Contributed By Jones Walker LLP
The following forms of gaming are permitted in the State of Louisiana: land-based casino gaming, riverboat gaming, slots-at-the-tracks gaming, video poker gaming, Indian gaming, the Louisiana Lottery, horse racing and pari-mutuel wagering, and charitable gaming.
Other than the expressly permitted forms of gaming identified above, all other forms of gaming are prohibited in Louisiana.
Land-based Casino Gaming, Riverboat Gaming, Slots-at-the-tracks Gaming, and Video Poker Gaming
The Louisiana Gaming Control Board (LGCB) oversees the regulation and licensure of the following gaming activities in Louisiana: land-based casino gaming, riverboat gaming, slots-at-the-tracks gaming and video poker gaming. The Gaming Enforcement Division of the Louisiana State Police (the "Division”) is responsible for the enforcement of the rules and regulations governing land-based casino gaming, riverboat gaming, slots-at-the-tracks gaming and video poker gaming. The Louisiana Department of Justice, Gaming Division, acts as the legal adviser and legal representative of the LGCB and the Division.
The Louisiana Gaming Control Act, La RS § 27:1, et seq, governs land-based casino gaming, riverboat gaming, slots-at-the-tracks gaming and video poker gaming in the state.
Indian gaming is conducted pursuant to compacts between four federally recognised tribes and the state. Pursuant to those compacts, the Indian Gaming Unit of the Louisiana State Police certifies the suitability of gaming employees and vendors, approves games and rules of play, and enforces criminal statutes.
Indian gaming in the state is governed by the Indian Gaming Regulatory Act (IGRA), 25 USC § 2701, et seq, and individual compacts between the tribes and the state.
Oversight of the Louisiana Lottery Corporation is exercised in varying degrees by the governor of Louisiana, the Joint Legislative Committee on the Budget, Senate Judiciary B Committee, the House Committee on Administration of Criminal Justice and the Office of the Legislative Auditor. Meanwhile, the Lottery Corporation’s board of directors and the Louisiana Department of Justice, Gaming Division, advise the Lottery Corporation on gaming matters, including, without limitation, lottery contracts with vendors and lessors, requests for proposals and invoices.
The Louisiana Lottery Corporation Law, La RS § 47:9000, et seq, governs the operations of the Louisiana Lottery.
Horse Racing and Pari-mutuel Wagering
The Louisiana State Racing Commission reviews, regulates, governs and supervises all forms of horse racing and pari-mutuel wagering in the state. The Louisiana Department of Justice, Gaming Division, represents the Louisiana Racing Commission on matters regarding the regulation of the horse racing industry, pari-mutuel wagering and off-track wagering, including the prosecution of violations of statutes, rules and regulations governing horse racing.
The Louisiana Revised Statutes at La RS § 4:141, et seq, provide for the establishment of the Louisiana State Racing Commission and the regulation of horse racing and pari-mutuel wagering in the state.
The Louisiana Department of Revenue, Office of Charitable Gaming, regulates the charitable gaming industry in the state. The Charitable Raffles, Bingo and Keno Licensing Law, La RS § 4:701, et seq, governs charitable gaming in the state.
Louisiana Revised Statutes § 14:90, et seq, makes illegal essentially all gambling activities in the state of Louisiana as distinguished from the forms of gaming discussed above. Gambling is the conducting as a business of any game whereby a person risks the loss of a thing of value to realise a profit. Furthermore, whether skill or chance determines the outcome of the game is irrelevant. Section 14:90.3 specifically prohibits internet gaming and provides for up to six months’ imprisonment for the violation of this Section, known as the “Gambling by Computer Statute.”
The Louisiana Gaming Control Act and the regulations promulgated thereunder in some places distinguish between the land-based casino licensee as the “casino operator” and other gaming licensees as “licensee.” For present purposes, the author uses the term “gaming licensee” to refer to all gaming licensees. With respect to permitted manufacturers and/or distributors of gaming equipment, where appropriate the author uses the term “permitted manufacturer and/or distributor.”
