A ROLL OF THE DICE?
NOTE: In Volume II, Issue 5 we addressed Bingo. In this issue of the Association e-Lawyer we will address the broader issue of gambling as it relates to community associations.
Because it appears that gambling, in one form or another, will continue to exist, it is imperative that Associations understand the existing laws and take appropriate actions to insure that no such laws are violated.
Historically, gambling was only illegal if it became a public nuisance. However, gambling is now heavily regulated by the State. The State Constitution prohibits lotteries, except for authorized pari-mutuel pools and State-operated lotteries. And, although there is no general statutory prohibition on gambling, Florida legislation has been so prolific in this area that, as a practical matter, almost all forms of gambling are either prohibited by a Florida statute or restricted and regulated.
Several sections of the Florida Statutes which define illegal gambling can apply to Associations and their common areas. They are as follows:
A. Gambling Houses:
Section 849.01, Florida Statutes, makes it a felony to operate a gambling house. Whoever keeps or maintains a gaming table or room, or gaming implements, or a gaming house or other place for the purpose of gambling, or any place which they directly or indirectly control or manage, and permits another person to play for money or other valuable things at any game whatsoever violates this provision.
B. General Bingo, Card Games and Casino Nights:
Section 849.08, Florida Statutes, makes it a misdemeanor to do the following:
Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatsoever, for money or other thing of value, shall be guilty of a misdemeanor of the second degree . . . .
C. Lotteries and Raffles:
Section 849.09, Florida Statutes, makes it unlawful and a crime to set up, promote or conduct any lottery for money or anything else of value. In general terms, a lottery is a chance at a prize for a price. There are three (3) basic elements to a lottery; a prize, awarded by chance, and for a consideration. As an example, a game where payments by participants are used to create a fund, and part of the fund is distributed by chance to 'winners' and part of the fund is retained by the operator of the game, is an illegal lottery.
D. Sporting Events and Games of Skill:
Section 849.14, Florida Statutes, makes it unlawful to bet on sporting events or games of skill, whether they involve humans or animals. This section has recently been used to prohibit the operation of a 'fantasy sports league' where contestants pay an entry fee for the chance to select players to make up a fantasy team, and receive cash from other contestant’s entry fees for fielding the 'best' fantasy team based on performance statistics.
EXCEPTIONS TO GAMBLING LAW:
The Florida Legislature and case law have created several exceptions to the above anti-gambling restrictions. The only exceptions which appear to apply to Community Associations are as follows:
A. Bingo Games:
Pursuant to 849.0931(4), Florida Statutes, a homeowners’ association can conduct bingo games but this is conditioned upon the return of the net proceeds from such games to the players in the form of prizes after deducting actual business expenses for such games for articles designated for and essential to the operation, conduct and playing of bingo.
Even though we have addressed this subject more fully in Volume II, Issue 5 of the Association e-Lawyer. If any Association would like additional information on this topic they should contact their legal counsel for more detail.
B. Penny-ante Games:
Section 849.085, Florida Statutes, permits 'penny-ante games', which are defined as follows:
'Penny-ante game' means a game or series of games of poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or mah-jongg in which the winnings of any player in a single round, hand, or game do not exceed $10 in value.
If any Association would like additional information on this topic they should contact their legal counsel for more detail.
C. Golf Tournaments:
Even though golf tournaments are technically gambling, the Florida Attorney General has issued the following opinion which permits such tournaments in the following circumstances:
There is no stake, bet or wager, and therefore no violation of gambling statute where contestants in a golf or bowling tournament pay entry fees and have the opportunity to win valuable prizes by the exercise of skill, provided that the entry fees do not specifically make up the purses, prizes or premiums contested for. (Emphasis added.)
PENALTY FOR GAMBLING:
As reflected above, illegal gambling is a crime. In addition, the Association can face a fine of up to $1,000.00. The following outlined case of DBPR v. Bottoms Up Bar, 1998 WL 930016 (Fla.Div.Admin.Hrgs.) is very instructive as to this issue.
In DBPR v. Bottoms Up Bar, a patron decided to start a football pool. She drew the grid and collected $20.00 for each square on the grid. On the Friday before the game she gave the football pool sheet to the bartender at Bottoms Up for safekeeping and later she passed it to the owner of the bar. An agent for the Division of Alcoholic Beverages and Tobacco witnessed these transactions, among others, the bar was raided, and the matter came before an administrative law judge. Citing Freeze v. DBPR, Division of Alcoholic Beverages and Tobacco, 556 So.2d 1204 (Fla. 5th DCA 1990) in the Administrative Order the judge stated:
While a licensee is not the absolute insurer of the actions of its patrons, it is accountable if it was aware of violations by its patrons and failed to take steps to stop the violations.
* * *
In this case the agency proved that the owner of Bottoms Up Bar, Lynette Tummolo, had at least fleeting knowledge that a football pool was circulating in her facility.
The judge also determined that the bartender knew of and assisted in the wagering activity conducted by the patron. Based on these determinations, the judge recommended that the bar be found guilty of violating Florida Statute Section 561.29(1)(a) and the gambling statute. We do not have access to the Division’s ultimate decision in that case, but if the Division accepted the judge’s recommendation it would have revoked the bar’s liquor license.
What started as the actions of a patron resulted in the establishment being held accountable for the illegal activity. Similarly, if a football pool, a gin club, a poker club, or other gambling clubs or events in the Community result in illegal gambling, the Association could be held accountable regardless of whether the event was member-operated or Association-operated, if the Association became aware, and ignored the illegal activities on premises it controls.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Palm Coast, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition was prepared by Harry W. Carls and Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice. The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise the Association of subsequent changes in the law.
©2007 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached Toll Free at 1-800-395-6235 or locally at 407-660-1040.
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