Judge Loeb acknowledged that much of Cardona's testimony had been hearsay, but held that the hearsay was admissible in the context of an administrative proceeding. As to the second charge, however, Judge Loeb, relying upon this court's decision in Matter of Plato's Cave Corp. v State Liq. Auth. ( 115 A.D.2d 426, affd 68 N.Y.2d 791), held that the mere presence of "gambling devices" on the licensee's premises was not sufficient to establish that the licensee had permitted the premises to become disorderly. The matter was considered by respondent Authority's five-member board in December 1987. At the time of its deliberations the board had before it a memorandum by Barbara J. Lord, Secretary to the State Liquor Authority. The memorandum, which had not been divulged to petitioner or its counsel, recommended that Judge Loeb's findings as to the first of the charges be sustained, but that his findings as to the second of the charges be reversed.
It appears that most courts have determined that Texas Hold ‘em and other poker variants are games of chance rather than skill. See, e.g. Pennsylvania v. Dent, 992 A.2d 190, 192 (Pa.Super.Ct.2010) (finding that Texas Hold ‘em is a game of chance: “while the outcome of poker may be dependent on skill to some degree, it is predominately a game of chance”); Joker Club, L.L.C. v. Hardin, 183 N.C.App. 92, 643 S.E.2d 626, 630 (2007) (poker is a game of chance because it “presents players with different hands, making the players unequal in the same game and subject to defeat at the turn of a card”); Plato's Cave Corp. v. State Liquor Auth., 115 A.D.2d 426, 496 N.Y.S.2d 436, 437–38 (1985) (video poker game fit the definition of gambling because the outcome depends materially on the draw of the cards). See generally Three Kings Holdings, LLC v. Six, 45 Kan.App.2d 1043, 255 P.3d 1218, 1227 (2011) (determining that a variant of Texas Hold ‘em, known as Kandu, is a game of chance and further indicating that the “weight of authority” supported this conclusion).
(“ ‘Contest of chance’ means any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.”); In re Plato's Cave Corp. v. State Liquor Auth., 115 A.D.2d 426, 496 N.Y.S.2d 436, 438 (1st Dep't 1985), aff'd68 N.Y.2d 791, 506 N.Y.S.2d 856, 498 N.E.2d 420 (1986) (holding that a Joker Poker video game fell under § 225.00's definition of gambling in partial reliance on its similarity to poker; “[a]lthough there is a degree of skill and concentration involved in playing poker, ‘the outcome depends in a material degree upon an element of chance,’ i.e., the draw of the cards”); see also Dalton v. Pataki, 11 A.D.3d 62, 780 N.Y.S.2d 47, 64 n. 5 (3d Dep't 2004) (noting that “the term ‘game of chance’ or ‘contest of chance’ ... has been interpreted to include such games as ‘stud’ poker”), aff'd68 N.Y.2d 791, 506 N.Y.S.2d 856, 498 N.E.2d 420 (1986); People v. Turner, 165 Misc.2d 222, 629 N.Y.S.2d 661, 662 (N.Y.Crim.Ct.1995) (“Games of chance range from those that require no skill, such as a lottery ..., to those such as poker or blackjack which require considerable skill in calculating the probability of drawing particular cards. Nonetheless, the latter are as much games of chance as the form
has no control); Garano v. State, 37 Ohio St.3d 171, 524 N.E.2d 496, 500 (Ohio 1988) (In finding video poker machines are games of chance, "[t]he fact that an element of skill may be involved in a game does not override the fact that elements of chance exist and, therefore, the game can be classified as a game of chance."); Commonwealth v. TwoElectronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973, 978 (Pa. 1983) (In playing video poker machine, "the element of chance predominates and the outcome is largely determined by chance."); United States v. Dobkin, 188 W. Va. 209, 423 S.E.2d 612, 614 (W.Va. 1992) ("[A]lthough there is some element of skill involved, poker or any electronic simulation thereof, is a game of chance."); Score Family Fun Center, Inc. v. County of San Diego, 225 Cal.App.3d 1217, 275 Cal.Rptr. 358 (Cal.App. 4 Dist. 1990) ("Mini-Boy 7" video game which offers games of draw poker, seven card stud, blackjack, baccarat, hi-lo, double-up, and craps, is game of chance); Plato's Cave Corporation v. StateLiquor Authority, 115 A.D.2d 426, 496 N.Y.S.2d 436, 438 (N.Y.A.D. 1 Dept. 1985) ("Although there is a degree of skill in playing poker,`the outcome depends in a material degree upon an element of chance,' i.e. the draw of the cards." (internal cites omitted)); Collins Coin Music of North Carolina v. North CarolinaAlcoholic Beverage Control Comn., 117 N.C. App. 405, 451 S.E.2d 306, 308 (N.C.App. 1994) ("[A]lthough a player's knowledge of statistical probabilities can maximize his winnings in the short term, he cannot determine or influence the result since the cards are drawn at random.").
