not reduce the  
            amount of Internet time purchased.  The computer terminal  
            displays the sweepstakes results to the customer in a format  
            that resembles a casino slot machine or other gambling machine  
            in the order in which the sweepstakes result was originally  
            produced or "stacked" by the business.  Each time a customer  
            reveals the result of a sweepstakes entry, the next  
            sweepstakes entry in the stack is revealed from the  
            prearranged stack of predetermined entries.  Customers are  
            given a chance to win cash prizes in various amounts ranging  
            from small sums to several thousand dollars, where each  
            sweepstakes has a finite number of entries and finite number  
            of winners and losers.

            As a result, many customers of these Internet cafes find  
            themselves engaging, whether knowingly or unknowingly, in  
            games that effectively constitute illegal and unregulated  
            gambling.  This bill would explicitly prohibit the operation  
            of such electronic sweepstakes games, the violation of which  
            would be a misdemeanor charge. 

           4)Elements of a Lottery  .  California law defines a lottery as  
            any scheme for the disposition of property by chance 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.  A lottery consists of three elements: (1) a  
            prize, (2) consideration, and (3) distribution of the prize by  
            chance.  California courts have interpreted these elements  
            broadly.

            The first element, a prize, includes but is not limited to  
            money, property, or a trip. A prize may also arise from the  
            fees themselves in the form of a prize pool. 

            The second element of a lottery is payment of consideration by  
            the participant in order to be eligible to win a prize.   
            Courts have used certain rules to decide whether a scheme  








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            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 legal. However, if  
            eligibility is limited to those who have paid money, there is  
            consideration and the contest is illegal. Similarly, if some  
            persons must pay in order to have a chance at a prize while  
            others do not, there is still consideration and the contest  
            would be illegal.

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

            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.

           5)A California court has found that online sweepstakes are  
            gambling  .  Law enforcement agencies have maintained that  
            Internet cafes offering sweepstakes are engaged in practices  
            that violate gambling prohibitions against lotteries and  
            unlawful slot machines or devices. Not surprisingly, Internet  
            cafes argue that their businesses merely offer lawful  
            sweepstakes that promote the sale of their products and that  
            customers simply reveal sweepstakes results by playing a  
            simulated computer game, which does not satisfy the statutory  
            elements of an unlawful slot machine.

            However, Internet sweepstakes have been found to constitute an  
            unlawful slot machine or device in the California Fifth  
            District Court of Appeals where sweepstakes software that  
            resembles a casino slot machine or other gambling machine  
            satisfies the statutory definition of an "apparatus or device  
            that is adapted" for use as a slot or other gambling machine.   
            Internet sweepstakes use a magnetic value card or token loaded  
            with sweepstakes points that operate the slot machine or  
            device, which is similar to the traditional operation of a  
            slot machine that accepts money or other coins of value.  

            Sweepstakes software entries are arranged in pre-determined  
            sequences that include no random number generation, and  
            therefore playing the game has no effect on the outcome of the  








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            sweepstakes, but rather merely reveals the pre-determined  
            result.  However, the sweepstakes results appear unpredictable  
            and random from the perspective of the customer, because they  
            cannot exert any skill or judgment in how they play the game.   
            Whether the sweepstakes are shuffled to be pre-determined the  
            day before, or at the moment the player places a bet, it is  
            still a matter of chance whether a winning sweepstakes result  
            is the next available entry dealt.  Therefore, Internet  
            sweepstakes include "chance" because they involve an element  
            of hazard or other outcome of operation that remains  
            unpredictable.

            Customers who receive a winning sweepstakes entry receive  
            additional sweepstakes points on a magnetic value card or  
            token that can be used to continue playing, or receive other  
            prizes of value in exchange for sweepstake points, which  
            satisfies the statutory definition of a customer "receiving or  
            becoming entitled to receive any piece of money or thing of  
            value," as specified. (People v. Grewal, F065450 (Cal. Ct.  
            App. Mar. 7, 2014))

            Unfortunately, the recent caselaw may not be a complete  
            solution to the problem. Some enterprising businesses may yet  
            be tempted to slightly modify their sweepstakes software in  
            order to claim that it no longer technically meets the  
            definition of an illegal slot machine or device, therefore  
            requiring a new court decision to prohibit the modification.   
            Instead, this bill would cast a broader net and prohibit any  
            contest or sweepstakes that use an interactive electronic  
            video monitor to simulate gambling or play gambling-themed  
            games for cash or prizes.  AB 1439 is intended to close  
            loopholes that would allow Internet cafes to continue  
            operating sweepstakes while claiming the games did not meet  
            the statutory elements of a lottery.

