City of Albany, CA § 8-11 GAMBLING AND GAME ROOMS [1]

Part 1 General Conditions

[1] Editor's Note: Prior ordinances codified herein include prior 1958 Code §§21.8, 21.11; Ordinance Nos. 225, 661.

§ 8-11.1 Purpose and Intent.

[Ord. #94-011, § 1]

The people determine that the operation of game room facilities in other jurisdictions in the State of California when they strictly comply with those jurisdiction's gaming laws has been demonstrated to be a successful means of generating revenues for local governments. The people find that the public health, safety and welfare require the establishment of specific regulations and procedures for the operation of a gaming facility in the City of Albany. These regulations will also create a significant depend-able new source of revenues. It is also found, so long as the State Legislature does not intrude upon the province of local affairs of the City of Albany and does not in any manner attempt to prevent the City of Albany from creating and raising revenues, that conformity with the State Gaming Registration Act and any amendments thereto is desired. The City thus finds it necessary to regulate, among other things:

a. The person(s) and applicant(s) who will own, operate, and be employed in game rooms;

b. The number of game rooms in the City;

c. The location and operation of game rooms in the City; and

d. The issuance of licenses, including limitations on transfer and assignment, regarding game rooms; and

e. The permissible games that may be played in the game rooms, hours of operation, and wagering limits.

§ 8-11.2 Definitions.

[Ord. #94-011, § 1]

The following definitions apply to this section.

APPLICANT

Shall mean every "person" as defined by this subsection, who requests a license.

CITY ADMINISTRATOR

Shall mean the person appointed by the City Council of Albany to the position known as City Administrator or that person's designee or equivalent.

COMMENCE

Shall mean and include commence, begin, initiate, start, open and establish.

EMPLOYEE

Shall mean person who acts as an agent or employee of the licensee, with or without compensation, in a game room, including one who participates as a dealer in a game or is in charge of the operation and is required to supervise game tables, or is a proposition player. Anyone who is required to routinely enter into a game playing area during the course of his or her duties is considered an employee. The term employee does not include a bartender, a culinary worker or any other person not directly connected with the game room operation;

GAME

Shall mean a game permitted under the laws of the State of California that is played with cards, tiles, tokens, or other devices (except mechanical or electronic equipment or devices) for money, checks, credits, chips, or any other thing of value, but not including parimutuel betting;

GAME ROOM OR GAMING FACILITY

Shall mean any place licensed under the provisions of this section where a person is permitted to play a game in return for a fee, charge or other compensation;

GAME TABLE

Shall mean a table or other surface upon which a game is played;

GROSS REVENUE

Shall mean and include the total amounts received for seat rental fees, admission fees, tournament fees, table revenues, room rental revenue, and any and all other revenues derived from gaming activities licensed pursuant to this section and conducted on or within the premises, except for revenue received from the sale of food or beverage through restaurant, bar or similar operations, or facility rentals, parking or merchandise sales, or any portion of fees charged to players that is returned to players;

IDENTIFICATION CARD

Shall mean a card issued by the Chief of Police to any employee or owner of a game room for the purposes of registration, under subsection 8-11.28;

KEY MANAGEMENT EMPLOYEE

Shall mean an employee designated on a list supplied to the City by the licensee as having primary responsibility for, and authority over, the operation of and policies concerning the gaming facility. The term key management employee may include one or more employees.

LEASE

Shall mean any formal or informal, written or oral contract or understanding or arrangement whereby any person operating a game room obtains the use or possession of any property, real or personal, to be used, occupied, or possessed in connection with the conduct of games at any game room. The term "lease" includes, without limitation, payments to an affiliated person under a real property lease, a personal property lease, an unsecured note, a deed of trust, a mortgage, or a trust indenture.

LESSOR

Shall mean any person who leases any property, real or personal, to a person operating a game room for use in connection with the conduct of games or related activities.

LICENSE

Shall mean a license granted by the Albany City Council to operate a game room;

LICENSEE

Shall mean a person who holds a valid license to operate a game room in the City;

OWNER OR POINTHOLDER

Shall mean each person having any beneficial interest in the ownership, profits, or revenue of a gaming facility, whether legal or equitable, and whether directly, or indirectly through another person, except that if the owner of the licensee is directly or indirectly wholly owned by a publicly-traded corporation, then the publicly-traded corporation and any persons directly in the chain of ownership between such publicly-traded corporation and the licensee shall not be deemed to be owners or pointholders for purposes of this section if each such person is directly or indirectly a wholly-owned subsidiary of such publicly-traded corporation. The licensee shall be deemed to be an owner and pointholder, except that if the licensee is a publicly-traded corporation, the shareholders of such corporation shall not be considered to be owners or pointholders.

PERSON

Shall mean and include a natural person, firm, association, partner, corporation, joint venture or any other legal entity.

PROPOSITION PLAYER

Shall mean an employee or other person who (1) participates in a game at the request, direction or demand of the licensee; (2) plays with his or her own money; and (3) is solely responsible for his or her own wins or losses;

PUBLICLY-TRADED CORPORATION

Shall mean a corporation, or a wholly-owned subsidiary thereof, with a class of securities registered under the Securities Exchange Act of 1934, as amended, or under any nation's internationally recognized publicly-traded stock exchange.

RESPONSIBLE EMPLOYEE

Shall mean an employee whose name appears on a list supplied to the City by the licensee (and updated as necessary) and who has authority to exercise personal control and direction over the operation of the gaming facility during his or her work hours, and who is a key management employee, or who reports directly to a key management employee;

SHILL

Shall mean an employee or other person who participates in a game at the request, direction or demand of the licensee and where the licensee or the game room has a financial interest in the person's wins or losses.

§ 8-11.3 Permitted Locations.

[Ord. #94-011, § 1]

A game room license shall only be issued for a gaming facility located in zoning district under the Albany Municipal Code zoning provisions that permits the operation of a gaming facility. No game room is allowed within five hundred (500') feet of the exterior property line of: an elementary, junior high or high school; or a district where residential use is the principal permitted use. A game room license is valid only for the location stated on the license.

§ 8-11.4 Limitation on Total Number of Game Room Licenses.

[Ord. #94-011, § 1]

Except as otherwise may be required by law, there shall be no more than one (1) game room license in the City of Albany until such time as the population of the City of Albany exceeds thirty thousand (30,000) people, in which case one (1) additional game room license may be issued.

§ 8-11.5 Revocable License.

[Ord. #94-011, § 1]

Any licensee, pointholder, employee, person, or entity is entitled by the terms of this legislation and these regulations to receive as a legal entitlement nothing more than a license which is revocable in accordance with the terms thereof and in accordance with the provisions of this section. This section is intended for the purposes of licensing and regulation. This section does not create any interest in any land use decision, any permit allowing for any land use, and does not create any vested land use right or other property right related in any way whatsoever to any land use related matter.

