United States: Gambling 2019

1 Relevant Authorities and Legislation

1.1 Which entities regulate what type of gambling and social/skill gaming activity in your jurisdiction?

Relevant Product

Who regulates it in digital form?

Who regulates it in land-based form?

Gaming

Casino gaming (including slots and casino table games such as roulette & blackjack)

Nevada Gaming Control Board and Nevada Gaming Commission.

Poker

Bingo

Betting

Betting

Nevada Gaming Control Board and Nevada Gaming Commission.

Sports/horse race betting (if regulated separately to other forms of betting)

Fantasy betting (payment to back a ‘league’ or ‘portfolio’ selection over a period of time, for example in relation to sport or shares)

Lotteries

Lotteries

Nevada Gaming Control Board and Nevada Gaming Commission. Note, however, that there is no State lottery in Nevada. The only lotteries are “charitable lotteries”.

Social/Skill arrangements

“Social” gaming with no prize in money or money’s worth

No regulation of social gaming.

Skill games and competitions with no element of chance

Generally there is no regulation of skill games and competitions with no element of chance in Nevada. That said, however, under some interpretations by the Gaming Control Board, even if there is no element of chance, a skill game may be regulated as a gambling game in certain circumstances when the operator takes a percentage of the gambling “pot” as their payment.

1.2 Specify: (i) the law and regulation that applies to the Relevant Products in your jurisdiction; and (ii) – in broad terms – whether it permits or prohibits the offer of Relevant Products to persons located in your jurisdiction.

Nevada has a two-tier State gaming regulatory system. The Nevada Gaming Control Board (the “Board”) is a three-member, full-time regulatory body consisting of two members and a Chair. The Nevada Gaming Commission (the “Commission”) is a five-member, part-time regulatory body consisting of four members and a Chair. All members of the Board and the Commission are appointed by Nevada’s Governor. The Board and the Commission work together to regulate all gambling activity in Nevada. This includes Nevada’s large “Nonrestricted” casino resorts, such as those found along the famous Las Vegas Strip. This also includes small “Restricted” gaming locations, such as taverns and convenience stores that have 15 or fewer slot machines, and all race books, sports pools, and race tracks in the State, as well as those companies that serve the gaming industry, such as slot machine manufacturers and distributors. Local city and county licensing authorities in Nevada have concurrent jurisdiction over gaming licensing and also issue gaming business licences to gaming establishments located within their jurisdictions.

Gaming in Nevada is as wide-ranging as can be found anywhere else in the world and includes casino table gaming, slot machines, race books and sports pools, and horse racing. Gaming in the State is authorised and regulated under the State’s Gaming Control Act and the Regulations of the Nevada Gaming Commission, which are codified as Chapter 463 of the Nevada Revised Statutes (NRS 463). Other relevant Nevada statutes include: NRS Chapter 368A, which provides for a Live Entertainment Tax; NRS Chapter 462, which regulates lotteries (note that only charitable lotteries are allowed in Nevada, and the large State or multi-State lotteries such as Powerball are not permitted in Nevada); NRS Chapter 463A (regulates gaming employees’ labour organisations); NRS 463B, which allows for operation by the State/State appointee of a gaming establishment whose licence is surrendered, lapsed, suspended or revoked; NRS Chapter 464, which regulates pari-mutuel wagering; NRS Chapter 465, which outlines criminal actions and liabilities regarding gaming; and NRS Chapter 466, which covers horse racing.

The Commission also promulgates regulations that cover all aspects of the licensing, operation, accounting, and discipline for gaming licensees. When it comes to anti-money laundering (“AML”) in gaming, Nevada used to have its own set of AML statutes and regulations, but has since deferred to the federal law on this topic and Nevada’s casinos are treated as financial institutions under federal law.

2 Application for a Licence and Licence Restrictions

2.1 What regulatory licences, permits, authorisations or other official approvals (collectively, “Licences”) are required for the lawful offer of the Relevant Products to persons located in your jurisdiction?

