California has a ban on internet gambling offered by operators not explicitly legal and licensed to offer internet wagering within California. It's similar to Nevada and New Jersey: it opened the door to horse racing and potential in-state betting if the Wire Act ever gets clarified.
In other words, if it isn't licensed in California, it isn't legal. That's every online operator to date and it's the same in Nevada, New Jersey, and Washington. Why are online casinos not putting California on that same list being used to exclude bettors from those states?
Even bans that are supposed to be universal will often be so poorly worded that they result in the accidental legalization of Internet gambling by local legal operators. for example, California=s A.B. 2179, attempts to outlaw, by name, every form of gambling imaginable. But, the proposed statute defines AA prohibited online gambling game@ as including ALottery games, other than games lawfully conducted by the California State Lottery.@
The Future Legal Landscape for Internet Gambling
The author says: "California, for example, makes it a crime to play 11 named games, including '21' and any 'banking or percentage game.' The California Penal Code also makes it a misdemeanor to make sports bets. But other wagers are not forbidden. It is not a crime to buy a lottery ticket, even in an illegal numbers games." Thus, his view is "So, at least in California, it seems it is not a crime to play poker online for money." (Emphasis supplied.)
I think the better, more legally supportable, conclusion is: playing poker for money in California at the popular online poker websites is illegal, but in today's tolerant atmosphere the risk of being charged with a criminal misdemeanor is far less than the chance of getting a speeding ticket, and the actual penalty to befall anyone who is charged will be not much more serious than the speeding ticket. Here is my analysis and reasoning to support that conclusion.
California Penal Code Sec. 330. provides: "Every person who plays... any banking or percentage game played with cards... for money, checks, credit, or other representative of value, and every person who plays or bets at or against any of those prohibited games, is guilty of a misdemeanor..." (Emphasis supplied.)
The conclusion Professor Rose reaches is correct for the situation where the player bets in an online poker game that is NOT also a percentage game. This is because playing poker for money in California is legal so long as the particular game being played does not run afoul of the other provisions of the law. Social home games are an example. As long as no one makes money, other than as a mere player, it is OK to play in a real money home poker game. In addition, playing in duly licensed California cardrooms does not run afoul of the prohibition because those cardrooms charge players in a manner that is not considered to be a percentage rake.
However, the conclusion is incorrect where the player bets in an online poker game if that game is a "percentage game." All of the major online websites that offer real-money betting on poker games charge a fee of some kind for the opportunity to play. Usually the fee takes the form of the website operator being entitled to a rake that is a percentage of the money in a given pot, limited to a maximum amount. In tournament play there is an entry fee that may be viewed as a percentage of the buy-in amount each player pays, the sum of which buy-ins make up the prize pool to be split among the winners, since the amount increases as the buy-in amount increases. I am not aware of any online real-money poker games that do not have a rake or entry fee for most real-money poker games and tournaments.
Is Playing Online Poker in California Legal?*
The truth is that California law bans (i) most lotteries, (ii) a few specific games and (iii) all unlicensed “banked” or “percentage” games played with cards or dice. There is no mention of “games of skill” in the last two categories The “raked” games are all played for money where the host, or “house,” makes money on the game other than as a mere player competing on equal terms with the other players. All other games are legal.
California Lottery v. Gambling
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