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HomeMy WebLinkAbout02 AGENDA REPORT BUY GUM FREE INC 0 AGENDA REPORT ITEM #2 MEETING DATE: FEBRUARY 9, 2016 TO: CITY OF TUSTIN PLANNING COMMISSION FROM: MATTHEW S. WEST, ACTING FINANCE DIRECTOR JULIE INTERRANTE, CUSTOMER SERVICE SUPERVISOR SUBJECT: APPEAL OF DENIAL OF BUSINESS LICENSE APPLICATION — BUY GUM FREE FUN, INC. APPELLANT: TODD H. IGER BUY GUM FREE FUN, INC. 10 HUGHES, SUITE A106 IRVINE, CA 92618 LOCATION: SOAPY LEE COIN LAUNDRY 17292 MCFADDEN AVE., SUITE H & I TUSTIN, CA 92780 REQUEST Mr. Todd H. Iger ("Appellant") appeals from and requests reconsideration of the Director of Finance's denial of a business license application for a vending machine inside the Soapy Lee Coin Laundry, located at 17292 McFadden Avenue, Suite H & I, Tustin, CA. The Denial of Business License Application, dated December 11 , 2015, is included as Attachment "A". The Appellant's written appeal, dated December 18, 2015, is included as Attachment "B" JURISDICTION Any decision of the Director of Finance ("Director") may be appealed to the Planning Commission. All appeals must be made in writing and must specify the decision appealed from, the specific action or relief sought by the appellant in the appeal, and the reasons why the action taken by the Director should be modified or reversed. Generally, when considering appeals from a Director's decision, the Planning Commission may approve, approve with conditions, disapprove the matter, or remand the matter to the Director for further proceedings. (TCC § 9294(a)). In this instance, however, the machine in question has been deemed by the Department of Justice to be an illegal gambling device under state law. Accordingly, the Planning Commission may not authorize the continued operation of the machine in contravention of state law. Agenda Report February 9, 2016 Denial of Business License Application Page 2 BACKGROUND On October 15, 2015, the City issued a Notice of Violation/Pre-Citation Notice directing the Appellant to obtain a business license for the Buy Gum Free Fun machine. On October 26, 2015, the Appellant submitted a business license application to the City for bubble gum vending machine(s), inside the Soapy Lee Coin Laundry, located at 17292 McFadden Avenue, Suite H & 1, Tustin, CA ("Application"). A copy of the Application is included as Attachment "C". The Buy Gum Free Fun machine at issue had already been installed and was in operation at the time of application submittal. The Buy Gum Free Fun machine is commonly referred to as a coin pusher. Pictures of the machine are included as Attachment "D". To operate a coin pusher, a player inserts a quarter into the machine, which is then dropped onto a moving tray(s) which is/are layered with coins and frequently cash or other prizes. A fortuitous drop of the quarter will cause the other coins and/or bills to fall off the edge of the tray, where they can be collected by the player. In exchange for every quarter inserted into the Appellant's machine, a player receives a single gumball and the opportunity to play the coin pusher. State law prohibits any person from owning, renting, possessing or otherwise permitting to be placed, maintained or used, an illegal gambling device. (Cal. Penal Code §§ 330(a), 330(b), 330.1). Illegal gambling devices are defined broadly to include any machine, apparatus, or device, where (1) something of value is deposited (e.g., a coin) to play the device, and (2) as a result of the element of chance or other unpredictable outcome, the player may become entitled to receive money, credit, allowance, or other thing of value. (!d.) The fact that a machine may, apart from any element of hazard or chance or unpredictable outcome of operation, also sell, deliver, or present some merchandise (e.g., gumballs) does not alleviate its status as an illegal device. (Cal. Penal Code § 330(b)(d)). The Califomia Department of Justice, Bureau of Gambling has determined that coin pusher machines are illegal gambling devices, whether or not the machine purports to have an element of skill. A copy of the Bureau of Gambling Control Law Enforcement Advisory is included as Attachment "E". Based on the foregoing, the Director of Finance, in consultation with the Tustin Police Department and the City Attorney's Office, determined that the machine is an illegal gambling device prohibited by state law (Cal. Penal Code §§ 330(a), 330(b), 330.1), and on this basis denied the Appellant's Application. RECOMMENDATION It is