Limiting the balance of the responses to land-based casino gaming, riverboat gaming, slots-at-the-tracks gaming and video poker gaming (collectively referred to as “gaming”), any person or entity may apply for a gaming licence or a permit to manufacture or distribute gaming devices or a finding of suitability associated with the foregoing. No person may be granted a gaming licence or permit, nor found suitable, unless the applicant has demonstrated by clear and convincing evidence that he is suitable. "Suitable" means the person meets the following criteria.
Gaming operators, manufacturers and suppliers must utilise the application forms required for the specific type of gaming involved, which forms are available on the LGCB website. Persons and entities affiliated with gaming licensees and permitted manufacturers and/or distributors, who are required to file for findings of suitability, must utilise the Multi-Jurisdictional Personal History Disclosure Form and the Louisiana Supplemental Form, which are also available on the LGCB website. The fees associated with licence applications appear on the aforementioned forms. These fees help to offset the cost of the investigation, failing which an applicant is required to make a deposit to cover the cost of the investigation by the Division.
When completing the aforementioned applications for licensure, all applicants are required to disclose detailed financial information as directed by the LGCB. Furthermore, to become licensed, applicants must submit to suitability determinations, which involve background checks and criminal history evaluations. The meaning of the term “suitable” under the Louisiana Gaming Control Act is noted in Section C(1) above.
The Land-Based Casino Operating Contract, which is codified at La RS § 27:240, et seq, authorises the operation of one land-based casino, which is located in New Orleans. Additionally, the Louisiana Riverboat Economic Development and Gaming Control Act, La RS § 27:41, et seq, allows the issuance of up to 15 licences to conduct gaming activities aboard riverboats. Otherwise, there is no limit on the overall number of licences available for the conduct of each other form of gaming.
The Louisiana Gaming Control Act and the regulations promulgated thereunder are designed to create a controlled gaming industry to promote economic development by employing Louisiana residents and procuring goods and services from Louisiana companies to the greatest extent possible. The regulations promulgated in accordance with the Louisiana Gaming Control Act address problem gambling issues and self-exclusion procedures, and include restrictions regarding underage patrons.
A gaming licensee may not employ an individual as a gaming employee unless the individual is the holder of a valid gaming employee permit issued by the LGCB or the Division. An application for a gaming employee permit must be made on forms prescribed by the LGCB and contain all information requested by the Board. All applications must contain a properly notarised oath wherein the applicant states that (i) the information contained therein is true and correct; (ii) the applicant has read the pertinent laws, rules and regulations; and (iii) the applicant agrees to comply therewith.
An applicant for a gaming employee permit must submit to a suitability determination, as well as fingerprinting at the direction of the Division. Applicants must also supply a colour passport-size photograph, which must be satisfactory to the Division and taken not earlier than three months before the date of filing the application. The applicant must also provide any other information requested by the Division and an applicant is required to pay any pertinent application fees prior to the issuance of the permit. Failure to comply with these requirements may constitute grounds for delaying consideration of the application or for denial of the application.
The LGCB places on each licensee a set of standard General Conditions, such as (i) continued compliance with the Louisiana Gaming Control Act and all administrative rules promulgated in connection therewith, (ii) indemnification of and an agreement to hold harmless the LGCB and all other state employees and agents arising out of the issuance of the licence, and (iii) regular submission of certain reports. Additionally, certain other Specific Economic and Procurement Conditions unique to the licensee are imposed, which relate to, among other things, the hiring and procurement goals or requirements, as the case may be.
In Louisiana, the Land-Based Casino Operating Contract, which is codified at La RS § 27:240, et seq, provides for the term of the single land-based casino, which shall not exceed a total of 20 years primary term and one ten-year renewal option.
