Important MA Notes
- Poker players in MA can play legally at offshore poker sites
- iGaming is being explored in the state legislature
- Casino gambling is now fully legal, including poker
- Casinos with poker rooms are set to open in early 2018
- Neighbor states offer many tribal options for poker players
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Since Massachusetts has not specifically legalized operating online poker websites within their state, it is deemed illegal but it is federally legal to play at offshore sites. The current interpretation of this act is that individual states can legalize intrastate online gambling, except sports betting, by passing the required legislation.
Future Outlook of Online Poker in Massachusetts – Estimated date of legalization: 2017-2018
The following graph tracks our expected legislation of online poker in Massachusetts on a state law level. It is currently already legal on a Federal level. This graph monitors the current rise or fall of expected legalization.
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Ever since the Massachusetts Casino Bill in 2011 was enacted into law (Expanded Gaming Act) allowing for three land casinos in the state, interest in legalizing online poker has increased. Several attempts have been made to introduce bills for regulation of online gambling in the state. Amendment to H 3400 [A] recognizes the reality of online poker in the state. Section 1A of the proposed amendment states: “(1) since the advent of the internet and despite the enactment of the federal law entitled Unlawful Internet Gambling Enforcement Act of 2006 (“UIGEA”), 31 U.S.C. §§ 5361-5367 (2006), hundreds of thousands of Massachusetts consumers have been playing internet poker through websites controlled by illegal off-shore businesses.”
Senator Jennifer Flanagan is representative of the online gambling proponents in Massachusetts and has been involved in many of the initiatives. As reported in an article in Telegram.com [B], she expressed the future outlook of online poker when she said, “This isn’t a debate over whether you like gaming or not, this is a debate over the fact that we have to move to online gaming to protect state revenues.”
Many of these attempts have borne fruition. Land casinos are expected to open in early 2018 and the drive for online poker is already underway. While some think that online gambling will come to the Bay State in the near future, there are many fiercely opposed to any further gambling expansion. An increasing number of candidates, especially from the Democratic Party, have come out against increased gambling options.
Current Gambling Laws in Massachusetts
Illegal gaming is defined under Chapter 4 Section 7 [C] of the General Laws of Massachusetts. It states, “Illegal gaming, a banking or percentage game played with cards, dice, tiles or dominoes, or an electronic, electrical or mechanical device or machine for money, property, checks, credit or any representative of value, but excluding: (i) a lottery game conducted by the state lottery commission, under sections 24, 24A and 27 of chapter 10; (ii) a game conducted under chapter 23K; (iii) pari-mutuel wagering on horse races under chapters 128A and 128C and greyhound races under said chapter 128C; (iv) a game of bingo conducted under chapter 271; and (v) charitable gaming conducted under said chapter 271.”
Chapter 137 [D] of the General Laws of the Commonwealth of Massachusetts allows for recovery of gambling losses under specified situations. Section 1 states that the losses can be recovered by the loser from the winner. Section 2 states that the losses can be recovered even from the owner of the gambling house.
Part IV of the General Laws deals with Crimes, Punishments and Proceedings in Criminal Cases. Chapter 271 [E], Crimes Against Public Policy, deals with gaming. Section 2 provides for punishment for illegal gambling. It states, “Whoever, in a public conveyance or public place, or in a private place upon which he is trespassing, plays at cards, dice or any other game for money or other property, or bets on the sides or hands of those playing, shall forfeit not more than fifty dollars or be imprisoned for not more than three months; and whoever sets up or permits such a game shall be punished by a fine of not less than fifty nor more than one hundred dollars or by imprisonment for not less than three nor more than twelve months. If discovered in the act, he may be arrested without a warrant by a sheriff, deputy sheriff, constable or any officer qualified to serve criminal process, and held in custody, in jail or otherwise, for not more than twenty-four hours, Sunday and legal holidays excepted, until complaint may be made against him for such offense.”
History of Gambling in Massachusetts
Land Based Poker in Massachusetts
Home poker games are neither explicitly made illegal nor are explicitly exempted from the definition of illegal gambling. Patrick Fleming, an attorney at law, construes home poker being illegal because card games of chance are illegal. But he adds that there have been no arrests or raids on home poker games.
Section 7A of Chapter 271, which deals with charitable gambling, does not specifically permit holding of poker tournaments for charity. However an advisory [G] issued by the Attorney General states that the “bazaars” referred to in the statute includes games of chance such as roulette, craps, blackjack and poker, including Texas Hold’em. However, the qualifying conditions will have to be adhered to.
