HOUSE 3rd Reading Unamended May 1, 2014 HOUSE Amended 2nd Reading April 30, 2014Second Regular Session Sixty-ninth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 14-1082.01 Duane Gall x4335 HOUSE BILL 14-1392 HOUSE SPONSORSHIP Lawrence and Becker, SENATE SPONSORSHIP Grantham and Nicholson, House Committees Senate Committees Business, Labor, Economic, & Workforce Development A BILL FOR AN ACT Concerning a prohibition on the use of simulated gambling devices. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill declares that internet sweepstakes caf‚s and similar establishments in which simulated gambling devices are used to award prizes to customers do not comply with existing constitutional and statutory requirements for the conduct of licensed gambling activity in Colorado and, therefore, the operation of these businesses is contrary to public policy. The bill creates a new misdemeanor criminal offense of offering or providing the use of a simulated gaming device in exchange for any type of consideration, whether the consideration is technically classified as the price of using the device, the price of admission to premises on which the device is located, or the purchase price for an associated product or service. Violations are punishable as a class 3 misdemeanor or by civil penalties and remedies including private damages of up to 3 times the losses suffered by an individual or licensed competitor, injunctions, and attorney fees. Internet service providers and others who only supply equipment, web design, or connectivity to an internet sweepstakes caf‚ are exempt unless their primary purpose is to support the conduct of gambling as a business. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add article 10.5 to title 18 as follows: ARTICLE 10.5 Simulated Gambling Devices 18-10.5-101. Legislative declaration. (1) The general assembly finds, determines, and declares that: (a) Recently, certain individuals and companies have developed electronic machines, systems, and devices to enable gambling through pretextual sweepstakes relationships predicated on the sale of internet services, telephone cards, and other products at business locations that are or may be commonly known as internet sweepstakes caf‚s. These machines, systems, and devices, as more fully described in this article, appear designed to evade the existing constitutional and statutory regulations on gambling activity in Colorado and therefore are declared contrary to the public policy of this state. (b) Unlawful gambling at internet sweepstakes caf‚s involves intentionally using any electronic gaming machine, computer terminal, or similar device to conduct a business, or directly assisting or aiding and abetting in the conducting of any business that intentionally uses an electronic gaming machine, computer terminal, or similar device if the electronic gaming machine, computer terminal, or similar device does or purports to do any of the following: (I) Conduct a sweepstakes through the use of a simulated gambling device or program, including the entry process or the revealing of a prize; or (II) Promote a sweepstakes that is conducted through the use of a simulated gambling device or program, including the entry process or the revealing of a prize. (c) The gambling occurring at internet sweepstakes caf‚s has none of the protections that are afforded to players at legal gaming sites in Colorado. This absence of uniform regulation and ongoing, governmental oversight presents a danger to consumers throughout the state of Colorado. These sites comply with none of the regulatory requirements, such as surveillance and tracking of wagers and payouts, to assure consumers that gambling is being conducted fairly and honestly. The general assembly finds that these dangers are profound, putting at risk the financial resources of vulnerable persons and customers who are used to wagering based on clear regulatory standards and who have official lines of authority to which they may appeal when there are questionable or illegal practices used by any licensed gaming operator. (d) The proliferation of internet sweepstakes caf‚s presents an increasing risk to consumers, particularly as these sweepstakes caf‚s have spread to sites throughout the state and are capable of operating without facing adverse consequences for their illegal, unfair, or unregulated acts. (e) The diversion of consumer dollars to these untaxed gambling activities not only presents the opportunity for theft but also undermines state and local programs that are funded by revenue derived from legalized gambling, including parks and recreation, historic preservation, and the state's general fund. (f) There is no adequate local or federal regulation of internet sweepstakes caf‚s, and the ability of the owners of those facilities to operate in any community in the state or to move their operations from one part of the state to another without notifying any regulatory body makes this an issue of statewide concern, appropriate for action by the general assembly. (g) The voters of Colorado have carefully chosen the forms of gambling to which to give their approval and the conditions under which those forms of gambling may be conducted. At no time has the question of legalization of internet sweepstakes caf‚s been presented to the voters of this state. Without a vote of the people, the state of Colorado cannot permit the operation of unauthorized, unregulated, and unsupervised gambling or lotteries in violation of sections 2 and 9 of article XVIII of the Colorado constitution. 18-10.5-102. Definitions. As used in this article, unless the context otherwise requires: (1) "Electronic gaming machine" means a mechanically, electrically, or electronically operated machine or device that displays the results of a game entry or game outcome to a participant on a screen or other mechanism at a business location, including a private club, that is owned, leased, or otherwise possessed, in whole or in part, by any person conducting the sweepstakes or by that person's partners, affiliates, subsidiaries, agents, or contractors. The term includes an electronic gaming machine or device that: (a) Uses a simulated game terminal as a representation of the prizes associated with the results of the sweepstakes entries; (b) Uses software that simulates a game that influences or determines the winning or value of the prize, or appears to influence or determine the winning or value of the prize; (c) Selects prizes from a predetermined, finite pool of entries; (d) Uses a mechanism that reveals the content of a predetermined sweepstakes entry; (e) Predetermines the prize results and stores those results for delivery at the time the sweepstakes entry is revealed; (f) Uses software to create a game result; (g) Requires a deposit of any currency or token or the use of any credit card, debit card, prepaid card, or other method of payment to activate the electronic gaming machine or device; (h) Requires direct payment into the electronic gaming machine or device or remote activation of the electronic gaming machine or device upon payment to the person