Riverboat gaming licences, slots-at-the-track gaming licences and video poker gaming licences are each valid for five years, as are gaming manufacturer and distributor permits, while an Indian gaming certification must be renewed every two years. Findings of suitability are issued for a period concomitant with that of the licence or permit with which it is associated. Licences, permits and findings of suitability are subject to suspension, revocation, or having conditions imposed for violations of the Louisiana Gaming Control Act and the regulations promulgated thereunder, subject to due process requirements of notice and hearings.
Appeals of decisions by the LGCB must be filed within ten days of notice of the decision. Appeals must be taken in the Nineteenth Judicial District Court for the Parish of Baton Rouge, State of Louisiana.
With respect to land-based casino gaming and riverboat gaming, a permitted “game” is any banking or percentage game that is played with cards, dice, or any electronic, electrical, or mechanical device or machine for money, property, or anything of value. However, in this context, the term “game” does not include lottery, bingo, charitable games, raffles, electronic video bingo, pull tabs, cable television bingo, wagering on dog or horse races, sports betting, or wagering on any type of sports event, including American football, basketball, baseball, ice hockey, boxing, tennis, wrestling and jai alai.
Relatedly, the term “gaming device” means any equipment or mechanical, electromechanical or electronic contrivance, component or machine used directly or indirectly in connection with gaming or any game that affects the results of a wager by determining a win or loss.
The rules of the games permitted under Louisiana law are determined by each gaming licensee. All such rules, however, must be submitted in writing to the LGCB and the Division. Furthermore, the rules must be included in a gaming licensee’s internal controls and are subject to inspection by the LGCB and the Division upon request.
There are no state law restrictions on a gaming facility’s hours of operation, but the local communities in which gaming facilities operate may seek to impose restrictions on a facility’s hours of operations.
With respect to land-based casino gaming, the applicable regulations require that a casino management agreement be confected, pursuant to which the gaming licensee must provide the LGCB with copies of scale drawings of the floor plan of the official gaming establishment. Furthermore, Louisiana law requires that the casino include at least 100,000 sq ft of usable gaming space in a single structure.
With respect to riverboat gaming, the gaming area of a riverboat casino cannot exceed 60% of the total square footage of the passenger access area of the vessel or 30,000 sq ft total, whichever is less.
The LGCB retains the authority to establish procedures for the regulation of advertising of licensed gaming activities. For example, the LGCB requires gaming licensees to advertise or publish specified information, slogans and telephone numbers relating to the avoidance and treatment of compulsive or problem gambling or gaming.
Gaming licensees are permitted to issue credit to players, subject to the following restrictions. Prior to extending credit, each gaming licensee is required to obtain and copy a valid driver’s licence, or if a valid driver’s licence is not available, another generally accepted means of identification.
The gaming licensee is then required to document that it:
The following information must be recorded for patrons who will have credit limits or are issued credit in an amount greater than USD1,000.00, excluding cashier's cheques and traveller's cheques:
Prior to extending credit, the patron's credit application and any additional documentation must be examined to determine the following:
Gaming licensees are permitted to exclude or remove a patron when there is reasonable cause to believe that the patron attempting to enter the establishment is:
Furthermore, the LGCB is required to establish a list of persons who are to be excluded or ejected from any room, premises, or designated gaming area of an establishment where gaming is conducted.
The Louisiana Gaming Control Act and the regulations promulgated thereunder set forth various record-keeping requirements for gaming licensees. For example, each gaming licensee is required to keep accurate, complete, legible and permanent records of all transactions pertaining to revenue that is taxable or subject to fees under the Louisiana Gaming Control Act and applicable regulations. Furthermore, each gaming licensee must keep records of all transactions, including, but not limited to, contracts or agreements with suppliers/vendors, contractors, consultants, attorneys and accounting firms; accounts/trade payable files; insurance policies; and bank statements, reconciliations and cancelled cheques or legible copies thereof.
With respect to the manner in which the aforementioned records are kept, each gaming licensee that keeps permanent records using a computer or microfiche system must, upon request, immediately provide agents with the Division with a detailed index to the microfiche or computer record that is indexed by casino department and date, and provide the agent with access to a computer or microfiche reader. Only documents that do not contain original signatures required by these rules may be kept in a microfiche or computer system.
