Quote:
Originally Posted by FearlessPhil
In any case, the defendant's lawyer's claim that the statute should be interpreted as "that no person gambling there received an economic benefit" other than their winnings did not seem to be either affirmed or refuted by the judge. She said basically that it was irrelevant because of other circumstances involving this particular case. It seems to me that, if the law is interpreted the way the defendant's lawyers proposed, then the paradigm they are using of separating the time tokens and the tip tokens from the chips that are actually used follows logically from that.
Uh no. Since we can all the see the case now, let's discuss. What you're reading, Phil, is a Court of Appeals opinion. Gaudio was found guilty of violating 47.04 and has appealed, saying the evidence is insufficient to support his conviction, etc. The Court of Appeals decides not to overturn this conviction and provides its reasoning for this in the opinion.
In the discussion relevant for us, Justice Lagarde examines the claim that the evidence is insufficient to support conviction. Notice she first looks at the statute on a plain language basis. This is how courts are instructed to read statutes, and their analysis often stops there.
Justice Lagarde writes, "Based on the plain language of the statute no person can receive an economic benefit. If we apply the plain language of the statute, the jury's finding is not against the great weight and preponderance of the evidence. In this case the waitress and dealer received tips from the players. The receipt of money as tips is an economic benefit."
Note, in looking at the plain language she doesn't discuss any sort of magic between tips getting paid with chips or with currency. It doesn't matter in her analysis with this approach.
To be thorough, Justice Lagarde then looks at the "practice commentary" written by a couple of guys that were part of the Bar Committee that proposed a first draft of the law. The courts do this whenever the plain language is unclear...they then look at things like legislative history. Note she doesn't say this is necessary here because the plain language of the statute is confusing...she's just doing it to be thorough. With this approach, the important element she considers is whether or not the dealer played poker in addition to dealing. Again, she's silent on how the tips were paid...chips or cash. It doesn't matter. The practice commentary she references is silent on it as well.
So the statute on a plain language is silent on whether or not paying tips with chips or money is relevant...the only thing that matters is that an economic benefit occurs. Also, the practice commentary is silent on this. So, there's just nothing out there that says it matters if the tips are paid in chips or in cash. Anyone who tells you otherwise is just guessing.
As an aside, I have personally witnessed dealers at Prime Social playing as well as dealing. Given the findings in Gaudio, it's crazy to me that management would allow this to happen. Clearly these guys aren't getting good legal advice. Of course none of this matters, though, as I believe the clubs are going to get busted with 47.03 as the key statute, not 47.04.
Last edited by HTwnPokerGuy; 02-17-2018 at 01:17 PM.