recommended that the Planning Commission uphold the denial of the Appellant's business license application by adopting Resolution No. 4309 included as Attachment «F„ Agenda Report February 9, 2016 Denial of Business License Application Page 3 Ma hew S. West JU14 Interrante Acting Director of Finance Customer Service Supervisor Attachments: A. Denial of Business License Application B. Appellant's written appeal C. Appellant's business license application D. Pictures of Buy Gum Free Fun machine E. Bureau of Gambling Control Law Enforcement Advisory F. Planning Commission Resolution 4309 ATTACHMENT A �r�, WOODRUFF, SPRADLIN e SMART A P r o ! a s s 1 a n 2 .1 C o r p o r a t I a n MICHAEL S.DAUDT DIRECT DIAL:(714)415-1059 DIRECT FAX:'(714)415-1[59 E-MAIL-.MLAUDTLa1WSS•LAW.00M December 11, 2015 VIA CERTIFIED MAIL; RETURN RECEIPT REQUESTED & U.S. MAIL Mr. Todd Howie Iger Buy Gum Free Fun, Inc. 24842 Red Lodge-Place Laguna Hills, CA 92653 Buy Gum Free Fun,-Inc. c/o Mr. Todd Howie Iger 1010•Hughes�A106 Irvine, CA 92618 Re: Denial of Business License Air lication Dear Mr. Iger: This office serves.as City Attorney for the City of Tustin ("City"). The City.is in receipt of.the Business License Application you submitted on behalf of Buy Gum Free Fun, Inc. to operate a vending machine inside the Soapy Lee Coin Laundry, located at 17292 McFadden Avenue, Units H &I, Tustin CA, 92780. The City has determined that the vending machine subject to the application is an illegal gambling devi.ce prohibited by state law (Cal. PenaI Code §§ 330(a), 330b, 330.1). Therefore, the Director of Finance is unable to process your request or issue you a business license for this device. A refund of your business license application payment will be issued to. you. Please be advised that operating without a business license isa violation of the Tustin City Code. Immediate removal of the vending machine is hereby demanded. Pursuant to-Tustin City Code section 2512(8), you may appeal this decision to the City Planning Commission by filing a written appeal with "the City Clerk during normal business hours within ten (10) calendar days of the date of this decision. The appeal must be accompanied by a deposit or fee as required by City Council.iesolution or ordinance. All'appeals shall be made in writing and shall specify the decision appealed from, the specifc:action or relief sought by 'the appellant in the appeal, and reasons why the action taken by the Director of Finance should be modified or reversed. You are entitled to be represented by counsel at the appeal hearing. 555 ANTON BOULEVARD,sU1TE'1200 a COSTA MESA.CA 92626-7670■(714)558-7000 s FAX(714)8]5-7787 W W W.W55-LA W.COM 1129570.1 Mr.Todd Howie Iger Buy Gum Free Fun, Inc. December 11, 2015 Page-'2 Should you have any questions concerning this•notice; please do.not hesitate to contact our office. Very truly yours, WOODRUFF, SPRADLIN&SMART A Professional Corporation MICHAEL S. DAUDT cc: Pamela Arends-King; Finance Director/Treasurer .Julie Interradte, Customer Service Supervisor Qui Phan, Owner, Soapy Lee Coin Laundry i c 3 t 129570.1 ATTACHMENT B City of Tustin i,�� OF I U S T 14 City Planning Commission x;15 OT-C 18 P 12: 29 300 Centennial Way Tustin, CA 92780 RE: Appeal of Denial of Business License Application Pursuant to Tustin City Code section 2512(8), we hereby file this written appeal of the decision to deny Business License to Buy Gum Free Fun, Inc. We believe that, by simple error, the conclusion that our machine "is an illegal gambling device prohibited by state law"was improperly drawn. We shall provide significant legal precedent that such conclusion was not justified- Respectfully Submitted, Tod Iger Corporate Attorney Buy Gum Free Fun Inc. TODD H• IGER CaRpORA-M A-rTORN'EY 0949) 5 ] 4 , 679 Lo4U 2540 BUY GUM FREE FUN INC 11.3511210 CA 10 HUGHES,SUITE A106 DATE 9$054 IRVINE, 92818 � M M`M(949)5144-7007 f�( rj PAY TO THE i ORDER `-' OF: i r hU-7 $IFED S1G14ATURE 1 2540 LMP98 MSP CHECK �'�44 WOODRUFF, SPRADLIN&Sl1RART A P r o f e % f I o n a 1 C a r '0 o r a x f a n MICHAEL,S.DAUDT DIRECT DIAL:(714).415-1059 DIRECT FAX:(714)415-1159 E-MAIL:MDAUDTQWSS-LAW.COM December 11, 2015 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED &.U.S. MAIL Mr. Todd Howie Iger Buy dl-rn b'kee Fun, Inc. 24842 Red Lodge Place Laguna,Hills, CA 9265.3 Buy Gum Free Fun,Inc. c/o Mr. Todd Howie Iger J.0 Hughes#A 106 Irvine, CA 92618 Re: Denial of Business License Application Dear Mr. Iger: . This office serves as City Attorney for the.City of Tustin ("City"). The City is in receipt of the business License Application you submitted on Behalf of Buy Gum Free Fun, Inc. 1.6 operate a vending machine inside -the Soapy Lee Coin--Laundry, located at 17292 McFadden Avenue;Units H&I, Tustin CA,,92780. The City has determined that the Vending machine subject to the application is an illegal gambling device prohibited by state Iaw (Cal.. Penal Code §'.