Pursuant to the establishment of the Massachusetts Gaming Commission [H] vied Chapter 23K [I] of the General Laws, the Commission is empowered to issue gaming licenses for three casinos where live poker would be legal.
Elsewhere, the legality of live poker would hinge on the skill versus chance argument. In the Attorney General advisory referred to earlier it was stated, citing Commonwealth v. Plissner, 295 Mass. 457, 463-64 (1936), “With reference to cases where both elements are present, the rule generally stated is that if the element of chance rather than that of skill predominates, the game may be found to be a lottery.” The advisory assumes that chance dominates skill in all forms of poker, thereby making live poker illegal under the General Laws, except as exempted. However, the advisory points out “Massachusetts appellate courts have not been called upon to determine whether traditional forms of poker are considered games of chance rather than skill.”
Gambling Laws in Massachusetts
Massachusetts residents have access to gambling through lottery, racetracks and charitable events. Casino gambling has been permitted and is in operation.
In November 2011, Massachusetts passed an act to introduce casino gambling and constituted the Massachusetts Gaming Commission as the regulatory body. As per the provisions of the act the commission will license three casinos and one slots parlor. The three casinos will be located in three separate designated areas of the state. On June 13, 2014, MGM was the first to be issued a license (scheduled to open in July 2018) and Wynn was the second on September 16, 2014 (scheduled to open in June 2019). The third license has yet to be issued. Penn National Gaming was issued the slots-only parlor gaming license. MGM’s casino will cost $950 million and Wynn’s will cost $2.1 billion.
A committee had been formed to work towards repeal of the Casino Act. It approached the Massachusetts Attorney General to include a ballot to this effect in the November 2014 referendum. On November 4, 2014, voters in Massachusetts upheld the 2011 casino law by a 60% – 40% margin.
The Mashpee Wampanoag Tribe had signed a gaming compact with the Massachusetts governor. In October 2012, the Bureau of Indian Affairs rejected the gaming compact because of the high percentage of gross revenue the tribe would have to pay. The tribe then negotiated a new gaming agreement and has applied for a casino license for the Southeastern Region. In October 2013, the Massachusetts House approved a revised compact [J]. This will have to pass the Senate and then be approved by the Bureau of Indian Affairs.
Riverboat casinos do take on board residents from Massachusetts cities like Gloucester and Lynn. These casino cruises are neither sanctioned by the state legislature nor operate under its oversight. Since the actual gambling takes place outside of Massachusetts limits, the riverboat casinos are not subject to the state laws. It is like Massachusetts residents going to neighboring states to gamble.
Pari-mutuel was legalized in Massachusetts in 1935. The same year, the first racetrack opened at Suffolk Downs in East Boston. Plainridge Racecourse opened in 1999 as a harness horse racing track in Plainville, offering both live and simulcast racing. Raynham Park offers simulcast racing. The Northampton County Fair hosts thoroughbred horse racing in September each year. Greyhound racing is conducted at the Raynham-Taunton Park in Raynham and the Wonderland Park in Revere. Initially horse racing was conducted under the oversight of the Massachusetts State Racing Commission. From 2012, the Division of Racing of the Massachusetts Gaming Commission took over this responsibility.
The Massachusetts State Lottery [K] was established by the legislature in 1971 and functions under the oversight of the Massachusetts State Lottery Commission. The laws related to the lottery can be found in Chapter 271 of the Massachusetts General Laws. Various draw games, instant games, pull tabs and keno are conducted by the Massachusetts State Lottery. The national Mega Millions and Powerball tickets can also be purchased in Massachusetts.
In January 2013, Massachusetts Senator Jennifer Flanagan introduced Bill S 101 [L] seeking to allow online sale of state lottery tickets within the state. The bill also proposes the addition of a limited number of games like keno or scratch cards, with the provision for interstate agreements. The state treasurer Steven Grossman supported the initiative. He said, “The threat from the Internet is imminent. Doing nothing is not an option. We need to move forward and test appropriately.” The bill has been referred to the committee on Consumer Protection and Consumer Licensure with the concurrence of the House.
Various charitable gambling activities are permitted under Massachusetts law. Chapter 271 Section 22B read with Chapter 10 Section 37 permits the state lottery to license organizations to conduct the game of beano provided that the funds derived therefrom shall be used exclusively for educational, charitable or religious purposes. Section 38 of Chapter 10 outlines the terms and conditions for the conduct of such games. Under Section 7A of Chapter 271, specified types of organizations can conduct raffles after obtaining the requisite permissions. Similarly Section 22A of Chapter 271 permits the conduct of card games, bridge and whist, for prizes.
Author: Joseph Falchetti (twitter)
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