§ 8-11.6 Conformance with State Law.

[Ord. #94-011, § 1]

The City shall have the full power and authority to adopt, make, exercise and enforce all provisions of this legislation and these regulations and to take all actions related to the municipal affairs that are conducted by virtue of the provisions of this section, without limitation as may be lawfully adopted, made, exercised, taken or enforced under the Constitution of the State of California and the charter powers of the City of Albany.

Without limiting in any manner these powers and authority, each of the regulations, rights, and responsibilities described in this section is hereby declared to be a municipal affair, the matters of which are of unique concern to the benefit of the citizens of the City of Albany.

In the event of any conflict between the provisions of this section and the provisions of the general law of the State of California, the provisions of this section, in the discretion of the City Council and unless otherwise decided by the City Council, shall control.

In the event that the State of California enacts provisions in its State Gaming Registration Act as codified in Division 8, Chapter 5 of California Business and Professions Code commencing with Section 19800, which regulate the processing of any requests for licenses, the City Council, by its own resolution, may opt to defer to the State all or any part of the City's requirements for registration, investigation, or licensing related matters.

§ 8-11.7 Gambling Prohibited.

[Ord. #94-011, § 1]

Except as otherwise provided for in this section:

a. It shall be unlawful for any person to keep, conduct or maintain within the city any house, room, apartment, stand or place used in whole or in part as a gambling house or place where any game not mentioned in Section 330 of the Penal Code of the State is played, conducted, dealt or carried on with cards, dice or other device for money;

b. It shall be unlawful for any person knowingly to permit any house, room, apartment, stand or place owned by him or under his charge or control to be used in whole or in part as a gambling house or place for playing, conducting, dealing or carrying on any game not mentioned in Section 330 of the Penal Code of the State with cards, dice or other device for money, checks, chips or credit, except at a bona fide residence; and

c. It shall be unlawful for any person to play or bet at or against any game not mentioned in Section 330 of the Penal Code which is played, conducted, dealt or carried on with cards, dice or other device for money, checks, chips or credit in any house, room, apartment or place described in this subsection.

d. Every person who deals, plays or carries on, opens, or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of draw poker for money, checks, credit, or other representative of value, and every person who plays or bets at or against such game, shall be guilty of a misdemeanor.

It shall not, however, be unlawful to play any game of cards not mentioned in Section 330 of the Penal Code at a bona fide place of residence in the City for money, checks, chips or credit. A bona fide place of residence shall be construed to include a room used and occupied, not transiently but solely as a residence, in a dwelling house, apartment house, hotel or boarding house.

 

Part 2

Game Room License

§ 8-11.8 Game Room License Required.

[Ord. #94-011, § 1]

a. It shall be unlawful for any person to conduct, or purport to conduct, within the City any business, activity, enterprise or undertaking, wherein tables or other items, or units of furniture are used directly or indirectly for the playing of games and for the use of which a fee, commission, or compensation is directly or indirectly charged, accepted, or received from players or participants in any such playing of games unless such person possesses a valid license to do so in accordance with the provisions of this section, and complies with all other municipal code or City regulatory provisions. This section regulates owners and licenses of game room operations undertaken at gaming facilities and not the land upon which such activity is located. Under no circumstances shall any conditions attached to any such license be construed to turn such license into a conditional use permit whose transfer may not be restricted by the City.

b. No license for the conduct of any game and/or game room under this section shall be received, filed or processed by the City Administrator, nor shall a public hearing on the same be conducted:

1. When the application would result in the number of current and valid licenses for game rooms in the City, when added together, exceeding the total number provided in subsection 8-11.4 of this section; or

2. During the term of any agreement between the City and a licensee which grants the licensee the exclusive right to operate a gaming facility within the City.

c. For the purposes of this section, any license issued by the City shall be deemed current and valid, and shall remain in full force and effect:

1. During processing of registration applications with the Attorney General;

2. During the time any other approvals necessary for development or operation of the gaming facility, whether issued by the City or another government entity, are being diligently sought by licensee; and

3. During the time any challenge is being pursued against the City's issuance of the license or against any other approval granted by the City or another government entity that is required for development or operation of the gaming facility.

§ 8-11.9 Administration of Section by City Administrator.

[Ord. #94-011, § 1]

The City Administrator shall administer the provisions of this section, including but not limited to:

a. Complying with all present and future State gaming laws, subject to the provisions of subsection 8-11.6.

b. Preserving and keeping all documents that are identified in this section as confidential documents so that the contents thereof shall not become known except to persons required by law to effect the administration on enforcement of this section;

c. Promulgating and/or requiring prior approval of accounting procedures to be utilized by licensees to ensure accurate reporting of the legal gaming facility revenues; and

d. Delegating the duties and powers vested in the City Administrator by this section to appropriate City employees or officers.

e. Establishing procedures for the purpose of maintaining the confidentiality of confidential documents required to be submitted to the City under this section.

§ 8-11.10 Application for License.

[Ord. #94-011, § 1]

The game room license, if granted, will be issued only in the name of an individual, a sole-proprietorship, a partnership, or a corporation (such entity to be referred to as a license applicant), and the license may require that, concurrent with the granting of the game room license, each pointholder and key management employee of the license applicant be issued registration permits in accordance with subsection 8-11.28 of this section allowing such individuals or entities to be involved in the activities, profits and direction of the game room operation (such individuals and entities to be referred to as pointholder permit applicants and key management employee permit applicants, respectively). City officials and employees and their immediate families shall not be eligible to apply for game room licenses, pointholder registration permits or any form of employee registration permit, provided that nothing herein shall prohibit the employment of off-duty public safety officers for security purposes.