§_ '330(a), 330b , 330.1). Therefore, the Director of Finance is unable to process your request pr isaue you a business.license'for Es device. A refund-of your business license application payment will be issued-to you. Please.be advised that operating without a business license is ra violation of 'the Tustin _City Code. Immediate removal of the.vending machine is hereby demanded.. Pursuant to'Tustin City Code section 2512(gy; you may appeal this decision to the City Planning Commission by filing -a written appeal with the -City Clerk during ,normal business hours within ten (10) calendar days of the date of this decision. The appeal must be. accompanied by a deposit or fee as required by City Council resolution or ordinance. All appeals shall be made in writing and shall-specifythe decision appealed from, the specific action or relief sought by the appellant in the appeal, and reasons why the .action taken uy the Director of Finance should be modified or reversed. You are entitled to be represented by counsel at the appeal Bearing. 555 ANTON BOULEVARD,SUrrE 1200 a COSTA MESA.CA 926264670 0(714)558-7000■FAX(714)835-7787 W WW.WSS-LAW.COM 1129570.1 Mr. Todd Howie Iger Buy Gum Free Fun, Inc. December 11, 2015 Page.2 Should you have any questions concerning this notice, please do not hesitate to contact our office. Very truly yours, WOODRUFF, SPRAOLIN& SMART A Professional Corporation MICHAEL S. D T cc; Pamela Arends-King, Finance DirectodTreasuter Julie Interrante, Customer Service Supervisor Qui Phan, Ownet, Soapy Lee Coin Laundry 0c) ry � 5 r 1129510.1 ATTACHMENT C Incompletion of the Application • City of Tustin Will Cause a delay in processing. Business License Application ter 300 Centennial play =� Tustin,CA 92780 714-573-3144 FAX 714-S73-3129 Business Name" 1:3uy Gum Free Fun Inc. "(If other thein surnnmc, include a copy of your approved Fictitious Business Name statement filed with the County Clerk.) Business Address 10 Hughes A106 Suite Number (Use of Post Office or commercial mailbox for business address is a misdemeanor.) Litt' Irvine State CA Zip Code 92818 Mailing Address 24842 Red Lodge Place Suite No. City Laguna Hills stole CA 92653 Zip Code Business Phone (_949) 215-7007 Cell Phone (949) 514-1678 FAX f 9491215-7007 Seller's Permit No, 101-713920 Your E-mail Address wcbstiger@yahoo.com IIf City of Tustin adiIresa. 1TWILide copy of s(,Iler's peranat showittg'rustul location.) WE13 SITE Nature:and Type of Goods Sold: Number of Employees at this location bubble gum If ou are a landlord rovide a tenant raster_ Business Activity (Please be specific) vending machines ,;,y, - e, 50 tee i r�, $ Business Type (check one) ❑ Sole Ownership/Independent Contractor/Partnership ❑ Corporation / Corporate Identification No. C3572033 (located on Articles Of Incorporation) State CA ❑ LLC Identification No. State State Employer Identification No. Federal Identification No. Tact and Revenue Code requires taxpayer identification, complete the rullowing. If Carp/LLC, use Officer. RESIDENCE ADDRESS OF RESPONSIBLE PARTY 1S REQUIRED. Name Todd Howie Iger Driver's License No P---P a-e, Residence Address City_ State CA Zip Code_ Emel cool 4 If partnership, name partner below: Name Driver's License Nc Residence Address City State Zip Code I nu Approximate Date of the Start of this business at this location in the City of'Tustin 08127!15 1 hereby deci€are, under penalty of perjury, that the foregoing information is true .anti correct. As a condition for the issuance of the license applied for, I agree to submit any additional information that may he required and to conduct all phases of this business in conformance with all applicable laws, ordinances and regulations established for such business/profession. In addition, my signature serves to verify that I have been informed that this license renewal is due every January lot and delinquent if not paid by the first day of February in any year in which business is conducted in the City of Tustin. Todd Iger 10/23/15 Signature �' Printed Nacre and Title Date SEE TAX S¢HPDULE ENCLOSED. MAKE CHECKS PAYABLE TO THE CITY OF TUSTIN. ANY BUILD[ CONSTRUCTION OR SIGN INSTALLATION WILL REQUIRE A BUILDING DEPARTMENT PERMIT, OFFICE USE ONLY PLNG BLDG WATER FIRE LETTER RECEIPT OF FEES COLLECTED ZONING INITIALS DATE e d 101#3 J u 904 AMOUNT CHECK# DATE INITIAL BUSUiess%Revised Forms 20021BusApp ANY VIOLATION OF THE TUSTIN CITY CODE. AND/OR MISREPRESENTATION, FALSE, MISLEADING, OR INCOMPLETE ANSWERS ON THIS FORM MAY CAUSE THIS APPLICATION TO BE DENIED OR RESCINDED. FEES ARE NOT REFUNDABLE, Business Name Buy Gum Free Fun Inc. Telephone 949.) 