The Tribune

By BRANVILLE McCARTNEY

Democratic National

Alliance leader

THE topic of gambling or gaming has been splashed in numerous headlines in the Bahamas recently, such as ‘Referendum is unclear, forced and flawed’, ‘Mixed views on gambling referendum’ and ‘The referendum has been postponed to January 28, 2013, when it is hoped that the referendum adequately capture the voice of the people on the subject’.

The referendum will pose two questions to the Bahamian people at large: Do you support the regulation and taxation of web shop gaming, and Do you support the establishment of a National Lottery?

No one can dispute that gaming in the Bahamas is a vice that needs to be curbed, that presently a number of illegal number houses operate openly, seemingly without restriction and without frequent harsh sanctions imposed.

Despite the present status quo, surprisingly, gaming in the Bahamas is regulated by the Lotteries and Gaming Act, Chapter 387, which by its long title is an Act to Regulate Lotteries and Gaming and for Matters Connected Therewith or Incidental Thereto.

The Act addresses various offences with respect to gaming which shall be discussed in turn and the penalties vary from increasing fines and/or imprisonment depending on the infraction.

Despite this comprehensive piece of legislation, which has quite an exhaustive definition section, gaming in the Bahamas is rampant and quite frequently unregulated.

Though as indicated, stiff sanctions are in place for those caught gaming, they are not enforced with frequency and as a result those operating illicit practices are generating far too much money and prefer to get caught rather than give up the practice.

As the law with regard to gaming is not enforced strictly, the necessary question then would be why?

It is due to laziness, ignorance or indifference or because some of the very same individuals who are to enforce the law benefit greatly from this illegal rampant operation, hence they turn a blind eye?

These are questions that need to be answered and issues that need to be addressed and would better be addressed in an open forum with all accountable parties present.

This article will overview the law that quietly regulates gaming and the various issues that arise and it is hoped in the future that the Act will speak more loudly through vigilant enforcement.

The Lotteries and Gaming Act, Chapter 387 begins with an exhaustive definition section and we will highlight some of the more important terms.

In section 2(1), “Gaming” is defined as the playing of a game of chance, for winnings in money or money’s worth and can include sports betting and pari-mutuel wagering, which is a betting system in which the amount of money paid out to winners is based upon the total pool of bets.

It should be noted that a game of chance does not include any athletic game or sport.

The Act goes on further to define an “Instrument for Gambling” which includes any article, document or other thing whatsoever which is used in and for the purposes of a lottery.

The term “Lottery” based on the Act includes any sweepstake and any game, method or device whereby money or money’s worth is distributed in any manner to be determined, by chance or lot, held, drawn, exercised or managed, whether in the Bahamas or elsewhere or upon the basis of the outcome of a future contingent event, which also includes the game known as numbers.

The term “Player” is also defined in three ways namely: in relation to a game of chance, in relation to sports betting and in relation to pari-mutuel wagering.

A player in relation to a game of chance includes any person taking part in the game against whom other persons taking part in the game, stake, play or bet.

The term player in relation to sports betting and pari-mutuel wagering, means a person who takes part in either of the two by making a bet on an athletic game, sport or a bet on races and whose bet is accepted by another person for the purpose of sports betting or pari-mutuel wagering.

It should be noted that “Winnings” include winnings of any kind and further in accordance with section 2 of the Act, if a premises is used only once for gaming or a lottery it is still deemed to be used for that purpose, though only once and thus an offence is created.

Section 2 (4)(a) of the Act tries to capture all scenarios when one considers the term printing and thus the Act indicates that references to printing shall include references to writing and other modes of representing or reproducing words in a visible form.

Further, Section 2(4)(b), in an attempt to capture all illegal activities, indicates that documents in relation to gaming or lotteries, are deemed to be distributed if they are distributed to persons or places within or outside the Commonwealth of the Bahamas.

Having reviewed the more important terms that refine and expound the act, we shall turn our attention to the more substantive provisions of the Act and the offences created thereunder.

Before proceeding to review some of the offences under the Act, one should ask the question once more, with fines starting as high as $2,000 and prison sentences that can be just as draconian with one year imprisonment, why do gaming businesses run rampant and why are they supported by the large populous of Bahamians without supposed fear?

The answer has been visited above and lies in the lack of enforcement. The Act obviously has the teeth to bite and curb illicit gaming in the Bahamas but without enforcement the Act is seemingly powerless to restrict the activities it was designed to restrict.

Under the Act by section 4(1)(i), it is an offence to print any tickets for use in the lottery and by section 4(1)(ii) it is also an offence to sell or distribute, or advertise for sale or distribution, or have in your possession for the sale or distribution, any tickets for the lottery.

Section 4(1)(iii) further makes it an offence to print, publish or distribute any advertisement of the lottery, any list of prize winners or winning tickets in the lottery, whether partial or not, or any description of the drawing or intended drawing of the lottery that may be calculated to act as an inducement to persons to participate in that lottery.

Section 4(1)(iv) even makes it an offence to bring or invite any person to send into the Bahamas for the purpose of sale or distribution any ticket or advertisement of the lottery. If one causes, procures or even attempts to procure another to do the aforementioned acts, they commit an offence under the Act by Section 4(1)(v).

If one is found guilty of any of the aforementioned offences, they shall be liable on summary conviction for a first time offence, to a fine not exceeding $2,000 or to imprisonment for not longer than 12 months or to both.

Second or subsequent offenders have both the aforementioned fine and sentenced imposed on them. It should be noted that section 4(2) provides defences to the aforementioned activities, as there are certain lotteries that are deemed lawful and one only need have a reasonable belief their activity falls into the category of lawful lottery.

