Gambling
The Alaska Code’s gambling provisions are intended to heavily penalize gambling businesses, focus on organized crime, and exclude the person who engages in social gambling.
Gambling is broadly defined. It covers almost every activity having an element of chance. Specifically, gambling means a person who risks something of value upon the outcome of a contest of chance or a future contingent event not under their control or influence, with an understanding that they or someone else will receive something of value in the event of a particular outcome. AS 11.66.280(2). As described by the legislature commentary, “[t]he definition includes any activity that brings a profit based on chance and includes ordinary lotteries. Games of pure skill, e.g. chess, will not be considered gambling if the contestants bet against each other. Placing a side bet on a game of chess, however, would be gambling because, from the onlooker’s perspective, the outcome depends on ‘chance’ as he has no control over the outcome.” See Senate Journal Supp. No. 47, at 117-18 (June 12, 1978). Legitimate business speculations, such as the stock market, are exempted, as are tickets redeemable for prizes (e.g., Chuck-e-Cheese tickets) and claw machines. State-regulated charitable gaming (e.g., Bingo, raffles, Ice Pools, etc.) is also exempted. AS 11.66.280(12). Charitable gaming is a complex array of statutes and regulations and is beyond the scope of this textbook. See generally AS 05.15 et. seq.
The gambling patron, or bettor, whose only financial interest is in their own winnings, commits the crime of gambling. AS 11.66.200. Gambling is a violation with a maximum fine of $1000. However, the Code contains an affirmative defense for social games. AS 11.66.200(b). If a defendant is a player (defined as someone who competes on equal terms with all other participants, and plays in a social game), the player is not guilty of gambling. A social game is defined as one played in a home where there are no “house” advantages, house odds, or house income. Note that “player” includes someone who helps organize a social game so long as they are not paid for their services.
Although home is not specifically defined in the Code, the legislative history indicates that the social game affirmative defense only applies to structures similar to dwellings – structures adapted for and used for overnight accommodation. It includes houses, hotel rooms, motor homes, and tents. It would not include clubs or bars.
Promoting gambling is felony gambling and is focused on organized gambling enterprises. AS 11.66.210. Gambling enterprises must be relatively large gambling businesses. To be an “enterprise” the gambling business must include at least five persons in its ownership or operation, and must either operate on a substantially continuous basis for more than 30 days or take in at least $2,000 in wagers during a single day. AS 11.66.280(5). Certain charitable and fraternal organizations are excluded from the definition. This was included to ensure fraternal organizations, such as the Elks Club or the Moose Lodge, could not be charged with a felony if gambling occurs on their premises. If the gambling business is too small to be an “enterprise”, the crime is promoting gambling in the second degree, a misdemeanor. AS 11.66.240. Charitable and fraternal organizations are not excluded from this statute, and may may be charged with misdemeanor gambling if warranted. AS 11.66.240.
Anyone who, for profit, assists a gambling enterprise in any material way (with the exception of merely betting), may be prosecuted for felony promoting gambling. This would include bartenders, waitresses, and bookkeepers employed by the house, as well as persons who financed or managed the operation. AS 11.66.280(9).
The code also criminalizes the possession of gambling records. AS 11.66.230-.240. Gambling records include any paper or writing of the type “commonly used” in unlawful gambling, whether or not it is actually used in a particular game. AS. 11.66.280(6). It is an affirmative defense that the defendant did not intend to use the record to operate or promote unlawful gambling or only possessed the records in a social game. AS 11.66.250. A player is relieved of criminal liability through an affirmative defense if the player possesses a record of their own bets in the gambling enterprise.
Possession of a gambling device is also illegal. Gambling devices are defined to include almost everything usable in the game itself. Anyone who possesses or uses a gambling device knowing what it is and that is being used in unlawful gambling is guilty of possession of a gambling device, a misdemeanor. AS 11.66.260. The defendant is relieved of criminal liability if the device was used in a social game. AS 11.66.260(b). This protects those who manufacture or sell ordinary playing cards, those who keep cards and chips at home for friendly poker grams, or have an antique slot machine in their basement.
One powerful aspect of the gambling statutes is forfeiture. The code specifically permits money, gambling devices, and gambling records to be forfeited to the government. AS 11.66.270. Money, however, is only subject to forfeiture if it was used as a bet or stake. Thus, if an underground poker house is broken up, money in the players’ pockets is not subject to forfeiture. The money in the promoter’s pocket, however, is subject to forfeiture. The law allows money seized from the promoter of a gambling enterprise (the person who “conducts, finances, manages, supervises, directs, or owns the gambling enterprise) to be forfeited to the government. AS 11.66.270(3).