In addition to other information as may be required by said application forms for a game room license, the applicant shall complete and provide the following information in such detail as the City Council or City Administrator may require:

a. The date of the application;

b. The true name of the applicant;

c. The status of the applicant as being an individual, a sole proprietorship, a partnership or a corporation;

d. If the applicant is an individual, the residence and business address and personal history record of such applicant in the form required by the City;

e. If the applicant is not an individual, the name, residence, and business address of each of the officers and directors or, if a partnership, the partners of the license applicant;

f. An application for a pointholder's registration permit, in the form and substance required by subsection 8-11.28 of this section, each person who is or is proposed to be a pointholder of the proposed game room;

g. An application for an employee's registration permit, in the form and substance required by subsection 8-11.28 of this section, for each individual who is or is proposed to be a key management employee of the proposed game room;

h. A description of the premises to be used in relation to game room activity, including but not limited to game playing area and associated facilities;

i. A general description of the type and nature of the games intended to be played;

j. The number of tables or other units to be placed, employed or used;

k. A description of any other business conducted or proposed to be conducted at the same location;

l. A financial plan and source of funding for the development, including projected development cost, which financial plan shall be a confidential document that is not open to public inspection;

m. A statement of the applicant's experience in the operation and management of game rooms or other lawful gambling or other relevant activities;

n. A complete description and layout of all security measures proposed in as great a detail as is available, which shall be a confidential document and not open to public inspection;

o. A copy of any lease (including any agreement with the owner of the underlying fee interest in the property) that the applicant or any other party has entered into for the use of the game room, which shall be a confidential document that is not open to public inspection. If the City Council determines that a landlord whose lease rental payments are based upon a percentage of the revenues or profits of the game room or a financier, by reason of the extent of his or her holdings or his or her inherent financial control, cannot, in fact, be separated from the game room, and, that as a practical matter, a single entity exists regardless of the apparent form of the organization, the City Council may require that all such individuals be designated pointholders and subject to all investigatory, financial and background reporting procedures established by this section for game room pointholders. Any such determination shall not, however, be deemed to make any such lessor an owner or operator of the game room for purposes of this section or applicable State law. Notwithstanding anything to the contrary in this subsection, if the lessor is a publicly-traded corporation or is wholly owned directly or indirectly by a publicly-traded corporation, then the provisions of this subsection shall not apply.

p. A statement that the applicant understands that the application shall be considered only after a full background investigation and report has been made by such members of the City staff as are designated by the City Council;

q. A statement that the applicant understands and agrees that any business or activity conducted or operated under any license or permit issued under such application shall be operated in full conformity with all the laws of the State and the laws and regulations of the City applicable thereto, and that any violation of any such laws or regulations in such place of business, or in connection therewith, may render any license or permit therefor subject to immediate suspension or revocation;

r. A statement that the applicant has read the provisions of this section and particularly the provisions of this section and understands the same and agrees to abide by all rules and regulations contained in this section;

s. The most recent balance sheet and income statement for the prior fiscal year for the applicant prepared in accordance with generally accepted accounting principles, as certified by an independent certified public accountant. The financial statements required by this subsection shall be confidential documents and shall not be open to public inspection. Documents shall be available only to the City Council and those officials having direct jurisdiction involving the provisions of this section and to any court of competent jurisdiction where any matter directly relating to the processing, operation under or enforcement of the license is pending;

t. A statement in a form acceptable to the City that the applicant understands and agrees to be bound by the indemnity provisions set forth in this section. Further, a statement by the applicant that it accepts all risks of any adverse public notice, publicity, embarrassment, criticism, financial loss or all other actions and consequences which may result from activities with respect to reviewing, processing, approving or disapproving any application, and that the applicant waives any claims for damages against the City or its agents resulting therefrom, other than damages resulting from the intentional willful or malicious conduct of the City or its agents.

u. All such other information that reasonably is requested to be submitted by the City Administrator or the City Council.

§ 8-11.11 Application Fees.

[Ord. #94-011, § 1]

The applicant shall pay a nonrefundable application fee, which shall accompany the application. The amount of the fee shall be set by resolution of the City Council, and shall be based on the City's reasonably projected investigation, administrative and processing costs.

§ 8-11.12 Application Acceptance, Investigation and Report.

[Ord. #94-011, § 1]

Whenever an application for a license pursuant to this section has been filed and all application fees as established by subsection 8-11.11 are deposited with the City Clerk, the City Clerk shall immediately refer such application, or a true copy thereof, to the City Council, City Administrator, and the Chief of Police.

Upon receipt of a game room license application, the City Administrator shall cause an investigation to be made covering all matters relevant to the proposed activity of the applicant, pointholders and key management employees. Such matters may include but are not limited to the following:

a. Identity, character and background of the license applicant, and all other pointholders and key management employees;

b. Type of tables to be used and their proposed locations, area where food and beverages are proposed to be served and means for excluding persons under twenty-one (21) years of age from game playing areas;

c. Type and degree of security personnel and facilities to be provided; and

d. The financial stability of the applicant and the financial ability of the applicant to comply with the conditions and requirements of the City in the event the application is approved.

The investigation of the game room application shall be completed as soon as practicable after a complete application is received. Following the investigation, the completed report of the investigation, together with the City Administrator's findings and recommendations (which shall be based in part on the findings and recommendations from the Chief of Police concerning the pointholder permit applications and the key management employee permit applications), shall be forwarded to the City Council. The City Council shall not consider any application for a game room license until the City Administrator's findings and recommendations are forwarded for review.

Upon receiving the complete game room application and the City Administrator's findings and recommendations, the City Council shall make a determination on the permit application within a reasonable period of time, but in no event shall City Council be required to make a determination sooner than forty-five (45) days after receiving such application and findings and recommendations. The City Council will use good faith efforts to make a determination within sixty (60) days of receiving the complete application and the City Administrator's findings and recommendations.

§ 8-11.13 Grounds for Issuing License.

[Ord. #94-011, § 1]

In the event a full and complete application for a game room license is presented to the City Council, and the payments required by this section in connection therewith have been duly made to the City, and the investigations and reports required under the provisions of this section have been duly completed, the City Council shall have jurisdiction to consider such application.

The City Council by resolution shall either grant, conditionally grant or deny the game room license application, and each of the pointholder permit applications and the key management employee applications. If the City Council rules that an application be denied, the ruling will be accompanied by written findings upon which the ruling is based. All such rulings and findings will be made public. The City Council can grant the license applied for subject to the condition that any pointholder or key management employee disapproved of be removed as a person having an interest or control in the game room based on standards contained in this section. Compliance with the removal condition shall be monitored, reviewed and approved of by the City Administrator, prior to final issuance of the game room license.

The application shall be considered on the basis of all such considerations that the Council deems appropriate and on the following specific guidelines, without being limited thereto:

a. The financial stability of the applicant, and pointholders, including the personal history, business experience, general reputation, character, and any other matters deemed by the City Council to be necessary or important;

b. The business and financial history of the manager or active operating head and any other key management employees, including such persons' personal history, moral background, reputation, and character; and

c. Any other relevant data, facts or considerations concerning the issue whether the license is being granted to such applicant who will operate the gaming facility so as to best protect the public health, safety, morals, good order and welfare of the residents of the City.

The action of the City Council in accordance with this section shall be final. In the event rulings or actions of the City Council shall be challenged, the applicant shall be required to pay the total cost of defense of such challenge.

§ 8-11.14 Grounds for Denial.