offering the sweepstakes game; (i) Requires purchase of a related product with legitimate value in order to participate in the sweepstakes game, or makes a related product available for no cost but under restrictive conditions; (j) Reveals a sweepstakes prize incrementally even though the progress of the images on the screen does not influence whether a prize is awarded or the value of any prize awarded; or (k) Determines and associates the prize with an entry or entries at the time the sweepstakes is entered. (2) "Enter" or "entry" means the act or process by which a person becomes eligible to receive any prize offered in a game promotion or sweepstakes. (3) "Prize" means any gift, award, gratuity, good, service, credit, or anything else of value that may be transferred to a person, whether or not possession of the prize is actually transferred or placed on an account or other record as evidence of the intent to transfer the prize. "Prize" does not include free or additional play or any intangible or virtual award that cannot be converted into money or merchandise. (4) "Simulated gambling device" means a mechanically or electronically operated machine, network, system, program, or device that displays simulated gambling displays on a screen or other mechanism at a business location, including a private club, that is owned, leased, or otherwise possessed, in whole or in part, by any person conducting the game or by that person's partners, affiliates, subsidiaries, agents, or contractors. The term includes: (a) A video poker game or any other kind of video card game; (b) A video bingo game; (c) A video craps game; (d) A video keno game; (e) A video lotto game; (f) A video roulette game; (g) A pot-of-gold; (h) An eight-liner; (i) A video game based on or involving the random or chance matching of different pictures, words, numbers, or symbols; (j) A personal computer of any size or configuration that performs any of the functions of an electronic gaming machine or device as defined in this section; (k) A slot machine; and (l) A device that functions as, or simulates the play of, a slot machine. (5) "Sweepstakes" means any game, advertising scheme or plan, or other promotion that, with or without payment of any consideration, allows a person to enter to win or become eligible to receive a prize. 18-10.5-103. Prohibition - penalties - exemptions. (1) A person commits unlawful offering of a simulated gambling device if the person offers, facilitates, contracts for, or otherwise makes available to or for members of the public or members of an organization or club any simulated gambling device where: (a) The payment of consideration is required or permitted for use of the device, for admission to premises on which the device is located, or for the purchase of any product or service associated with access to or use of the device; and (b) As a consequence of, in connection with, or after the play of the simulated gambling device, an award of a prize is expressly or implicitly made to a person using the device. (2) Unlawful offering of a simulated gambling device is a class 3 misdemeanor. (3) Without regard to any penalty imposed under subsection (2) of this section, the attorney general and each district attorney may apply to the district court of any district in which a person who violates subsection (1) of this section is located, advertises for customers or members, or does business for appropriate additional relief, including: (a) Injunctive relief, including a temporary restraining order or preliminary or permanent injunction, to restrain and enjoin violations of this section; (b) Damages, up to and including three times the total dollar amount of business transacted or facilitated by any person who violates subsection (1) of this section, payable to the local jurisdiction in which the person is located, advertises for customers or members, or does business; and (c) Such other and further relief as the district court deems appropriate. (4) Any person who suffers any ascertainable loss of money or of any tangible or intangible personal property as a result of any violation of this section and who also holds a license to offer gambling services under Colorado law may apply to the district court of any district where the person who violates subsection (1) of this section is or was located, advertises for customers or members, or does business for appropriate additional relief, including: (a) Injunctive relief, including a temporary restraining order or preliminary or permanent injunction, to restrain and enjoin violations of this section; (b) Damages up to and including three times the actual damages sustained as a result of violations of this section; (c) Reasonable attorney fees and costs; and (d) Such other and further relief as the district court deems appropriate. (5) The court may award reasonable attorney fees and costs to a defendant for any action filed pursuant to subsection (4) of this section that was substantially groundless, substantially frivolous, or substantially vexatious. (6) A criminal conviction against a named defendant under subsection (2) of this section is prima facie evidence of the liability of that named defendant in an action brought under subsection (3) or (4) of this section. (7) A civil action under this section must be filed, if at all, within one year after the act or transaction giving rise to the cause of action. (8) Conducting or assisting in the conduct of gaming activities otherwise authorized by Colorado law is not a violation of this section. (9) Nothing in this section: (a) Prohibits, limits, or otherwise affects any purchase, sale, exchange, or other transaction related to stocks, bonds, futures, options, commodities, or other similar instruments or transactions occurring on a stock or commodities exchange, brokerage house, or similar entity; (b) Limits or alters in any way the application of the requirements for sweepstakes, contests, and similar activities that are otherwise established under the laws of this state; or (c) Prohibits any activity authorized under article 35 of title 24 or article 9, 47.1, or 60 of title 12, C.R.S. (10) The provision of internet or other on-line access, transmission, routing, storage, or other communication-related services or web site design, development, storage, maintenance, billing, advertising, hypertext linking, transaction processing, or other site-related services by a telephone company, internet service provider, software developer or licensor, or other party providing similar services to customers in the normal course of its business does not violate this section even if those customers use the services to conduct a prohibited game, contest, lottery, or other activity in violation of this article; except that this subsection (10) does not exempt from criminal prosecution or civil liability any software developer, licensor, or other party whose primary purpose in providing such service is to support the offering of simulated gambling devices. SECTION 2. Effective date. This act takes effect July 1, 2014. SECTION 3. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.