Gaming Law 2019

Last Updated November 25, 2019

Pennsylvania

Law and Practice

Authors



Ifrah Law PLLC is a Washington, DC-based firm that has been at the centre of most of the precedent-setting cases in the online gaming industry. The firm represents many of the largest online gaming companies in the world and has been instrumental in the creation of legislative and regulatory frameworks in states across the USA. Ifrah Law works with domestic and international clients who seek to bring their products to market, providing counsel on the most progressive areas of online gaming, including sports betting, skins betting, mobile gaming, daily fantasy sports, eSports, online sweepstakes and lotteries, and peer-to-peer betting. The firm also counsels clients on cryptocurrency issues, payment processing and licensing, consumer protections and data privacy, and corporate compliance. Ifrah Law has a strong track record of working with foreign and domestic regulatory bodies, local counsel in foreign countries, casinos, and other online operators through the online gaming trade association, iDEA Growth, of which Ifrah Law is a founding member.

Pennsylvania has quickly become one of the more “mature” jurisdictions in the USA from a gaming perspective, with both land-based and online gambling largely legalised in the Commonwealth, following recent state legislation and fast action in the wake of the US Supreme Court’s removal of barriers to sports wagering. There are 13 authorised land-based casinos in Pennsylvania, with 12 open now and the 13th scheduled to open in 2020, and the state has authorised an additional 10 smaller “satellite” casinos (subject to “Category 4” licences), several of which have received licences and are in development. Online casino gaming – including slots, casino table games, and poker – started to operate in 2019. Pennsylvania’s land-based casinos are authorised to offer sports wagering (subject to an additional licensing fee), and three online sportsbooks are currently operating in the Commonwealth – with wagering having commenced in 2019 – and several more will soon follow. In short, given the state’s large population and largely permissive (subject to licensing) environment for gaming, Pennsylvania should be a high-revenue state for gaming in the years to come. One drawback that operators and industry observers will study in the coming years is relatively high licensing fees and tax rates in the state.

In 2017, the state passed legislation authorising a major expansion of gambling. The legislation legalised online casino gaming – including poker, slots and table games – in the state. Online casinos launched in the summer of 2019, and the first online poker site (PokerStars) launched in November 2019. The legislation also legalised online lottery, which launched in the spring of 2019 and is administered by the Pennsylvania Lottery Commission. The 2017 legislation also regulated daily fantasy sports and provided a framework for legalised sports betting, which became more possible following the 2018 Supreme Court decision in Murphy v NCAA. The first bricks-and-mortar sportsbook opened in Pennsylvania in late 2018, and online sportsbooks launched in Pennsylvania in the spring of 2019.

Betting

Online sports betting is legal in Pennsylvania following the 2017 state legislation and the Supreme Court’s May 2018 ruling that ended the federal ban on sports betting outside of Nevada. Online sports betting commenced in May 2019 in the state, and is overseen by the Pennsylvania Gaming Control Board (PGCB).

Non-sports betting is not legalised in Pennsylvania, and therefore there are not specific requirements in place.

Bingo

The Pennsylvania Bingo Law, 10 Pa. Stat. § 301, allows for the operation of bingo games for charitable purposes under the supervision of municipal governing authorities, but it is limited to bricks-and-mortar games.

Casino

Online casino gaming was legalised in the 2017 legislation and went live in the spring of 2019, with both online slots and online table games – such as roulette and blackjack – available.

Lotteries

The 2017 legislation legalised iLottery in Pennsylvania, which went live in the spring of 2019 and is overseen by the state’s lottery commission.

Fantasy Sports

The 2017 gaming expansion legislation expressly legalised online daily fantasy sports, defined by statute (4 Pa. Code § 302.) as an online fantasy or simulated game, where prize values are known to participants in advance, the winning outcome is determined by the relative knowledge and skill of participants, and the result is not based on the score or spread of any single game. Major online fantasy sports operators offer games in Pennsylvania.

Social Gaming

There are no specific or separate regulations for social gaming, but the laws of the Commonwealth generally permit it. At this time, operators wishing to offer “free-to-play” or no-prize games can do so in Pennsylvania without the need for a licence.

Although specific statutes and regulations do not exist for social gaming, some guidance can be gleaned from other laws and case law from the state. Indeed, courts have evaluated the concept of consideration in the context of coin-operated machines and have determined that deriving entertainment value or being awarded “free play” does not amount to a prize. Thus, these games were determined to be permissible. Extending that analysis to the similar context of social games, those that are either free to play or do not offer prizes should be determined to be allowable in Pennsylvania. This would extend to “freemium”-type games, in which players are permitted to play for free but have the ability to buy in-game add-ons to supplement and enrich the gaming experience.

Pennsylvania’s expanded gaming legislation (2017) does differentiate between “social fantasy contests” and other fantasy contests (4 Pa. Stat. § 302). The law provides that social fantasy contests are those in which:

  • players do not win anything besides game-based virtual currency that cannot be redeemed for cash or anything of value outside the game;
  • the contest is free to play;
  • the winnings are of no greater value than the lowest entry fee charged to a single participant;
  • the entity offering the contest receives no compensation; or
  • the contest is a season-long fantasy league in which any winnings are distributed in full by and among the participants. However, there are no regulations specific to social fantasy gaming.