[Ord. #94-011, § 1]

The City Council may, in its discretion, deny or condition a license or permit application for any of the following reasons, without being limited thereto, or for any other reason consistent with the general policy of this section:

a. Conviction of the applicant or any pointholder or key management employee of any crime punishable as a felony or of any crime of violence, any crime involving fraud, gambling, loan sharking, bookmaking, thievery, bunco, moral turpitude, or any crime involving evasion of taxes, or any other crime of moral turpitude indicating a lack of business integrity or business honesty, whether committed in the State of California or elsewhere, whether denominated as a felony or as a misdemeanor and notwithstanding the passage of time since the conviction;

b. Identification by any law enforcement agency, legislative body or crime commission of the applicant or any pointholder or key management employee as a member of, or an associate of, organized criminal elements;

c. The applicant or any pointholder or key management employee is presently under indictment or is the subject of a criminal complaint for any of the crimes described in paragraph a above;

d. Prior unsuitable operation by the applicant or any pointholder or key management employee as a card or gaming licensee in another jurisdiction without regard to whether disciplinary action was taken at that time or whether the acts were sufficient to justify revocation of a license;

e. Making or causing to be made any false or misleading statement in the application or as to any other information presented as part of the application process;

f. Failure to satisfy the City Council as to the source of funds to be invested in the proposed venture and that there is adequate financing available to pay potential current obligations and, in addition, to provide adequate working capital to finance opening and operation of the game room proposed;

g. Applicant does not have the financial capability or business experience to operate a game room in a manner that would adequately protect the patrons of the game room and the citizens of the community;

h. Failure of the applicant to have a valid registration from the Attorney General of the State of California issued pursuant to the Gaming Registration Act;

i. The proposed business or activity would not be in compliance with Federal, State or City law or regulation;

j. Failure of any person named in the application when summoned by the City Council to appear and testify before it or its agents at such time and place as it may designate;

k. Inadequate security plan; or

l. That the City Council determines by a preponderance of evidence in the record as a whole that the granting of the license will not be in the best interest of the community's health, safety, and welfare.

§ 8-11.15 License: Fees.

[Ord. #94-011, § 1]

a. Imposition of Initial Business License Fee. There shall be an initial business license fee required, payable as follows:

1. Six hundred thousand ($600,000.00) dollars upon issuance of the license; and

2. If operation of the gaming facility has not commenced on or before July 1, 1995, then seven hundred fifty thousand ($750,000.00) dollars upon the later to occur of (A) issuance of the license, or (B) July 1, 1995.

The full amount of the initial business license fee (without discount or adjustment) shall be credited against the applicant's obligation to pay business license taxes pursuant to the provisions of this section. Said fee shall be nonrefundable, regardless of the operational status of the gaming facility.

b. Imposition of Business License Taxes. In lieu of any business license tax imposed in Chapter 5 of the Albany Municipal Code, there is hereby imposed a gross license tax. It shall be unlawful for any person issued a license pursuant to this section to operate a gaming facility without paying the business license taxes here and after prescribed. The business license taxes imposed herein are intended for revenue only and are not regulatory fees for the cost of administering the provisions of this chapter. They shall be general taxes deposited in the City's general fund.

The license tax shall be paid monthly to the City. Payment for any calendar month shall be made on or before the 15th of the succeeding calendar month.

This tax shall apply to game room operations only and shall be additional to and have no effect on the City's share of the parimutuel pool imposed by Article 9.5 of the Business and Professions Code commencing with Section 19610, or any amendments thereto.

c. Business License Tax. Amount. During the first twelve (12) months of operation, licensee shall pay to the City a monthly business license tax as follows:

Total Monthly Gross Revenue	Monthly Tax
First $0 to $1,000,000	0.0% plus $7,500
Next $1,000,001 to $2,000,000	12.5%
Over $2,000,000	15.0%

Following the first twelve (12) months of operation, the same tax rate shall apply; provided, however, that regardless of the total monthly gross revenue, the minimum monthly tax shall be at least one hundred thousand ($100,000.00) dollars.

Should any tournament be held, ten (10%) percent of the total entry fees shall be included in addition to the total monthly tax specified above.

For any non-gaming business operations on the premises, including but not limited to food and beverage service or rental of facilities, licensee shall pay to City a monthly business license tax as set forth in Chapter 5 of the Albany Municipal Code, as it may be adjusted or amended, for fixed places of business, or as set forth in any other applicable section, as determined by the Finance and Administrative Services Director. All procedures set forth in Title 5 Chapter 4 of the Albany Municipal Code relating to business licenses shall be applicable to such non-gaming operations.

d. Statement of Revenue. Each licensee shall file with the City before the fifteenth (15th) day of each calendar month a reporting form approved by the City Administrator, under penalty of perjury, showing the true and correct amount of gross revenue derived from the gaming facility for the preceding calendar month. Such statement shall be accompanied by the payment of the correct amount of taxes due and owing in accordance with the provisions of paragraph b of this section. Such sums correctly reflecting the monthly fees payable for the preceding month shall be accepted by the City, subject, however, to the future right of the City to audit the matters referred to in any such statement and to determine the correctness of the figures and the amounts payable to the City pursuant to the provisions of paragraph b.

e. Audit of Reports. Licensee shall arrange for a certified public accountant approved by the City Administrator to audit the books, documents, records and accounts relating to the gross revenues of the licensee at the end of the licensee's fiscal year. The report of such accountant and all work papers utilized in the preparation of such audit shall be submitted to the City Administrator. The City Administrator, or his designee, shall review the report and work papers and may require any further information from the licensee. The City Administrator may submit such documents and information to a second certified public accountant for review.

In addition to the audit required above, the books, records, and accounts of any gaming room may be audited by the City at any time. Upon request of the City Administrator, licensee shall provide to the City Administrator copies of licensee's State and Federal income tax returns, which shall be kept confidential and shall not be disclosed other than as necessary to carry out the purposes of this section. In the event a City conducted audit discloses an underpayment in excess of two (2%) percent in any one month, the full cost of such audit shall be borne by the licensee. Any information obtained pursuant to the provisions of this section or any statement filed by the licensee shall be deemed confidential and shall not be subject to public inspection unless otherwise required.

f. Refusal to File, Pay Fees or Taxes or Permit Inspection of Records. Any failure or refusal of licensee to timely make and file any required statements, or to pay such fees or taxes when the same are due and payable in accordance with the provisions of this section, or to permit inspections of such books, records, and accounts of such licensee, shall constitute full and sufficient grounds to revoke or suspend the license.

g. Delinquent Business License Taxes; Penalties; Interest Liens. Penalties for late payment shall be assessed in accordance with any provisions or regulations enacted by the City of Albany, including but not limited to Chapter 5 of the Albany Municipal Code, or such other provisions governing business license delinquencies.

h. Business License Tax a Debt: Attorneys' Fees. The amount of any business license tax, penalties and interest imposed by the provisions of this section shall be deemed a civil debt to the City. The City may pursue any legal remedies for the collection of any delinquent business license tax, penalties, interest, liens, and all administrative costs incurred in connection therewith, including attorneys' fees.

i. Business License Taxes Not Refundable. In the event of the cessation of business by a licensee, whether voluntary or involuntary, no refund of any tax shall be made.

