Senator Todd Weiler proposes the following substitute bill:


1     
GAMBLING MACHINES AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Michael K. McKell

5     
Senate Sponsor: Todd Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to gambling.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     modifies definitions;
14          ▸     clarifies that certain gambling offenses include fringe gambling; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          76-10-1101, as last amended by Laws of Utah 2012, Chapters 27 and 157
23          76-10-1102, as last amended by Laws of Utah 2012, Chapter 157
24          76-10-1103, as enacted by Laws of Utah 1973, Chapter 196
25          76-10-1104, as last amended by Laws of Utah 1991, Chapter 241
26          76-10-1105, as enacted by Laws of Utah 1973, Chapter 196
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 76-10-1101 is amended to read:
30          76-10-1101. Definitions.
31          As used in this part:
32          (1) "Consumer" means the same as that term is defined in Section 76-10-1230.
33          [(1)] (2) (a) "Fringe gambling" means any gambling, lottery, fringe gaming device, or
34     video gaming device [which is: (i)] that is given, conducted, or offered for use or sale by a
35     business in exchange for anything of value[; or (ii) given away] or incident to the purchase of
36     [other goods or services] another good or service.
37          (b) "Fringe gambling" does not [mean] include a promotional activity that is clearly
38     ancillary to the primary activity of a business.
39          [(c) Determination of whether a promotional activity is clearly ancillary under
40     Subsection (1)(b) is by consideration of the totality of the circumstances, which may include
41     one or more of these factors:]
42          [(i) the manner in which the business is marketed, advertised, or promoted;]
43          [(ii) whether and the degree to which the business provides instructions regarding the
44     use or operation of the promotional activity, as compared to the use or operation of the goods
45     or services sold by the business;]
46          [(iii) the availability and terms of any free play option to engage in the promotional
47     activity;]
48          [(iv) whether any contest, sweepstakes, or other promotional entries provided to
49     customers who purchase goods or services from the business provide any advantage in winning
50     a prize over any advantage provided to participants in the promotional activity who do not
51     purchase goods or services from the business;]
52          [(v) whether the goods or services promoted for purchase by the business are on terms
53     that are commercially reasonable; and]
54          [(vi) whether any prize won by participation in the promotion may be parlayed into one
55     or more additional opportunities to win an additional prize.]
56          (3) (a) "Fringe gaming device" means a device that provides the user:
57          (i) a card, token, credit, or product in exchange for anything of value; and
58          (ii) along with the card, token, credit, or product, the opportunity to participate in a
59     contest, game, gaming scheme, or sweepstakes with a potential return of money or something
60     of value that is based on an element of chance and not substantially affected by a person's skill,
61     knowledge, or dexterity.
62          (b) "Fringe gaming device" does not include a device that provides the user a card,
63     token, credit, or product in exchange for only the user's name, birthdate, or contact information.
64          [(2)] (4) (a) "Gambling" means risking anything of value for a return or risking
65     anything of value upon the outcome of a contest, game, gaming scheme, or gaming device
66     when the return or outcome:
67          (i) is based [upon] on an element of chance, regardless of the existence of a preview or
68     pre-reveal feature in the device, contest, or game; and
69          (ii) is in accord with an agreement or understanding that someone will receive
70     [something] anything of value in the event of a certain outcome.
71          (b) "Gambling" includes a lottery [and fringe gambling].
72          (c) "Gambling" does not include:
73          (i) a lawful business transaction; or
74          (ii) playing an amusement device that confers:
75          (A) only an immediate and unrecorded right of replay not exchangeable for value[.]; or
76          (B) as a reward for playing, a toy or novelty with a value of less than $10.
77          [(3)] (5) "Gambling bet" means money, checks, credit, or any other representation of
78     value.
79          [(4)] (6) "Gambling device or record" means anything specifically designed for use in
80     gambling or fringe gambling or used primarily for gambling or fringe gambling.
81          [(5)] (7) "Gambling proceeds" means anything of value used in gambling or fringe
82     gambling.
83          [(6)] (8) "Internet gambling" or "online gambling" means gambling, fringe gambling,
84     or gaming by use of:
85          (a) the Internet; or
86          (b) any mobile electronic device that allows access to data and information.
87          (9) "Internet service provider" means a person engaged in the business of
88     providing Internet access service, with the intent of making a profit, to consumers in Utah.
89          [(7)] (10) "Lottery" means any scheme for the disposal or distribution of property by
90     chance among persons who have paid or promised to pay any valuable consideration for the
91     chance of obtaining property, or portion of it, or for any share or any interest in property, upon
92     any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or
93     chance, whether called a lottery, raffle, or gift enterprise, or by whatever name it is known.
