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A01380 Summary:

Add Art 15 §§1500 - 1506, RWB L; amd §225.00, add §225.36, Pen L
Allows certain interactive poker games be considered games of skill rather than games of luck; includes definitions, authorization, required safeguards and minimum standards, the scope of licensing review and state tax implications; makes corresponding penal law amendments.
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A01380 Actions:

01/17/2023referred to racing and wagering
01/03/2024referred to racing and wagering
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A01380 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    January 17, 2023
        Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
          tee on Racing and Wagering
        AN ACT to amend the racing, pari-mutuel wagering and  breeding  law  and
          the penal law, in relation to allowing certain interactive poker games
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The  racing,  pari-mutuel  wagering  and  breeding  law  is
     2  amended by adding a new article 15 to read as follows:
     3                                 ARTICLE 15
     4                             INTERACTIVE GAMING
     5  Section 1500. Legislative findings and purpose.
     6          1501. Definitions.
     7          1502. Authorization.
     8          1503. Required safeguards/minimum standards.
     9          1504. Scope of licensing review.
    10          1505. State tax.
    11          1506. Disposition of taxes.
    12    § 1500. Legislative findings and purpose. The legislature hereby finds
    13  and  declares  that: 1. Under the New York penal law a person engages in
    14  gambling when he or she stakes or risks  something  of  value  upon  the
    15  outcome  of  a  contest of chance or a future contingent event not under
    16  his or her control or influence, upon an agreement or understanding that
    17  he or she will receive something of value in  the  event  of  a  certain
    18  outcome.
    19    2.  A contest of chance is defined as any contest, game, gaming scheme
    20  or gaming device in which the outcome depends in a material degree  upon
    21  an  element of chance, notwithstanding that skill of the contestants may
    22  also be a factor therein. (Subdivision 1 of section 225.00 of the  penal
    23  law).  Thus,  games of chance may involve some skill, but in those games
    24  the level of skill does not determine  the  outcome  regardless  of  the
    25  degree  of  skill employed. See People v. Turner, 165 Misc. 2d 222, 224,
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 1380                             2
     1  629 N.Y.S.2d 661, 662 (Crim. Ct. 1995).  On  the  other  hand,  where  a
     2  contest  pits  the  skill  levels of the players against each other, New
     3  York courts have found a game to be one of skill rather than chance. See
     4  People  v.  Hunt,  162 Misc. 2d 70, 72, 616 N.Y.S.2d 168, 170 (Crim. Ct.
     5  1994) ("Played fairly, skill rather than chance is the  material  compo-
     6  nent of three-card monte.");
     7    3.  Poker  in many instances has been defined as a game of skill and a
     8  New York federal court in U.S. v. DiCristina, 886 F. Supp. 2d 164,  224,
     9  assessed that under federal law poker was predominantly a game of skill;
    10    4.  New  York  courts  have  interpreted  New York law to apply a more
    11  rigorous test in identifying a "contest of chance" than  is  applied  by
    12  most  states  in  this  nation  and  the  courts have found that where a
    13  contest pits the skill levels of the players against each  other,  those
    14  games  are  games  of  skill  and  not games of chance. Furthermore, the
    15  courts have not limited the  legislature's  ability  to  determine  that
    16  certain  forms  of  poker  should fall outside the general definition of
    17  gambling since those games are games of skill;
    18    5. Texas Hold'em poker involves two cards  dealt  face  down  to  each
    19  player  and  then  five  community cards placed face-up by the dealer, a
    20  series of three, then two additional single cards, with  players  deter-
    21  mining  whether  to  check,  bet,  raise  or fold after each deal. Omaha
    22  Hold'em poker is a similar game, in which  each  player  is  dealt  four
    23  cards  and  makes  his  or her best hand using exactly two of them, plus
    24  exactly three of the five community cards. These games are considered to
    25  be complex forms of poker which involve player  strategy  and  decision-
    26  making and which pit the skill levels of the players against each other.