Poker

Online casino gaming was legalised in the 2017 legislation and is regulated by the Pennsylvania Gaming Control Board, and the first operator (PokerStars) commenced offering games in Pennsylvania in November 2019, with additional operators expected to follow.

Betting

Sports betting is legal in Pennsylvania following the 2017 state legislation and the Supreme Court’s May 2018 ruling ending the federal ban on sports betting outside of Nevada. Land-based sports betting commenced in the state in November 2018, and is overseen by the Pennsylvania Gaming Control Board and the State Horse Racing Commission.

Non-sports betting is not legalised in Pennsylvania, and therefore there are not specific requirements in place.

Poker

Poker is a table game in the state’s initial Gaming Act and is subject to regulation by the Pennsylvania Gaming Control Board. Poker is available in Pennsylvania’s land-based casinos, which are licensed by the Pennsylvania Gaming Control Board.

Bingo

The Pennsylvania Bingo Law, 10 Pa. Stat. § 301, allows for the operation of land-based bingo games for charitable purposes under the supervision of municipal governing authorities.

Casino

Pennsylvania’s Gaming Act authorises licensed casinos to operate casino table games (4 Pa. Stat. § 13A11) under the supervision of the Pennsylvania Gaming Control Board.

Gaming Machines

Slot and other machine gaming

Slot machines are defined and regulated by the Pennsylvania Gaming Control Board under the Gaming Act (4 Pa. Stat. § 1301). Pennsylvania has a detailed system of grouping and classifying slot machines, as such machines were the first type of gambling allowed in the Commonwealth after the Gaming Act was passed. Four kinds of licensing exist to operate slot machines, depending on the category of licensee.

Terminal-based gaming

Pennsylvania’s 2017 gambling expansion legislation provides for video gaming terminals at authorised truck stops around the Commonwealth. Gaming terminals are only allowed at truck stops that meet certain standards set by the PGCB, such as size of the establishment, being required to have a convenience store and average annual sales. Approved truck stops are allowed to have up to five terminals. The first terminal gaming locations opened at truck stops in Pennsylvania in August and September 2019.

Both casino and skill-based terminal games are permitted as electronic terminal games in land-based casinos in Pennsylvania.

Lotteries

Pennsylvania operates a state lottery, as administered by the Pennsylvania Lottery Commission (72 Pa. Stat. § 3761-101).

The Pennsylvania Criminal Code renders illegal all kinds of gambling that have not been explicitly exempted and permitted by the legislature (18 Pa. Stat. § 5513). Pennsylvania’s gaming criminalisation law is somewhat unusual, as its language seems to be primarily focused on gaming operators, rather than players or participants. Pennsylvania’s law specifically outlaws operating, soliciting, or allowing unlawful gambling. Violation of Pennsylvania’s criminal gambling law is a misdemeanour.

Beyond Pennsylvania’s criminal prohibition of gambling, however, the following acts have allowed for significant exemption and legalisation, and they allow for the oversight and control of permissible gambling in the state.

  • The Pennsylvania Race Horse Development and Gaming Act (Gaming Act) (4 Pa. Stat. § 1101, et seq.) – this act created the Pennsylvania Gaming Control Board, which provides oversight for all matters pertaining to gaming regulation and enforcement in the Commonwealth. When it was passed, the Gaming Act authorised licensed casinos to offer table games and slot machines, and it also authorised and provided for the oversight of pari-mutuel wagering on horse racing.
  • Act 7 (H.B. 941, 2016 Pa. Gen. Assemb., Reg. Sess. (Pa. 2016)) – Act 7 now controls wagering on horse racing in Pennsylvania, and it repealed the earlier legislation pertaining to horse racing in the Commonwealth.
  • The Expanded Gaming Act (H.B. 271, 2017 Pa. Gen. Assemb., Reg. Sess. (Pa. 2017)) – this act was passed in late 2017 and started going into effect over the course of 2018 and 2019. This major gaming expansion:
    1. legalised online casino gaming (including poker, slots and table games), to be regulated by the Pennsylvania Gaming Control Board;
    2. explicitly legalised and provided regulation over daily fantasy sports, as overseen by the Pennsylvania Gaming Control Board;
    3. provided for the regulation of both land-based and online sports wagering, which is now operational following the Supreme Court’s 2018 decision in Murphy v NCAA;
    4. allowed for video gaming terminals to be installed at truck stops in the Commonwealth and tablet gaming at airports;
    5. has authorised as many as ten “satellite” casinos throughout the Commonwealth; and
    6. legalised internet lottery.
  • State Lottery Law (72 Pa. Stat. § 3761-101, et seq.) – this law created Pennsylvania’s lottery, as overseen by the State Lottery Commission. There are several state-specific types of lottery offered in Pennsylvania (including draw games, keno and scratch-offs), both online and offline, along with multi-state draw games such as Powerball and Mega Millions. The state lottery law delineates payouts for winning the various games and sets forth lottery ticket prices.
  • The Local Option Small Games of Chance Act (10 Pa. Stat. § 311 et seq.) – Pennsylvania law permits both non-profit organisations and taverns to offer small games of chance, including pull-tabs, punch boards and raffles. The act sets out the licensing requirements for such offerings.
  • The Bingo Law (10 Pa. Stat. § 301 et seq.) – similar to the above, this law allows non-profit organisations to offer charitable bingo games.