Generally speaking, the Nevada State licence categories encompass: (a) gambling operators; (b) manufacturers and distributors of gaming devices, mobile gaming systems, or cashless wagering systems; and (c) certain “service providers”. A gambling operator licence is either “Restricted”, which limits the operator to 15 or fewer slot machines (e.g., a tavern), or “Nonrestricted”, which generally allows the operator unlimited slot machines and table games (e.g., a resort-casino-hotel). Local city/county licensing authorities also issue gaming licences, and it is those authorities who have the power to issue liquor licences.

2.2 Where Licences are available, please outline the structure of the relevant licensing regime.

Any person or business entity that wishes to undertake an activity that requires a Nevada gaming licence must first procure such licence before commencing business. Holding companies are required to register with the Commission, and all direct and indirect owners of the applicant are required to be licensed or registered, as applicable. In addition, key officers, directors, and other executives of the applicant entities must be found suitable (get licensed), and any individual who handles day-to-day operations at the licensed establishment must be licensed. In addition, any employee, agent, guardian, personal representative, lender, landlord, or holder of indebtedness of a gaming licensee who, in the opinion of the Commission, has the power to exercise significant influence over the licensee’s operation of a gaming establishment may be required to apply for a licence. Gaming operator licences are both applicant-specific and establishment-specific and are not transferable among persons or establishments (subject to very narrow exceptions). Different licensing requirements apply to public vs. private companies. Local city/county licensing authorities have their own requirements, but they generally defer to the State gaming investigation.

2.3 What is the process of applying for a Licence for a Relevant Product?

Local city/county licensing authorities have sole jurisdiction over the issuance of liquor licences and may conduct an independent investigation of a gaming licence applicant, however, in most cases defer to the gaming investigation performed by the State. Notwithstanding, a local authority may not issue a gaming licence unless the State has approved the applicant.

Once filed, a withdrawal of an application is discretionary and depending on the status of the information received, the Board may decide to move forward to deny the application. The applicant is required to pay the costs of its investigation and the burden of proving suitability is always on the applicant. Only a majority of the five-member Commission is needed to issue a licence. The Commission usually follows the Board’s recommendation, but is not obligated to do so. However, if the Board’s recommendation is to deny the application, it would require a unanimous approval of the Commission in order for the licence to be issued. If there is any concern about an applicant’s ability to receive a licence, the applicant may apply for “preliminary suitability” (using the same standards as licensing) which, if approved, becomes a valid expression by the Commission that an applicant is personally suitable to obtain a licence for a period of up to two years, and potentially renewable thereafter. This can assuage concerns about the investment in new construction of a gaming project.

2.4 Are any restrictions placed upon licensees in your jurisdiction?

Nevada gaming licences may be approved subject to such conditions, limitations, or orders of registration as determined by the Commission. Nevada licensees must at all times comply with applicable statutes and regulations and “self-police” their activities to ensure their continuing “suitability” for licensure. Such self-policing includes the ongoing examination of other business ventures and business associations to ensure that the licensee is complying with the law and not engaging in any activity that would tend to reflect discredit on gaming in Nevada. Generally speaking, large gaming companies have compliance committees who perform these self-policing functions and may be required to deposit funds in a “revolving fund” for the Board’s ongoing monitoring of the licensee’s compliance activities.

2.5 Please give a summary of the following features of any Licences: (i) duration; (ii) vulnerability to review, suspension or revocation.

Unless limited in duration by the Commission (a limitation is typically one or two years), most Nevada gaming licences are issued without an expiration date. Once granted, such licences are revocable privileges, and no holder acquires any vested rights in a licence. In the event of an alleged violation of the Gaming Control Act by a licensee, it is up to the Board to file a complaint and demonstrate that disciplinary action should be taken against a licensee under a “preponderance of the evidence” standard. The licensee receives due process, but most complaints are settled because the process favours the Board. Licensing decisions made by the Commission are not subject to judicial review.

2.6 By Relevant Product, what are the key limits on providing services to customers? Please include in this answer any material promotion and advertising restrictions.

In the United States, government regulation of advertising (commercial speech) is generally limited by First Amendment principles. Such speech is not generally subject to government restraint, provided it is not deceptive or misleading and does not advertise unlawful activities. There are not many restrictions on gaining market share or supplying to customers under Nevada law. New games are subject to Board approval, and the offering of certain types of wagers are subject to prior Commission approval. Certain types of wagers are prohibited by regulation. Junket operators are subject to prior Commission approval as “independent commissioned representatives”.

