CHAPTER Lot 7300 UNLAWFUL
GAMBLING MACHINES
PART Lot 7301 PURPOSE
AND SCOPE
Lot
7301.01 Purpose. The purpose of this chapter is to set forth
the investigation and enforcement criteria for regulating unlawful gambling
machines.
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Lot
7301.02 Scope.
(a)
This chapter shall apply to gambling
machines whose possession or promotion is unlawful pursuant to RSA 287-D:29.
(b)
This chapter shall not apply to devices exempted
by RSA 287-D:31, a copy of
which is included in Appendix B.
(c)
The provisions of this chapter shall not
be construed to permit the licensing, maintenance, distribution, or operation
of any mechanical device or apparatus which is contrary to any of the laws of
the state, nor shall the provisions of this chapter be construed to permit the
operation of any mechanical playing device licensed pursuant to the provisions
of this chapter in such a manner as to be contrary to any of such laws.
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PART Lot 7302 DEFINITIONS
Lot
7302.01 Definitions.
(a) “Agent” means a sales outlet authorized by the
commission to sell lottery tickets.
(b) “Antique gambling machine” means “antique
gambling machine” as defined in RSA 287-D:27, I, namely “any device or
equipment at least 25 years old which is in the possession of a collector and which is not maintained or operated for
gambling purposes.”
(c) “Collector” means “collector” as defined in
RSA 287-D:27, II, namely “a person who for nostalgic reasons, monetary
investment, or personal interest acquires antique gambling machines as defined
in paragraph I for personal display or retention.”
(d)
“Commission” means “commission” as defined in RSA 287-D:1, V, namely “the
lottery commission established under RSA 284:6-a.”
(e) “Family entertainment center” means “family
entertainment center” as defined in RSA 287-D:27, III, namely “a place of
business having at least 50 games or devices designed and manufactured only for
bona fide amusement purposes on premises which are operated for the
entertainment of the general public and tourists as a bona fide entertainment
facility and not having more than 15 percent of the total games or machines
being redemption slot machines or redemption poker machines.”
(f) “Gambling” means “gambling” as defined in RSA
287-D:27, IV, namely “to risk something of value upon a future contingent event
not under one's control or influence, upon an agreement or understanding that
something of value will be received in the event of a certain outcome. For the
purposes of this paragraph, the phrase "something of value'' shall include
a sweepstakes ticket or other item obtained in conjunction with the purchase of
goods or services that entitles the holder to a share or chance in a
sweepstakes where, but for the opportunity to enter the sweepstakes, the value
of purchased goods or services is insufficient to justify the purchase or the
inducement to purchase the goods or services.”
(g) “Gambling machine” means “gambling machine” as
defined in RSA 287-D:27, V, namely “any device or equipment that is capable of
being used to play sweepstakes or games of chance and which discharges money,
or anything that may be exchanged for money, cash equivalent, debit card,
merchandise credit card, or opportunities to enter sweepstakes or play games of
chance, or displays any symbol entitling a person to receive such a prize.”
(h) “Redemption slot machine” or “redemption poker
machine” means “redemption slot machine” or “redemption poker machine” as
defined in RSA 287-D:27, VI, namely “any device or equipment that operates by
means of the insertion of a coin or token and that may entitle the person
playing or operating the game or machine to additional chances or free plays,
or to receive points or coupons which may be exchanged for merchandise only, excluding
alcoholic beverages, money, cash equivalent, debit card, merchandise credit
card, or opportunities to enter sweepstakes or play games of chance, and
provided the value for such points or coupons does not exceed 2- 1/2 cents for
each credit on the game or machine.”
(i) “Sweepstakes” means “sweepstakes” as defined in
RSA 287-D:27, VII, namely “any game, advertising scheme or plan, or other
promotion which, with or without payment of any consideration, a person may
enter to win or become eligible to receive any prize, the determination of
which is based upon chance. For purposes of this chapter, the term includes
only those sweepstakes that an entrant can enter, play, or otherwise interact
with using a gambling machine furnished by the sweepstakes operator or an
affiliate or person under contract with the operator, in an establishment
controlled by, affiliated with, or contracting with the operator.”
