Sentencing

Dear Mr. McClanahan:

Now that most all the court work in this poker-playing business is coming to an end for the prosecutor, do you think his office will now concentrate on the 'Big Fish' Chunky Cheese?

(I know, it's really Chuck E. Cheese, but...)

My close friend's five year old grandaughter lost most of his social security check in the Murfreesboro casino last month and, I, for one, am becoming concerned for his financial future!

(I know, it's really Chuck E. Cheese, but...)

My close friend's five year old grandaughter lost most of his social security check in the Murfreesboro casino last month and, I, for one, am becoming concerned for his financial future!

-- Posted by garhawk on Fri, Dec 4, 2009, at 8:21 AM

Really!? you think his five year old grandaughter has been gambling? Wow, if that is the case would the grandfather be guilty of child endangerment? I would hope you are being sarcastic. That is the wildest thing i have heard out on the farm

That is the wildest thing i have heard out on the farm

-- Posted by outonthefarm on Fri, Dec 4, 2009, at 7:46 PM

I take it you never seen a goat roping and stump breaking contest out on the farm?

Were one to look under TCA 39-17-501 one would find the definition of gambling to be, "risking anything of value for a profit whose return is to any degree contingent on chance." Under the clear, uncomplicated terms of this criminal statute, the behavior of playing the type of games in question is clearly, clearly gambling thus violative of the statute.

If one believes this to be unreasonable then change the statute. To allow law enforcement to decide what is gambling on an ad hoc basis is wrong and unconstitutional. If they enforce the gambling laws, then enforce them against all those who violate the statute. It is not, constitutionally, within their power to decide one form of gambling is worse than another and therefore to selective apply the sanction of the law.

-- Posted by cmcclanahan on Sat, Dec 5, 2009, at 11:11 AM

Then in the same respect is it not a violation of the gambling statute to risk the seed on the chance of rain for profit? I don't think so, It is not that simple or clear cut.

Some things are exempt from gambling such as anything that is considered a legal business transaction, commodities and the like. I can tell you from years on the farm every investment in the crop is a gamble out on the farm

Dear 'outonthefarm:

Somehow, I am finding it very difficult to compare gambling with 'mother nature' to taking chance with the owners of Chuck E. Cheese casino.

That is, as it relates to any gambling statute in Tennessee law.

Perhaps you can enlighten us?

-- Posted by garhawk on Mon, Dec 7, 2009, at 9:35 AM

Gambling is the risking of something of value upon chance for gain or loss. For anything to be considered gambling all three elements Consideration, Chance and reward must be present. If you remove anyone of those items then the activity fails to meet the criteria for gambling.

So looking at Mr, Cheese You risk your money upon chance for greater gain or loss. Looking at the farm one risk the money for the seed , plant the seed and based on the chance of rain one may gain or lose value risked. So the criteria fits both situations.

This issue is no one is crying about a pizza parlor that offers a amusement game that for a coin inserted allows you to roll a ball at a target or play a crane game to win a toy. In both of those instances one would claim that the person at the machine has some control, through exertion of skill, as to the out come.

Also there are certain other activities exempt under the gambling laws. Such as acts of commerce of those involving in a a legal business transaction i.e. the stock market, farming, promotion of sales of goods and services. At least that is the way the TCA reads from out on the farm

garhawk you wrote in part

"To begin, you define gambling and fit Chuck E. Cheese casino right in the middle of that definition. In the next sentence you attempt to fit farming into the same slot of gambling and, end by saying: "So the criteria fits both situations." The 'criteria' you have previously stated to be "consideration, chance and, reward if the activity is to be gambling."

So as not to confuse you any further ...If you look at the gambling statute as "TCA 39-17-501 one would find the definition of gambling to be, "risking anything of value for a profit whose return is to any degree contingent on chance."...but it continues that a legal business transaction is exempt, that exemption is for any legal business transaction but includes futures and commodities ...." so it does specifically exempt anything involving a legal business transaction from gambling. The last time I looked farming was still a business transaction or commodities trading

Having said that my point is;

1 that if that exemption was not in place the the act of farming, opening a business or selling of insurance would "fit" the criteria of gambling..