§ 8-11.16 License: Conditions.

[Ord. #94-011, § 1]

a. All licenses granted by the City Council shall be deemed conditioned so as to require compliance with all of the terms, conditions and provisions of this section, as well as all applicable laws of the City, State and Federal governments. No license shall be valid unless the licensee obtains and maintains a valid and current or provisional registration from the Attorney General pursuant to the Gaming Registration Act as codified in Division 8, Chapter 5 of the Business and Professions Code commencing with Section 5. By applying for a license, the applicant agrees to a condition to the license granted that the licensee shall indemnity, defend, protect and hold harmless the City, its officers and employees, from any and all claims, actions, judgments and damages, including but not limited to award of attorney fees, against the City, its officers or employees, directly or indirectly related to issuance or validity of such license or any other permit required by law, or to the exercise of City's Public Records Act discretion under this section, or to the enforcement of this section, except to the extent due to the intentional or willful misconduct of the City, its officials or employees. In addition to the above, the City Council may impose specific conditions upon the license (or other required licenses or permits) which, in its discretion, it deems necessary to ensure compliance with provisions of this section and to protect the health, safety and welfare of employees, patrons, and the residents of the City.

b. A violation of any condition of any license or other permit is hereby deemed to be a violation of the provisions of this section and is deemed sufficient grounds for license revocation or suspension, imposition of fines or other action determined appropriate by the City Council. All terms and conditions specified in any license shall be enforceable as if set forth in this section.

§ 8-11.17 License: Restrictions.

[Ord. #94-011, § 1]

a. No application for a license shall be accepted for filing when the maximum number of licenses authorized by this section have been issued and are in effect. There shall be no waiting lists or priorities for persons or entities desiring to file such applications;

b. Any person or entity interested in obtaining a license at such time as one is available may file a written request with the City Clerk for written notice as to when the applications will be accepted for filing. Such written requests shall be valid and in force for a period of one (1) year from the date of their filing, and may be refiled;

c. Whenever the number of licenses issued and in effect is less than the number authorized by this section, the City Council, in its discretion, may cause to be published in a newspaper of general circulation in the City a statement that the City is accepting applications for licenses for a period of thirty (30) calendar days from the date of such publication. Applications received after this deadline will not be considered.

§ 8-11.18 License: Expiration.

[Ord. #94-011, § 1]

Each game room license issued under this section automatically expires on midnight of the thirty-first (31st) of December of the second year after which the license was issued or renewed.

§ 8-11.19 License: Renewal.

[Ord. #94-011, § 1]

A valid license issued under this section, which has not been surrendered, suspended or revoked, may be renewed for respective periods of no longer than two (2) years upon the following terms and conditions:

a. An application for renewal of any license shall be filed ninety (90) days before the expiration of the existing license with the City Administrator on forms provided by the City Administrator.

b. An application for renewal shall contain an affidavit made subject to the penalties of perjury on a form approved by the City Administrator confirming and indicating:

1. Any change in individuals with whom the licensee has any operating agreements pertaining to the licensed operation;

2. Any change in pointholders, the full, true and correct names and addresses of such new pointholders, or trustors for pointholders;

3. The full, true, and correct names and addresses of each and every current employee; and

4. If no changes have occurred from the previous renewal, licensee shall so certify and attest.

c. If any application for renewal is not filed, or the application fee is not paid, within the time specified by paragraph a., the license shall be deemed surrendered at the expiration date of the license;

d. The application fee for renewal of a license under this chapter shall be established by resolution of the City Council and shall be based on the costs (including administrative costs) that the City reasonably expects to incur for the processing, investigations concerning, and consideration of any renewal application.

e. In the event that the game room licensee has complied with all requirements of this section and conditions of the license, if no material changes have occurred that have not already been acted upon, and if the revenues received by the City are consistent with the provisions of this section, the City Administrator shall renew the license for another two (2) year period, except that the City Administrator shall have the option to defer the license renewal determination to the City Council. The licensee may appeal to the City Council a decision by the City Administrator to deny a renewal. Such appeal shall be filed within ten (10) days of the date of notice of decision by the City Administrator. The City Council shall schedule a hearing to hear any such appeal.

§ 8-11.20 License: Amendments.

[Ord. #94-011, § 1]

a. If a licensee wishes to amend a term or condition of the license (including but not limited to the number of game tables, the hours of operation, etc.), the licensee shall submit a written request for amendment to the City Administrator. In the request, the licensee shall state the requested amendment and the reasons for it. The licensee shall pay an amendment application fee in an amount established by City Council resolution to cover all reasonable processing costs, including administrative costs.

b. The Administrator shall refer the request to the Chief of Police and to each City department which may be affected by the proposed amendment. Based upon comments and recommendations received, the Administrator shall prepare and submit to the City Council a report and recommendation on the proposed amendment.

c. The City Council, in its sole discretion, may approve or deny the requested amendment in accordance with the provisions of subsections 8-11.13 and 8-11.14. The Council may approve the amendment subject to such conditions as it deems reasonably necessary.

d. Notwithstanding paragraph c above, the Council shall deny the requested amendment if it finds that the proposed amendment:

1. Will result in the aggravation of crime problems or make law enforcement more difficult;

2. Will result in the violation of the City's zoning, fire, building or other ordinance; or

3. Will be inconsistent with the purposes and provisions of this section.

§ 8-11.21 License: Assignability.

[Ord. #94-011, § 1]

a. Except as otherwise provided for in this section, no game room license, no transfer of more than five (5%) percent of any beneficial interest in the license or five (5%) percent interest of a registered pointholder, or any game table operated under a game room license may be sold, transferred or assigned by the licensee or other person, or by operation of law, to any person without the prior approval of the City Council, which approval shall be conditioned upon the proposed transferee's compliance with the provisions of this section and the Gaming Registration Act as codified in Division 8, Chapter 5 of the Business and Professions Code commencing with Section 19800. Any sale, transfer or assignment, or attempted sale, transfer, or assignment without such prior approval shall be deemed a nullity and of no force and effect.

b. If the licensee is a partnership and one or more of the partners dies, the surviving partners, or partner, may, with prior approval of the City Council, acquire, by purchase or otherwise, the interest of the deceased partner, or partners, without effecting a surrender or termination of the license. In such case, the licensee shall thereafter be deemed to be the surviving partner upon notice to the City of Albany of the purchase or transfer.

c. Any change of legal status of a licensee (such as a change from individual to corporate status) requires the prior approval of the City Council, which may condition such approval on the satisfaction of conditions addressing impacts arising from such change.