    27  As games of skill, these forms of poker do not fall under the definition
    28  of gambling as prohibited by the penal law; and
    29    6.  The  legislature  further finds that as the internet has become an
    30  integral part of society, and internet poker  a  major  form  of  enter-
    31  tainment  for  many  consumers,  any  interactive gaming enforcement and
    32  regulatory structure must begin from the bedrock  premise  that  partic-
    33  ipation  in a lawful and licensed gaming industry is a privilege and not
    34  a right, and that regulatory oversight  is  intended  to  safeguard  the
    35  integrity of the games and participants and to ensure accountability and
    36  the public trust.
    37    §  1501.  Definitions.  As  used  in this article, the following terms
    38  shall have the following meanings:
    39    1. "Authorized game" means Omaha Hold'em and Texas Hold'em  poker,  as
    40  well as any other poker game that the commission determines is the mate-
    41  rial  equivalent  of  either of those, whether in a cash game or tourna-
    42  ment.
    43    2. "Authorized participants" means persons who are  either  physically
    44  present  in this state when placing a wager or who otherwise are permit-
    45  ted by applicable law, as determined  by  the  commission,  to  place  a
    46  wager.  The  intermediate  routing of electronic data in connection with
    47  interactive gaming shall not determine  the  location  or  locations  in
    48  which a wager is initiated, received or otherwise made.
    49    3.  "Core  function"  means  any of the following: (a) the management,
    50  administration or control of  wagers  on  interactive  gaming;  (b)  the
    51  management,  administration  or  control  of  the games with which those
    52  wagers are associated; or (c) the development, maintenance, provision or
    53  operation of an interactive gaming platform.
    54    4. "Commission" means the New York state gaming commission.

        A. 1380                             3
     1    5. "Division" means the division of gaming,  established  under  para-
     2  graph  (c) of subdivision two of section one hundred three of this chap-
     3  ter.
     4    6.  "Interactive gaming" means the conduct of games through the use of
     5  the internet or other communications technology that  allows  a  person,
     6  utilizing  money,  checks,  electronic  checks,  electronic transfers of
     7  money, credit cards, debit cards or any other instrumentality, to trans-
     8  mit to a computer information to assist in the placing of  a  wager  and
     9  corresponding  information  related  to  the  display  of the game, game
    10  outcomes or other similar information. The term  does  not  include  the
    11  conduct  of  (a)  non-gambling  games  that  do  not otherwise require a
    12  license under state or federal law; or (b)  games  that  occur  entirely
    13  among  participants  who  are located on a licensed casino premises. For
    14  purposes of this provision, "communications technology" means any method
    15  used and the components employed by an establishment to  facilitate  the
    16  transmission of information, including, without limitation, transmission
    17  and  reception by systems based on wire, cable, radio, microwave, light,
    18  optics or computer data networks,  including,  without  limitation,  the
    19  internet and intranets.
    20    7. "Interactive gaming gross revenue" means the total of all sums paid
    21  to a licensee from interactive gaming involving authorized participants,
    22  less  only  the  total  of  all sums paid out as winnings to patrons and
    23  promotional gaming credits; provided, however, that the cash  equivalent
    24  value  of any merchandise or other non-cash thing of value included in a
    25  contest or tournament shall not be included in the  total  of  all  sums
    26  paid  out as winnings to players for purposes of determining interactive
    27  gaming gross revenue.
    28    (a) Neither amounts deposited with a licensee for purposes of interac-
    29  tive gaming nor amounts taken in fraudulent acts perpetrated  against  a
    30  licensee for which the licensee is not reimbursed shall be considered to
    31  have been "paid" to the licensee for purposes of calculating interactive
    32  gaming gross revenue.
    33    (b)  "Promotional  gaming credit" includes bonuses, promotions and any
    34  amount received by a licensee from a patron for which the  licensee  can
    35  demonstrate that it or its affiliate has not received cash.
    36    8.  "Interactive  gaming  platform" means the combination of hardware,
    37  software and data networks used to manage, administer or control  wagers
    38  on  interactive  gaming or the games with which those wagers are associ-
    39  ated.
    40    9. "Internet"  means  a  computer  network  of  interoperable  packet-
    41  switched data networks.