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PART Lot 7303 COMPLAINTS,
INVESTIGATIONS AND ENFORCEMENT
Lot 7303.01 Possession of Unlawful Gambling Machines.
(a) Pursuant to RSA 287-D:29, a person shall be
guilty of a violation of this chapter if such person conducts, finances,
manages, supervises, directs, or owns all or part of a business, and such
person or business possesses or promotes gambling on a gambling machine.
(b) A person shall not be considered in violation
of this chapter if the person owned, manufactured, transferred, or possessed
the gambling machine, equipment, or paraphernalia for the sole purpose of
shipping it to another jurisdiction where the possession or promotion of the machine,
equipment, or paraphernalia was legal.
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Lot
7303.02 Reporting Criteria.
(a) Any licensee or agent of the commission shall
promptly report the possession or promotion of any unlawful gambling machines at
the licensed premises or retail facility by submitting the information
specified in (c) below to the commission
(b) Any person or entity other than a licensee or
agent may report the possession or promotion of an unlawful gambling machines
by submitting the information specified in (c) below to the commission
(c) When practicable, complaints regarding the
possession or promotion of an unlawful gambling machine, shall be submitted to
the commission in writing and contain a minimum of the information:
(1) The name of business or owner of the property
where the machine is located;
(2) The physical location of the machine,
including the physical address and specific location within the premises where
the machine can be found;
(3) A description and the number of gambling
machines observed on the premises; and
(4) A description of the situation that supports
the complaint and the alleged violation(s) of RSA 287-D:26-31 or this chapter.
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Lot 7303.03 Investigations.
(a) The commission shall
accept written complaints that allege that an individual or entity:
(1) Possesses an unlawful
gambling machine; or
(2) Is promoting gambling
on an unlawful gambling machine.
(b) The commission shall investigate
any complaints that have a factual basis.
(c) If the investigation
concludes that the devices in question are unlawful gambling machines, the
commission shall:
(1) Immediately confiscate
the device(s);
(2) Initiate appropriate
administrative action including:
a. Issuing administrative
fine(s) in accordance with Lot 7304 below; and
b. Revoking the license or
agreement if the individual or entity in possession of the unlawful gambling
machine is a licensee or agent of the commission; and
(3) Refer the case to the
New Hampshire state police for further action.
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Lot 7303.04 Subpoenas.
(a) In accordance with RSA 287-D:25, the
commission shall issue subpoenas for witnesses and for documents relative to
investigations by the commission pursuant to (b) below.
(b)
The commission shall issue a subpoena
for the attendance of witnesses or the production of evidence upon a showing
that:
(1)
The testimony or evidence is necessary,
relevant, and non-repetitive; and
(2)
The witness or evidence cannot be
voluntarily obtained.
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PART Lot
7304 PENALTIES
Lot 7304.01 Administrative Fines.
(a)
When the commission has determined that
a violation or violations have occurred, the commission shall send a written
notice of the proposed fine(s), by certified mail or hand delivery, to the
person, entity, applicant, or licensee of the commission’s intent to assess a
fine.
(b)
The written notice required under (a)
above shall contain the following information:
(1) The violation(s) alleged by the commission
and the facts on which the allegations are based;
(2)
The statutory section(s) that
authorize(s) the commissioner to impose a fine;
(3)
The amount of the fine for each
violation cited and the total amount of fine(s) being sought; and
(4)
The respondent’s right to request an
adjudicative hearing prior to the imposition of the fine.
(c)
Pursuant to RSA 287-D:23,I any
administrative fine imposed under this section shall not preclude the
imposition of further penalties or administrative actions.