2.7 What are the tax and other compulsory levies?

Under Nevada State law, Nevada gaming licensees must pay: (a) an annual tax and a quarterly fee based on the number of slot machines; (b) an annual tax and a quarterly fee based on the number of table games; (c) a monthly percentage fee based on gross gaming revenue; and (d) a live entertainment tax equal to 9% of admission charges, if applicable. The rates depend on the number of slot machines/table games and the amount of gross gaming revenue. In addition, licensees are required to remit quarterly 75% of the value of unredeemed slot machine wagering vouchers. The maximum taxation rate for Nonrestricted gaming is 6.75% of the casinos’ gross gaming revenue.

Gaming licensees other than casino operators must pay annual fees based on their licence category. A licensee may be required to pay federal and/or local city/county fees and taxes as well.

2.8 What are the broad social responsibility requirements?

A portion of slot machine fees is dedicated to addressing problem gaming issues. Each licensee must post or provide problem gaming materials near gaming, cage and cash access areas. Each licensee must implement procedures for training employees regarding problem gaming. Each licensee must also implement a programme to permit self-exclusion from direct gambling marketing activities. Casinos are also required to adopt policies relating to the prevention of sexual harassment.

2.9 How do any AML, financial services regulations or payment restrictions restrict or impact on entities supplying gambling? Does your jurisdiction permit virtual currencies to be used for gambling and are they separately regulated?

Nevada follows U.S. federal AML guidelines, publications, regulations and statutes. Third-party virtual currencies are not permitted for gambling use; however, licensees may issue house chips, promotional chips or credits that are used in lieu of cash for gambling transactions.

3 Online/Mobile/Digital/Electronic Media

3.1 How does local law/regulation affect the provision of the Relevant Products in online/mobile/digital/electronic form, both from: (i) operators located inside your jurisdiction; and (ii) operators located outside your jurisdiction?

Since 2001, Nevada has had statutory authority to grant State licences to conduct online and mobile gaming, which is called “Interactive Gaming” in Nevada. Interactive Gaming operator licences are limited to resort hotel operators. Currently, Nevada grants licences only for online poker, but has the statutory authority to grant licences for all other online and mobile games. Since at least the 1970s, Nevada has permitted licensed race and sports pool operators to offer intrastate remote account wagering. Today, intrastate remote account wagering on sports is facilitated primarily through mobile tablets and smartphones.

3.2 What other restrictions have an impact on Relevant Products supplied via online/mobile/digital/electronic means?

Most service providers to interactive gaming operators will be required to have some level of licensing or approval. The level of investigation, cost, and time to obtain such licensing or approval is dependent on the role of the service provider in facilitating online gaming. Currently, online poker may be offered only to those in Nevada and Delaware, and no other forms of online gambling games have been authorised. Remote-account-based sports wagering is offered strictly on an intrastate basis due to U.S. federal laws.

3.3 What terminal/machine-based gaming is permitted and where?

Nevada permits online poker to be offered by interactive gaming licensees using TCP/IP-based computing hardware (such as personal computers, laptops, tablets and smartphones). Nevada-licensed Interactive Gaming operators may offer online poker only to those in Nevada and Delaware.

Remote-account-based sports wagering may occur through telephone and approved smartphone, computer and tablet applications. Remote-account-based sports wagering is offered only within the borders of the State of Nevada due to restrictions imposed by U.S. federal laws.

4 Enforcement and Liability

4.1 Who is liable under local law/regulation?

The foundation for all gaming regulation in Nevada is found in NRS 463.0129. This statutory section is known as “the Public Policy Concerning Gaming”. The section heading announces that a “license or approval is a revocable privilege”. It acknowledges the vital economic importance of the gaming industry to Nevada and the need to insure that public confidence and trust in these institutions are maintained by regulating persons, locations, practices associations and activities related to the operation of gaming establishments, the manufacture, sale and distribution of gaming devices and associated equipment and the operation of inter-casino-linked systems. The overriding intent is to ensure that gaming activities are conducted honestly and competitively and do not reflect discredit on the State of Nevada and the gaming industry.