    42    10.  "Licensee"  means  a  person who is licensed by the commission to
    43  offer interactive  gaming,  using  an  interactive  gaming  platform  to
    44  authorized  participants.  A  licensee  may utilize multiple interactive
    45  gaming platforms provided that each platform is approved by the  commis-
    46  sion.
    47    11.  "Omaha  Hold'em  poker"  means  the  poker game marketed as Omaha
    48  Hold'em poker or Omaha poker in which each player is  dealt  four  cards
    49  and  must  make  his  or  her  best hand using exactly two of them, plus
    50  exactly three of the five community cards.
    51    12. "Significant vendor" means any person who offers or  who  proposes
    52  to  offer  any  of  the  following  services with respect to interactive
    53  gaming:  (a) a core function; (b) sale, licensing or  other  receipt  of
    54  compensation  for  selling  or  licensing a database or customer list of
    55  individuals residing in the United States selected in whole or  in  part
    56  because  they  placed  wagers  or participated in gambling games with or

        A. 1380                             4
     1  through an internet website or operator (or any  derivative  of  such  a
     2  database  or  customer list); (c) provision of any trademark, tradename,
     3  service mark or similar intellectual property under which a licensee  or
     4  significant  vendor  identifies  interactive  games to customers; or (d)
     5  provision of any product, service or asset to a licensee or  significant
     6  vendor  in  return  for  a percentage of interactive gaming revenue (not
     7  including fees to  financial  institutions  and  payment  providers  for
     8  facilitating  a deposit or withdrawal by an authorized participant). The
     9  term "significant vendor" shall not  include  a  provider  of  goods  or
    10  services  to  a  licensee that are not specifically designed for use and
    11  not principally used in connection with interactive gaming.
    12    13. "Texas Hold'em poker" means the type of poker  marketed  as  Texas
    13  Hold'em  poker  that  involves  two  cards being dealt face down to each
    14  player and then five community cards being placed face-up by the dealer,
    15  a series of three then two additional single cards, with players  having
    16  the option to check, bet, raise or fold after each deal.
    17    §  1502.  Authorization.   1. The commission shall, within one hundred
    18  eighty days of the date this article becomes law, promulgate regulations
    19  to implement interactive gaming in this state and shall authorize up  to
    20  eleven  licenses  to  operate  interactive  gaming  involving authorized
    21  participants, subject to the provisions of this article and other appli-
    22  cable provisions of law.
    23    2. Applicants eligible to apply for a license pursuant to this article
    24  shall be those entities:
    25    (a) licensed by the state pursuant to section sixteen  hundred  seven-
    26  teen-a of the tax law to operate video lottery gaming and has experience
    27  in the operation of interactive gaming by being licensed in a state with
    28  comparable  licensing requirements or guarantees acquisition of adequate
    29  business competence and  experience  in  the  operation  of  interactive
    30  gaming; or
    31    (b)  licensed  by  the  state  to  operate a class III gaming facility
    32  pursuant to article thirteen of this chapter and has experience  in  the
    33  operation of interactive gaming by being licensed in a state with compa-
    34  rable licensing requirements or guarantees acquisition of adequate busi-
    35  ness competence and experience in the operation of interactive gaming.
    36    3.  The commission shall, to the extent practicable, issue licenses to
    37  multiple applicants no sooner than one hundred  eighty  days  after  the
    38  promulgation  of regulations in order to ensure a robust and competitive
    39  market for consumers and to prevent  early  licensees  from  gaining  an
    40  unfair competitive advantage.
    41    4.  No  person  may  operate,  manage or make available an interactive
    42  gaming platform or act as a significant vendor with respect to  interac-
    43  tive  gaming  that  is  offered  to persons located in this state unless
    44  licensed by the commission pursuant to this article and only those games
    45  authorized by the commission shall be permitted.
    46    5. License applicants may form a partnership, joint venture  or  other
    47  contractual  arrangement  in  order  to  facilitate the purposes of this
    48  article.
