Attorney General's Opinion
Attorney General, Richard Blumenthal
November 25, 2003
Susan G. Townsley
Division of Special Revenue
555 Russell Road
Newington, CT 06111
Dear Ms. Townsley:
This is in response to your request for an opinion on certain issues concerning the repeal of the games of chance statutes.1 These statues, until they were repealed, allowed Las Vegas Nights charitable gambling in the state. The repealer, enacted during the January 6, 2003 Special Session in 2003 Conn. Pub. Acts (Jan. 6 Spec. Sess.) 03-1, terminated this type of gambling effective January 7, 2003 in an effort to prevent federal allowance of more Indian casinos in Connecticut. 2Your questions, and our answers, are discussed seriatim.
1. Disposition of Games of Chance Equipment
The repealer included repeal of the registration requirements for in-state games of chance equipment operators and dealers. Conn. Gen. Stat. §§ 7-186e and 7-186c(e) repealed by Pub. Act (Jan. 6 Spec. Sess.) No. 03-1 § 7. Recognizing the termination of the business of these registrants, which supplied goods and services to Las Vegas Nights permittees, the General Assembly provided for refunds of their registration fees. Id. at § 6. Your question concerns disposition of the equipment of these former registrants, consisting of gambling devices, which can no longer be used legally in Connecticut.
Conn. Gen. Stat. § 53-278c(d) is the provision of the state criminal laws that generally prohibits the possession and transportation of gambling devices. Prior to repeal, this statute exempted the possession and transportation of gambling devices when such possession and transportation was in connection with Las Vegas Nights permit activity. This exemption was also repealed in the 2003 Public Act (Pub. Act (Jan. 6 Spec. Sess.) No. 03-1 § 2 amending Conn. Gen. Stat. § 53-278c(d).)
You ask whether equipment operators and dealers may continue to possess such gambling devices, and transport these gambling devices to other states where gambling with this equipment is legal, now that such gambling is illegal in Connecticut. In other words, the question is whether these operators and dealers can store their equipment in Connecticut, and transport the equipment back and forth to neighboring states for use at lawful events in those other states. Our answer is negative.
That Connecticut may prohibit gambling within its borders as a valid exercise of its police powers is beyond cavil. Through most of the 19th and the first half of the 20th centuries, this nation has adhered to a policy of discouraging, if not forbidding, the operation of gambling enterprises. See, Greater New Orleans Broadcasting, Ass'n., Inc. v. United States, 527 U.S. 173, 176, 119 S.Ct. 1923, 144 L.Ed. 2d 161 (1999). Exceptions have been made to that policy in recent years, but many states, including Connecticut, still have a general policy against gambling unless specifically permitted by law. Conn. Gen. Stat. § 53-278a; Casanova Club v. Bisharat, 189 Conn. 591, 458 A.2d 1 (1983); Ciampittiello v. Campitello, 134 Conn. 51, 56, 54 A.2d 669 (1947); Hilton, Int. v. Arace, 35 Conn. Supp. 522, 527, 394 A.2d 739 (1977). Pursuant to this police power, Connecticut prohibits possession and transportation of illegal gambling devices. Conn. Gen. Stat. § 53-278c(d).
However, it is equally well and long established that, even in the context of gambling, a state cannot excessively interfere with business outside its borders that is lawfully conducted in interstate commerce:
A state law dealing directly and only with interstate commerce is void. A state law purporting to deal with domestic matters, but being in its effect and essence merely a regulation of interstate commerce is void. A state law plainly and in good faith dealing only with state matters is valid, notwithstanding it may incidentally affect interstate commerce, unless it comes in conflict with some valid statute of the United States on that subject, or, in the absence of legislation, affects such commerce in a particular where the silence of Congress is equivalent to legislative prohibition.
State v. Harbourne, 70 Conn. 484, 489-90, 40 A. 179 (1898).
Applying these time honored and still valid tests to the question at hand, it can be seen that the prohibition on possession and transportation of illegal gambling devices in Connecticut effectuates a legitimate state interest that applies to both in-state and out-of-state businesses. As such, it is subject to the modern Pike v. Bruce Church commerce clause test. Winshare v. Dept. of Legal Affairs, 542 So.2d 974, 975 (Fla. 1989). That test provides: "Where the state statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden on such commerce is clearly excessive in relation to the potential local public interests." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). Our Supreme Court, long ago, found that even-handed Connecticut prohibitions on gambling activities in-state are essential to the protection of society, and do not disturb legitimate channels of commerce. State v. Harbourne, supra at 490. We have no reason to doubt the continuing validity of that judgment and its value as precedent for the present statutory proscriptions on possession of illegal gambling devices. Indeed, we must presume the constitutionality of all statutes. Faraci v. Conn. Light & Power Co., 211 Conn. 166, 168, 558 A.2d 234 (1989).
