COMMENTARY ON §712-1220

This section provides definitions of terms used repeatedly in this Part of Chapter 712, a discussion of the definitions is incorporated in the Commentary on the substantive sections employing the defined terms.

SUPPLEMENTAL COMMENTARY ON §712-1220

Act 201, Session Laws 1973, made several changes to the definitions as previously contained in the Proposed Draft of the Code. In Item (1), the phrase "acting other than as a player" was deleted, so that any person, including a player, advances gambling activity if the person engages in conduct that materially aids any form of gambling activity. Also, the last sentence was added, which states: "A person advances gambling activity if he plays or participates in any form of gambling activity." In Item (2) the term "bookmaking" previously was defined as "advancing gambling activity by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion, upon the outcomes of future contingent events." The term "unlawfully" and the phrase "as a business rather than in a casual or personal fashion" were deleted. In Item (6), "lottery" was changed from "an unlawful gambling scheme" to "a gambling scheme."

In Item (8), the Proposed Code, as well as the Code as adopted in 1972, had contained an extensive definition of the word "player" in an attempt to describe a player in a social gambling game. Act 201 deleted that definition and instead defined "player" as a person who "engages in gambling solely as a contestant or bettor." In Item (9), the phrase "other than as a player" was deleted, so that even players may "profit from gambling activity." Item (10) is a new addition stating that "social gambling" is defined in §712-1231. In Item (11) the phrase "or a privilege of playing at a game or scheme without charge" was deleted from the definition of "something of value."

§712-1220 Definitions of terms in this part. In this part unless a different meaning plainly is required, the following definitions apply.

(1) "Advance gambling activity". A person "advances gambling activity" if he engages in conduct that materially aids any form of gambling activity. Conduct of this nature includes but is not limited to conduct directed toward the creation or establishment of the particular game, contest, scheme, device, or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment, or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases, or toward any other phase of its operation. A person advances gambling activity if, having substantial proprietary control or other authoritative control over premises being used with his knowledge for purposes of gambling activity, he permits that activity to occur or continue or makes no effort to prevent its occurrence or continuation. A person advances gambling activity if he plays or participates in any form of gambling activity.

(2) "Bookmaking" means advancing gambling activity by accepting bets from members of the public upon the outcomes of future contingent events.

(3) "Contest of chance" means any contest, game, gaming scheme, or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.

(4) "Gambling". A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome. Gambling does not include bona fide business transactions valid under the law of contracts, including but not limited to contracts for the purchase or sale at a future date of securities or commodities, and agreements to compensate for loss caused by the happening of chance, including but not limited to contracts of indemnity or guaranty and life, health, or accident insurance.

(5) "Gambling device" means any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine. However, lottery tickets and other items used in the playing phases of lottery schemes are not gambling devices within this definition.

(6) "Lottery" means a gambling scheme in which:

(a) The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated the winning ones; and

(b) The winning chances are to be determined by a drawing or by some other method based on an element of chance; and

(c) The holders of the winning chances are to receive something of value.

(7) "Mutuel" means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome or outcomes of a future contingent event or events otherwise unrelated to the particular scheme.

(8) "Player" means a person who engages in gambling solely as a contestant or bettor.

(9) "Profit from gambling activity". A person "profits from gambling activity" if he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity.

(10) "Social gambling" is defined in section 712-1231.

(11) "Something of value" means any money or property, any token, object, or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service or entertainment. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1]

COMMENTARY ON §§712-1221 TO 1223

Part III of Chapter 712 adopts a comprehensive pattern of gambling legislation proposed in Michigan[1] and enacted in New York.[2] These three sections of the Code initiate a comprehensive revision of Hawaii's gambling laws. For the most part the coverage of the previous law has been preserved, although the emphasis has been changed in several instances. The Code provides penalties for those who exploit gambling activity; however, at the same time, the Code introduces some limited liberalizations in the area which reflect the actual attitude of society toward gambling.

Part III provides inclusive coverage for all forms of gambling exploitation. Section 712-1221 covers exploitations of gambling in the form of "advancing" or "profiting" from gambling activity.[3] It is aimed at large-scale gambling and is the most aggravated offense in this area. Under this section, a class C felony sanction is provided for a person who (a) engages in bookmaking to the extent that the person receives or accepts in any one day more than five bets totaling more than $500, (b) receives in connection with a lottery or mutuel scheme money or written records from a person other than a player whose chances or plays are represented by such money or records, or (c) receives in connection with a lottery, mutuel, or other scheme or enterprise more than $1,000 in any one day of money played in the scheme or enterprise.

"Bookmaking" is defined in §712-1220(2) as taking bets "upon the outcomes of future contingent events." The definition of "lottery" in §712-1220(6) is comprehensive as was that provided by the prior law,[4] without sacrificing clarity. The definition of "mutuel" adds a specific definition not previously contained in Hawaii legislation.[5]

A class C felony is imposed for violation of §712-1221 in recognition of the large-scale exploitive nature of the offense.