    49    6. Any person found suitable by the commission may be issued a license
    50  as an operator or significant vendor pursuant to this article. In deter-
    51  mining suitability, the commission shall consider those factors it deems
    52  relevant in its discretion, including but not limited to:
    53    (a) Whether the applicant is a person of good character,  honesty  and
    54  integrity;
    55    (b)  Whether  the applicant is person whose prior activities, criminal
    56  record, if any, reputation, habits and associations do not:

        A. 1380                             5
     1    (i) pose a threat to the public interest or  to  the  effective  regu-
     2  lation and control of interactive gaming; or
     3    (ii)  create  or  enhance the dangers of unsuitable, unfair or illegal
     4  practices, methods and activities in the conduct of  interactive  gaming
     5  or  in  the carrying on of the business and financial arrangements inci-
     6  dental to such gaming;
     7    (c) Whether the applicant is capable of  and  likely  to  conduct  the
     8  activities  for  which  the applicant is licensed in accordance with the
     9  provisions of this article, any regulations prescribed under this  arti-
    10  cle and all other applicable laws;
    11    (d)  Whether  the  applicant has or guarantees acquisition of adequate
    12  business competence and experience in the operation of  licensed  gaming
    13  or  of  interactive  gaming  in this state or in a state with comparable
    14  licensing requirements; and
    15    (e) Whether the applicant has or will obtain sufficient financing  for
    16  the nature of the proposed operation and from a suitable source.
    17    7. The commission further shall develop standards by which to evaluate
    18  and  approve  interactive  gaming  platforms  for  use  with interactive
    19  gaming. Interactive gaming platforms must be approved by the  commission
    20  before  being used by a licensee or significant vendor to conduct inter-
    21  active gaming in this state.
    22    8. The commission shall require all licensees to pay a one-time fee of
    23  ten million dollars.  Such fee paid by each licensee shall be applied to
    24  satisfy, in whole or in part, as applicable, that licensee's  tax  obli-
    25  gation pursuant to section fifteen hundred five of this article in sixty
    26  equal  monthly installments, allocated to each of the first sixty months
    27  of tax owed after the licensee has begun  operating  interactive  gaming
    28  pursuant  to this article. No amounts not required to be used to satisfy
    29  such tax obligation during that period shall be allocated to payment  of
    30  such tax obligation after that period.
    31    9.  Licenses  issued  by the commission shall remain in effect for ten
    32  years.
    33    10. The commission, by regulation, may authorize  and  promulgate  any
    34  rules necessary to implement agreements with other states, or authorized
    35  agencies thereof (a) to enable patrons in those states to participate in
    36  interactive  gaming  offered  by  licensees under this article or (b) to
    37  enable patrons in  this  state  to  participate  in  interactive  gaming
    38  offered by licensees under the laws of those other states, provided that
    39  such  other state or authorized agency applies suitability standards and
    40  review materially consistent with the provisions of this article.
    41    11. Any regulations  adopted  pursuant  to  subdivision  ten  of  this
    42  section must set forth provisions that address:
    43    (a)  Any  arrangements to share revenue between New York and any other
    44  state or agency within another state; and
    45    (b) Arrangements to ensure the integrity of interactive gaming offered
    46  pursuant to any such agreement and the protection of patrons located  in
    47  this state.
    48    12. The commission may delegate its responsibilities to administer the
    49  provisions  of  this article to the division, as it sees fit, except for
    50  its responsibilities to approve licenses.
    51    § 1503. Required safeguards/minimum standards.   The commission  shall
    52  require licensees to implement measures to meet the standards set out in
    53  this section, along with such other standards that the commission in its
    54  discretion may choose to require.

        A. 1380                             6

     1    (a)  Appropriate  safeguards  to  ensure,  to  a  reasonable degree of
     2  certainty, that participants in interactive gaming are not younger  than
     3  twenty-one years of age.
     4    (b)  Appropriate  safeguards  to  ensure,  to  a  reasonable degree of
     5  certainty,  that  participants  in  interactive  gaming  are  physically
     6  located  within the state or such other jurisdiction that the commission
     7  has determined to be permissible.
     8    (c) Appropriate safeguards to  protect,  to  a  reasonable  degree  of
     9  certainty,  the  privacy and online security of participants in interac-
    10  tive gaming.