There is not a definition of gambling under any Pennsylvania statute. However, like most states, Pennsylvania courts have adopted a traditional definition of gambling that includes the following three elements:

  • consideration;
  • chance; and
  • reward.

(Commonwealth v Dent, 2010 PA Super. 47, 992 A.2d 190, 192 (25 Mar., 2010, Sup. Ct. Pa.); Commonwealth v Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973, 977 (1983).)

Although there is not a general definition for gambling, a Pennsylvania statute does define the “consideration” component to mean money or other value collected for a product, service or activity, which is offered in direct or indirect relationship to playing or participating in a simulated gambling program (18 Pa. Stat. § 5513(f)).

The Pennsylvania criminal laws do not set forth a specific definition related solely to land-based gambling.

The Pennsylvania criminal laws do not set forth a specific definition related solely to online gambling

Pennsylvania has separate criminal statutes pertaining to (i) illegal lotteries, (ii) gambling in general, and (iii) pool selling and bookmaking.

The illegal lottery law, 18 Pa. Stat. § 5512, makes it illegal for anyone who:

  • sets up, or maintains, any lottery or numbers game;
  • manufactures or prints, or sells, exposes for sale or has in his possession with intent to sell any unlawful lottery or numbers ticket or share, or any writing, token or other device purporting or intending to entitle the holder or bearer, or any other person, to any prize to be drawn or obtained in any lottery, or numbers game; or
  • publishes any advertisement of any lottery or numbers game.

The illegal gambling and gambling device law, 18 Pa. Stat. § 5513, makes it illegal for anyone who:

  • intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards;
  • allows persons to collect and assemble for the purpose of unlawful gambling at any place under his control;
  • solicits or invites any person to visit any unlawful gambling place for the purpose of gambling; or
  • being the owner, tenant, lessee or occupant of any premises, knowingly permits or suffers the same, or any part thereof, to be used for the purpose of unlawful gambling.

The pool selling and bookmaking law, 18 Pa. Stat. § 5514, makes it illegal for anyone who:

  • engages in pool selling or bookmaking;
  • occupies any place for the purpose of receiving, recording or registering bets or wagers, or of selling pools;
  • receives, records, registers, forwards, or purports or pretends to forward, to another, any bet or wager upon the result of any political nomination, appointment or election, or upon any contest of any nature; or
  • becomes the custodian or depository, for gain or ward, of any property staked, wagered or pledged, or to be staked, wagered, or pledged upon any such result; or being the owner, lessee, or occupant of any premises, knowingly permits or suffers the same, to be used or occupied for any of such purposes.

Violations of all three of the statutes outlined in the preceding sections are punishable under Pennsylvania law as first degree misdemeanours, which are the most serious misdemeanour offences under Pennsylvania law. Such violations are punishable by up to five years in prison and fines of up to USD10,000.

There is no additional legislation currently pending in Pennsylvania, given that its recent legislation represented one of the USA's largest entries into online gaming. Operators remain hopeful that Pennsylvania revises some of the applicable tax rates (discussed herein), but there is no pending legislation at this time.

The Pennsylvania Gaming Control Board is the regulatory body that issues licences for both online and land-based casino gaming, poker, sports wagering and fantasy sports.

With licensed gaming – both in land-based casinos and online – now widely authorised in Pennsylvania in the wake of the passage of the 2017 law expanding gaming legislation, the state’s regulatory approach can be best characterised as one that involves “hands-on” gaming regulators who serve as the gatekeepers for operators and vendors acquiring licences to operate in Pennsylvania. The licensing process in Pennsylvania requires detailed submissions, and the Board’s investigations can be significant. After licensing, the Board continues to pay close attention to licensed operators, with a continued supervisory and auditing role. As discussed in more detail in 11 Enforcement, the Board regularly commences enforcement actions that result in fines and consent judgments. And with the requirement for licence renewal, the Board continues to keep close watch over licensed operators in the Commonwealth.

Licences are available for the following activities.

