Scoppe: ‘Like it was in the early days of video poker’

Associate EditorFebruary 29, 2012 

VIDEO GAMBLING snuck into our state while no one was watching, gaining a foothold in out-of-the-way convenience stores and bars and then waging an insurgent battle through the courts, aided by a crooked senator who deceived his colleagues into passing what he called a “technical amendment” that in fact legalized gambling.

By the time we realized what had happened, it had grown to a $3 billion-a-year industry. It was nearly impossible to walk into a convenience store without seeing a machine, with its flashing neon lights beckoning players. Restaurants and bars were overrun with them. Gaudy casinos dotted nearly every corner and created ready-made villages along the state borders.

When Gov. David Beasley challenged the poker barons’ refusal to obey our meager laws, they took him out, and set about trying to buy themselves a Legislature that would rescind all the restrictions.

The restrictions didn’t slow business because the industry ignored them. The state always won its enforcement cases once it made it through the delays and appeals; but it took years to reach that point, while the industry kept printing money to wage its political campaign. Even when the Supreme Court ruled against the industry, it kept finding lower-court judges who ignored the high court. Right up to the very end, when Chief Justice Jean Toal convened a special session of the court around her kitchen table just hours before the law banning video gambling was to take effect, to overturn an ex parte injunction the poker barons had suckered out of a Circuit Court judge who was retiring the next day.

Of course the industry never went away entirely. Just as outlawing cocaine doesn’t stop people from selling and using it, outlawing gambling machines doesn’t stop people from operating them and gambling on them. The difference is that with illegal drugs, the challenge is finding the people who sell them. Police have a relatively easy time finding the illegal gambling machines; but the owners insist they’re legal, and they haul out the high-priced lawyers to play the delay game in our courts. Just like before.

And just like before, sometimes they bamboozle our judges into saying the latest iteration of the machines is legal. And the state appeals. And eventually the Supreme Court explains, once again, what the law says. We’ve been playing Whac-A-Mole for more than a decade now.

But something has changed. The purveyors of gambling have gotten bolder, the “games” more ubiquitous, the technology more nimble for programmers looking for ways around the law, the lawyers more aggressive in shopping around lower-court rulings that went their way.

“The effort to convince law enforcement that they’re legal is not like anything I’ve ever seen before,” says SLED Chief Mark Keel. “They’re carrying these orders around that they’ve got from magistrates, trying to convince the sheriffs that they’re legal, trying to convince the (police) chiefs that they’re legal. It’s not like any other crime problem that I know of. They’re hiring the best attorneys, and there’s no end in sight, it doesn’t appear, to their resources.”

Jeff Moore, executive director of the state Sheriffs’ Association, said sheriffs are concerned, and looking to Mr. Keel for help. “It amazes me the tenacity, the dogged tenacity of these people,” he said. “I don’t care how many times you say no, I don’t care how many ways you say no, they come back, and they come back, and they come back.”

Mr. Keel says the renaissance of electronic gambling was one of the first things that hit him when he returned to SLED this summer, after serving three years as director of the Department of Public Safety. “Members of the House and Senate, sheriffs, chiefs, everybody was calling me, saying: ‘What are you going to do about video poker? It’s proliferated again.’”

Little wonder. Under Reggie Lloyd, SLED got out of the business of raiding suspected gambling parlors. Mr. Lloyd, a former Circuit Court judge who left his position as U.S. attorney in 2008 to become the first outsider to run SLED, said it was more important to go after violent crime, and it was hard to argue with that, with the Legislature slashing SLED’s budget. But as Mr. Keel explained recently, those three years gave the industry a chance to regroup and build the legal strategy that it is pursuing so aggressively today.

And now instead of Dick Harpootlian or Dwight Drake, the high-profile attorney making the case for the industry is Mr. Lloyd, who recently gave The Associated Press a razzle-dazzle explanation of how the games that accompany long-distance phone cards are really “sweepstakes.” Sort of like the McDonald’s “Monopoly” game. They’re not gambling at all, he said, because the odds of winning are predetermined.

Which sounds oh so impressive. Unless you’ve actually read the law. Which apparently several magistrates haven’t done.

State law prohibits all “games of chance.”

It also outlaws any machine that directly or indirectly accepts money, offers poker or several other games and awards prizes. But a key fob can transform the games on today’s machines from illegal to legal in an instant. And police have to get a magistrate to declare machines illegal before they can be destroyed. Even if they’re identical to the last batch of machines that were destroyed. Which gives the industry plenty of opportunities to find a magistrate who will swallow their arguments verbatim, and spit out identical orders calling machines legal. As five have done. Along with a Circuit Court judge.

“There probably needs to be some clarity in the law to close the perceived loopholes and update it for today’s technology,” said Attorney General Alan Wilson, echoing the opinion of Messrs. Keel and Moore and David Ross, executive director of the state Commission on Prosecution Coordination, who were meeting with our editorial board to discuss their legislative agenda. “But my office has boiled it down to ‘game of chance is illegal,’ and we’re going to back up law enforcement when they seize a game that’s a game of chance.”

Which is good. And the Legislature needs to tighten up language in the bingo law that the “sweepstakes” operators claim lets them ignore the video-poker law. And police and prosecutors need to take advantage of the support from the state’s two top law enforcement officials, and refuse to allow themselves to be snookered by the court orders that have no legal bearing on any machines other than the ones that already have been seized.

Right now, this is just a law-enforcement inconvenience. But the potential is there for it to get out of hand again. Like it did the last time we didn’t pay attention.

“It goes back to like it was in the early days of video poker,” Mr. Keel said. “The state doesn’t know how much money’s going through these machines, because it’s a cash transaction, and when you have this much money going around, the concern is corruption, and that’s why it’s important on a bigger scale that we do something about it.”

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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