2 that if the activity is taxed by the state it is considered to be legal. each of the machines at the pizza place pay for a tax stamp. I think they are ten dollars a piece. So one of two thing is going on. either the state is collecting tax on an illegal game which (since waters vs state) they cannot. Or the activity involved with playing the games are exempt. Just a fact.

You continue...."But then you confuse me by stating that "farming" is exempt from TN gambling law. Elsewhere in your argument you bring "skill" into the equation. After reading the entire statute I could find no reference to "skill". Therefore, it seems clear to me that the authors of this legislation did not intend for "skill" to be a consideration."

I never stated the statute states anything about skill..However, earlier statutes (1989)do...also there are a ton of case law that states the fact. one case out of Maryville i believe. Also you failed to follow the fact that all three criteria must be present for gambling to occur ie consideration chance and reward. Picture if you will a three legged stool each leg represents a element remove one and the stool falls and gambling fails to exist.

You continue "However, the legislators did intend for "...any games of chance associated with casinos, including, but not limited to, slot machines, roulette wheels and the like."...to be considered gambling devices and, used for gambling."

What is a gambling device turns on many things first a casino game typically is a class two or three device if you are attempting to poke at electronic machines. I have personally played the machines a the pizza place and saw no slot machines or the like...I also just have won fifty dollars fro scratching of a ticket i received at blimpies in fayettville .It has the same texture, look and styling of a lottery ticket. Is that gambling? No because I risk nothing to obtain the ticket. That made it a free game to play.

next you state "You are again wrong Sir, when you state that "..no one is crying about a pizza parlor that offers a [sic] amusement game...". I, and many of my friends object to the casino operation by Chuck E. Cheese for the very youngest of our society members. That operation fits perfectly the definitions contained in our State's statute of gambling devices."

Sir all I can say all is if you are complaining you should speak louder this is the first I have ever heard of it and quite frankly good luck with that argument in the thirty years the cheesers have operated no one has (or will) raid them. If you at this point jump up and scream see... I don't see how you equate the poker games to crayon prizes... but i do see you plight ..

Next you make a misstatement of fact "Now that I have waylaid your argument Sir" ...

you have waylaid nothing...

but you did continue , "let me tell you my real objection to Chuck E. Cheese's casino, Wal Mart selling poker cards, the drug store marketing dice, local poker games with lawyers, judges, accountants, bankers, et. al. present, and, equipment dealers placing gambling machines in local businesses for the clear purpose of gambling.'

First how can you state the intent of Wal Mart etc.... it maybe your opinion of those entities intent but that is all it is or ever will be... I would say that all those individuals have researched the legality of the business they are conducting and would take what ever legal action they could against anyone(including he paper) who would make such a false and miss-leading statement and purport it to be fact. I think there is a statute for that something to do with being slanderous or liable....

Last you make a statement and a claim "My objection is to selective enforcement. This thread began in discussion of the sentencing of two poker dealers in recent weeks here in Shelbyville. My irritation stems from these individuals being punished for violating TN law while blatant, even flaunting, violators are ignored by district attorneys and law enforcement officers under the guise of 'prizes for amusement', 'neighborhood card game', or some other such benign description."

I agree the thread started in that manner, however i was not the one who moved it in any other direction. I also understand the selective enforcement argument but it is not as clear cut as you would state. You should look into past investigation into and around the statement of "Wal Mart selling poker cards, the drug store marketing dice, local poker games with lawyers, judges, accountants, bankers, et. al. present, and, equipment dealers placing gambling machines in local businesses for the clear purpose of gambling.'

This argument was posed by a "expert" in testimony in State vs Burkhart. The higher court did not buy it then and it is of no use now.

you end in "It is my hope that you are not involved in any such activities as are mentioned or, that you do not harbor any such gambling devices 'outonthefarm'!"