    11    (d) Appropriate safeguards  to  ensure,  to  a  reasonable  degree  of
    12  certainty,  that  the  interactive  gaming  is  fair and honest and that
    13  appropriate measures are in place to deter, detect and,  to  the  extent
    14  reasonably  possible,  to prevent cheating, including collusion, and use
    15  of cheating devices,  including  use  of  software  programs  (sometimes
    16  referred to as "bots") that make bets or wagers according to algorithms.
    17    (e)  Appropriate  safeguards  to  minimize  compulsive  gaming  and to
    18  provide notice to participants of resources to help problem gamblers.
    19    (f) Appropriate safeguards to ensure participants' funds are  held  in
    20  accounts  segregated  from  the  funds  of  licensees  and otherwise are
    21  protected from corporate insolvency, financial risk or criminal or civil
    22  actions against the licensee.
    23    § 1504. Scope of licensing review.  1. In connection with any  license
    24  issued  pursuant  to  this  article, the licensee, significant vendor or
    25  applicant shall identify and the commission shall review the suitability
    26  of such licensee's, significant vendor's  or  applicant's  owner,  chief
    27  executive  officer,  chief  financial  officer  and any other officer or
    28  employee who the commission  deems  is  significantly  involved  in  the
    29  management  or  control of the licensee, significant vendor or applicant
    30  or of the interactive gaming platform.   "Owner" for  purposes  of  this
    31  provision  means any person who directly or indirectly holds any benefi-
    32  cial or ownership interest in the applicant of five percent  or  greater
    33  or  any amount of ownership that the commission determines to be signif-
    34  icant ownership of the licensee, significant vendor, or applicant.
    35    2. Institutional investors are subject to the provisions  set  out  in
    36  this section.
    37    (a) An institutional investor holding under twenty-five percent of the
    38  equity  securities  of  a  licensee's or significant vendor's (or appli-
    39  cant's) holding or intermediary companies, shall be granted a waiver  of
    40  any investigation of suitability or other requirement if such securities
    41  are  those  of a corporation, whether publicly traded or privately held,
    42  and its holdings  of  such  securities  were  purchased  for  investment
    43  purposes  only  and it files a certified statement to the effect that it
    44  has no intention of influencing or affecting the affairs of the  issuer,
    45  the  licensee (or significant vendor or applicant, as applicable) or its
    46  holding or intermediary companies; provided, however, that it  shall  be
    47  permitted to vote on matters put to the vote of the outstanding security
    48  holders.  The  commission  may  grant  such a waiver to an institutional
    49  investor holding a higher percentage of such securities upon  a  showing
    50  of  good cause and if the conditions specified above are met. Any insti-
    51  tutional investor granted a waiver under  this  paragraph  which  subse-
    52  quently  determines  to  influence  or  affect the affairs of the issuer
    53  shall provide not less than thirty days' notice of such intent and shall
    54  file with the commission a  request  for  determination  of  suitability
    55  before taking any action that may influence or affect the affairs of the
    56  issuer; provided, however, that it shall be permitted to vote on matters

        A. 1380                             7
     1  put to the vote of the outstanding security holders. If an institutional
     2  investor  changes  its  investment  intent,  or  if the commission finds
     3  reasonable cause to believe that the institutional investor may be found
     4  unsuitable,  no  action  other  than  divestiture shall be taken by such
     5  investor with respect to its security  holdings  until  there  has  been
     6  compliance  with  any  requirements established by the commission, which
     7  may include the execution of a trust agreement. The licensee (or signif-
     8  icant vendor or applicant, as  applicable)  and  its  relevant  holding,
     9  intermediary  or  subsidiary  company  shall notify the commission imme-
    10  diately of any information about, or actions of, an institutional inves-
    11  tor holding its equity securities where such information or  action  may
    12  impact  upon the eligibility of such institutional investor for a waiver
    13  pursuant to this paragraph.
