Home Poker

California Home Poker... Legal?
By Lennie Augustine

NOTE FROM MARC WORTMAN: In our Home Poker and the Law section, we have set up the legality of home gambling in the state of California as we understand it from statutes contained in that state's criminal code. Below, California lawyer Lennie Augustine puts forth much more work and insight than we did to question what exactly is contained in the word of the law. Note that this is an opinion column and not a legal analysis. We're probing the issue... not answering it. You gamble at home at your own risk.

I don't know if I consider myself to have a "strong legal knowledge of California state law," but here goes:

We know that Section 19801(j) of Chapter 5 says that:

"(j) In order to effectuate state policy as declared herein, it is necessary that gambling establishments, activities, and equipment be licensed, that persons participating in those activities be licensed or registered, that certain transactions, events, and processes involving gambling establishments and owners of gambling establishments be subject to prior approval or permission, that unsuitable persons not be permitted to associate with gambling activities or gambling establishments, and that gambling activities take place only in suitable locations. Any license or permit issued, or other approval granted pursuant to this chapter, is declared to be a revocable privilege, and no holder acquires any vested right therein or thereunder."

So a casual read seems to imply that all gambling, including home poker games, has to be licensed. But wait - let's examine further what "gambling" means.

Section 19805(j) of Chapter 5 gives the definition of "gambling":

"(j) "Gambling" means to deal, operate, carry on, conduct, maintain, or expose for play any controlled game."

OK, that's all fine and dandy - but what is a "controlled game"? Section 19805(e) defines a "controlled game":

"(e) "Controlled game" means any controlled game, as defined by subdivision (e) of Section 337j of the Penal Code."

OK, then what is a "controlled game, as defined by subdivision (e) of Section 337j of the Penal Code"? Subdivision (e) of Section 337j of the Penal Code says:

"(1) As used in this section, "controlled game" means any game of chance, including any gambling device, played for currency, check, credit, or any other thing of value that is not prohibited and made unlawful by statute or local ordinance.

(2) As used in this section, "controlled game" does not include any of the following:

(A) The game of bingo conducted pursuant to Section 326.5.
(B) Parimutuel racing on horse races regulated by the California Horse Racing Board.
(C) Any lottery game conducted by the California State Lottery.
(D) Games played with cards in private homes or residences, in which no person makes money for operating the game, except as a player."

Voila! 337j(2)(D) says that home games without a profit motive for the operator are not "controlled games!" Therefore, they are not a "gambling" activity under Chapter 5; therefore they are not subject to Chapter 5's licensing and other requirements.

Now I can't swear that that means that home poker games are completely legal - who knows, maybe somewhere else in the Code, they are banned. But I have a strong inclination that that means that home poker games are not illegal in California.

Adapted from HomePoker.com