SB 2893: Gambling; Social Gambling; Affirmative Defense; Noise Complaints

A BILL FOR AN ACT

relating to gambling.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that social gambling may be harmful to residential neighborhoods in which it takes place.  For example, gambling activities in private homes may lead neighbors to complain about excess noise.  The legislature believes that the affirmative defense of social gambling should not be available to a defendant if the defendant's gambling activities cause repeated noise complaints that disturb neighbors and monopolize police resources.

     Accordingly, the purpose of this Act is to provide that a defendant may not assert social gambling as an affirmative defense if the gambling activity occurred at the defendant's residence and gambling activities have resulted in multiple recent documented noise complaints.

     SECTION 2.  Section 712-1231, Hawaii Revised Statutes, is amended to read as follows:

     "§712-1231  Social gambling; definition and specific conditions, affirmative defense.  (a)  Definition.  "Social gambling" means gambling in which all of the following conditions are [present:] met:

     (1)  Players compete on equal terms with each other; [and]

     (2)  No player receives, or becomes entitled to receive, anything of value or any profit, directly or indirectly, other than the player's personal gambling winnings; [and]

     (3)  No other person, corporation, unincorporated association, or entity receives or becomes entitled to receive, anything of value or any profit, directly or indirectly, from any source, including [but not limited to permitting] value or profit for providing the use of premises, [supplying refreshments,] food[,] or drinks, [service,] services, lodging, or entertainment; [and]

     (4)  It is not conducted or played in or at a hotel, motel, bar, nightclub, cocktail lounge, restaurant, massage parlor, billiard parlor, or any business establishment of any kind, public parks, public buildings, public beaches, school grounds, churches or any other public area; [and]

     (5)  None of the players is below the age of majority; and

     (6)  The gambling activity is not bookmaking.

     (b)  Affirmative defense:

     (1)  In any prosecution for an offense described in [[]section[]] 712-1223, 712-1224, 712-1225 or 712-1226, a defendant may assert the affirmative defense that the gambling activity in question was [a] social gambling [game] as defined in [[section] 712-1231(a).] subsection (a); provided that a defendant may not assert the affirmative defense of social gambling if:

          (A)  The gambling activities occurred at the defendant's residence; and

          (B)  Gambling activities at the defendant's residence have resulted in          or more prior noise complaints to police, as documented by police reports, within the preceding            months.

     (2)  If the defendant asserts [the] social gambling as an affirmative defense, the defendant shall have the burden of [going forward with] providing evidence to prove the facts constituting [such] the defense [unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, and of proving such facts by a preponderance of evidence.] by a preponderance of the evidence.

     (c)  [In any] No prosecution for an offense described in this part [the fact] shall be required to prove in its prima facie case that the gambling activity involved was other than [a] social gambling [game shall not be an element of the offense to be proved by the prosecution in making out its prima facie case]."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

Report Title:

Gambling; Social Gambling; Affirmative Defense; Noise Complaints

Description:

Provides that a defendant may not assert social gambling as an affirmative defense if the gambling activity occurred at the defendant's residence and gambling activities have resulted in multiple recent documented noise complaints.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.