           6)Arguments in support  .  The California Police Chiefs  
            Association writes, "In the last year, these types of  
            activities have been causing public safety problems throughout  
            California. So-called Internet cafes have been operating what  
            amount to e-slot machines on an ever increasing basis. In  
            addition to amounting to illegal gambling devices, the  
            Internet cafes that are operating these games have become  
            magnets for related criminal activity. Our police chiefs have  
            reported that criminal activity in and around these locations  
            now include drug use and drug trafficking, violent criminal  








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            activity, car break-ins and related thefts and robberies as  
            well as prostitution-related crime.

            "The problems have become so acute that last Fall, when the  
            California Police Chiefs Association reached out to member  
            Chiefs [to survey] their legislative priorities, Internet Cafe  
            gambling was identified by a substantial number of Chiefs as  
            requiring a Legislative solution."

            The City of Concord writes, "AB 1439 would close a loophole in  
            the law to clearly define the illegality of gambling at  
            Internet cafes. The bill would add 'sweepstakes' to the list  
            of unfair business practices prohibited under state law,  
            permitting cities, counties and the Department of Justice to  
            bring civil lawsuits against the individuals at the center of  
            these activities."

           7)Arguments in opposition  .  Prepaid Telconnect writes, "[AB  
            1439] seeks to prevent our company from utilizing the lawful  
            and completely acceptable method of 'sweepstakes marketing' to  
            promote the sale of our products and services.  This method of  
            advertising and marketing allow us, the small business, the  
            opportunity of competing with companies like AT&T, Verizon and  
            WalMart, the big business."
             
             "Due to a few small businesses entering the California market  
            under the guise of 'sweepstakes marketers' peddling subterfuge  
            products and services, 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." 

           8)Previous legislation  . SB 1400 (Simitian), Chapter 749,  
            Statutes of 2008, prohibited sweepstakes solicitations from  
            representing that a person has been specially selected, unless  
            that representation is true and prohibits sweepstakes  
            solicitations from making various other misleading or false  
            representations. SB 1400 required the official rules for a  
            sweepstakes to disclose information about the date the final  
            winner will be determined and prohibited a sweepstakes  
            sponsor, as defined, from charging a fee as a condition of  
            receiving a monetary distribution or obtaining information  
            about a prize or sweepstakes.

            SB 1780 (Peace), Chapter 280, Statutes of 1998, prohibited  








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            sweepstakes solicitation materials from representing that a  
            person is a prize winner unless that person has, in fact, won  
            a prize.  This bill also required a prominent "no purchase is  
            necessary" statement, a copy of the official rules, and  
            prohibits disadvantaging individuals in the contest not making  
            a purchase.

           9)Double-referral  . This bill was referred to the Assembly  
            Committee on Governmental Organizations, where it was heard on  
            April 23, 2014 and passed on a (18-0) vote.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Police Chiefs Association (sponsor)
          Agua Caliente Band of Cahuilla Indians Tribal Council
          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
          California College & University Police Chiefs Association
          California Contract Cities Association
          California District Attorneys Association
          California League of Cities
          California Narcotics Officers' Association
          California Police Chiefs Association
          California State Sheriffs' Association
          California Statewide Law Enforcement 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 South Gate
          City of Tulare
          City of Wasco
          Commerce Casino
          Communities of California Cardrooms








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          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
          Los Angeles Police Protective League
          Oakland Police Department
          Oakland Metropolitan Chamber of Commerce
          Pala Band of Mission Indians
          Paskenta Band of Nomlaki Indians
          Ramona Band of Cahuilla
          Riverside Sheriffs' 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  :    Girard Kelly / B.,P. & C.P. / (916)  
          319-3301