HAWAII

I. Definition of Gambling

1. Haw. Rev. Stat. § 712-1220(4) (2005) states that a person engages in gambling when he or she:

a. “stakes or risks something of value

b. upon the outcome of a contest of chance or a future contingent event not under his control or influence,

c. upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome.” (emphasis added; see below for definitions of the bolded material).

2. Gambling does not include:

“Bona fide business transactions valid under the law of contracts . . .” Id.

3. Something of value is defined as the following:

“Any money or property, any token, object, or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service or entertainment. Haw. Rev. Stat. § 712-1220(11) (2005).

4. Contest of chance is defined as the following:

“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.” Haw. Rev. Stat. § 712-1220(3) (2005)

5. Gambling Instinct test

In Hawaii, gambling is not dependent upon the elements of chance or skill. “Playing a game, whether of skill or chance, for money or other thing of value constitutes . . . gambling.” State v. Prevo, 44 Haw. 686, 672-73 (1961). The term “game” as in Prevo is not be interpreted to mean every game, but those that would be associated with gambling. Id. at 674. Therefore, Hawaii adheres to the “appeals to the gambling instinct” test.

II. Definition of Bookmaking

Haw. Rev. Stat. § 712-1220(2) (2005) defines bookmaking as “advancing gambling activity by accepting bets from members of the public upon the outcomes of future contingent events.”

III. Specific gaming device definitions

Haw. Rev. Stat. § 712-1220(5) (2005) defines a gambling device as “any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine. However, lottery tickets and other items used in the playing phases of lottery schemes are not gambling devices within this definition.”

IV. Bucket Shop Laws

There are no bucket shop laws found in statute, case law, or attorney general’s opinion.

V. Prohibition of Games of Skill

Poker / Card Games, Games using Dice, Billiards, Bowling, Darts

There are no specific prohibitions for these games. However, in State v. Yip, 92 Haw. 98 (1999), the defendants were prosecuted for playing card games for money wagers. It appears that these games of skill are unlawful when the players bet something of value. See the gambling test above.

VI. Express Exemptions

1. Social Gambling:

Haw. Rev. Stat. § 712-1231 (2005).

a. Social gambling occurs when:

i. “Players compete on equal terms with each other; and

ii. 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

iii. 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 the use of premises, supplying refreshments, food, drinks, service, lodging or entertainment; and

iv. 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

v. None of the players is below the age of majority; and

vi. The gambling activity is not bookmaking.”

b. Social gambling is an affirmative defense to prosecution for offenses described in Haw. Rev. Stat. §§ 712-1223, 712-1224, 712-1225, 712-1226 (2005). Id.

2. Charity Gaming / Chucky Cheese Exemptions / Commercial Gaming

There is no mention of it in case law, statute, or attorney general’s opinion.

3. Lottery

a. Haw. Rev. Stat. § 712-1220(6) (2005) defines a lottery as “a gambling scheme in which:

i. The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated the winning ones; and

ii. The winning chances are to be determined by a drawing or by some other method based on an element of chance; and

iii. The holders of the winning chances are to receive something of value.”

b. Hawaii does not have a state lottery. See http://www.butlerwebs.com/gambling/default.htm.

4. Horseracing / Greyhound Racing

There is no mention of horseracing or greyhound racing in case law, statutes, or attorney general opinions.

VII. Specific Internet Prohibition

There is no mention of specific internet prohibitions in case law, statutes, or attorney general opinions.

VIII. Statute of Anne / Recovery of Debts

A gambling debt is an unlawful debt. It will not be upheld by law. Haw. Rev. Stat. § 842-1 (2005).

IX. Lawful Commercial Casino Gaming

1. There is no specific mention of lawful commercial casino gaming in case law, statutes, or attorney general opinions.

2. Haw. Rev. Stat. § 445-95 (2005) states that “[t]he owner or operator of a lodging or tenement house, group home, group residence, group living arrangement, hotel, or boardinghouse shall . . . [n]ot allow any gambling . . . .” This effectively denies anyone the opportunity to operate a casino for profit.

X. Gaming Crimes and Penalties

1. Rev. Stat. § 712-1223 (2005)

“A person commits the offense of gambling[, a misdemeanor,] if the person knowingly advances or participates in any gambling activity.”