That policy statement allows Nevada’s gaming regulators to impose obligations upon a broad range of individuals and entities having involvement or association with the gaming industry. Some of these categories include: licensees; gaming employees; manufacturers; distributors; certain software developers; equity holders; landlords; lenders; operators of tournaments; persons furnishing services and property; persons doing business on the premises of a gaming establishment (including lessees of shops, restaurants and nightclubs); and, of course, customers.

Each of the major operating units of the Board is tasked with keeping the industry free from criminal and corruptive elements as well as providing “consumer protection” for casino customers. The settlement of patron disputes is exclusive to the province of the Nevada Gaming Commission with an appeal to the courts only on very limited grounds.

To keep abreast of its regulatory obligations, most Nonrestricted licensees (specifically referencing casino operators) are required to form “compliance committees” to monitor internal control standards, and compliance with federal, State and local laws. These groups are required to self-report to the regulators, circumstances which suggest that they are or may be engaging in an “unsuitable method of operation” a panoply of offences which are generally described in the Nevada Gaming Commission regulations (NGC Reg. 5.011).

There remains a continuing focus on the prevention of money laundering, which includes the requirement that the casino operators “know their customer” in compliance with the rules and reports required by the Financial Crimes Enforcement Network (“FinCEN”), a division of the United States Treasury. Such filings include currency transaction reports (“CTRs”) and suspicious currency transaction reports (“SARCs”), generally transactions which individually, or in the aggregate, equal $10,000 in a 24-hour period. FinCEN has imposed substantial fines in the casino industry for violation of these requirements, in some cases up to $75 million. State gaming regulators have added their own significant penalties for these same violations.

The recent United States Supreme Court decision which declared the Professional and Amateur Sports Protection Act (“PASPA”) to be an unconstitutional commandeering of State Law (Murphy v. NCAA) has allowed States that authorise sports wagering within their boundaries to engage in that form of gaming. Provided however, there remain questions regarding the applicability of the Interstate Wire Act of 1961 (“Federal Wire Act”) found at 18 U.S.C. 1084, which prohibits the use of wire communication facilities to transmit bets or wagers, including information relating to bets or wagers through interstate commerce. The Federal Wire Act was intended to target “organised crime” and was seemingly left intact by the Murphy decision. Therefore, the use of multi-State facilities to aggregate wagers and information, has yet to be resolved and may still result in federal prosecutions.

As of this writing, any involvement by casino licensees with the marijuana industry is strictly prohibited, with the limited exception of a short-term rental of convention space for education and exhibition purposes by authorised commercial representatives of that industry. No use of marijuana or other legal drugs is permitted on casino property.

Gaming suppliers, or those who furnish a gaming device (defined in NRS 463.0155), must be licensed and their products must be tested first by an independent testing laboratory and then field tested and reviewed by the Board’s Technology Division. Suppliers of products that are not classified as “gaming devices” may fall into the category of “associated equipment” defined in NGC Reg. 14.020(4), or “inter-casino linked systems”, whose standards are described in NGC Reg. 14.100, or interactive gaming service providers as defined in NRS 463.677. Each of these systems is also reviewed by the independent lab and the Technology Division and the manufacturers and distributors are either required to be registered or found suitable after a full investigation (NGC Regs. 14.260–14.305). Additionally, all gaming equipment suppliers who ship gaming devices either into or out of Nevada must be registered with the U.S. Department of Justice in order to be exempt from 15 U.S.C. 1172 (NRS 463.410 and 463.420).

4.2 What form does enforcement action take in your jurisdiction?

Licensees who would offer unregulated or adulterated equipment are subject to disciplinary action, which could include fines and suspensions, licence limitations or revocation (NRS 463.310). It is unlawful for any person, either as an owner, lessee or employee to operate, carry on, conduct or maintain any form of manufacture, selling or distribution of any gaming device, cashless wagering system, mobile gaming system or interactive gaming system for use or play in Nevada without first procuring all required federal, State, county and municipal licences, and it is unlawful for such persons to knowingly distribute such devices from Nevada to any jurisdiction where the possession or use of such devices are illegal (NRS 463.650(1) and (10)). Criminal penalties may be imposed if the gaming equipment is operated with unapproved programs or cheating devices.