(d) Administrative fines shall be imposed as
follows:
(1)
Pursuant to RSA 287-D:30, any person who
violates this chapter shall be subject to a fine of no less than $5,000 per day,
and not more than $10,000 per day for each gambling machine used or intended
for use;
(2)
Any person who provides false or
misleading information to the commission in connection with an investigation of
unlawful gambling machines shall be subject to a fine of no less than $5,000,
and not more than 20,000;
(3)
Any licensee or agent of the commission
who knowingly fails to report the presence of an unlawful gambling machine on
the premises where their charitable games are played or lottery products are
sold shall be subject to a fine of no less than $5,000, and not more than
$10,000 for each day the machines are unreported; and
(4) If a licensee corrects and then subsequently
repeats a violation for which a fine was previously issued in accordance with
(1)-(3) above, the fine shall be doubled from that of the previous fine such
that, for example, an original fine of $5,000 shall become $10,000 for the
first time the offense is repeated, $20,000 for the second time the offense is
repeated, $40,000 for the third time the offense is repeated, and so on.
(e) Except as otherwise noted, the administrative
fines prescribed in (d) above shall be imposed for each day that the person,
entity, applicant, or licensee is not in compliance, beginning with the date
that the notification under (a) above is issued and continuing for each day of
non-compliance, or until the date of compliance.
(f) In determining the actual amount of a fine
pursuant to RSA 287-D:13, IX, the commission shall consider:
(1) The following factors:
a. The degree of non-compliance;
b. Prior history of violations of the same or
similar nature;
c. The consequences of the violation, including
the economic impact to the state and other affected parties;
d. The nature and persistence of the violation;
e. The extent of any remedial or corrective
action taken;
f. The good or bad faith exhibited by the cited
individual(s);
g. Evidence that the violation was willful;
h. The extent to which the individual cooperated
with the board's investigation;
i.
The cost of any investigation or hearing conducted by the commission;
j. The licensee’s ability to pay a fine assessed
by the commission; and
k. Any other mitigating or aggravating factors;
and
(2) The likelihood that the amount of the fine
will result in:
a.
Protecting
public health, safety or welfare;
b.
Preventing of future misconduct;
c.
Correcting the attitudinal, educational, or other deficiencies which led
to the misconduct;
d. Encouraging lawful practices of operating
gaming activities; and
e.
Ensuring the integrity of gaming in New Hampshire.
(g) Payment of any imposed
administrative fine to the commission shall meet the following requirements:
(1)
If the recipient of a notice described
in (a) above waives or is deemed to have waived his or her right to an
adjudicative hearing, the respondent shall pay the fine by the date specified
in the notice, which shall not be less than 25 days from the date of the notice
of the proposed fine;
(2)
If an adjudicative hearing is conducted
and the commission’s decision to assess a fine is upheld, the fine shall be due
and payable within 10 calendar days of the date of the decision, or such longer
time period as is specified in the decision;
(3)
Payment shall be made in the form of
personal check or money order which is made payable to “Treasurer, State of New
Hampshire,” or cash in the exact amount due;
(4)
Any payment submitted to the treasury
department in the form of a check or money order and returned to the state for
any reason shall be processed in accordance with RSA 6:11-a; and
(5)
Cash, money order, or certified check
shall be required when any past payment to the commission by personal check has
been returned for insufficient funds.
(h)
Nonpayment of a fine by a licensee or
respondent in contravention of an order, agreement, or promise to pay, shall be
a separate ground for discipline by the commission, a basis for denying a
subsequent license, renewal, or agreement, and a basis for judicial action
seeking to collect the fine.
(i) If a licensee or
respondent fails to pay a fine in accordance with (g) above, the fine shall be
$5,000 per day for each day for which the commission does not receive payment
in full.
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Lot 7304.02 License Revocation.
(a) Any licensee or agent found in possession of
an unlawful gambling machine shall be subject to the revocation of their
license or agreement with the commission.
(b)
Upon the effective date of the
revocation, the licensee or agent shall immediately cease holding itself out to
the public as a licensee or agent of the commission, and cease engaging in any
act for which licensing or an agreement is required.
(c)
Failure to comply with (b) above shall
constitute separate grounds for further disciplinary action.