  • Slot machines – under the regulatory regime, “slot machine licensees” are the entities that are licensed to operate casinos and casino gaming (not just slot machines) in Pennsylvania. There are four categories of licences for slot machines.
    1. Category 1 licensees are limited to racetracks, and only seven licensed facilities are allowed around the state. As of 2018, all available Category 1 licences have been awarded.
    2. Category 2 allows for standalone casinos to be licensed and to operate slot machines in delineated cities or tourist locales. Category 2 licensees are allowed to have up to 5,000 slot machines. All five available Category 2 licences have been awarded.
    3. Category 3 licences are available for resort casinos, and, as compared to Category 2, permit only up to 850 machines. The law allows for two Category 3 licences, and both have been awarded.
    4. Category 4 makes licences available to “satellite” casinos, under the 2017 gambling legislation. Such facilities cannot be positioned within 25 miles of any licensee in Categories 1 to 3, nor can they be located in a municipality that has voted to bar such casinos from operating within its jurisdiction. Category 4 licensees are allowed to have between 300 and 750 slot machines and 30 table games. The 2017 legislation made up to ten Category 4 licences available. An auction was held over the course of 2018 and 2019, which resulted in five of the licences being awarded. A subsequent auction took place on 3 September 2019, but there were no bidders, so the five remaining licences are not claimed at this time.
  • Sports betting – the law permits any “slot machine licensee” (that is, the state’s casinos and racetracks) to apply for a “sports wagering certificate.” Nine land-based sportsbooks are currently operational in the Commonwealth, and other facilities are seeking to go live soon. Additionally, online sports wagering launched in May 2019, with SugarHouse Sportsbook being the first to go live, and FanDuel Sportsbook, Rivers Sportsbook and Parx Sportsbook all currently operational online, as well. “Slot machine licensees” in Pennsylvania who are licensed and authorised by the Pennsylvania Gaming Control Board can offer sports wagering:
    1. at the slot machine licensee’s physical facility;
    2. at a temporary physical facility approved by the Pennsylvania Gaming Control Board;
    3. at an off-track betting location managed by a racetrack casino; and
    4. via the internet, available on both computers and mobile devices.
  • Online poker, slot machines and table games – the law permits any “slot machine licensee” to apply for a licence to operate online poker, online slot machines and online table games. Entities must apply separately for each of the three separate categories of games.
  • Video-gaming terminals – the 2017 gaming legislation allows for licences to be issued to truck stop locations and gaming operators and suppliers that wish to offer video gaming terminals. Each truck stop is allowed to have as many as five gaming terminals.
  • Airport gaming tablets – Pennsylvania’s 12 public airports are permitted to apply to offer gaming tablets, but they must apply in partnership with a licensed casino in the Commonwealth. The Pennsylvania Gaming Control Board released regulations for airport gaming in 2019, but gaming has not yet commenced.
  • Racetracks – all of the available licences for pari-mutuel wagering on horse racing in Pennsylvania have been awarded.
  • Small value gaming – bingo and other small games of chance are licensed by municipalities, as opposed to the Pennsylvania Gaming Control Board. Non-profit organisations are allowed to offer such games for charitable purposes, and licences can be provided for either continuous games, or solely for gaming during special events.
  • Vendors – beyond the casinos that are licensed as “slot machine license holders”, other entities working with licences such as vendors, suppliers, operators, or platforms are required to acquire certain licences to operate in the state.

As discussed in the previous section, all of the available licences for Categories 1 through 3 in Pennsylvania have been awarded, but five of the Category 4 licences have not been claimed.

Slot machine licences are valid for three years, but may be renewed.

In order to apply for all certificates and licences, an applicant must submit an extensive written application to the PGCB. These applications are available on the PGCB’s website and require disclosures from the applicant business entity, all members of its ownership and key personnel. In addition, these applications require the applicant to disclose the business’s corporate structure, any bankruptcy or insolvency proceedings, any history of antitrust, trade regulation, or securities violations, any criminal history for the enterprise or its officers, and all current licences the business holds.

One key difference between the application requirements for land-based and online operators is that due to Wire Act concerns, Pennsylvania is concerned with the location of gaming servers for those licensees that operate online gaming within the state. To that end, Pennsylvania’s regulations state that for online slots, poker and table games, the servers must be either located in the state of Pennsylvania or in another location in the USA approved by the PGCB.

Owners, directors, managers and other key personnel must submit a personal history disclosure form. This disclosure form seeks information about the individual’s assets, net worth, family tree, military service, criminal history (if any), prior employment, and compensation from prior employment and any current positions.

Shareholders with direct or indirect ownership of 5% or more of the applicant must submit a personal history disclosure form. This disclosure form seeks information about the individual’s assets, net worth, family tree, military service, criminal history (if any), prior employment, and compensation from prior employment and any current positions.

After an applicant submits its paperwork, the PGCB commences an investigation, which may last several months or years. PGCB’s investigation includes investigation of facilities, interviews with key personnel and testing of gaming products. In addition, the PGCB may request personnel to travel to them to interview, or may travel to certain sites, as needed.

Category 1 and 2 slot machine operator licences are subject to USD50 million application fees and can be renewed for USD1.5 million. Category 3 licences are subject to a USD5 million application fee and can be renewed for USD150,000.

The 2017 gaming legislation allowed for auctions to take place for Category 4 licences. The cost of a licence in the initial auction peaked at USD50.1 million, and the legislation specifies that the minimum cost of a licence is USD7.5 million.

Slot machine licence holders that seek to offer sports wagering must pay an additional fee of USD10 million.

Slot machine licence holders that seek to offer all three of online poker, online slot machines and online table games must pay an additional USD10 million; alternatively, any one of the three online casino offerings can be licensed individually for USD4 million. Operators of online casino games are subject to a USD1 million licence fee.

Manufacturers and suppliers are subject to USD50,000 and USD25,000 application fees, respectively.

For truck stop gaming terminals, manufacturers are subject to a USD50,000 application fee and a USD10,000 licence fee; terminal operators are subject to a USD25,000 application fee and USD10,000 licence fee; and establishments are subject to a USD1,000 application fee and USD250 licence fee per gaming terminal.

For airport gaming tablets, licence costs vary depending on the location. In Philadelphia, the cost is USD2.5 million. In Pittsburgh, the cost is USD1.25 million. Other international airports in Pennsylvania cost USD500,000, and all other public airports in the Commonwealth cost USD125,000.