4.3 Do other non-national laws impact upon liability and enforcement?

The Board has entered into Compacts or Memoranda of Understanding with other gaming regulatory bodies throughout the world and regularly shares information concerning persons and investigations which are of mutual interest. As a “law enforcement agency” and a member of the Law Enforcement Intelligence Unit (“LEIU”), agents from the Board perform joint investigations with the world’s premiere law enforcement organisations, including, but not limited to, Interpol, Scotland Yard and RCMP. The Board works cooperatively with anti-money laundering investigations conducted by FinCEN, the Internal Revenue Service (“IRS”), the Federal Bureau of Investigation (“FBI”) and the Securities Exchange Commission (“SEC”) concerning allegations involving the Federal Corrupt Practices Act (“FCPA”), stock manipulation and insider trading. A violation of an international law or federal statute can bring an independent disciplinary action by the Board against a Nevada licensee.

4.4 Are gambling debts enforceable in your jurisdiction?

“Credit Instruments” are defined in NRS 463.01467 and may be enforced by legal process (NRS 463.368). An incomplete credit instrument may be accepted, provided that it is signed by the patron and states the amount of the debt in figures. Under those circumstances, the licensee may complete the credit instrument to be presented for payment. A licensee may accept a credit instrument either before, at the time, or after the patron incurs the debt. A patron’s claim of having a mental or behavioural disorder involving gambling is not a defence in any action by a licensee to enforce a credit instrument and is not a valid counterclaim to such action.

Notwithstanding, each licensee is required to implement procedures and training for all employees who directly interact with gaming patrons in gaming areas. The training shall, at a minimum, consist of information concerning the nature and symptoms of problem gambling behaviour and methods for assisting patrons in obtaining information about problem gambling programmes (NGC Reg. 5.170).

Each credit application must contain a statement, separately signed by a patron, acknowledging the patron’s understanding that under Nevada law a credit instrument is the same as a personal check, and knowingly writing a credit instrument with insufficient funds in the account upon which it is drawn, or with the intent to defraud, is a criminal act in the State of Nevada which may result in criminal prosecution (NGC Reg. 6.118). District Attorneys in Nevada regularly enforce the provisions of NRS 205.130, which makes it a felony to fail to pay in full a credit instrument of $650 or more for credit extended by a licensed gaming establishment. A person who violates this provision may be adjudged guilty of a category D felony, which is punishable by one to four years in State prison and a fine of $5,000. Once the case has been submitted to the District Attorney for prosecution, a settlement through the prosecutor’s office requires the payment of a 10% service fee. Although a felony arrest warrant is an extraditable charge, that remedy is seldom utilised.

A debt incurred by a patron for playing an interactive gaming system of an establishment licensed to operate interactive gaming is also valid and may be enforced by legal process (NRS 463.780). In all other respects, with the exception of obligations which are claimed to be owed by the licensee to a patron and which are resolved through a “patron dispute” hearing process by the Board, gaming debts that are not evidenced by a credit instrument are void and unenforceable and do not give rise to any administrative or civil cause of action (NRS 463.361).

Only bonded, duly licensed collection agencies, or a licensee’s employees, junket representatives, attorneys or affiliated or wholly-owned corporations and their employees, may collect, on the licensee’s behalf and for any consideration, gaming credit extended by the licensee. Notwithstanding, no licensee shall permit any person who has been denied a gaming licence or a work permit to collect any markers on behalf of a licensee (NGC Reg. 5.140).

5 Anticipated Reforms

5.1 What (if any) intended changes to the gambling law/regulations are being discussed currently?

As a worldwide leader in gaming, the State of Nevada engages in a constant cycle of review and revision to its gaming statutes and regulations. Because the Nevada State legislature meets only for 120 days every other year in the odd-numbered years, there were no legislative changes in 2018. The next regular legislative session will run from February–June 2019. Topic areas likely to be addressed by the 2019 legislature will include eSports and the intersection of recreational marijuana and gaming. With the legalisation of recreational marijuana in Nevada and recreational dispensaries operating as of July 1, 2017, gaming licensees in Nevada are faced with many questions of how they can and cannot serve this industry and the standards they will be held to in policing the use of recreational marijuana on their premises.

Originally published in ICLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Kate C. Lowenhar-Fisher
Jennifer J. Gaynor
Jeffrey A. Silver
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