(d)
Pursuant to RSA 287-D:23, III, any licensee whose license is revoked
shall be ineligible for licensure for a period of one year from the date of
revocation.
(e)
If a license has been revoked, the commission shall not issue a
subsequent license until:
(1) The passage of the amount of time specified
in the revocation order;
(2) The licensee submits an application in
accordance with this chapter;
(3) The licensee demonstrates that the cause for
revocation no longer exists; and
(4) The licensee demonstrates that any corrective
actions that were ordered by the commission have been fully implemented.
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Lot 7304.03 Forfeiture.
(a) Pursuant to RSA 287-D:31, and in
addition to any other remedy provided by law, all unlawful gambling machines,
including any monetary contents and any associated proceeds, implements,
equipment, and apparatus used in violation of any provision of this chapter
shall be forfeited.
(b) Any or all money, coin, or currency used in
violation of any provision of this chapter and seized pursuant to this section
shall be deposited in the education trust fund established under RSA 198:39.
(c) All unlawful gambling machines that have been confiscated
for violation of this chapter shall be destroyed. Such destruction shall be
overseen by the commission.
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Lot
7304.02 Criminal Penalties. In addition to the penalties described in
this part, individuals shall also be subject
to the criminal penalties set forth in RSA 287-D:23, a copy of which is
included in Appendix B.
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APPENDIX A
Rule |
Specific State
Statute the Rule Implements |
Lot 7301 |
RSA 287-D:3, XVI; RSA 287-D:26; and RSA 287-D:27 |
Lot 7302 |
RSA 287-D:27 |
Lot 7303 |
RSA 287-D:28; and RSA 287-D:29 |
Lot 7304 |
RSA 287-D:30 |
APPENDIX B
Section
287-D:23
287-D:23
Penalties. – I. In addition to any other penalties provided by law, any
person who violates RSA 287-D shall be guilty of a misdemeanor if a natural
person, or guilty of a felony if any other person.
II.
Each day on which a game of chance is played in violation of RSA 287-D shall
constitute a separate offense.
III.
The lottery commission may suspend or revoke the license of any licensee who
violates any provision of this chapter or for just cause shown. Any licensee
whose license is revoked shall not be eligible for licensure for a period of up
to one year from the date of revocation.
IV.
(a) Any person who purposely or knowingly makes a false entry in any report
required under this chapter which results in a reduction of revenues due to a
charitable organization shall be guilty of a class A felony.
(b)
Any person who recklessly or negligently makes a false entry on any report
required under this chapter which results in a reduction of revenues due to a
charitable organization shall be guilty of a class A misdemeanor.
(c)
Any game operator employer or game operator who fails to remit to a charitable
organization all revenues due under this chapter shall be guilty of a class A
felony.
V.
Any game operator employer or game operator who fails to pay the charitable
organization all moneys required by this chapter shall be guilty of a class B
felony for any amount less than $500, and a class A felony for any amount equal
to or greater than $500.
VI.
Any person who violates any provision of RSA 637 in a manner that deprives the
charitable organization of any moneys required by this chapter, notwithstanding
the penalties set forth in RSA 637:11, shall be guilty of a class B felony for
any amount less than $500, and a class A felony for any amount equal to or
greater than $500.
VII.
In addition to any other penalty imposed under this chapter, a charitable
organization that suffers a loss caused by the violation of any provision of
this chapter may bring a civil action for actual damages suffered. If the court
finds that the violation was committed purposefully or knowingly, it shall
award enhanced compensatory damages of not less than 2 times the amount of
actual damages suffered, and may award up to 3 times
the amount of actual damages suffered. In any civil action, the prevailing
party shall be awarded court costs and reasonable attorney's fees. No waiver of
the provisions of this paragraph shall be enforceable.
VIII.
The lottery commission may issue an order requiring any person or organization
to comply with this chapter or any rule adopted pursuant to this chapter, and may require such remedial measures as may be
necessary.