Renewal fees every three years for Category 1 and 2 licences are USD1.5 million, and Category 3 licence renewals cost USD150,000.

Renewal fees for both online sports gaming licences and online casino licences are USD250,000 every five years. Operators of online casino games are subject to a USD100,000 renewal fee.

Renewal fees for manufacturers and suppliers are USD30,000 and USD15,000 per year, respectively.

The state of Pennsylvania worked to authorise 13 land-based casinos. Twelve of these casinos are currently operating and the 13th is expected to be operating in 2020. Each casino, including their owners and key employees, must be approved and subsequently licensed by the PGCB. The casinos themselves are assigned the title “slot machine license holders.” Pennsylvania has progressively authorised an expansion of up to ten “satellite” casinos in particular locations in addition to their primary casinos. These locations of each casino are being sold off, with priority given to the current slot machine licensees.

Operators must acquire a licence for each online poker, slots and table games product. Operators can elect to secure a licence for one, two, or all three online products. While current slot machine licence holders are given priority to obtain these licences, other qualified gaming entities will be given the chance to operate as the licensing process continues throughout 2019.

Pennsylvania is in the middle of issuing regulations and licences for bricks-and-mortar sports betting. These sports betting licences are being offered to current slot machine licence holders. Temporary online sports betting regulations went live in 2018.

Platforms, suppliers, operators and vendors working with licence holders must also acquire certain licences or registrations to operate in the state.

As a rule of thumb, only the state lottery may offer lottery products in either land-based or online forms, so no licences are available for lottery in the state. Businesses must gain approval from the state lottery before operating as a lottery retailer in Pennsylvania.

The State Horse Racing Commission has authority over all aspects of pari-mutuel wagering, including licensing tracks for wagering.

The most significant change for strictly land-based gaming in Pennsylvania is that the 2017 expanded gaming legislation introduced expanded “Category 4” licence availability for up to ten smaller “satellite” casinos. Licences for five casinos were awarded via auction, and casino sites are currently in development in York, Pennsylvania (Hollywood Casino); Westmoreland County (Live! Casino); Beaver County (Mount Airy Pittsburgh); Cumberland County (Parx Casino); and Morgantown, Pennsylvania (Hollywood Casino).

Thirteen interactive gaming certificates exist in Pennsylvania for each online gaming vertical – online poker, slots, or table games – for a total of 39 interactive gaming certificates in the state.

In addition to certificates for each vertical, Pennsylvania has authorised an unlimited number of “skins” on each certificate. Businesses interested in operating a skin must seek an interactive gaming licence and partner with a certificate holder. The licence authorises operators to work “on behalf of” and in partnership with the interactive gaming certificate holder under the operator’s own brand.

At this time, only slot machine licence holders may apply for sports betting licensure. Finally, daily fantasy sports operators are now required to be licensed in Pennsylvania as well. They must petition for Fantasy Contest Operator licences before the PGCB.

Service providers and other suppliers that are not customer-facing must seek a licence, and do not need an established commercial partnership with a certificate or licence holder to do so.

To offer flat fee marketing services in Pennsylvania for any form of online gaming, an affiliate must register as a gaming service provider.

To offer revenue share marketing services for any form of online gaming, an affiliate must become certified as a gaming service provider.

White-label providers must seek a licence, and do not need an established commercial partnership with a certificate or licence holder to do so.

As discussed in detail herein, online gaming has proliferated in Pennsylvania since the passage of the 2017 expanded gaming legislation. In addition to the deployment of additional online sports wagering and online casino operators, the most significant forthcoming development in Pennsylvania will be when the first online poker operator launches in the Commonwealth. Several online poker operators have entered into partnerships with land-based casinos in Pennsylvania (including PokerStars partnering with Mount Airy Casino, PartyPoker teaming up with Valley Forge Casino Resort, and 888 and WSOP joining with Caesars), and PokerStars/Mount Airy commenced operations in November 2019, with additional operators hopeful to commence operations prior to the end of 2019, or in 2020.

In addition to its restrictions on server locations, Pennsylvania has placed additional restrictions on online operators, including using appropriate geoblocking services, know-your-customer protocols to protect customers and regulations regarding minimum customer data privacy requirements.

Pennsylvania imposes responsible gaming requirements on operators, which include providing information on responsible gambling resources – such as telephone numbers, internet sites and the opportunity to self-exclude – in a prominent display. This requirement exists for both online and land-based facilities.

Regulations also require employees to be trained in responsible gaming issues, including relating to problem gambling, and preventing minors, intoxicated people and those on the self-exclusion list from participating in gaming (58 Pa. Code § 501a.3).

Pennsylvania has a robust self-exclusion programme, with separate enrolment for casino gaming, online gaming, fantasy sports and video gaming terminals. Self-exclusions for casino gaming, online gaming and video game terminals can be for one year, five years, or for lifetime. For fantasy sports, individuals can request self-exclusion for a minimum of one year, or for any length of their choosing.

Pennsylvania’s criminal law makes it a first-degree felony – subject to up to 20 years in prison and a fine of the greater of USD100,000 or twice the value of the property involved – to do any of the following:

  • with knowledge that the property involved, including stolen or illegally obtained property, represents the proceeds of unlawful activity, the person acts with the intent to promote the carrying on of the unlawful activity;
  • with knowledge that the property involved, including stolen or illegally obtained property, represents the proceeds of unlawful activity and that the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of unlawful activity; or
  • to avoid a transaction reporting requirement under state or federal law.