First let me thank you for you concern and I can assure you nothing I am associated with is illegal or subject to the gambling laws of this or any other state.

However, since we have become so interactive and well aquatinted I will pose to you what I have posed to others. You see I have also followed your comments and while I see your stated objection I am somewhat confused as to your reasoning. So if you will allow me to pose a question.

So are you against gambling, and waiving the banner "save the children", or pissed because what you purport to understand to be gambling is taking place and you just don't understand or refuse to accept the concept behind such things and draw the incorrect conclusion on their legality? Just looking for some clarification so I am not wandering around confused out on the farm..

ol...no doubt you should!

I should have said....Not bad for a Flat Creek barrister since there are two.

-- Posted by 007 on Thu, Dec 10, 2009, at 6:15 PM

lol and I should have ended my last post from out on the farm. However, I am neither of the fine upstanding gentlemen you to which you are referring but rather the mere engine behind one of the barristers. But i will take the mistaken identity as a complement out on the farm..

Sorry I startled you to the point you got tore up and forgot your signature for the first time. Now that is indeed lol...lol

-- Posted by 007 on Thu, Dec 10, 2009, at 7:36 PM

Thats funny ..out on the farm

Dear 'outonthefarm':

You are welcome to the last word, Sir. We seem to be reading from different dictionaries!

-- Posted by garhawk on Fri, Dec 11, 2009, at 11:36 AM

No need in the first or last word. You see reading law, the dictionary or the bible is subject to interpretation and with each interpretation comes nuances that have to be factored in. In the case of what is and is not legal be it gambling or anything else appearances are often decieveing. While dice, cards and the scratch off ticket i won fifty dollars on could be in one form used to gamble in other forms they can be used to play rummy or monopoly or advertise the sale of goods and services....Just a point of view from out on the farm

Gar Hawk you stated that

My objection is to selective enforcement. This thread began in discussion of the sentencing of two poker dealers in recent weeks here in Shelbyville. My irritation stems from these individuals being punished for violating TN law while blatant, even flaunting, violators are ignored by district attorneys and law enforcement officers under the guise of 'prizes for amusement', 'neighborhood card game', or some other such benign description."

When you state "Wal Mart selling poker cards, the drug store marketing dice, local poker games with lawyers, judges, accountants, bankers, et. al. present, and, equipment dealers placing gambling machines in local businesses for the clear purpose of gambling." I to have read that argument when it was posed years ago.

The mere fact that something may "look" like a item or device that could be used in gambling doesn't make it so. While historically these Items may have been associated with games of chance that dose not preclude those same games of chance from being used for other purposes.

Would you suggest that because anyone who would have a deck of playing cards that the enforcement community would be able to raid their private residence house. Please.

First, if I were to sit down and play a game of cards where everyone has chips but no one paid to play for a prize that would not be gambling. This is simply because they did not pay, buy in or wagger anything.

The poker game that was raided was a professionally managed event. It sole purpose was to offer high stakes gambling. Considering what could have been done as far as sentencing I think all parties got off light.

Samuel Pepper

I think all of you need to grow up and learn that every time you open that brilliant pie hole of yours, you prove to the rest of us just how ignorant and biased you really are. And while your entertaining us with your unintended slap-stick, the TG is exploiting all of us right to the bank.

-- Posted by Witness on Fri, Dec 11, 2009, at 7:56 PM

So true so true

Mr. Pepper

you are not entitled to your own facts!

-- Posted by garhawk on Sat, Dec 12, 2009, at 7:51 AM

What facts? About what part of their post do you dispute?

Just looking for some clarification from out on the farm

Dear Witness:

It is a shame that you display so much anger over what is nothing more than a societal problem which we should be able to discuss with civility.

To espouse such a snide remark as "labored breath" toward Mr. McClanahan is very rude indeed, if not outright childish.

In your reference to me as stupid, I will make every attempt, Mr. Witness, to continue my studies and elevate myself above that description even in your opinion.

