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Cards in the Air

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Most gamblers will tell you that they'd rather be lucky than good. A lawyer, on the other hand, might tell you that kind of thinking could land poker players in jail.

And a pair of recent court cases has raised a long-simmering issue across the state: Are card games like Texas Hold 'Em games of chance, or games of skill? And if they're the latter, should Pennsylvania's anti-gambling laws apply to them?

On Jan. 14, Columbia County Common Pleas Court Judge Thomas James ruled that poker was a game of skill and dismissed criminal charges against two defendants accused of running an illegal poker game out of their garage.

"This court finds that Texas Hold 'Em poker is a game where skill predominates over chance," James wrote in his opinion. "Thus, it is not 'unlawful gambling' under the Pennsylvania Crimes Code."

Pennsylvania law defines unlawful gambling as: "the payment of a consideration or fee ... for the chance to win a prize ... the winner of which is determined by chance." Therefore if poker is considered a game of skill, James ruled, then it cannot be unlawful gambling.

But that doesn't settle the issue. On Feb. 2, Common Pleas Court Judge Richard McCormick Jr., in Greensburg, ruled that poker was illegal gambling and thus subject to the state's crime codes. The defendant in that case, Larry Burns, was arrested for running tournaments in Westmoreland County fire halls. His lawyer argued that the state law regulating gambling was "unconstitutionally vague." Two co-defendants, James Miller and James Hricko, were also charged.

"With common sense and common understanding as our gauge, the statutes and the case law make it reasonably clear that the defendants' engagement in the activity of poker playing was activity for which they would be held criminally accountable," wrote McCormick.

So while the Columbia County defendants, Diane Dent and Walter Watkins, have been cleared, Burns and the others face trial in late spring or early summer, according to Burns' attorney, David J. Millstein.

Such contradictory outcomes show how law-enforcement officials "need some resolution because the gambling statutes in Pennsylvania are lacking," says Columbia County District Attorney Gary Norton, whose office is appealing Judge James' decision. "We think there's more to the argument of legality than simply skill versus chance. We quite simply need a better definition in this state of what is gambling and what is not."

Both James' and McCormick's opinions were trial-court opinions, and aren't legally binding on anyone except the parties involved. And while the cases both involve poker, that's where the similarities end. According to court records, Watkins ran the poker game out of his garage with Dent serving as the dealer. There was no fee paid to the house, although players tipped the dealer whenever they won a pot.

Burns, meanwhile, was accused of running poker tournaments at area fire halls. According to prosecutors' filings, players had to "buy in" to the tournament for a price between $50 and $150. Ninety percent of the money received was given back to the players. The remaining 10 percent was split between Burns and the fire hall.

In the several months that Burns ran tourneys in Seward Township, for example, the volunteer fire department there received about $40,000. The state has been trying to seize those assets.

Burns' case is also different because he didn't ask McCormick to rule on whether gambling was a skill, but on whether state gambling laws are too vague. But Millstein says he intends to raise the luck vs. skill question in front of the jury.

In any case, Millstein says, there's more to these criminal cases than alleged infractions of the law.

"These games have been going on in fire halls for years," says Millstein. "A bunch of guys would get together, play some cards, eat a little food and drink a couple of beers and nobody cared.

"Now all of a sudden, there have been all of these crackdowns in recent years. Stop and ask yourself: What's changed?"

What's changed, Millstein and others say, is that with the opening of slots casinos around the state, Pennsylvania is now in the gambling business. Which means that gambling in a fire hall is now taking away from the state's bottom line.

"The state doesn't want the competition against its own gambling interests," says Millstein. "It's never been clear whether live poker is considered illegal gambling, and a lot of people insist that it's not.

"But the state is throwing around an awful lot of money to make it crystal clear that it is."

The state gaming control board has already set aside $5 million annually in grants to crack down on illegal slot gambling in bars and restaurants -- a practice that came under more scrutiny when the state approved casinos.

Even so, Millstein says, it's only a matter of time before the state legalizes table games -- as long as they are played in a casino that kicks back part of its profits to Harrisburg.

"Poker has always been lumped together with other forms of gambling, and I think that's unfair," says Tripp Amick, the Pennsylvania state director for the national Poker Players Alliance (PPA). "There are games every week in this area, but just by playing in them, I'm technically a criminal."

Amick says poker has long been used as a fundraising tool, and that it's purchased a lot of rescue equipment over the years.

"Bingo's on the way out," Amick says, but "Poker is there and has been there for years. ... Everyone knows it's technically illegal, but they acknowledge it with a wink and a nod.

"There aren't as many games as there used to be, but they're still there every week. A lot of them are still run by the same guys -- it's just more underground now and smaller operations. I used to play in a tournament with 150 to 180 guys every week. It's now half that" because there has been a law-enforcement crackdown on such games.

But if Judge James' ruling is upheld in the Columbia County case, it could be a different story. Patrick Fleming, the head of the PPA's litigation support network, says a positive ruling for poker at the appellate level in Pennsylvania could go a long way to legalizing the game.

"If poker -- dare to dream -- is ultimately deemed a game of skill by the Pennsylvania Supreme Court, then the game is not covered by any gambling law and could be played for money like chess or any other game.

"However, that doesn't stop the legislature from then moving ahead and adopting a law that would specifically ban the playing of poker for money."

And that would be fine with guys like Fleming and Amick.

"If the state wants to regulate poker in some way, that's fine," says Fleming. "Make charity-only games legal or allow play in licensed card rooms.

"Regulate it however you want, but recognize poker as a game of skill and make it legal so players can enjoy this great American game."

Adds Amick: "I don't want to be a criminal, I just want to be able to play poker."

ILLUSTRATION BY ADAM MULLET
  • Illustration by Adam Mullet

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