In the instant case, repeal of the games of chance equipment dealers' registration renders illegal their business in Connecticut, and the business is not protected here merely because interstate commerce may be incidentally affected in some aspects. This statute prohibits the maintenance of illegal gambling devices in Connecticut by both in-state and out-of-state business. It regulates even-handedly with respect to interstate commerce in compliance with the Commerce Clause. Accordingly, the games may no longer be stored in Connecticut for the regular conducting of business from Connecticut. Equipment dealers may not store their illegal gambling devices here for regular shipment in and out of Connecticut to gambling events in other states where the devices may be legal.3
Our opinion in this regard is buttressed by the fact that in this most recent regular session of the General Assembly, a bill was introduced to allow storage and transportation of these same devices by firms or corporations engaged in the business of conducting legal games of chance in other states, subject to the approval of the Commissioner of Public Safety. See 2003 Sess., H.B. 6527, Sec. 4. This effort demonstrates a legislative perception, at least by the bill's sponsors, that legislative action is necessary to permit the lawful storage and transport of such gaming devices in Connecticut. The bill did not pass. We cannot, by construction, allow that which was clearly repealed in Public Act (Jan.6 Spec. Sess.) 03-1 and which the legislature rejected in H.B. 6527. See, Donahue v. Town of Southington, 259 Conn. 783, 791, 792 A.2d 76 (2002).
On the other hand, there is no discernible state policy in Connecticut to outlaw the one-time evacuation of the devices out of state. In fact, the permanent removal of the gambling devices furthers the state policy of prohibiting illegal gambling and illegal gambling devices. Accordingly, equipment dealers located in Connecticut may not store their illegal equipment in Connecticut and engage in the business of transporting it in and out of this state to venues where they may be operated legally, but they may permanently remove the devices from the state in a one-time move without violating state law.4
2. Disposition of Money Wheels
Your second question concerns the disposition of money wheels. These are gambling devices previously allowed at Las Vegas Nights events, Reg. Sec. 7-186k-15(a)(4), and at bazaars and raffles, Reg. Sec. 7-185-10b(a)(1). Money wheels became illegal in Public Act (Jan. 6 Spec. Sess.) No. 03-1 § 4. You indicate that money wheels are frequently owned by the nonprofit organizations which operated them. You inquire as to whether these can be stored and transported in and out of state without violating Conn. Gen. Stat. § 53-278c(d) as amended. The same question could be posed with respect to merchandise prize wheels, ruled illegal in 2003 Conn. Op. Atty. Gen. 011 (June 10, 2003). Our answer here is the same as that given with respect to games of chance equipment discussed above, for the same reasons.
In sum, we conclude that games of chance equipment, including money wheels and merchandise prize wheels, made illegal by the repeal of the Las Vegas Nights law, may not be stored in Connecticut nor transported back and forth across state lines in regular business to other states where they may be lawful, but they may be removed once and permanently to a state where they are legal in a one time only move.5
Very truly yours,
Robert F. Vacchelli
Assistant Attorney General
1 Earlier, we issued an opinion concerning your question on whether the repeal of the games of chance statutes adversely affected merchandise prize wheels. We responded that the repealer rendered merchandise prize wheels illegal. See, 2003 Op. Conn. Atty. Gen. No. 011 (June 10, 2003)
2The Indian Gaming Regulatory Act, which allows federally recognized tribes to engage in "such gaming" as is permitted in the state, had been interpreted as allowing casinos because "such gaming" was held to have existed in Connecticut in the form of charitable Las Vegas Nights under the games of chance statutes. See, 25 U.S.C. § 2710(d)(1); Mashantucket Pequot Tribe v. State of Connecticut, 913 F.2d 1024, 1029 (2nd Cir. 1990) cert. denied 499 U.S. 975 (1991).
3 Subsection (e) of Conn. Gen. Stat. § 53-278c continues to permit "[a]ny firm or corporation [to] engage in the business of manufacturing gambling devices for use outside of the state, provided such firm or corporation has obtained approval for the manufacture and transportation of such devices from the Commissioner of Public Safety" in accordance with his regulations. This exception is not affected or addressed by this opinion.
4This opinion does not address nor affect the exception provided by subsection (e) of Conn. Gen. Stat. § 53-278c.
5This office does not have general jurisdiction over criminal matters. Conn. Gen. Stat. § 3-125. To the extent that this opinion interprets state criminal statutes, all of the opinions expressed herein have been reviewed by the Office of the Chief State's Attorney and that Office concurs in all of the conclusions in this opinion.
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