As to those of us who would disagree and challenge your findings being only '7th graders', I must surprise you, Mr. Witness, and reveal that I did pass through the seventh elementary grade, with flying colors and excellent grades I might add.

Perhaps at some future time it will be possible to again bring forth this important discussion on the gambling laws of Tennessee. It is certainly a subject worthy of intelligent debate. However, with such vile submissions inserted into the arguments Sir, I will withdraw and leave you with your thoughts.

cmclanahan you stated "a gambling device is a thing that was "designed for use in gambling, intended for use in gambling or used in gambling." "

If you are correct, and I do not claim you are right or wrong, in your assessment of the statute being "loose" and subject to wide and varied interpretation by law enforcement, then is it not possible for many individuals of learned background and experience to interpret what is designed [by the manufacturer i.e bicycle playing cards] could be used for activity that has nothing to do with a gambling?

You then state "Possession of a gambling device is a crime, this is obviously true ,in Tennessee. you then continue "By this definition playing cards, poker chips and dice for instance are clearly gambling devices for they were "designed" for use in gambling. I differ in my limited opinion in that I have many time purchased playing cards and sat and played solitaire. I do not for one minute feel in fear of the DA or anyone else raiding my solo game. Because my intent was not to gamble and in the solo setting i could not gamble with myself.

That leads me to favor some argument of others in this forum in that gambling is a knowledge based crime. And that you have to intend to gamble and have knowledge that you are gambling to violate the statute. Then "how does one measure knowledge"?

That is to say if person (a) bought a deck to go and run a poker game and person (b) bought a deck to play rummy then are both guilty in the knowledge and intent to posses a gambling device? I just do not see that as being the same.

Lastly I do agree in part with your next statement " Again, the proper question here is why doesn't the legislature "clean up" the definitions in the statute. There is no exemptions for "innocent" use in the statute. The clear answer is, as with many others, they don't know how."

Having said that I would offer it is not the lack of knowledge but the lack of conviction to do so. If the statue was clear as crystal then it would be transparent which one would hope all laws could be read. However, It would also force the hand of the local prosecutors and enforcement to attempt to police the activity going on in each of our homes when we would play a game of Yattzee.

Lastly you state that "There is no exemptions for "innocent" use in the statute." I agree I see no such language under the TCA as related to gambling. But I do read where there are exemptions such as activity related to a legal business transaction.

I also took some time in looking into the TCA regarding advertisement incentives and it would seem from at least a lay persons reading that a safe harbor exist if certain disclosures and accommodations are made for games of chance that award prizes cash or other wise.

I do find the open debate to be illuminating and I too was somewhat stunned to find some of the very exemptions in place as other have claimed. I quite frankly never would have believed them when I first began to delve into this matter so many years ago.

I would offer that until a time comes when the legislature is allowed to clarify the laws surrounding gambling and differentiate between pay to play and other offerings that are at no cost to play then we can only continue to debate this matter as if it were a tennis ball subject to the chance encounter of the racket.

Samuel Pepper

Wow... It would look like more and more that "learned" people are capable of having independant thought. It is obvious that witness and others are from out on the farm.

Wow... It would look like more and more that "learned" people are capable of having independant thought. It is obvious that witness and others are from out on the farm.

-- Posted by outonthefarm on Thu, Dec 17, 2009, at 5:24 PM

I have to say I have read the blogs of this individual and regardless of my agreeing or disagreeing with him I like the way he ends his comments "from out on the farm" .

With that said I would have to ask, What is the big deal if he has one opinion and gar hawk has another. Is it not the purpose of a blog to allow for open debate.

I do not profess to know all the players nor do I care who would claim to be right or an expert. But a pattern has emerged that is somewhat disturbing. How can the paper allow such statements made by Gar Hawk to be published as if they were or are fact. Or how can the paper allow one blogger to threaten another.