The regulations contain additional record-keeping requirements for the various forms of gaming permitted under Louisiana law. Those requirements, however, are too extensive and innumerable to set forth in detail here. For further information on such record-keeping requirements, refer to Title 42 of the Louisiana Administrative Code.
Gaming licensees are required to furnish to the LGCB and the Division quarterly financial reports, using forms prescribed by the Division. The quarterly financial report must also present all data on a monthly basis. Monthly financial reports must include reconciliation of general ledger amounts with amounts reported to the Division. The quarterly financial report must be submitted to the Division no later than 60 days following the end of each quarter.
Furthermore, gaming licensees must submit to the Division one copy of any report including, but not limited to, Forms S-1, 8-K, 10-Q, and 10-K, required to be filed with the SEC or other domestic or foreign securities regulatory agencies by the gaming licensee and their holding company, intermediate company, or parent company. These reports must be delivered to the Division within 15 days of the time of filing with the commission or agency, or within 15 days of the due date prescribed by the commission or regulatory agency, whichever comes first.
Other reporting requirements, which are too extensive to set forth herein, can be found in Title 42 of the Louisiana Administrative Code.
Generally, gaming licensees retain the authority to develop and implement their own internal controls, which must be disclosed to and approved by the Division.
More specifically, in disclosing the aforementioned internal controls, each gaming licensee must describe, in such manner as the Division may approve or require, its procedures in detail in a written system of internal controls. Each gaming licensee must submit a copy of its internal controls to the Division for approval prior to commencement of operations. The internal controls must be implemented to ensure reasonably that:
The regulations contain internal controls for the various forms of gaming permitted under Louisiana law. Those requirements, however, are too extensive and innumerable to set forth in detail here. For further information on the applicable internal controls, refer to Title 42 of the Louisiana Administrative Code.
The Louisiana Gaming Control Act and the regulations promulgated thereunder provide broad authority to the LGCB and the Division to monitor the activities of gaming licensees. Specifically, upon displaying proper credentials, the LGCB and/or the Division must be given immediate access to any premises used in the licensed or permitted operation of a gaming licensee for the purpose of inspecting or examining (i) the records or documents required to be kept under the Louisiana Gaming Control Act and applicable regulations, (ii) gaming devices or equipment to be used in the licensed or permitted operation and (iii) the conduct of any gaming activity in the licensed or permitted operation.
Furthermore, the LGCB and the Division are empowered to inspect, examine, audit, photocopy and if necessary seize all papers, books, records, documents, information and electronically stored media of a gaming licensee or permitted manufacturer and/or distributor pertaining to the licensed or permitted operation or activity on all premises where such information is maintained. The division must provide an evidence receipt to the gaming licensee or permitted manufacturer and/or distributor providing a general description of all documents and items seized.
Failure to allow access and inspection may constitute grounds for delaying consideration of the application, administrative action against the gaming licensee or permitted manufacturer and/or distributor, or denial of the application.
The LGCB and/or the Division may initiate administrative action for any violation of the Louisiana Gaming Control Act or the regulations promulgated thereunder after notice of the proposed administrative action and after an opportunity to request a hearing before the LGCB. The LGCB and/or the Division may also initiate administrative action for (i) any violation of any condition, restriction, or limitation imposed on a licence or permit, or (ii) for violation of a gaming licensee’s internal controls as approved by the Division.
Administrative action includes revocation, suspension, finding of unsuitability, or conditioning of a licence or permit, imposition of a civil penalty or such other costs as the LGCB or Division deems appropriate. The LGCB and/or the Division may determine the appropriate sanction considering a variety of factors, including:
The licence taxes vary by the form of gaming involved. The tax required of the gaming licensee for the privilege of operating the single land-based casino is provided for in the casino operating contract and has changed from time to time. Currently, the tax is USD60 million or 21.5% of gross gaming revenue, whichever is greater.
