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PENAL CODE
CHAPTER 9. Lotteries
Cal Pen Code @ 326.5 (1999)
@ 326.5. Bingo games
(a) Neither this chapter
nor Chapter 10 (commencing with Section 330) applies to any bingo
game that is conducted in a city, county, or city and county
pursuant to an ordinance enacted under Section 19 of Article
IV of the State Constitution, if the ordinance allows games to
be conducted only by organizations exempted from the payment
of the bank and corporation tax by Sections 23701a, 23701b, 23701d, 23701e, 23701f, 23701g,
and 23701l of the Revenue and Taxation Code and by mobilehome
park associations and senior citizens organizations; and if the
receipts of those games are used only for charitable purposes. Return to Top of Page
(b) It is a misdemeanor for any person to receive or pay a profit,
wage, or salary from any bingo game authorized by Section 19
of Article IV of the State Constitution. Security personnel employed
by the organization conducting the bingo game may be paid from
the revenues of bingo games, as provided in subdivisions (j)
and (k).
(c) A violation of subdivision (b) shall be punishable by a fine
not to exceed ten thousand dollars ($ 10,000), which fine is
deposited in the general fund of the city, county, or city and
county that enacted the ordinance authorizing the bingo game.
A violation of any provision of this section, other than subdivision
(b), is a misdemeanor.
(d) The city, county, or city and countythat enacted the ordinance
authorizing the bingo game may bring an action to enjoin a violation
of this section.
(e) No minors shall be allowed to participate in any bingo game. Return to Top of Page
(f) An organization authorized to conduct bingo games pursuant
to subdivision (a) shall conduct a bingo game only on property
owned or leased by it, or property whose use is donated to the organization,
and which property is used by that organization for an office
or for performance of the purposes for which the organization
is organized. Nothing in this subdivision shall be construed
to require that the property owned or leased by, or whose use
is donated to, the organization be used or leased exclusively
by, or donated exclusively to, that organization.
(g) All bingo games shall be open to the public, not just to
the members of the authorized organization.
(h) A bingo game shall be operated and staffed only by members
of the authorized organization that organized it. Those members
shall not receive a profit, wage, or salary from any bingo game.
Only the organization authorized to conduct a bingo game shall
operate such a game, or participate in the promotion, supervision,
or any other phase of a bingo game. This subdivision does not
preclude the employment of security personnel who are not members
of the authorized organization at a bingo game by the organization
conducting the game.
(i) No individual, corporation, partnership, or other legal entity,
except the organization authorized to conduct a bingo game, shall
hold a financial interest in the conduct of a bingo game.
(j) With respect to organizations exempt from payment of the
bank and corporation tax by Section 23701d of the Revenue and
Taxation Code, all profits derived from a bingo game shall be
kept in a special fund or account and shall not be commingled
with any other fund or account. Those profits shall be used only
for charitable purposes.
(k) With respect to other organizations
authorized to conduct
bingo games pursuant to this section, all proceeds derived from
a bingo game shall be kept in a special fund or account and shall
not be commingled with any other fund or account. Proceeds are
the receipts of bingo games conducted by organizations not within
subdivision (j). Those proceeds shall be used only for charitable
purposes, except as follows:
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(1) The proceeds may be used
for prizes.
(2) A portion of the proceeds, not to exceed 20 percent of the
proceeds before the deduction for prizes, or two thousand dollars
($ 2,000) per month, whichever is less, may be used for the rental
of property and for overhead, including the purchase of bingo
equipment, administrative expenses, security equipment, and security
personnel.
(3) The proceeds may be used to pay license fees.
(4) A city, county, or city and county that enacts an ordinance
permitting bingo games may specify in the ordinance that if the
monthly gross receipts from bingo games of an organization within
this subdivision exceed five thousand dollars ($ 5,000), a minimum
percentage of the proceeds shall be used only for charitable
purposes not relating to the conducting of bingo games and that
the balance shall be used for prizes, rental of property, overhead,
administrative expenses, and payment of license fees. The amount
of proceeds used for rental of property, overhead, and administrative
expenses is subject to the limitations specified in paragraph
(2).
(l ) (1) A city, county, or city and county may impose a license
fee on each organization that it authorizes to conduct bingo
games. The fee, whether for the initial license or renewal, shall
not exceed fifty dollars ($ 50) annually, except as provided
in paragraph (2). If an application for a license is denied,
one-half of any license fee paid shall be refunded to the organization.
(2) In lieu of the license fee permitted under paragraph (1),
a city, county, or city and county may impose a license fee of
fifty dollars ($ 50) paid upon application. If an application
for a license is denied, one-half of the application fee shall
be refunded to the organization. An additional fee for law enforcement
and public safety costs incurred by the city, county, or city
and county that are directly related to bingo activities may
be imposed and shall be collected monthly by the city, county,
or city and county issuing the license; however, the fee shall
not exceed the actual costs incurred in providing the
service.
(m) No person shall be allowed to participate in a bingo game,
unless the person is physically present at the time and place
where the bingo game is being conducted.
(n) The total value of prizes awarded during the conduct of any
bingo games shall not exceed two hundred fifty dollars ($ 250)
in cash or kind, or both, for each separate game which is held.