    14    (b) If at any time the commission finds that an institutional investor
    15  holding any security of a holding or intermediary company of a  licensee
    16  or  significant  vendor  or  applicant,  or,  where relevant, of another
    17  subsidiary company of a holding or intermediary company of a licensee or
    18  significant vendor or applicant which is  related  in  any  way  to  the
    19  financing  of  the licensee or significant vendor or applicant, fails to
    20  comply with the terms of paragraph (a) of this section,  or  if  at  any
    21  time the commission finds that, by reason of the extent or nature of its
    22  holdings,  an institutional investor is in a position to exercise such a
    23  substantial impact upon the  controlling  interests  of  a  licensee  or
    24  significant  vendor or applicant that investigation and determination of
    25  suitability of the institutional investor is necessary  to  protect  the
    26  public  interest, the commission may take any necessary action otherwise
    27  authorized under this article to protect the public interest.
    28    (c) For purposes of this section, an  "institutional  investor"  shall
    29  mean  any retirement fund administered by a public agency for the exclu-
    30  sive benefit of federal, state, or local  public  employees;  investment
    31  company registered under the Investment Company Act of 1940 (15 U.S.C. §
    32  80a-1  et  seq.);  collective  investment trust organized by banks under
    33  Part Nine of the Rules of the Comptroller of the  Currency;  closed  end
    34  investment  trust; chartered or licensed life insurance company or prop-
    35  erty and casualty insurance company;  banking  and  other  chartered  or
    36  licensed  lending  institution;  investment advisor registered under The
    37  Investment Advisors Act of 1940 (15 U.S.C. § 80b-1 et  seq.);  and  such
    38  other  persons  as  the  commission may determine for reasons consistent
    39  with the public interest.
    40    § 1505. State tax. Licensees engaged in  the  business  of  conducting
    41  interactive  gaming  pursuant  to this article shall pay a privilege tax
    42  based on the licensee's interactive gaming gross revenue  at  a  fifteen
    43  percent rate.
    44    §  1506. Disposition of taxes. The commission shall pay into the state
    45  lottery fund all taxes imposed by this article; any interest and  penal-
    46  ties  imposed  by  the commission relating to those taxes; all penalties
    47  levied and collected by the commission; and the appropriate funds,  cash
    48  or prizes forfeited from interactive gaming.
    49    §  2.  Subdivision  1 of section 225.00 of the penal law is amended to
    50  read as follows:
    51    1. "Contest of chance" means  any  contest,  game,  gaming  scheme  or
    52  gaming  device  in  which  the  outcome  depends  [in a material degree]
    53  predominantly upon an element of chance, notwithstanding that  skill  of
    54  the contestants may also be a factor therein.
    55    §  3.  The penal law is amended by adding a new section 225.36 to read
    56  as follows:

        A. 1380                             8
     1  § 225.36 Interactive gaming offenses and exceptions.
     2    1.  The  knowing and willful offering of unlicensed interactive gaming
     3  to persons in this state,  or  the  knowing  and  willful  provision  of
     4  services with respect thereto, shall constitute a gambling offense under
     5  this article.
     6    2.  Licensed  interactive  gaming  activities  under  section  fifteen
     7  hundred two of the racing, pari-mutuel wagering and breeding  law  shall
     8  not be a gambling offense under this article.
     9    3.  A person offering unlicensed interactive gaming to persons in this
    10  state shall be liable for all taxes set forth in section fifteen hundred
    11  five of the racing, pari-mutuel wagering and breeding law  in  the  same
    12  manner  and amounts as if such person were a licensee. Timely payment of
    13  such taxes shall not constitute a defense to any  prosecution  or  other
    14  proceeding in connection with the interactive gaming except for a prose-
    15  cution or proceeding alleging failure to make such payment.
    16    §  4. Severability clause. If any provision of this act or application
    17  thereof shall for any reason be  adjudged  by  any  court  of  competent
    18  jurisdiction  to  be invalid, such judgment shall not affect, impair, or
    19  invalidate the remainder of the act, but shall be confined in its opera-
    20  tion to the provision thereof directly involved in  the  controversy  in
    21  which the judgment shall have been rendered.
    22    § 5. This act shall take effect on the one hundred eightieth day after
    23  it shall have become a law.
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