(18 Pa. Stat. § 5111.) The statute additionally imposes civil liability to the Commonwealth, in addition to the criminal penalties outlined above.

Although Pennsylvania provides criminal penalties for money laundering as discussed above, the statute does not set forth any specific requirements for gaming operators.

The Pennsylvania Gaming Control Board supervises and regulates advertising on gaming. For certain aspects of advertising – such as disclosures related to problem gaming – the Board’s Office of Compulsive and Problem Gambling plays an additional role.

Advertising is defined by a Pennsylvania Gaming Control Board regulation as “[g]aming related marketing materials including a notice or communication by a licensee, certified or registered entity or its agent to the public through signs, billboards, broadcasts, publications, mail, e-mail, text message, tweet or other means of dissemination” (58 Pa. Code § 501a.1).

There are several requirements placed on any advertisements made by (or on behalf of) licensed operators in Pennsylvania:

  • if the Office of Compulsive and Problem Gambling notifies licensees in writing that a specific advertisement “could adversely impact the public or the integrity of gaming”, licensees are required to discontinue the use of the particular advertisement (58 Pa. Code § 501a.7(b));
  • all advertisements are required to contain a “gambling assistance message” similar to one of the examples provided by regulation (ie, “Gambling Problem? Please call (toll free telephone number)”), and the complete text of the gambling assistance message along with the font to be used must be approved in advance by the Office of Compulsive and Problem Gambling (58 Pa. Code § 501a.7(d)); and
  • advertisements are not allowed to (i) contain false or misleading information, (ii) fail to disclose conditions or limiting factors associated with the advertisement, or (iii) use a font size or other limiting condition that obstructs the “gambling assistance message” described above (58 Pa. Code § 501a.7(c)).

Under a Pennsylvania Gaming Control Board regulation, licensed operators (or their agents) are barred from employing or contracting any person or entity “to persuade or convince a person to engage in gaming or play a specific slot machine or table game while on the gaming floor of a licensed facility” (58 Pa. Code § 501a.7(a)).

Although not specific to the advertising regulations, the Office of Enforcement Counsel of the Pennsylvania Gaming Control Board has the authority, in its sole discretion, to initiate proceedings for violations of gaming statutes or regulations. Proceedings are initiated by filing a complaint with the Board, and sanctions can include civil fines or penalties, the imposition of conditions on a licence, permit, certification or registration, or the suspension or revocation of a licence, permit, certification or registration (58 Pa. Code § 405a.3(a)).

Pennsylvania law (4 Pa. Stat. § 1328) and Pennsylvania Gaming Control Board regulations set forth that slot machine licensees are required to inform the Board prior to, or immediately upon becoming aware of, any proposed or contemplated change in ownership of the licensed entity. The statute further sets forth that notice to the Pennsylvania Gaming Control Board and approval from the Board is required before the proposed or contemplated transfer of ownership of the licensed entity takes place. The Board evaluates the proposed new ownership group consistent with the manner in which it evaluates an initial licence application.

Beyond the disclosure requirements applicable to slot machine licensees, Pennsylvania Gaming Control Board regulations (58 Pa. Code §§ 427a.6, 429a.8, 431a.6 and 1403.7) mandate that manufacturer and supplier licensees, including those connected to either sports wagering or other verticals, submit a Notification of Proposed Transfer of Interest Form with the Bureau of Licensing whenever they become aware of a proposed or contemplated change of control. From a reading of the new regulations, it seems that upon approval by the Pennsylvania Gaming Control Board, the licence gets transferred to the new ownership group.

Under the Pennsylvania statute, a change in control is considered to be defined as “the acquisition by a person or group of persons acting in concert of more than 20% of a slot machine licensee’s securities or other ownership interests, with the exception of any ownership interest of the person that existed at the time of initial licensing and payment of the initial slot machine licence fee, or more than 20% of the securities or other ownership interests of a corporation or other form of business entity that owns directly or indirectly at least 20% of the voting or other securities or other ownership interests of the licensee” (4 Pa. Stat. § 1328(c)).

Regulations promulgated by the Pennsylvania Gaming Control Board outline additional triggers for when transitions involve any of the following:

  • more than 5% of a slot machine licensee’s securities or other ownership interests;
  • more than 5% of the securities or other ownership interests of a corporation or other form of business entity that owns, directly or indirectly, at least 20% of the voting or other securities or other ownership interest of the slot machine licensee;
  • the sale of a slot machine licensee’s assets, other than in the ordinary course of business; and
  • other transactions or occurrences deemed by the Board to be relevant to licence qualification (58 Pa. Code § 441a.17).

Other than the requisites discussed herein, the Pennsylvania statutes do not set forth additional requirements with respect to passive investors. The regulations explicitly carve out from notification requirements any “transaction through which an institutional investor acquires less than 20% of the securities of a slot machine licensee’s holding company, provided that the securities were acquired for investment purposes only” (58 Pa. Code § 441a.17(f)(2)), and provided that the institutional investor complies with other requirements.