2. Promoting gambling in the first degree: Haw. Rev. Stat. § 712-1221 (2005).

A person commits this offense, a Class C felony, if:

a. “The person knowingly advances or profits from gambling activity by:

i. Engaging in bookmaking to the extent that the person receives or accepts in any seven-day period more than five bets totaling more than $500; or

ii. Receiving in connection with a lottery, or mutuel scheme or enterprise, money or written records from a person other than a player whose chances or plays are represented by such money or records; or

iii. Receiving or having become due and payable in connection with a lottery, mutuel, or other gambling scheme or enterprise, more than $1,000 in any seven-day period played in the scheme or enterprise.

b. The following factors are sufficient to demonstrate facilitation of a gambling activity:

i. Being present at the game,

ii. Running the game,

iii. Dealing cards, and

iv. Collecting money. State v. Yip, 92 Haw. 98, 112-113 (1999)

3. Promoting gambling in the second degree:

a. Haw. Rev. Stat. § 712-1222 (2005)

A person commits this offense, a misdemeanor, if the person knowingly advances or profits from gambling activity.

b. A pinball machine that is played for consideration and awards players free games upon the attainment of a certain score, is awarding “something of value” and is gambling. Territory v. Uyehara, 42 Haw. 184, 186-87 (1957).

4. Promoting gambling aboard ships: Haw. Rev. Stat. § 712-1222.5 (2005)

A person commits this offense, a Class C felony, if:

a. “[T]he person knowingly advances or profits from gambling activity by:

i. Managing, supervising, controlling, operating, or owning, either alone or in association with others, a gambling ship;

ii. Managing, supervising, controlling, operating, or owning, either alone or in association with others, any craft which embarks from any point within the State, and disembarks at the same or another point within the State, during which the person intentionally causes or knowingly permits gambling activity to be conducted, whether within or without the waters of the State; or

iii. Transporting, conveying, or carrying any person to a gambling ship or a craft described in [below]. Id.

b. ‘Craft’ includes every boat, ship, vessel, barge, hulk, or other thing capable of floating; and

c. ‘Gambling ship’ means any craft kept, operated, or maintained for the purpose of gambling, whether within or without the waters of the State and whether it is anchored, moored, lying to, or navigating. Id.

d. This section shall not apply to gambling activity conducted during travel from foreign nations or another state or territory of the United States to the point of first entry into State waters or during travel to foreign nations or another state or territory of the United States from the point of final exit from State waters; provided that nothing herein shall preclude prosecution for any offense under this part.” Id.

5. Possession of gambling records in the first degree: Haw. Rev. Stat. § 712-1224 (2005)

a. A person commits this offense, a Class C felony, “if the person knowingly possesses, produces, or distributes any writing, paper, instrument, or article:

i. Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise, and constituting, reflecting, or representing more than five bets totaling more than $500; or

ii. Of a kind commonly used in the operation, promotion, or playing of a lottery or mutuel scheme or enterprise, and constituting, reflecting, or representing more than one hundred plays or chances therein or one play or chance wherein the winning amount exceeds five thousand dollars.”

b. Haw. Rev. Stat. § 712-1224 does not require that an individual operate the bookmaking scheme, only that the individual promotes the scheme. Carlisle v. Ten Thousand Four Hundred Forty-Seven Dollars in United States Currency, 104 Haw. 323, 331-32 (2004).

6. Possession of gambling records in the second degree: Haw. Rev. Stat. § 712-1225 (2005).

A person commits this offense, a misdemeanor, “if the person knowingly possesses any writing, paper, instrument, or article:

a. Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise; or

b. Of a kind commonly used in the operation, promotion, or playing of a lottery or mutuel scheme or enterprise.

7. Defense to possession of gambling records: Haw. Rev. Stat. § 712-1227 (2005).

“In any prosecution [for possession of gambling records] it is a defense that the writing, paper, instrument, or article possessed by the defendant was neither used nor intended to be used in the advancement of gambling activity, except for records used in social gambling.” Id.

8. Lottery offenses: Haw. Rev. Stat. § 712-1229 (2005).

“It is no defense to a prosecution under any section of this part relating to a lottery that the lottery itself is drawn or conducted outside this State and is not in violation of the laws of the jurisdiction in which it is drawn or conducted.” Id.

9. All property used in illegal gambling will be forfeited to the State. Haw. Rev. Stat. § 712-1230 (2005).

10. Possession of a gambling device: Haw. Rev. Stat. § 712-1226 (2005)

A person commits this offense, a misdemeanor, “if the person manufactures, sells, transports, places, possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody, or use of any gambling device, knowing it is to be used in the advancement of gambling activity which is not social gambling.” Id.