It is also an offence by section 5(1) to pay money for the purpose of participating in a lottery and the individual found guilty of this offence by section 5(2) shall once again be subject to a fine not exceeding $2,000 or to a longer imprisonment term than previously seen, of not exceeding 18 months for a first time conviction. On a second or subsequent conviction, both the aforementioned fine and term of imprisonment are imposed simultaneously.

It is also an offence under the Act to receive money from another for the purpose of a lottery as indicated in section 6(1) and the fine and imprisonment for first and subsequent offences are the same as outlined above in section 5(2).

Further it is also unlawful to possess without lawful excuse, any instrument for gambling and the penalty increases to a fine of not exceeding $3,000 or to imprisonment for an increased term of not exceeding two years or to both.

A mandatory penalty of both the aforementioned fine and term of imprisonment, as we have seen in the past, is imposed for those second or subsequent offenders of possessing instruments for gambling.

It is interesting to note that by section 10 of the Act as a first time offender, one can be liable to a fine not exceeding $500 or to imprisonment for a term not exceeding 12 months or to both, if one is even found on the premises where a lottery is taking place.

As a subsequent offender, you will face both the aforementioned fine and term of imprisonment.

Sections 11 and 12 make it an offence to permit premises to be used for a lottery and to promote, organise or conduct a lottery and both offences attract a hefty fine of $500, imprisonment for a term not exceeding two years or both for a first time offender or a subsequent offender.

Section 13 of the Act provides some relief, as there is a defence that can be raised for offences committed under Sections 5,6,7,8,9,10,11 and 12 of the Act.

The defence, simply put, indicates that (i) at the time of the alleged offence (ii) the person charged believed and had reasonable ground for believing that (iii) he had not committed any offence in connection with the promotion and conduct of the lottery.

Under the Act, as alluded to earlier, not every lottery is deemed unlawful and as indicated in Section 14 of the Act, small lotteries incidental to certain entertainment are not deemed unlawful, such as bazaars, sales of work, fetes, dinners, dances, fairs and other entertainments of a similar character.

These lotteries must however meet certain criteria in connection with their promotion and conduct and they are as follows: (i) the whole of the proceeds, with the exception of certain deductions, shall be devoted to purposes other than private gain; (ii) none of the prizes in the lottery can be money prizes and; (iii) the lottery shall not be the only or the only substantial inducement to persons to attend the entertainment.

If the criteria are contravened, then any person concerned in the promotion and conduct of the lottery shall be guilty of an offence unless he proves that the contravention occurred without his consent and that he exercised all due diligence to prevent it.

Section 15 of the Act also exempts private lotteries and makes them lawful. Private lotteries are those promoted for and in which the sale of tickets or chances by promoters are confined to either (a) members of one society not established for the purposes of gaming or lotteries; (b) persons who all work on the same premises and (c) persons who all reside on the same premises.

In Section 15, the term “society” includes a club, institution, organisation or other association of persons by whatever name called.

Again, there are conditions outlined in the Act that have to be strictly adhered to in connection with the promotion and conduct of the private lottery and once again if these are contravened the promoters shall be guilty of an offence.

As above in Section 14, the promoters should exercise all due diligence to prevent contravention. Again Section 16 of the Act grants an exemption for lotteries conducted for charitable and other purposes and as a result by this section, three or more persons ordinarily resident in the Bahamas may organise a lottery for the purpose of raising funds to be used for any religious or educational or charitable purpose amongst other purposes.

Again however, restrictions apply and offences arise if the restrictions are not complied with.

It is interesting to note that the usual defence above – due diligence – does not apply for Section 16. Other provisions within the Act of interest which shall only be discussed in a cursory manner are Section 24 where there is a prohibition on gaming in public places such as any street, or any place to which the public has access.

Those found contravening Section 14 may be arrested by a police officer without a warrant and shall be guilty of an offence and liable to a fine of $150.

The restriction in Section 24 does not however apply to the playing of dominoes, draughts, darts, billiards or any other prescribed game on premises licensed under the Liquor Licences Act or to gaming conducted pursuant to a permit granted by the Minister responsible for Lotteries and Gaming.

Section 32 establishes a Gaming Board comprised of a chairman and two other members appointed by the Minister who are paid remuneration.

The Board keeps under review the extent, character and location of authorised gaming facilities.

Section 38 allows, interestingly enough, the transfer of a gaming licence to new premises for a period not exceeding six months.

Section 42 of the Act empowers the Board to refuse the grant of a licence on the ground that the applicant is not a fit and proper person to be the holder of the licence.

Section 50 prohibits persons under 18, persons in the Bahamas on a work permit, permanent residents and employees of the government of the Bahamas from gaming.

Finally it should be noted that by Section 66, inspectors, who generally inspect premises that do have gaming licences under the Act, have all the powers, authority, privileges and immunities of a police officer but only when they are operating in the capacity of an inspector.

As one can observe, the legislative machinery is in place by the comprehensive Lotteries and Gaming Act to curb illicit gaming.

However, laws have to be re-examined from time to time to ensure that they are effective, valid, and stringently enforced.

It is suggested that both the law makers and law enforcers sit down at a round table and give positive constructive feedback on the practical means by which the law with regard to gaming can be enforced and whether the law in practice is effective or ineffective.

The referendum set for January 28, 2013, is a step in the right direction but it is hoped that leaps forward can be taken rather than by baby steps.

Communities are not changed by one dialogue but by many conversations with many relevant voices which should be translated into affirmative action and enforcement.

From time immemorial, we as a people have been called to balance the greater good with immediate gratification and there is a school of thought that legalising what is now considered illegal may cause more problems than it solves.

We will wait and see what happens after the referendum.