Section 712-1222 provides misdemeanor liability for promoting gambling in the second degree if a person knowingly profits from gambling activity. This section covers the small-time promoter who profits from gambling activity when the promoter receives money or other property as a result of participation in the proceeds of any gambling activity.

Act 201, Session Laws 1973, amended §712-1222 by deleting therefrom the advancing of gambling activities and limiting it to profiting from gambling activities. This was done because advancing gambling activity is covered by the new offense of gambling. Senate Standing Committee Report No. 806 (1973).

Section 712-1223 provides misdemeanor liability for gambling if a person knowingly advances or participates in any gambling activity. This is a new section which was added by Act 201, Session Laws 1973. The Legislature stated that gambling in all its aspects is to be prohibited except in the limited case of "social gambling" as set forth in §712-1231. Thus, in Standing Committee Report No. 806, the Senate Committee on Judiciary noted:

"While the second degree promoting offense treats the problem of 'profiting' from gambling in isolation, a new offense of 'gambling' has been created to cover all other acts related to gambling for which evidence of profit need not be available nor applicable. The point of this is to obtain a clearer statement that gambling in all its aspects is prohibited except in the limited case of 'social gambling'.

Under the existing law the broad scope of the second degree promoting offense requires that 'social gambling' be considered in a context that includes profiting from gambling. However, 'social gambling' and profiting are mutually exclusive by definition except in the case of the player's winnings. This seems to be a point of confusion. As proposed, the differential exclusion of social gambling is permitted to be considered apart from the profiting problem, and it is thought that thus, a more systematic treatment is achieved."

The former statutory law is all inclusive in condemning as criminal any gambling regardless of how innocuous. Under prior law it was a misdemeanor to set up or assist in any type of lottery scheme,[6] to sell or buy a ticket or chance in a lottery scheme,[7] to conduct or play any game of chance or any game where money is lost or won or to be present where such games occur,[8] to exhibit or expose to view in a barricaded place any gambling paraphernalia,[9] to be present in a barricaded place where gambling paraphernalia is exposed to view,[10] to conduct or assist in any bunco games (such as "three card monte" or the "shell game"),[11] to bet on the outcome of any sporting event,[12] and to allow another person to use any building or vessel for gambling activity.[13] The Code recognizes distinctions in gambling which were not recognized in prior law. It provides increased penalties for exploitive conduct, but exempts social gambling and the casual bet as criminal offenses. The Code's sections strengthen the law by providing a class C felony penalty for the "professional" promoter, instead of a misdemeanor penalty as provided under previous law. By broadly defining the terms "advancing gambling activity" and "promoting gambling activity" it makes unnecessary the explicit listing of various games of chance that was present in previous statutory law.[14] Small-time gamblers are punished as misdemeanants under the Code, the same penalty available under the former law.

Act 161, Session Laws 1983, amended §712-1221(1) so that a person may be prosecuted under this section if that person owed more than $1,000 in any one day as a result of a gambling scheme. The prior law prohibited as evidence, the receipt of wagered money, thereby requiring police to witness the actual transfer of money before making an arrest. The amendment enables police to prosecute bookmakers for gambling based on the contents of seized bookmaking records. Senate Standing Committee Report No. 721, House Standing Committee Report No. 440.

Act 83, Session Laws 1987, amended §712-1221 by changing the one-day period to seven days because there were difficulties with proving promotion of gambling within a one-day period. The extension of the time period would also allow for more effective law enforcement pursuant to this section. Senate Standing Committee Report No. 545.

Act 83, Session Laws 1987, amended §712-1222 by making changes to this section for the purpose of conforming with §712-1221. Conformity was desired with §712-1221 so that if there is insufficient evidence to prove the first degree offense, a person could be found guilty of the second degree offense. Senate Standing Committee Report No. 545.

Act 196, Session Laws 1990, added §712-1222.5 which makes it illegal to promote gambling aboard ships. The legislature found that intrastate gambling junkets would be detrimental to the State's family oriented tourist industry. House Standing Committee Report No. 466-90.

Act 57, Session Laws 1992, amended §712-1222.5 to clarify that gambling activities which are conducted during travel to and from foreign nations and Hawaii are exempt to the same extent as gambling activities which are conducted during travel to and from other states and territories of the United States and Hawaii. Act 57 further amended this section to conform subsection and paragraph designations to the style used in the Code. House Standing Committee Report No. 1198-92, Senate Standing Committee Report No. 1947.

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§§712-1221 To 1223 Commentary:

1. Prop. Mich. Rev. Cr. Code, Chapter 61.

2. N.Y.R.P.L., Article 225.

3. See §712-1220(1) and (9).

4. H.R.S. §746-1.

5. Cf. id.

6. Id. §746-2.

7. Id. §746-3.

8. Id. §746-4.

9. Id. §746-5.

10. Id. §746-6.

11. Id. §746-7.

12. Id. §746-8.

13. Id. §746-9.

14. E.g., id. §746-4.

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§712-1223 Gambling.

(1) A person commits the offense of gambling if the person knowingly advances or participates in any gambling activity.

(2) Gambling is a misdemeanor. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; gen ch 1993]