As I write this I can read a comment above my text box "Please be respectful of others and try to stay on topic" . I see nothing in the story or blog that opens the base for what gambling is or is not. To me it is short and clear. They did it they got caught and their attorneys failed to force the state to follow the correct procedure and account for the "co defendants" in the case.

As far as how the state court and federal courts differ in sentencing that is a matter of the defendants former records and in ability to qualify for pre trial diversions as well as differences in the laws. Now before I get hammered by a thesis of what the federal guide lines are or that I have of ticked of Gar hawk or anyone else. Let me say I do respect different opinions. i just don't care what they think of mine.

Carl First let me say that i understand your position and the reason behind it and I appreciate the opportunity to offer a different prospective on the cases you have mentioned. I do not intent to draw a line of agreement with others against you or with you against them. I simple have had an interest in this issue for some 10 years must look at both sides of the coin.

In part you have stated "contests used by many national chains as not being violative of gambling laws. What you can only mean is you have never known of anyone being prosecuted for employing such "games." No where has any court said they are legal [or illegal]. In one of the felony convictions of the machines in Tennessee, the same machine in use here in Bedford Cty. Et al , the judge so stated as the defense tried to use such as an element of the defense...."

I will accept your word that no court has ruled the application of offering such games of chance as used by national brand retailers as being illegal. I would also think that would smack of the selective enforcement theory you and other have put forth in this forum. That is to say, if the local Mc Ds is not raided for offering a randomly generated game of chance and the manufacturer of these machines were then is that not selective enforcement?

I offer that, in that, I compared the official rules of the food outlet to those of the machine manufacturer they both meet or surpass the required disclosures and statutorily requirement of the consumer protection act which in part requires "entry without purchase" to anyone who would ask. I know this because I ask for a free entry at McDonalds and was told to write off and at one of the stores having the machines I was given immediate free play on the machine. Go figure?

Having said that I took your advice and have looked into the case in east tennessee and found a remarkable difference in that machine and how it had been altered by the individual on trial and the that the manufacturers testimony seems to have aided in the conviction. It would seem by changing the glass and game board the person on trial had hamstrung the manufacturers ability to put forth the proper defense of the machine. Also the operator or location, i am not sure of the proper assignment of names , had required the product vended from the machine to be returned.

So I would caution anyone pointing to that case and saying all such machines are illegal.

you continue "refer to be legal must remove one of the disjunctive elements of the gambling statute. They do so by removing the element of risking something of value by allowing free entry to the contest." But you make a leap by stating

" This does not extend to machines or devices which by dispensing an inexpensive product under the guise of purchasing a product and therefore "risking nothing of value."" I find no such language in the statute

Next you state " If you really care to inform yourself in this area you will find that slot machines in the 1920-30s tried this. They dispensed cigarette, gum balls, golf balls and a myriad of other products using the theory of playing the game required risking nothing of value and thus were just a promotional game to promote the product. They were even euphemistically called "Trade Simulators." Your research will show that in every case, I repeat EVERY case they were adjudicated to be gambling devices"

I to agree with your statement to a point. If you read further the courts of that time were split on the legality and stated in several instances that "had the machine ceased to function when depleted of mints" they may have advanced a different opinion.

It is not hard to draw a difference in the mint slots of the thirties( of which I have one )and the machine you are pointing at. First the mint slots required you purchase the "mint" and offered no avenue to pull the handle without insertion of a coin. It is clear from reading the rules of the local machines you claim to be illegal that you can obtain a free play by asking. Also according to my research the mint slot machine failed to cease to operate when it was depleted of mints. In the machines locally they do shut down when the product is depleted. I had that happen to me when researching this information. I also find that remarkable and a marked difference in the mint machines of long ago to which you have relied.

Next you state "....... but activities covered by this Act [CPA]of which you refer to be legal must remove one of the disjunctive elements of the gambling statute. They do so by removing the element of risking something of value by allowing free entry to the contest. This does not extend to machines or devices which by dispensing an inexpensive product under the guise of purchasing a product and therefore "risking nothing of value.