215.7007 Approximate Square Footage.of Business 1860 Business Location 10 Hughes Suite A166,Irvine CA 92618 FILL IN THE PERCENTAGE OF EACH BUSINESS USE THAT APPLIES (BASED ON SQUARE FOOTAGE)—BASED ON 100 PERCENT, WHAT COMPRISES YOUR BUSINESS ACTIVITY. NUMBERS SHOULD ADD UP TO 100. 40.00 % 60:00 °l° % °lo 0/0 Office Warehouse Industrial/R&D Retail Wholesale Service [�Yes (] No Is your business address also your home address? If Yes., please complete the supplemental home occupation questionnaire. 0 Yes 0 No Will.you operate asocial club, dating service,-or-es-cori service? (]Yes 0 NO Will you pirovide and/or arrange live cntertainmen ? material? Yes 0 No Will you provide, arrange and/or, produce adult entertainment and/or sell or rent adult oriented Yes 0 No Wilt you provide billiards, pool, bagatelle, bowling alleys, or more than five (5) pinball or eleeironic games? ❑Yes [D No Is your firm a private patrol service? ©Yes E3 No Does a patrol service work for you? Name and address of service: Yes No Will your business have a security'alarm system?' Name and-address of alarm company: Yes No Will you provide massage therapy'or operate a bath,9du is bath, or massage establishment? ❑Yes No Will your'business sell,manufacture, or have mail orde ,'adult books, lingerie, toys, or novelties? Yes 0 No Will you operate air antique store or business_ that buys or sells used items? If Yes, pleasecomplete thg supplemental used merchandise affidavit. Yes 0 No Will you Operate'a.business that involves,pawn? Yes Ej No Will you operate a business that involves brokering, buying,.selling, or trading automobiles or other motorized vehicles,whether,,running or not? Yes 0 No Will aizy inerchandise be displayed outside the-building? 0 Yes 0 No. Will your business sell beer,ivine; and/or other alcoholic beverages? ❑ Yes 0 No Will you sell firearms? ❑Yes 0 No Are you adding or removing amy doors,.windows,walls, or parlilions? ©Yea 0 No Are you'modifying,adding, or removing any plumbing, rhechanical,or electrical system? ❑Yes 0 No Will any accessory sheds, canopies, awnings, or other exterior structures be installed for this business? 0 Yes El No Will you be constructing any signs (temporary or permanent)outside the building? 11 Yes 0 No Will you be storing any materials outside the building? 0 Yes 0 No Will you be storing any commercial vehicles, tools, or equipment on=site? 0 Yes D.No Will you have any aboveground or,underground tanks?' ©Yes leo Will water be used in your manufaettiiing orr processing? 0 Yes E3 No Will your business involve cooking on a commercial'stoye or fryer? ©Yes 0'No Are you installing a new commercial hood or fire protection system? 0 Yes +]No Will the business`provide training or classes at your business location to anyone not employed by the busiincss? If renting a building, office, or space, to whom will or do you pay sent? PS Business Parks Owner/.Management Company Name IO Hughey,Irvine 928 tB _ - 949 454=7662 Address Telephone When does,or will your current lease end? 12131rts How many units,do you or will you lease at this location?1 ❑ Yes E] No Will you be sharing this-location with another busiress? Your business location will be checked by the zoning, building, water; police, and fire depaitments. .IT you have any doubt that your business location, activity, and/or building does not conform with the requirements of the Municipal Code, please contact these departments for further information before filing 'this application or entering into a Lease Agreement. 1 understand that this application and payment of tax does riot license me to operate until I have fulfilled all the requirement's df the Tustin Municipal Code. I hereby certify ilAder penalty of perjury that.I have read and understand the above statements. I hereby agree to obtain all nry ecessaCity perrriit(s) when a permit is required. Todd Iger,CFO 10r23I45 Signature Print Name and Title ' Date Driver's r nse No. BusmesslF�vi oms20t>TBusllccaesU°nna� Nity of ` u,z. . 