The tax for riverboat gaming licensees is 21.5% of net gaming proceeds and an additional 4–6% to local governing authorities under the terms of “local boarding fee” agreements. Slots-at-the-track gaming licensees pay 15% of annual net slot machine revenue to the Horsemen’s Benevolent and Protective Association, 2% to the Louisiana Thoroughbred Breeders’ Association, 1% to the Louisiana Quarter Horse Breeders’ Association, 18.5% of adjusted gross revenue to the state and 4% to local parishes where the facilities are located. The tax for video gaming licensees ranges from 26–32.5% of net gaming proceeds, according to the type of establishment in which the devices are located. In addition to the foregoing, a fixed annual fee is paid by a gaming licensee depending on the nature of the licence held.
The following types of gaming equipment must be approved: (i) any equipment used directly or indirectly in connection with gaming or any game that affects the result of a wager by determining wins or losses or the amount of the win, (ii) any equipment used to facilitate gaming funds transfers and (iii) any equipment related to the security of associated gaming devices.
The process for approving gaming equipment is governed by the Division, which has set forth guidelines for use in the approval process on its website. Furthermore, the regulations promulgated under the Louisiana Gaming Control Act contain specific provisions relative to the approval of electronic gaming devices; see LAC § 42:III.4202.
In summary, applications for the approval of gaming equipment must be sent electronically to the New Gaming Committee, which is responsible for reviewing requests by gaming licensees to introduce new games, new gaming equipment, new gaming devices and other technology directly involved in gaming operations.All such applications must be received by the New Gaming Committee from a licensed casino. Furthermore, prior to the New Gaming Committee’s review of an application, the gaming manufacturer must obtain a permit from the Division.
Neither the Louisiana Gaming Control Act nor the regulations promulgated thereunder require gaming licensees to obtain the approval of the LGCB or the Division to conduct foreign gaming.
Louisiana Revised Statutes § 18:1505.2 prohibits gaming licensees and permitted manufacturers and/or distributors from contributing, loaning, or transferring funds to any candidate, any political committee of any such candidate, or to any political committee that supports or opposes any candidate. However, gaming licensees and permitted manufacturers and/or distributors are not prohibited from making contributions to any account of a political committee affiliated with a recognised political party organised under the laws of another jurisdiction, where the account is segregated and no funds from the segregated account are used to support or oppose any candidate in Louisiana or any political committee of any candidate in Louisiana.
Furthermore, members and employees of the LGCB are barred from contributing anything of value to a political party, a committee, an organisation, an agency, or a person for political purposes.
No substantive changes to the Louisiana Gaming Control Act or the regulations promulgated thereunder are anticipated. However, a Joint Legislative Committee met in January 2014 to consider internet gaming. As a result of the deliberations of that Joint Legislative Committee, legislation requiring an annual report from the LGCB on the impact of technology advances on the gaming industry was adopted. The annual report is intended specifically to address the growth of internet gaming in the United States and enforcement issues relating to age verification and geo-location, and other issues of legislative concern, and to make recommendations. This legislation recognises the need for the state legislature to understand advances in technology that ultimately might support a change in the current prohibition of internet gaming in the state. Other changes being discussed relate to skill-based gaming and statutory and/or regulatory revisions and technical standards that may be required.
A concurrent resolution has been adopted by the state legislature for the creation of a Riverboat Economic Development and Gaming Task Force. The Task Force is charged with studying the current law and existing rules and regulations regarding the riverboat gaming industry and receiving public input relative to same in order to present a written report to the state legislature no later than 60 days prior to the beginning of the 2018 Regular Session. The report is to make recommendations relating to, among other things, changes in current law, rules and regulations designed to generate and promote increased economic development by riverboat gaming licensees, provide for greater safety for patrons and employees, increase capital reinvestment, improve and enhance the regulation of riverboat gaming licensees, and to make Louisiana riverboat casinos more competitive with gaming enterprises in nearby jurisdictions.