(o) As used in this section, "bingo" means a game of
chance
in which prizes are awarded on the basis of designated numbers
or symbols on a card that conform to numbers or symbols selected
at random. Notwithstanding Section 330c, as used in this section,
the game of bingo includes cards having numbers or symbols that
are concealed and preprinted in a manner providing for distribution
of prizes. The winning cards shall not be known prior to the
game by any person participating in the playing or operation
of the bingo game. All preprinted cards shall bear the legend,
"for sale or use only in a bingo game authorized under California
law and pursuant to local ordinance." It is the intention
of the Legislature that bingo as defined in this subdivision
applies exclusively to this section and shall not be applied
in the construction or enforcement of any
other provision of law.
HISTORY: Return to Top of Page
Added Stats 1975 ch 869 @ 1, adopted at Election June 8, 1976;
Amended Stats
1977 ch 271 @ 1, effective July 8, 1977; Stats 1979 ch 1006 @
1; Stats 1980 ch
997 @ 1; Stats 1981 ch 804 @ 1.
Amended Stats 1993 ch 394 @ 1 (AB 1216).
Amended Stats 1996 ch 283 @ 1 (AB 2770).
NOTES:
AMENDMENTS:
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1977 Amendment:
(1) Substituted all that part following "allows games"
for "only for the benefit of organizations exempted from
the payment of the bank and corporation tax by Section 23701d
of the Revenue and Taxation Code and a contribution or gift to
which would be a charitable contribution under Section 170(c)(2)
of the Internal Revenue Code of 1954" in subd (a);
(2) added "or pay"
in subd (b);
(3) added the second sentence
of subd (c);
(4) amended subd (f) by (a)
substituting "An organization authorized to conduct bingo
games pursuant to subdivision (a)" for "A nonprofit,
charitable organization"; and (b) adding the
second sentence;
(5) substituted "authorized"
for "nonprofit charitable" in
subds (g) and (h);
(6) substituted subd (j)
for former subd (j) which read: "(j)
All profits derived from a bingo game shall be kept in a special
fund or account and shall not be commingled with any other fund
or account.";
(7) amended subd (k) by (a)
substituting "on each" for "not to exceed the
actual cost of issuing each license, on each nonprofit, charitable";
and (b) adding the second and third sentences; and
(8) added the last sentence
of subd (n).
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1979 Amendment:
(1) Amended subd (j)(2) by (a) substituting "before"
for "after" after "the proceeds"; and (b)
adding "including the purchase of bingo equipment,";
(2) added subd (j)(3);
(3) redesignated former subd
(k) to be subd (k)(1);
(4) added "annually,
except as provided in paragraph (2)" at the end of the second
sentence of subd (k) (1);
(5) added subd (k) (2); and
(6) added the second, third,
and fourth sentences of subd (n).
1980 Amendment:
Added subd (j)(4).
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1981 Amendment:
(1) Substituted "receipts" for "proceeds"
after "provided that the" near the end of subd (a);
(2) added the second sentence
of subd (b);
(3) amended subd (f) by adding
(a) "or property whose use is donated to the organization,"
in the first sentence; and (b) "or whose use is donated
to" and "or donated exclusively to" in the second
sentence;
(4) added the fourth sentence
of subd (h);
(5) added the comma after
"individual" in subd (i);
(6) designated the former
second sentence and subds (1)-(4) of subd (j) to be subd (k);
(7) added the second sentence
of subd (k);
(8) amended subd (k)(2) by
substituting (a) "20" for "10"; (b) "one
thousand dollars ($ 1,000)" for "five hundred dollars
($ 500)"; and (c) "administrative expenses, security
equipment, and security personnel" for "and admininstrative
expenses";
(9) amended subd (k)(4) by
(a) substituting "the monthly gross receipts from bingo
games of an organization within this subdivision" for "an
rganization's monthly gross receipts from bingo games" in
the first sentence; and (b) adding the comma after "overhead"
in the second sentence; and
(10) redesignated former
subds (k)-(n) to be subds (l)-(o).
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1993 Amendment:
In addition to making technical changes, substituted "two
thousand dollars ($2,000)" for "one thousand dollars
($ 1,000)" in subd (k)(2).
1996 Amendment:
In addition to making technical changes, (1) substituted "a
bingo" for "such" after "other phase of"
in subd (h); and (2) added the last sentence in subd (l)(2).
CROSS REFERENCES: Return to Top of Page
Tax exemptions of nonprofit organizations conducting bingo games:
Rev & Tax C
@@ 215.2, 23710.
COLLATERAL REFERENCES:
Witkin & Epstein, Criminal Law (2d ed) @@ 847, 853.
Cal Jur 3d (Rev) Criminal Law @ 1048.
ATTORNEY
GENERAL'S OPINIONS: Return to Top of Page
Pen C @ 326.5, pertaining to bingo games, supersedes the provisions
of Pen C @@ 319-326, pertaining to lotteries, as to any bingo
game authorized by @ 326.5, but not as to any bingo game not
so authorized. If a bingo game is truly free to all participants,
the element of consideration necessary to a lottery is missing
and an operator is not subject to prosecution under Pen C @ 319-326.