§ 8-11.22 License: Commencement of Operations.

[Ord. #94-011, § 1]

An applicant who has received approval for a game room license and paid all appropriate fees must commence operation of the game room within ninety (90) days following issuance of the license. Such ninety (90) day period shall be tolled for the time periods set forth in subsection 8-11.8 c of this section, if applicable.

§ 8-11.23 License: Abandonment.

[Ord. #94-011, § 1]

a. A license shall be deemed to be abandoned and subject to revocation where operation of the game room has commenced but, thereafter, licensee has failed to conduct gaming at the game room for any period of sixty (60) continuous days, regardless of the reasons therefore, unless such failure is the result of a suspension of the license or unless the licensee's premises are destroyed or damaged, or forced to close by war, insurrection, strikes, riots, fire, flood or other Acts of God, or other acts beyond the control of licensee, or directly by restrictions mandated by other governmental entities, enactment of new or supplemental State or Federal laws or regulations or judicial interpretations of State or Federal laws or regulations, as long as the licensee is proceeding with due diligence to restore the gaming room operation; provided, however, that this sixty (60) day period may be extended by the City Council for up to an additional sixty (60) days upon request by the licensee, made during the initial sixty (60) day period, for such extension, and upon a showing satisfactory to the City Council of good cause for such extension.

b. Where the City Administrator or City Council initially determines that a game room license has been abandoned, the City Administrator and/or City Council shall follow the procedures set forth in subsection 8-11.25 of this section. Where a final decision has been made by the City Council in accordance with the provisions of subsection 8-11.25 e that a license has been abandoned and therefore revoked, said license shall be null and void and of no further force and effect.

§ 8-11.24 Licenses: Suspension and Revocation.

[Ord. #94-011, § 1]

Licenses are subject to revocation or suspension as provided in this section. Licenses are also subject to revocation or suspension upon a determination by the City Council that grounds exist which would justify the denial of an application for such license if such application were then pending, or that the licensee or any pointholder, or employee has:

a. Violated, or permitted, allowed or caused the violation of any provision of this section, or violated a law of the State of California related to gaming, or

b. Permitted, allowed or caused any violation of any condition of approval imposed upon the issuance of such license, or any other permit issued under this section; or

c. Made any false, fraudulent, misleading statement or omission as to a material fact on an application form, or as to any other information presented or required as part of the application process; or

d. Abandoned the license as provided in subsection 8-11.22; or

e. Failed to prevent the gaming room facility from causing a substantial adverse impact on surrounding properties or persons, or on the community as a whole, due to the direct or indirect consequences of the gaming facility, including but not limited to criminal activity, public intoxication, crowd activity, security problems, noise, odor, traffic or parking overflow; or

f. Failed to prevent the operation of the gaming facility from constituting or giving rise to a public nuisance; or

g. Had its registration under the California Gaming Registration Act suspended or revoked; or

h. Failed to commence operation of the game room in accordance with the provisions of subsection 8-11.22;

i. Failed or refused to timely file with the City the statements of gross revenue of the game room required under this section, or to timely pay, or cause to be timely paid, the full amount of the business license tax otherwise due under this section, regardless of the cause of such failure or refusal; or

j. Transferred, or caused to be transferred, an interest in the gaming facility operation or the license or any other permit without obtaining any approval of the City required under this section; or

k. Made or caused to be made any campaign or other financial contributions in violation of the provisions of this section.

§ 8-11.25 Procedures for Suspension or Revocation.

[Ord. #94-011, § 1]

a. Notice or Order to Show Cause. Upon determining the existence of a condition stated in subsection 8-11.24 or any other condition that is a basis for suspension or revocation of a license under this section, either the City Administrator or the City Council shall give notice to the licensee of the time, place and purpose of a hearing before the City Council. The notice may, but need not, take the form of an order to show cause, requiring the licensee to show cause before the City Council why the license should not be suspended or revoked. The notice or order shall set forth the grounds upon which the proposed action is based. The notice or order shall be in writing, sent to the licensee at least thirty (30) days prior to the hearing by personal delivery or by certified mail, return receipt requested, addressed to the licensee at the address listed in the license application, or any more recent address furnished to the City by the licensee.

b. Subpoena Authority. The City Council shall have the power to issue subpoenas and require the attendance of witnesses, and the production of books, papers and other pertinent evidence at the hearing.

c. Representation. At a hearing under this section, the licensee may appear by counsel and may produce and submit any relevant evidence the licensee may desire, oral or documentary. The hearing may be continued from time to time, as the City Council deems necessary and appropriate. In the event of revocation, except in the case of revocation due to a determination that the license has been abandoned, no new license shall be issued to the licensee. Failure of the licensee or the licensee's representative to appear, after receiving proper notice, at the hearing shall be deemed a failure to show cause why the license should not be suspended or revoked.

d. Adverse Impacts on Surrounding Properties. Where the ground for considering suspension or revocation of the license is based on subsection 18-11.24 e or subsection 18-11.24 f, and the City Council determines that cause exists for suspending or revoking the license on such basis, then the licensee may submit a written plan to the City Council specifying mechanisms and procedures that the licensee proposes to undertake to address and alleviate the impacts that give rise to the basis for suspension or revocation of the license. If, upon review and consideration of said plan, the City Council determines that the mechanisms and procedures contained in the plan will effectively and sufficiently minimize the impact concerning which the suspension or revocation action was brought, the City Council will refrain from suspending or revoking the license, subject to implementation by the licensee of the mechanisms and procedures contained in said plan.

e. City Council Decision. At the conclusion of the hearing, the City Council may, by majority vote, suspend or revoke the license. The City Council shall render its decision, accompanied by written findings upon which the decision is based, within ten (10) days after the hearing is concluded. The City Council's decision shall be final.

f. Notice of Decisions. The City Administrator shall notify the licensee in writing of the City Council's decision and reasons therefor. Suspension or revocation of the license shall be effective immediately after notice of a decision to suspend or revoke is given.

§ 8-11.26 Effect of Suspension or Revocation.

[Ord. #94-011, § 1]

No licensee shall operate or use a game room or game table, or manage, conduct or carry on any business or activity otherwise permitted by this section during any time that the license issued by the City of Albany is suspended or revoked.

 

Part 3

Registration of Owners and Employees

§ 8-11.27 Registration of Owners and Employees Required.