IX. The lottery commission may impose an administrative fine scaled to reflect
a violator's prior history of noncompliance with laws pertaining to games of
chance and the scope and severity of the violation, after notice and hearing,
pursuant to rules adopted under RSA 541-A, for any violation of this chapter,
any rule adopted under this chapter, any license issued pursuant to this
chapter, or any order issued pursuant to this chapter, or upon any person who
makes or certifies to a material false statement relative to any application or
report required by this chapter. In determining the amount of a fine, the
lottery commission may take into consideration all relevant circumstances,
including: the degree of noncompliance, the extent of harm caused by the
violation, the nature and persistence of the violation, the time and cost
associated with the investigation by the state, and the economic impact of the
violation on the state or the charitable organization conducting or sponsoring
the game. No administrative fine imposed under this paragraph shall preclude
the imposition of other penalties as provided by law. Rehearings and appeals
from a decision of the lottery commission under this paragraph shall comply
with RSA 541. Fines imposed by the lottery commission shall be as follows:
(a)
The fine for a minor violation shall be not less than $25 and not more than
$500 per violation. A minor violation shall be one where the lottery commission
determines that the potential for harm to the interests of the state and the
charitable organization, as well as the integrity of charitable gaming is minor
and may include, but is not limited to, the failure of a game operator, a game
operator employer, charitable organization, or charitable organization member
to:
(1)
Wear a properly issued badge;
(2)
Post 2 copies of the laws and rules;
(3)
Have a diagram available for each table where games of chance are being played
indicating the type of game being played, the bet amount, the buy-in amount,
and the re-buy amounts as applicable; or
(4)
Publicly display the name of the charitable organization.
(b)
The fine for a moderate violation shall be not less than $250 and not more than
$1,500 per violation. A moderate violation shall be one where the lottery
commission determines that the potential for harm to the interests of the state
and the charitable organization, as well as the integrity of charitable gaming
is moderate and may include, but is not limited to, a game operator, game
operator employer, charitable organization, or charitable organization member:
(1)
Filing a late financial report;
(2)
Operating a game not specifically listed on the game schedule;
(3)
Operating a game on a different date than licensed without approval of the
lottery commission;
(4)
Committing 3 or more minor violations within 2 years; or
(5)
Knowingly operating a game of chance without a representative of the charitable
organization present as specified in RSA 287-D:14, XI.
(c)
The fine for a major violation shall be not less than $1,000 and not more than
$5,000 per violation. A major violation shall be one where the lottery
commission determines that the potential for harm to the interests of the state
and the charitable organization, as well as the integrity of charitable gaming
is major and shall include, but is not limited to, a game operator, game
operator employer, charitable organization, or charitable organization member:
(1)
Operating a game of chance without a license;
(2)
Operating a game of chance without having the personnel or officials required;
(3)
Purposely operating a game of chance without a representative of the charitable
organization present as specified in RSA 287-D:14, XI;
(4)
Operating a game of chance with game operators who are not licensed;
(5)
Failing to establish or maintain a New Hampshire bank account; or
(6)
Committing 5 or more minor violations or 3 or more moderate violations within 2
years.
(d)
The lottery commission may suspend any part of a fine for just cause.
X.
All fines imposed by the lottery commission shall be deposited in the special
fund established pursuant to RSA 284:21-j.
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Section 287-D:31
287-D:31 Exceptions. –
This
subdivision shall not apply to:
I.
Dispenser devices approved by the commission which are located at the regular
meeting place of, or at a facility owned, leased, or utilized by, a charitable
organization licensed under RSA 287-E:20.
II.
Bona-fide redemption slot machines or redemption poker machines at a family
entertainment center.
III.
Cruise ships which are equipped with gambling machines whose primary purpose is
touring. Any such cruise ship shall be allowed to temporarily enter New
Hampshire coastal waters and ports for up to 48 hours, provided that all
gambling machines on board are not in use or capable of being used while in New
Hampshire coastal waters and ports. For the purposes of this paragraph
"cruise ship" means any vessel which is capable of
providing overnight accommodations for 500 or more people.
IV.
An antique gambling machine in the possession of a collector