60 Op Atty Gen Cal Cal 130. Return to Top of Page
Organizations licensed to conduct bingo games may not install
and utilize player-operated computerized electronic video machines
for this purpose.
67 Op Atty Gen Cal Cal 528.
Community college district is not entity which may be authorized
by local ordinance to conduct bingo games pursuant to provisions
of Penal Code Section 326.5.
70 Op Atty Gen Cal Cal 109. Return to Top of Page
Electronic system of bingo which substitutes hand computer with
stored bingo "card" matrices for traditional paper
or cardboard bingo cards does not qualify as bingo within meaning
of Pen C @ 326.5, subd. (o). (1987)
70 Op Atty Gen Cal Cal 304.
City or county may not impose fee upon tax exempt nonprofit organization
measured as percentage of gross receipts derived from operation
of bingo games.
78 Op Atty Gen Cal Cal 279. Return to Top of Page
A bingo player may use an electronic aid in conjunction with
traditional bingo cards to notify him when a game has been won.
1998 Click
here to see the full AG opinion.
81 Op Atty Gen Cal Cal 415.
A charitable organization may not conduct a bingo game know as
"progressive power ball bingo" in which a game winner
may receive more than $250 in prizes.
82 Op Atty Gen Cal Cal Cal
132.
NOTES
OF DECISIONS Return to Top of Page
In an action by a city to collect a graduated income tax, pursuant
to municipal law, on the gross income generated by bingo games
operated by a religious corporation, the trial court erred in
holding valid the tax on such activities, since state law has
preempted the field of taxation of bingo games. Plaintiff operated
its games pursuant to Cal. Const., art. IV, @ 19 (which authorizes
bingo games, previously prohibited as gambling, for charitable
purposes only) and
Pen. Code, @ 326.5 (which
provides the rules as to use of
funds derived from bingo games and allows a municipality to impose
a $ 50 annual license fee). The tax was not permitted by @ 326.5,
and the municipality had no right as a charter "home rule"
city to impose a revenue-intended tax unimpaired by state legislation,
since bingo sales exist and operate only by virtue of such special
constitutional and statutory permission. Accordingly, in allowing
such games to operate within the city, the municipality may give
that permission only on the terms of the legislative permit.
<=8> City of Pomona v Christian Fellowship Center (1981,
2d Dist) 125 Cal App 3d 250, 177 Cal Rptr 897. @ 326.5, which
controls the conduct of bingo games, is regulatory and civil
in nature, and therefore, in an action requesting declaratory
and injunctive relief from the enforcement of certain county
and state laws pertaining to the operation of bingo games on
an Indian reservation,, the enforcement of local and state laws
would be enjoined since certain states are given only criminal
jurisdiction over offenses committed on Indian reservations under
<=9> 18 USCS @ 1162. <=10> Barona Group of Capitan
Grande Band of Mission Indians v Duffy (1982, CA9 Cal) 694 F2d
1185.
Punchboard bingo, which falls within the amendment to former
Pen. Code, @ 326.5, subd. (n) (now Pen. Code, @ 326.5, subd.
(o)), defining charitable "bingo" games as including
cards having numbers or symbols which are concealed and preprinted
in a manner providing for distribution of prizes, notwithstanding
Pen. Code, @ 330c (declaring "punchboards" to be illegal
slot machines), was constitutionally authorized by the 1976 amendment
to Cal. Const., art. IV, @ 19, subd. (c), providing the Legislature
by statute may authorize cities and counties to provide for bingo
games, but only for charitable purposes. Thus, the trial court
did not err in denying a county authorization to destroy 8,000
punchboard cards containing winning numbers or symbols concealed
by opaque coverings which were being sold for 50 cents each as
bingo games for charity. Neither the express language of art.
IV, @ 19, subd. (c), nor any clear import to be divined from
the constitutional amendment, demonstrate the statutory definition
of bingo as amended in 1979 is unreasonable or clearly inconsistent
with the Constitution. <=11> People v 8,000 Punchboard
Card Devices (1983, 1st Dist) 142 Cal App 3d 618, 191 Cal Rptr
154.
The trial court properly denied a preliminary injunction sought
by a religious organization to prevent a city from enforcing
an ordinance prohibiting break open bingo, in which the participant
purchases a card that is a predetermined winner or loser, notwithstanding
the contention the ordinance conflicted with Pen. Code, @ 326.5,
which authorizes cities to allow charitable organizations to
conduct bingo games. Although @ 326.5, subd. (o), defines bingo
to include break open bingo, the question whether to allow bingo
at all is left to local government entities under Cal. Const.,
art. IV, @ 19. Thus, bingo is a matter of local, not state, concern
and the regulation at issue did not enter a field occupied by
the state. Section 326.5 does not indicate that a city or county,
if it provides for bingo, must permit bingo in both of the forms
defined by the statute. <=12> Lubavitch Congregation v
Long Beach (1990, 2nd Dist)217 Cal App 3d 1388, 266 Cal Rptr
513.Return to Top of Page
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