94          (11) "Promotional activity that is clearly ancillary to the primary activity of a business"
95     means that the promotional activity:
96          (a) continues for a limited period of time;
97          (b) is related to a good or service provided by the business or the marketing or
98     advertisement of a good or service provided by the business;
99          (c) does not require a person to purchase a good or service from the business in
100     consideration for participation or an advantage in the promotional activity or any other contest,
101     game, gaming scheme, sweepstakes, or promotional activity; and
102          (d) promotes the good or service being promoted for purchase by the business on terms
103     that are commercially reasonable.
104          [(8)] (12) "Video gaming device" means any device that possesses all of the following
105     characteristics:
106          (a) a video display and computer mechanism for playing a game;
107          (b) the length of play of any single game is not substantially affected by the skill,
108     knowledge, or dexterity of the player;
109          (c) a meter, tracking, or recording mechanism that records or tracks any money, tokens,
110     games, or credits accumulated or remaining;
111          (d) a play option that permits a player to spend or risk varying amounts of money,
112     tokens, or credits during a single game, in which the spending or risking of a greater amount of
113     money, tokens, or credits:
114          (i) does not significantly extend the length of play time of any single game; and
115          (ii) provides for a chance of greater return of credits, games, or money; and
116          (e) an operating mechanism that, in order to function, requires inserting money, tokens,
117     or other valuable consideration [in order to function] other than solely the user's name,
118     birthdate, or contact information.
119          Section 2. Section 76-10-1102 is amended to read:
120          76-10-1102. Gambling.
121          (1) A person is guilty of gambling if the person:
122          (a) participates in gambling or fringe gambling, including any Internet or online
123     gambling;
124          (b) knowingly permits any gambling or fringe gambling to be played, conducted, or
125     dealt upon or in any real or personal property owned, rented, or under the control of the actor,
126     whether in whole or in part; or
127          (c) knowingly allows the use of any video gaming device that is:
128          (i) in any business establishment or public place; and
129          (ii) accessible for use by any person within the establishment or public place.
130          (2) Gambling is a class B misdemeanor, except that any person who is convicted two
131     or more times under this section is guilty of a class A misdemeanor.
132          (3) (a) A person is guilty of a class A misdemeanor who intentionally provides or
133     offers to provide any form of Internet or online gambling to any person in this state.
134          (b) Subsection (3)(a) does not apply to an Internet service provider [or], a hosting
135     company as defined in Section 76-10-1230, a provider of public telecommunications services
136     as defined in Section 54-8b-2, or an Internet advertising service by reason of the fact that the
137     Internet service provider, hosting company, Internet advertising service, or provider of public
138     telecommunications services:
139          (i) transmits, routes, or provides connections for material without selecting the
140     material; or
141          (ii) stores or delivers the material at the direction of a user.
142          (4) If any federal law is enacted that authorizes Internet gambling in the states and that
143     federal law provides that individual states may opt out of Internet gambling, this state shall opt
144     out of Internet gambling in the manner provided by federal law and within the time frame
145     provided by that law.
146          (5) Whether or not any federal law is enacted that authorizes Internet gambling in the
147     states, this section acts as this state's prohibition of any gambling, including Internet gambling,
148     in this state.
149          Section 3. Section 76-10-1103 is amended to read:
150          76-10-1103. Gambling fraud.
151          (1) A person is guilty of gambling fraud if [he] the person participates in gambling or
152     fringe gambling and wins or acquires to himself or herself or another any gambling proceeds
153     when [he] the person knows [he] the person has a lesser risk of losing or greater chance of
154     winning than one or more of the other participants, and the risk is not known to all participants.
155          (2) A person convicted of gambling fraud [shall be] is punished as in the case of theft
156     of property of like value.
157          Section 4. Section 76-10-1104 is amended to read:
158          76-10-1104. Gambling promotion.
159          (1) A person is guilty of gambling promotion if [he] the person derives or intends to
160     derive an economic benefit other than personal winnings from gambling or fringe gambling
161     and:
162          (a) [he] the person induces or aids another to engage in gambling or fringe gambling;
163     or
164          (b) [he] the person knowingly invests in, finances, owns, controls, supervises,
165     manages, or participates in any gambling or fringe gambling.
166          (2) Gambling promotion is a class B misdemeanor, [provided, however] except that
167     any person who is twice convicted under this section [shall be] is guilty of a [felony of the]
168     third degree felony.
169          Section 5. Section 76-10-1105 is amended to read:
170          76-10-1105. Possessing a gambling device or record.
171          (1) A person is guilty of possessing a gambling device or record if [he] the person
172     knowingly possesses [it with intent to use it] the gambling device or record with intent to use
173     the gambling device or record in gambling or fringe gambling.
174          (2) Possession of a gambling device or record is a class B misdemeanor, [provided,
175     however,] except that any person who is twice convicted under this section [shall be] is guilty
176     of a class A misdemeanor, and [any] a person who is convicted three or more times under this
177     section [shall be] is guilty of a [felony of the] third degree felony.