The Bureau of Investigations and Enforcement and the Office of Enforcement Counsel are the bodies within the Pennsylvania Gambling Control Board in which investigation and enforcement powers are vested. Enforcement proceedings are overseen by the Board’s Office of Hearings and Appeals.

In addition to oversight over the licensing process, the Bureau of Investigations and Enforcement is tasked with overseeing and monitoring the operations of licensed entities, and with auditing licensees’ finances, internal controls, security systems and other matters. If the Bureau becomes aware of possible criminal activity, it reports it to the Pennsylvania State Police for further investigation (58 Pa. Code § 405a.1).

The Office of Enforcement Counsel sits as an office within the Bureau of Investigations and Enforcement. In addition to advising the Bureau as to licensing matters, the Office of Enforcement Counsel has the authority, in its sole discretion, to initiate proceedings for violations of gaming statutes or regulations. Proceedings are initiated by filing a complaint with the Board, and sanctions can include civil fines or penalties, the imposition of conditions on a licence, permit, certification or registration, or the suspension or revocation of a licence, permit, certification or registration. In enforcement actions, the Office of Enforcement Counsel acts as a prosecutor in proceedings against licensees before the Pennsylvania Gaming Control Board (58 Pa. Code § 405a.3(a)). The Chief Enforcement Counsel possesses subpoena power to carry out investigation and enforcement responsibilities (58 Pa. Code § 405a.5).

Enforcement actions take place before the Office of Hearings and Appeals of the Pennsylvania Gaming Control Board. Either the Board itself or a presiding officer conducts hearings (58 Pa. Code § 491a.7). If the hearing is overseen by a presiding officer, the officer makes a report and recommendation to the Board, which can choose whether or not to adopt some or all of the report and recommendation (58 Pa. Code §§ 494a.4, 494a.5). Rulings by the Board are subject to appeal pursuant to the Pennsylvania Rules of Appellate Procedure (58 Pa. Code §§ 494a.11).

As discussed above, in proceedings before the Pennsylvania Gaming Control Board, sanctions can include civil fines or penalties, the imposition of conditions on a licence, permit, certification or registration, or the suspension or revocation of a licence, permit, certification or registration (58 Pa. Code § 405a.3(a)).

Pennsylvania seems to have a robust enforcement environment. According to the Pennsylvania Gaming Control Board’s Annual Report for 2018–19, over 1,000 post-licensure enforcement actions came before the Board. Although many of those actions dealt with licensing of individual employees, there were some more significant enforcement proceedings, as well (see https://gamingcontrolboard.pa.gov/files/communications/2018-2019_PGCB_Annual_Report.pdf). The number of enforcement actions between July 2018 and June 2019 was significantly higher than the same time periods in the preceding two annual reports, which makes sense in light of the significant recent expansion of gaming in Pennsylvania (see https://gamingcontrolboard.pa.gov/files/communications/2017-2018_PGCB_Annual_Report.pdf).

Between July 2018 and June 2019, the Board entered into 23 consent agreements, which resulted in almost USD1.3 million worth of fines (see https://gamingcontrolboard.pa.gov/files/communications/2018-2019_PGCB_Annual_Report.pdf). One of the larger fines during the relevant timeframe was a fine of over USD351,000 to a licensed manufacturer – American Gaming Systems – for engaging in business with an unlicensed entity. Additionally, the Valley Forge Casino Resort was fined USD50,000 for giving out excess free slot play (see https://www.prnewswire.com/news-releases/pa-gaming-control-board-levies-over-480-000-in-fines-300673402.html). During the same time period between 2017 and 2018, the Board assessed over USD2 million in fines (see https://gamingcontrolboard.pa.gov/files/communications/2017-2018_PGCB_Annual_Report.pdf).

As discussed in 2.1 Online, although there are no regulations dealing with social gaming, the 2017 expanded gaming legislation did provide a definition for “social fantasy contests” that carved out “free-to-play” and similar fantasy contests from licensing requirements. For that reason – combined with already-existing case law supporting “free-to-play” games being permissible – it stands to reason that Pennsylvania is a reasonably stable environment for businesses to experiment with social games. Of course, because there are no regulations explicitly exempting social games (outside of the fantasy sports context), the safest approach for any business considering introducing a social game in Pennsylvania would be to consult with gaming counsel prior to doing so.

Although gambling on eSports has not been legalised yet in Pennsylvania, there are recent signs of the Commonwealth being a welcome environment for eSports in general. Perhaps most notably, the Philadelphia Fusion team (which is owned by Comcast Spectator, a subsidiary of Comcast) of the Overwatch League broke ground in September 2019 on the USD50 million “Fusion Arena”, which – when it opens in 2021 – will be a 3,500-seat arena dedicated to eSports. The Overwatch League Finals also took place before a sold-out crowd at the Wells Fargo Center in Philadelphia in September 2019 (see https://www.espn.com/esports/story/_/id/27701213/ground-broken-new-fusion-arena-philadelphia-set-open-2021). Fusion Arena is being developed in partnership with the owners of the in-construction “Live! Casino & Hotel” in Philadelphia (see https://www.bizjournals.com/philadelphia/news/2019/09/25/comcast-cordish-in-talks-with-naming-rights.html). Thus, while eSports gaming is not legal at this time in Pennsylvania, it appears to be a jurisdiction in which eSports are popular, and one where eSports entities and gaming businesses are already working in collaboration, so there is reason to be optimistic that there could be a market for eSports betting in the future.