[Ord. #94-011, § 1]

a. No licensee shall employ or allow a person to work in the game room without the person having first been registered and approved in accordance with the provisions of this section.

b. Each owner and employee must be registered. Registration permits for pointholders and key management employees shall be applied for and processed in accordance with subsection 8-11.28 and shall be approved or disapproved by the City Council. Registration permits for employees other than key management employees shall be applied for and processed in accordance with subsection 8-11.28 and shall be approved or disapproved by the Chief of Police.

§ 8-11.28 Procedure for Registration.

[Ord. #94-011, § 1]

a. Application. Each owner, employee or pointholder (or pointholder representative in case that pointholder is not a natural person) shall present himself or herself at the office of the Chief of Police during normal business hours at least ten (10) calendar days before the beginning of employment or ownership to be registered, or within fifteen (15) days of submittal to the City of a license application for pointholder permit applications and key management employee applications submitted in connection with a license application. The applicant shall complete an application under penalty of perjury and be fingerprinted and photographed. The employee or the pointholder shall pay a nonrefundable registration fee in the amount established by City Council resolution, and sufficient to offset the cost of purchasing equipment to produce identification cards, the cost of investigations conducted pursuant to Part 3 of this section, administrative and processing costs, and the cost of producing identification cards; however, the licensee or license applicant may be required to fund some or all of such direct costs in connection with its license application instead of through individual registration fees for pointholders and employees.

Each application shall include the following information:

1. The true name of the person, including all other names by which such person is or has been known;

2. The business and permanent residence address of the person;

3. The name of the game room, and the name of the game room licensee in and for which such person intends to work or in whose gaming facility such person has or intends to have an ownership interest;

4. The position and duties the person shall hold and perform while in the employ of licensee, if such person intends to be an employee;

5. A statement indicating whether or not such person has at any time been convicted of any crimes other than minor traffic offenses, and if so, the nature of the crime for which the person was convicted, the date and jurisdiction of the conviction;

6. Two (2) recent photographs of the person;

7. A statement that the person understands and agrees to the inclusion, in any report to the City Administrator or City Council, of any criminal conviction that the Chief of Police considers pertinent and necessary, and a statement that the person accepts all risks of any adverse public notice, publicity, embarrassment, criticism, financial loss or all other actions and consequences which may result from activities with respect to reviewing, processing, approving or disapproving such applications, and that the person waives any claims from damages against the City or its agents resulting therefrom, other than damages resulting from the intentional, willful or malicious conduct of the City or its agents;

8. Certification by the applicant that contents of the application are true under penalty of perjury;

9. Except as to the licensee, a report prepared, or caused to be prepared, by the licensee, at its option, summarizing the results of the licensee's screening and background investigation concerning the pointholder or employee, which shall have been undertaken by the licensee at licensee's expense; and

10. Other relevant information that the Chief of Police may request.

b. Investigation. The Chief of Police shall conduct a background investigation on each applicant, including obtaining criminal history information for each.

c. Decision. The Chief of Police shall mail a written decision to the applicant and the licensee within ten (10) days after receipt of the application, except that if the application is for a pointholder registration permit or a key management employee registration permit, the Chief of Police shall make a written report to the City Administrator outlining the recommendation of the Chief of Police with respect to approval or denial of such application, and the City Council shall determine whether to approve, condition or disapprove such application. If registration is denied, the Chief of Police or City Council, as applicable, shall state the reasons for denial. The Chief of Police or City Council, as applicable, may deny registration for good cause, including but not limited to any one of the following grounds:

1. That the person has been convicted of a crime involving lotteries, gambling, bookmaking, larceny, perjury, bribery, extortion, fraud, thefts, embezzlement, or a crime involving moral turpitude, or has been convicted of the sale or possession for sale of a controlled substance, prostitution, pimping, or pandering, or has been convicted of any crime substantially related to service or entertainment business;

2. That the person has committed an act involving dishonesty, fraud, or deceit;

3. That the person has been refused, or has had revoked, any gambling, gaming or entertainment license or permit by an agency or government within five (5) years of the date of registration application;

4. That the person has violated a provision of this section;

5. That the person has knowingly made a false statement in his or her application; or

6. That the person has violated a law or ordinance relating to the operation of a game room.

If the background investigation is not complete within the ten (10) day period, the Chief of Police shall grant a temporary registration for any employee other than a key management employee, pending a final decision and shall issue a temporary identification card, which shall be valid for not more than thirty (30) days.

d. Identification Card. The Chief of Police shall provide each registered owner, employee, and pointholder with a permanent identification card, which shall be displayed in accordance with subsection 8-11.29. The identification card shall include a photograph, name of owner or employee, name of game room, position or job title and expiration date.

The licensee shall notify the Chief of Police within twenty-four (24) hours of the loss of any identification card, and may issue a temporary identification card to a registered employee or pointholder for a three (3) day period. The Chief of Police shall issue a new permanent identification card to the registered employee or pointholder within three (3) days of being notified of the loss, subject to payment by the employee or pointholder of a reasonable replacement fee.

e. Renewal. Each registered owner, employee, and pointholder shall renew his or her registration every two (2) years, on the anniversary of the initial registration. The City Council shall consider renewal of registration permits for pointholders and key management employees, and the Chief of Police shall address renewal of registration permits for employees other than key management employees.

f. The licensee shall inform the Chief of Police in writing of any change in employment or status of a registered employee or pointholder within ten (10) days of the effective date of the change. A change includes termination, leave of absence, or a promotion or other change in job title.

The registered employee or owner shall notify the Chief of Police in writing within ten (10) days of any change in the information which that person provided in the registration application.

g. Monthly Listing. On the first day of each month, the licensee shall submit to the Chief of Police a current and complete list of all employees and owners.

§ 8-11.29 Identification Cards for Owners and Employees Required.

[Ord. #94-011, § 1]

Each employee and pointholder shall display his or her personal identification card at all times while physically present in the game playing area. The card shall be prominently displayed on the outermost garment at approximately chest height, and shall at all times be readable and in good condition. No employee shall be allowed to commence work and no employee or owner shall be allowed to remain the game playing area who does not display such identification. Failure to comply with this section constitutes grounds for suspension or revocation of the employee's registration and/or the game room's license.

§ 8-11.30 Suspension or Revocation of Registration.

[Ord. #94-011, § 1]

a. Grounds. The Chief of Police may suspend or revoke the registration of an employee or owner on any one of the grounds that would have been a basis for denial of the registration when applied for initially.

b. Notice. The Chief of Police shall notify the owner or employee and the licensee in writing of the proposed suspension or revocation. The notice shall state the reasons and shall advise the registrant of the opportunity to show cause why the registration should not be suspended or revoked.

c. Show Cause Hearing. Within ten (10) days of the date of mailing, the owner or employee, as applicable, or the licensee may request in writing a show cause hearing before the Chief of Police, the purpose of which is to show cause why the registration should not be suspended or revoked. The owner or employee, as applicable, or the licensee are deemed to have waived the right to a hearing if the Chief of Police does not receive the request within the ten (10) day period.