Decided May 29, 1986 Appeal from (1st dept: 115 A.D.2d 426) MOTIONS FOR LEAVE TO APPEAL
We find that the current Penal Law definition comports with the common understanding of the meaning of the constitutional prohibition and of the particular words "book-making" and "gambling" – at both the time of the prohibition's enactment and now. Therefore, we accept the Legislature's own definition of gambling, as included in the Penal Law since 1965, as the appropriate definition for courts to apply when interpreting that word in the pertinent constitutional provision (see Dalton v. Pataki, 5 N.Y.3d at 264, 802 N.Y.S.2d 72, 835 N.E.2d 1180 [seeking to determine the meaning of a term that is undefined in N.Y. Constitution, article I, § 9 by looking first to the Penal Law definition of that term]; see also Matter of Plato's Cave Corp. v. State Liq. Auth., 115 A.D.2d 426, 428, 496 N.Y.S.2d 436 [1985] [applying Penal Law § 225.00 definitions relating to gambling offenses to provisions of the Alcoholic Beverage Control Law, which does not contain definitions of related terms], affd 68 N.Y.2d 791, 506 N.Y.S.2d 856, 498 N.E.2d 420 [1986] ). It is undisputed that IFS contestants pay an entry fee (something of value) in hopes of receiving a prize (also something of value) for performing well in an IFS contest.
992 A.2d at 196. See also 115 A.D.2d 426, 496 N.Y.S.2d 436 (1985) (holding that the outcome depends materially on the draw of the cards). In Joker Club, L.L.C. v. Hardin, 183 N.C.App. 92, 99, 643 S.E.2d 626 (2007), the Court of Appeals of North Carolina found that poker is a game of chance because it " presents players with different hands, making the players unequal ... at the turn of a card."
Determination unanimously modified in the exercise of discretion and as modified confirmed without costs in accordance with the following Memorandum: The determination that petitioner permitted video gambling and gambling in violation of Alcoholic Beverage Control Law § 106(6) and 9 NYCRR 53.1(t) and permitted its premises to become disorderly in violation of Alcoholic Beverage Control Law § 106(6) is supported by substantial evidence ( see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182; see also, Penal Law § 225.00; Matter of Plato's Cave Corp. v. State Liq. Auth., 115 A.D.2d 426, affd 68 N.Y.2d 791). "The resolution of credibility issues, within the scope of the instant administrative hearing, was primarily within the province of the respondent agency * * * and this Court `may not substitute its own judgment for that of an administrative agency on the question of credibility'" ( Matter of Rumors Disco v. New York State Liq. Auth., 212 A.D.2d 796, 796-797; see, Matter of Hilly-Hand, Inc. v. New York State Liq. Auth., 227 A.D.2d 996, 997). By failing to raise at the administrative hearing its present contention that the bartender had no managerial authority over the operation of the premises other than on a casual or temporary basis ( see, Awrich Rest. v. State Liq. Auth., 60 N.Y.2d 645), petitioner has failed to exhaust its administrative remedies with respect to that contention, and this Court has no discretionary power to review it ( see, Matter of Casserino v. City of Rochester, 267 A.D.2d 967; Matter of Nelson v. Coughlin, 188 A.D.2d 1071, appeal dismiss
The petitioner also houses an electronic "Joker Poker" video game in which a successful player may win credits for additional games. "Joker Poker" games are primarily games of chance and hence constitute gambling devices (see, Matter of Plato's Cave Corp. v. State Liq. Auth., 115 A.D.2d 426, affd 68 N.Y.2d 791). The New York State Liquor Authority (hereinafter the Authority) charged the petitioner with a violation of its rule 36-1 (M) ( 9 NYCRR 53.1 [m]) which prohibits gambling on premises licensed to sell alcoholic beverages.
The "Big Apple" video game present on the premises rewards a winning poker player with the opportunity to prolong his initial play by means of playing a high-low double-up feature which is not available to one who draws a losing poker hand. Consequently, this extension of free play is "something of value" within the meaning of Penal Law § 225.00 (6) and, therefore, "gambling" within the meaning of Penal Law § 225.00 (see, Matter of Plato's Cave Corp. v State Liq. Auth., 115 A.D.2d 426, affd 68 N.Y.2d 791). By maintaining the machine on its premises, the respondent was also correct in concluding that petitioner violated 9 NYCRR 53.1 (t). However, we find the 30-day suspension of petitioner's license and forfeiture of the $1,000 bond to be unduly severe under the circumstances.