300 ;enter,, YEAR: Tusim, - ACCOUNT #; VENDING MACHINE LOCATION LIST chis list must be returned with your application/renewal. Tags will only be Issued for machines located WITHIN CITY OF Tt'ST1N CITY LIMITS JO. OF MACHINES NAME AND ADDRESS OF BUSINESS WHERE LOCATED TYPE OF MACHINE ------------ i COMPANY NAME: DATE: ADDRESS: CITY: ZIPCCDE: UC.3DI Business Search- Business)entities-business Programs Page 1 of 1 ca��ai �irr[I.rcrct � � +�� �; d'`r�"�. F F' °�nt"a-+.....` "TM 4•$x�'i � Y 5 � V� �'° L }��°� � I,w ,_.¢• s _.,.-^ VLL �.....yt.•�,� a..��x rya .�ti .+� ���g r f�7 Secretary of State Main Website Business Programs Notary&Authentications Elections Campaign&Lobbying Business Entities(BE) Business Entity Detail Online Servfces -E-File Statements of Data Is updated to the Cailfornia Business Search on Wednesday and Saturday mornings:Results reflect work processed Information for through Tuesday;October 20,2015.Please refer to Processing_Times for the received dates of FlUngs currerhpy being Corporations processed.The data provided IS not a complete of certified r0cord of an'entity. -Business Search -ProDisclosure c o sure Sea c Entity Name: BUY GUM FREE FUN -Disclosure Search Entity Humber: C3572033 Maln Page Data Filed: 05/16/2013 Service Options Name Avallahility Status: ACnvE Forms,Samples&Fees 2urisdkirlon: CALIFORNIA Statements Ofdnfarmation- Entity Address: 24842 RED LODGE PL dE (annuaVD(ennlal reports) Entity City,State,Zip; LAGUNA H1LLS.CA 92653 Filing Tips Agarrt for Service or Process: TODD HOME IGER Information Requests Agont Address. 29842 RED LODGE PLACE, (certificates,copies rt - -status reports) Agent City,State,Zip.-. _ LAGUNA HILLS CA'92653 Service_ of Process FAQs "Indicates the InformationIS not contained in the California Secretary.of Slate's database. Contact Informat€on if status of the corpo atfbn is'Surrender,'the agent for service of process Is automatically.revoked.Please refer to Callfomia Corporations Code seWon 2114 for l_n_forniation Resnurce.s surrendered, corporationsrela[tng to service upon rporatlons that have Business Resources F&Information on checking Or raserving:a name,refer to flame Availabtii . Starting tingformations • For Information on Ordering Certificates,copies of documents and/or"status reports or to request a mare extensive Starting A Business seakch refer to inform_ atlon Re4uescs; Customer.Alerts ' For heIp'Wth searching an entity name,refer to Search Tits. -eu5ine9s.Ident€ty The(t For desolptions of fhe'various fields and status types,-refer.,to Field Descri tions Arid Status Definitions, -Misleading Business Modify Search Soifeltatloris —Hew Search Prfnter Frie_ndly nack to searR chesults Prf.,,•_w�acStafement Free Document Readers Copyright®2015 CaUfortila Secretary of state httn:ffkeoler:sos.ca.eov/ boara or cquanzation-Mate of t.nromla Page I of 1 Sales and Use Tax Permit Verification Permit Number 101713920 is Valid Owner Name; {GER ENTERPRISES INC Business Name: Address: 24664 VIA TONADA LAKE FOREST GA Start Date: 0210912011 Seller's permit verification is available to help you determine if a seller's permit account number included on your customers resale certificate is currently valid.As a seller,you are responsible for ensuring the resale certificate is properly completed. Please refer to Regulation 1668,Resale Certificates (httpAAvvi.troe_ca.govAawguideslbusinesslcurrentt itlg?valllsutr/1668.html). 113adc to Query Page,(IboetvebseN[ces/ve(ficaUon.jsp?aciion=SALES) https:/lefile.boe.ca.gov/boewcbservices/verification resulfs.isn ATTACHMENT D _ . ,. . , +A, r 1 � +r _. ��„ .. �'���ir1�� C '� �Ga�1���,5 �� USQ v, �, ,� ��.. 'ei hr�y.:�:.. .... tKf' -Aw dN � ��'. ?k ,„r ° �^ �� � �v �� ' '+ .,�. ., i�, �,`..'., ,4'F t �~���. G ��� A: . ..Yu.•S <.... ��� :,°,� d' � ��� e r y r , s lumommmmomm r FOR SALES AND SERVICE PLEASE CALL: IGER ENTERPRISES INC. (949) 215-7007 E i a y M Y r , a 1 d}• .- y J��-I•i1 a� 14 ....J-w....r..s�r+.��.. mow.+...... T 0 ti.. MS3WMa3i�f Y35A ry AMP —n:IfYiV lJAM1R�1f:Y[fa� 1r A ATTACHMENT E .. BUREAU CSF • EDMUND G. BROWN JR. 1�brr4 ern Attorney General '.