As discussed in 2.1 Online, the 2017 legislation expanding gaming explicitly legalised fantasy sports in Pennsylvania and introduced licensing requirements for operators. As of the end of fiscal year 2018–19, there were nine licensed fantasy sports operators in Pennsylvania, and during that year, the operators generated over USD222 million in entry fees, resulting in over USD23 million in revenue. The two operators responsible for the overwhelming majority of revenues were DraftKings and FanDuel (see https://gamingcontrolboard.pa.gov/files/communications/2018-2019_PGCB_Annual_Report.pdf).

The 2017 expanded gaming legislation explicitly authorised the introduction of both “skill slot machines” and “hybrid slot machines” (which combine elements of chance and skill) at casinos in Pennsylvania (see 4 Pa. Stat. § 1101(12.2), 1103). Additionally, many bars and taverns in Pennsylvania offer “skill gaming” terminals with cash payouts, but such offerings are not regulated and have been subject to legislative scrutiny given the mature nature of Pennsylvania’s gaming regulatory environment (see https://www.pennlive.com/news/2019/06/the-ones-that-got-away-lawmakers-in-americas-2-gambling-state-weigh-what-to-do-with-proliferating-skill-games.html).

Blockchain technology and cryptocurrency are not currently utilised in connection with any gaming activity in Pennsylvania, and there are not regulations regarding the technology at this time. In 2018 comments during the Pennsylvania Gaming Control Board’s rule-making process, DraftKings advocated that the Board should allow the use of cryptocurrency as a payment method (see https://gamingcontrolboard.pa.gov/files/regulations/EXGAMING_125-213_214_215_DraftKings_Igaming_Comments.pdf). At this time, however, this does not appear to be under consideration.

Pennsylvania’s 2017 expanded gambling legislation almost immediately made it a state with among the most robust gaming offerings in the USA, perhaps lagging behind only Nevada and New Jersey. Pennsylvania currently has a full array of offerings, with casino gaming, poker, and sports wagering available both in casinos and online. Fantasy sports are also widely available in Pennsylvania, and the state lottery is available both in stores and online. Thus, with gaming widely authorised in Pennsylvania, reform efforts could focus on operators seeking to curtail certain tax rates, along with possible efforts to make more gaming licences available. And, with the rise of eSports and its popularity in Pennsylvania, it stands to reason that licensees will seek to include eSports wagering among their offerings.

Pennsylvania has some of the highest tax rates in the USA, including the highest tax rates on slots.

Land-Based Gambling

The applicable tax rates for land-based gaming are as follows.

  • Land-based casino taxation (Categories 1 to 3) – taxes are levied as follows:
    1. 55% of slot revenue (highest in the USA); and
    2. 16% of table game revenue.
  • Land-based casino taxation (Category 4) – taxes are levied as follows:
    1. 54% of slots revenue; and
    2. 14% of table game revenue.
  • Pari-mutuel horse racing – tax rates vary depending upon the size of the pari-mutuel pool. The lowest tax rate, which is applicable to pools of up to USD100,000, is 3.25%, and the largest tax rate, which is applicable to pools over USD1 million, is 8.75% of the pool.
  • Video-gaming terminals – taxes are levied as 52% of revenue.
  • Airport gaming tables – taxes are levied as follows:
    1. 54% of slot revenue; and
    2. 16% of table game revenue.
  • Sports wagering – taxes are levied as 36% of revenue.
  • Personal income tax – gambling winnings for individual residents, whether made inside or outside of the Commonwealth, are considered to be taxable income at the personal rate of 3.07%. This can include non-cash winnings, such as vacations or automobiles. Gambling losses are deductible, but only to the extent of any winnings. Pennsylvania does not tax lottery winnings.

Online Gambling

The applicable tax rates for online gambling are:

  • online slot machines – 54% of revenue;
  • online table games (including poker) – 14% of revenue;
  • online sports wagering – taxes are levied as 36% of revenue; and
  • fantasy sports – 15% of revenue.
Ifrah Law PLLC

1717 Pennsylvania Ave, N.W.
Suite 650
Washington, DC 20006
USA

+1 202 524 4140

jeff@ifrahlaw.com www.ifrahlaw.com
Author Business Card

Law and Practice

Authors



Ifrah Law PLLC is a Washington, DC-based firm that has been at the centre of most of the precedent-setting cases in the online gaming industry. The firm represents many of the largest online gaming companies in the world and has been instrumental in the creation of legislative and regulatory frameworks in states across the USA. Ifrah Law works with domestic and international clients who seek to bring their products to market, providing counsel on the most progressive areas of online gaming, including sports betting, skins betting, mobile gaming, daily fantasy sports, eSports, online sweepstakes and lotteries, and peer-to-peer betting. The firm also counsels clients on cryptocurrency issues, payment processing and licensing, consumer protections and data privacy, and corporate compliance. Ifrah Law has a strong track record of working with foreign and domestic regulatory bodies, local counsel in foreign countries, casinos, and other online operators through the online gaming trade association, iDEA Growth, of which Ifrah Law is a founding member.

Compare law and practice by selecting locations and topic(s)

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.