I can see the argument that a half cent gum ball sold for a nickel in the thirties may fall short. of equal value for money paid I do find it hard to argue with the value of the phone card I purchased yesterday for five dollars that contains fifty minutes of long distance time. To me that is a product of equal value and therefore allows the game of chance to be afforded the safe harbor of the CPA. In other words not only is risk removed but so is consideration. This would remove two of the three elements of gambling.

So, I do see a huge difference in the two machine not only in theory but application. I also see a clear exemption for businesses to use a game of chance as a marketing or promotional tool under TCA 47-18-120. In that if the product dispensed is of market value for money inserted then consideration is removed and gambling cannot occur.I also understand that all statutes must be read together in that the legislature is to pass no law that is illegal or unconstitutional. To that end it is arguably reasonable that the exemption of "a lawful business transaction" also applies and exempts the activity surrounding the local machines and makes them legal.

Again it is just one of many opinions non of which count in that not all bloggers are able to access the information and historical records I and you have found.

With that said it would seem that you and some herein would have issues beyond the opinions of how a law reads or is applied. I cannot help but think you bear a grudge or other historic ailment toward Witness and others.

I find that it would seem your advancement of the need to clarify the laws and that "There must be forces at work who seek to not have this clarity employed" is confusing and not being thwarted.

I say this because it is also my understanding that some years back the manufacturer of the machines at the bequest of all interested parties attempted to clarify the law as related to the machines in questions and were informed that "no such change in law was needed" and that "the activities surrounding the pending bill in conference committee was not needed because the activity was already legal". I found these documents in the legislative record. The fact is until a Court of appropriate Jurisdiction Declares the machine to be illegal it is not illegal. just you saying they are illegal or others saying they are not dose not mean anything.

I think I finaly figured out what you guys are arguing about. That's alot of talking just to beat around the bush. I guess carl is saying that the phone card machine is gambling and sgt. Pepper, farm, and witness think it's not. I'm gettin hungry just readin all this stuff. Maybe I can go to mcDonalds and get a burger and try to win a million then go a vending machine and get a coke and twist off the top and win some more money. After I can go to H&R Block to get my taxes done and enter their contest to win money, buy a lotto ticket at the Pantry, go to Smith' grocery to get some food and play the poker machines and buy a candy bar so I can open the wrapper and play their game, go home to do some Internet gambling, then go buy some dice and cards from walmart so I can have a poker party. The phone card machine seems pretty tame compared to all that stuff. After all, who's the richest, phone card man, walmart or mcdonalds? Least I can't get fat buying phone cards and I can always donate them to soldiers I Iraq or the poor. Can't do that with a "fat-n-happy" meal.

"........My opinion is that they too follow the same guidelines established in the same Consumer Protection Act that this phone card machine follows and therefore are exempt too. The reason why they never tested those games is because the pockets of those companies and their lobby groups are much too deep to tie up government resources. But, they would lose if they tried and I think you know that too. This "mint slot" argument is an old one and an ineffective one to boot. It does not fit as you or anyone can clearly see and compare for themselves.

-- Posted by Witness on Sun, Dec 20, 2009, at 10:22 PM

witness While I do not totally understand your frustrations with Carl I did however follow his advice and examine the history of the old mint machines, the gambling statutes and the CPA. I will not restate what I have said before but I have to say I see exactly what you stated.

I found in each store I visited either I was given immediate entry without purchase or given an 800 number to call. In either case I was able to play without purchase. I also purchase several cards from machines and did a comparison with the time on the phone card to a card I purchased at a retail outlet.

You are again correct in the analysis of the value of the card. I found the card sold out of the machine to be a better value. As I stated before, go figure.

I do know one thing I am getting out of this particular debate. It is rife with bias and looks to be a breading ground for a lawsuit against the paper. So to be clear and as I have stated before I do not proclaim to support anyone side over the other.

I have my opinion and it is worth like all others in this forum the price I was paid to give it. Oh and just for the record I have been called as a expert in this area before myself.