� 'GAMBLING .JACOB A. APPELSMITH, • CONTROL Bureau Chief NUMBER10 LAW ENFORCEMENT ADVISORY NQVEMe-R 1, 2010 Illegal Gambling Devices The Bureau of Gambling Control (Bureau)provides this advisory regarding illegal gambling devices in response to inquiries from local law enforcement agencies, inquiries from state agencies including the California State Lottery and the California Department of Alcoholic Beverage Control,and from the Bureau's observations in the field. This advisory also addresses misrepresentations contained in documents circulating in the industry that are fraudulently prepared to appear as though they were issued by this office. As a general matter, most, if not all, gambling devices—other than those operating in California Tribal Casinos—that a person pays to play,and that offer anything of value for playing, are illegal devices. Common types of illegal devices include coin pushers,electronic trivia games that include any element of chance,claw machines, traditional slot machines, and slot machines that purport to have a skill element. The attached flow chart outlines the steps for determining what is an illegal gambling device. (See attachment#1.) Illegal Gambling Devices California's gambling device statutes are broad in their coverage and prohibit any person from owning, renting,or possessing illegal gambling devices. (Penal Code, §§ 330a,330b, 330.1.) An illegal gambling device has three features: 1. It is a machine,apparatus, or device (coin operation is not required); 2. Something of value is given to play the device;and 3. The player has the opportunity to receive something of value by any element of hazard or chance("something of value" is not limited to coins, bills, or tokens—it also includes free replays, additional playing time, redemption tickets,gift cards,game credits,or anything else with a value, monetary or otherwise.) (Penal Code, §§ 330a, 330b& 330.1.) In addition, if device can readily be converted to have the features of an illegal gambling device. (as listed in 1, 2, and 3 above), it is an illegal device. (Penal Code, § 330b(d).) Page 2 Number 10 Law Enforcement Advisory Narrowly Defined Amusement Device Exception Devices that fall within-the definition of an illegal gambling device above may nevertheless qualify for the "pinball"or"amusement device"exception if they meet the narrow requirements set forth in the provisions of Penal Code section 330b, subdivision (0, and section 330.5. A gaming device qualifies for the amusement device exception, and therefore is.lawful, if it: L Provides an opportunity to win nothing other than additional or free play; and 2. Is predominantly a game of skill. A lawful device is one that is predominately a game of skill (as are most arcade pinball machines), on which what can be won is limitedlo additional chances or free plays. If, however,the player has paid to play and can win something other than additional plays, such as food, toys, or other prizes, the machine does not qualify for the amusement device•exception and is an illegal gambling device. As an additional example,a coin pusher is an illegal gambling device,whether or not it purports to have an element of skill, because the player can win coins by playing. California Tribal Casinos California Tribal Casinos are permitted to operate slot machines pursuant to the terms of approved Tribal-State Compacts and California law. False Representations Regarding the-Legality of Devices The Bureau has obtained memorandums that falsely purport to be issued by the Office of the Attorney General claiming that coin pusher games are'legal as games of skill. (See attachment 42.) In addition,the Bureau has feceived information that some manufacturers and vendors are misrepresenting the Penal Code's narrow"amusement device"'exception in an attempt to portray their g' ambling devices as compliant with California law. 'The Attorney General's Office has'notsapproved any such device for play-id California, nor issued any opinion of stateinent regarding the legality of any such device on the basis of the predominance of skill. The Bureau notes, however, that its field 'operations have detected a growing number of gaming devices throughout California that are illegal because they offer prizes and are not otherwise exempted from the•prohibitions of the Penal Code. The purpose of an advisory is informational. An advisory does not constitute-legal advice. i For more information regarding this advisory, contact the California Department ofJustice, Bureau of Gambling Control at(916).263-3408 Attachment 1 Qualification for the Amusement Device Exception under the Penal Code as a Floe Chart 1. Does the device have all three features of an illegal gambling device? (Penal Code §§ 330a,330b& 330.1) A. Is it a machine, apparatus or device? (Coin operation is not required.) B. Is something of value given to play the device? ("Something of value" is not limited to coins,bills, or tokens - can be anything with a No value, monetary or otherwise.) C. Does it by any element of hazard or chance provide the player the opportunity to reeeive something of value?("Something of value" is not limited to coins,bills,or tokens--it also includes free replays, additional playing time,redemption tickets, gift cards, game credits, or anything else with a value,monetary or otherwise. Yes Can the device readily Device; is an illegal Yes be converted to have the r gambling device. features of an illegal gambling device? (Penal Code §330b(d)) No 2. Does the devi . `r the"a11usMIens Device is not an illegal e p pan? gambling device ender (Penal Code §§ i0b( 5) Penal Cade §§330a, 330.1 &- 330b. A. 1566i*I& device award as a prize Yes ani thing of value other than a free replay? No Devicc is an illegal gambling device prohibited by the Penal Code. B. What element predominates to Chance determine outcome of the game? Skill FDfc;Acealifies for the ent device" California Bureau of eption. C:smUlirtg Control ATTACHMENT 2 STA[ OF CALI:ORNIA OFCE OF'T_qE ATTORNEY GENERAL'. ED:t?MND d.$R0V/N JR. . . lv-'IMORANDUM 7'O:ALL LA's'E.':vT.ORCEMENT Or'r"XCERS Coin Peisher meebines that hi=ve vending capabilities or gstnea of sldll racy be operated in the Staete i fCr.Wcrnfa. California Parka[Code '330.L Every person who manufactures,vwzls,stores,l•:egps,possesses,Belle;rents,leases,lets on shared,leads or Eves swsy,1tr2a3port5 or imposes U#AWe or lease or offers to sell,rent,lett&;,let on shares,lend or'O"away or wbo perusits the operation ofr o be plactd,maintain-A used.or`kept in any room,spece urbuilding, ' owned,lased oroccupied an his toanagetnent or control,any$lot ma6ine or device ss'hereinaft6 , dewed,and fiery persono'ui yr is to be t¢iac3e'Kith arry,permoa any agteeanastt Grit re erenre:toany: , : 5 slpt saclrttie az device ashereinsfter` ,puruaaf to wbictt agreraxeat.the tascr t$eieof,as resalt ot!assy: , element of harsxd or'.chsxtae,may. tae ;to r ceNe.irffY&lng of vahst or°�3dat�o nai3`c]>anit os raglrt"tci cse. , i slot'ruarkiac or desiGe,-nr to rvcciA, k,:slug,,tolz n gr a ertsoraadam,r teethe 1`valpe'or'atT�er�rse,. ..0nat13ij the holder tv-radve'tsas?Gitiag gull#}:,.ras�iis�emeattcrhikd:sli$�tbopnnlshRllle,�ystfr�e oSaot': moretheone.tbousanddollsra(Si,1�14 onzentinthecopaty}all not exceeding sit i,a,& arrby.botl,': such fine exid imprisorsmect,�4 slot•m$chin r ice in the rrieaning of Sections 334.1 to 33t1.5�1��iiaive;of this.codelt.aaae that is,or may be,.us:d or ope ed ' ch wady that,as a result of � `itto"4j""' : Y money or coin or otherobjett such machine or p°irate.or asap•be operated or plgytd,`,. medanicalhf,el_ctrics]ly,Automatically or manually; ..: d by on of day;lenient of hazard or--chance;.he nser> -? �taxy receive or b come entitled to r=civg any'thing.of 4- s plug,token nr caetaorant aw,wlzQiber of 'value o otUrwise,whish shay be given in trade,or the at r q sac sad 'fionaf chances or'i~iii4is to irse sat�• tasclrine of device,isrespective.of whether it may,apart fro lisszi d a�climate also sell,ileiiver yr pre=t admt mercbaadise,indicatift oI'weigllt,eUtertrzi=CZ. h ofvalae. „ 330.4:It is'spccifically de-dared that the mere poS=Sioi:Or'tors:col, o ,mer;iesse,,agent,employer_ Mor tba&ort or other site ist'any slot machine or device,ss defined in S 'oc A of this code,is prohibited and peuxli cd by at provisions V.Sections 330.1 to 330.5,inclusive,of this t It is qp4mcally dered that avt-j person who.perm-its to be placed,niaiair�nd t,r '. Y o ,"ce, _ efyclosaclavr building owned,leasee!or occupied by him,or and er lois msaagemcert or. 1,wlsmom, for ase or ,*Pc.at n or for storage,bailm eat,safckeep'mg or deposit outy,an ',dot.noscleine old e-,as deCaied�5erti�n 3303 of this code,is guilty of a misdemeanor and punisbable as provided in Sectioc .I.of this'code.' Ifis further declarcd 6--t Eire provisiiaes of this section specifically recderzzy Flat Qachiue or device is defy ed-in Sectoo 3311.1 of thL codcsubjeci to confiscutioa �s papvi c�3 in.Seztian.335~ of this code. r 33_0.5.It is foriber expressly provided that Sections 330.1 le-33D:4,inclusive,of;foss' d" i iL-i'ot;a_pp"r t_oimns c trsscl;�ae ; reghing iaacl:iaes end machi�nca`which versd clgem";csnd ;ice crearc,food;coafectioas or other ;merchandise,is wWct there is depositQ an exact considcr•:tion and fioeu winch in evuy case the customer obtains tbat whlrh he purchsses;&tad it is further ezpressiy provided that with respect In the prov7sions•of Section;330.1-to 33€x.4,inclusive,only,of this code,pin bell,and other aniutetae;nt machines or devices:whiclt'are predo riiitautly garner:of skill,whether affardiag the;opgarttsaity of additional chAc,ces air",'f*:i lays or noti'arepot-irstcradeti,.to-be at;d are not included within the term slot•machinc or device as,define330.1 tqM 4:.inclueiY 05 #tiffs code, - ATTACHMENT 2 Cain Pushier machines,that have vending capabilities or,games of skill may be operated ' e State of California, -Slot Machines are Ille un the.Caltfcrnia Penal Cone 330a. However, Coit - 'P'ushers are not related a onsidered a game of skill, Please reviewthe x following Califorhia Pena- CA I'i#arn}a Pe !C eectiori 330.5 iris further excressiy provided.that Sections 33 to.3 ..4,.in f this code'shall nc_ aoplyto i music machines,weighing machin=sand rnach;nes tha# e a es,candy,ice,craam;food,' confections orothrler merchandise,IwNch-there Is depos de nslderation and from which in. every case.the c rstomer.v�tains thai.wvhich he purchases;ano it a xpressly provided that with « respect to-th6 provls"sons of sectloris 330.1 to 330.4,Inclustv-e,oral co in ball,and othef' amusernent machines or devkes wbkh.ire bredorntnant a es bfs 'il b beth affording the r /opportunity of additional chance,'pr free'plays or not,ire not 1&6ded c be"aiti n chided witairi the terms• Iot machine or device as i1kni d witiiln Sections 33b.i to?3d_4 lr'iciusl o+ thisrode. ' ATTACHMENT 2 Vpf YM1t Y t C'�Erpp'R� �`Yy: STATE OF CALIFORNIA C)F IC.'E Or THE, ATTORh'FY GENERAL MEMORANDUM CO:INSPECTING AUTHORI1'IF,S Devices categorized as"coin nu slider" "coin slider"or an •machine bezrin�such iomenciature; that ; , . T _ _. :_. , tray he operated in .he State of California. Ca lTUrni2 Pena! Code 330.5.3t is further cs resslti• provided that S 'ar:� to 330.4,inclusive F•.c ii I.t , 330 l , 0. t 'eTte s, -21�ice cream,food, confections or other merchaadise,in which there L� �:Pl , r c �__- J:).aet consideration and'from which in every case the customer obtains that which he purchase . an" F. < further apressly prdvided thatR•ith respect to the provisns of Setons 3301 to 330.4 incl =-oni-of this code Pin hail,and other� amusement machines R, r f ATTACHMENT F RESOLUTION NO. 4309 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN UPHOLDING THE DENIAL OF THE BUY GUM FREE FUN INC., BUSINESS LICENSE APPLICATION FOR A VENDING MACHINE INSIDE SOAPY LEE COIN LAUNDRY LOCATED AT 17292 MCFADDEN AVE SUITE H & I. The Planning Commission of the City of Tustin does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That on October 23, 2015, Mr. Todd Iger, on behalf of Buy Gum Free Fun Inc., ("Appellant") submitted a business license application for a vending machine inside Soapy Lee Coin Laundry located at 17292 McFadden Ave Suite H & I, Tustin, CA 92780; B. That on December 11 2015, the City Attorney's Office notified the Appellant in writing of the City's determination that the coin pusher machine subject to the application is an illegal gambling device prohibited by state law (California Penal Code §§ 330(a), 330b and 330.1), and that on this basis the Director of Finance was unable to issue the requested business license; C. That on December 18 2015, Appellant appealed the denial. of the Buy Gum Free Fun Inc. business license application; D. That a public hearing on the matter was duly called, noticed, and held for said appeal on February 9, 2016, by the Planning Commission; E. That the Planning Commission has carefully reviewed and considered all of the evidence presented in connection with the appeal, including, but not limited to, the agenda report, and all written and oral testimony presented; and F. That the Planning Commission determines, based on the foregoing, that the Buy Gum Free Fun Inc., machine is an illegal gambling device prohibited by state law (California Penal Code §§ 330(a), 330b and 330.1), and that the denial of the Buy Gum Free Fun Inc., business license application was proper. If. The Planning Commission hereby upholds the denial of the Buy Gum Free Fun Inc. business license application for the vending machine located at 17292 McFadden Ave. Suite H & I, Tustin, California. PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission held on the 9th day of February, 2016. JEFF R. THOMPSON Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning Commission Secretary of the Planning Commission of the City of Tustin, California; that Resolution No. 4309 duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 9th day of February, 2016. ELIZABETH A. BINSACK Planning Commission Secretary