The Chief of Police shall schedule the hearing within fifteen (15) days after receiving the request. The Chief of Police shall mail notice of the time, place and date of the hearing to the owner or employee, as applicable, and the licensee within five (5) days after receipt of the request. Technical rules of evidence shall not apply to the show cause hearing.

d. Decision. If, on the basis of substantial evidence presented at the hearing, the Chief of Police finds good cause, the Chief of Police may suspend or revoke the registration. The Chief of Police shall send written notice of the decision within (5) days after the close of the hearing. Suspension or revocation by the Chief of Police of the registration of a pointholder or a key management employee shall be appealable to the City Council upon written notice of appeal filed with the City Administrator within ten (10) days of the written notice of the decision prepared and sent by the Chief of Police.

§ 8-11.31 Pointholders: Applications for Sale or Transfer of Points.

[Ord. #94-011, § 1]

a. Except as otherwise provided in this section, it is unlawful for any pointholder or any other person having any interest whatsoever or at all in the ownership of a gaming room facility, whether legal or equitable, or as trustor or trustee, or of whatsoever kind of character, to transfer such points and/or interest without the consent and permission of the City Council. No transfer or assignment of any point or interest will be recognized by the City unless the transferee or assignee has fully complied with the requirements of the Gaming Registration Act of the State of California and all the applicable rules and regulations relating to the transfer and ownership of points or interests in gaming facility as promulgated by the Attorney General of the State of California and the City of Albany.

b. Any person desiring to sell, transfer, assign, or otherwise hypothecate any point or interest, or fraction thereof, in a gaming facility shall file with the City Administrator a written application for permission to transfer such interest. Each such application shall set forth, under penalty of perjury, in addition to such other information as the City Administrator and/or the City Council may require, the following information:

1. The date of the application;

2. The true name of the applicant and proposed transferee;

3. The status of the transferee as being an individual, corporation, association, copartnership, joint venture, trustor, trustee, or other entity;

4. The residence and business address of the transferee, if an individual;

5. If the transferee is other than an individual, the name, residence, and business address of each of the copartners or members of the firm, copartnership, trustor, trustee, or joint venture and the names and residence and business addresses of each of the principal officers and directors of the association or corporation applicant;

6. The number of points and/or the nature of interest sought to be sold, transferred, assigned, or otherwise hypothecated.

c. The application required by this subsection shall be confidential, and the documents containing such information shall be confidential and shall not be open to public inspection except in connection with the enforcement or administration of this section, or as may be required by the California Public Records Act.

§ 8-11.32 Pointholder Investigation Required.

[Ord. #94-011, § 1]

Whenever an application for sale or transfer of points has been filed with the City, the City Administrator shall promptly and diligently make a full and complete investigation of the transferee(s). Concurrently with the filing of the application, the transferee shall be fingerprinted and photographed by the police department, and shall pay all applicable fees. Approval of the sale or transfer of points is conditioned upon complying with the registration provisions in Part 3 and subsection 8-11.28, in particular.

§ 8-11.33 Pointholder License Fees.

[Ord. #94-011, § 1]

Each such transfer application shall be accompanied by a processing fee payable in advance, as set by resolution of the City Council, in an amount sufficient to cover the costs (including administrative costs) of the investigation and of processing the application. The fees set forth pursuant to this section shall be the property of and be retained by the City, whether the application for transfer is granted or denied.

§ 8-11.34 Pointholder Granting or Denying of Application.

[Ord. #94-011, § 1]

a. Consider by City Council. Whenever an application for such a transfer is presented to the City Council, the City Council shall consider such application on the same basis and subject to the same hearing procedures as are applicable to a new license application.

b. Decision of the Council. The City Council may in its discretion either approve, conditionally approve, or deny the application.

§ 8-11.35 Application of Provisions to Unregistered Pointholders.

[Ord. #94-011, § 1]

Any pointholder who has not previously been registered in accordance with this section shall file, as a prerequisite to the continued holding of any ownership interest, the application to be investigated, pay the fee, and be reviewed by the City Council as provided for persons applying for new ownership interest. Until such time as the investigation has been completed, no financial returns from the operations of the game room shall be paid to the pointholder. If the City Council denies any application, within six (6) months after the receipt of a notice of such denial, said owner shall divest himself or herself of such ownership interest.

§ 8-11.36 Pointholder Divestment.

[Ord. #94-011, § 1]

a. In the event that a pointholder is convicted or is found to be guilty of a misdemeanor involving moral turpitude or of any felony, the pointholder shall divest himself or herself of any ownership interest within one hundred twenty (120) days after a notice of divestiture is served on such person by the City pursuant to such person's final conviction of such crime. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to a misdemeanor involving moral turpitude or a felony shall be deemed to be a final conviction within the meaning of this section, unless the conviction is appealed to a higher court, in which case the judgment and verdict of that court shall constitute the final action pursuant to which notice of divestiture shall be served if the conviction is affirmed. Within thirty (30) days after the service of a notice of divestiture, the person or persons subject to such notice (appellant) may request in writing a hearing before the City Council to appeal the notice and request a waiver of the divestiture requirement, including transfer to a trustee. A hearing shall be scheduled before the City Council within thirty (30) days after the receipt of the appellant's written request. Upon the conclusion of the hearing, the City Council may disregard the appellant's conviction or take other modifying steps if it is found and determined by the City Council that mitigating circumstances exist and that the public welfare will be adequately protected. In making such determination, the City Council shall consider any factor it deems relevant, including the following:

1. The type, nature and extent of the pointholder's interest, including the involvement, if any, in the operations of the gaming facility;

2. The nature, time and seriousness of the offense;

3. The circumstances surrounding the conviction;

4. The age of the person at the time of the conviction;

5. The presence or absence of rehabilitation or efforts at rehabilitation;

6. Contributing social and environmental conditions;

7. The record of the proceedings leading to the conviction;

8. The financial stability of the pointholder, including his or her personal history, reputation for habits, and traits of character and moral background; and

9. Such other factors deemed relevant by the City Council in determining the status of the pointholder.

The decision of the City Council shall be final and conclusive.

b. No person required to divest a game room related interest pursuant to an order of divestiture shall transfer the same to his or her spouse, child, sibling, parent or to his or her spouse's child, sibling or parent.

c. Each day of noncompliance with a notice of divestiture shall constitute a separate and complete offense. In addition, the City Attorney may invoke appropriate civil remedies available to enforce compliance.

§ 8-11.37 Corporate Pointholders.

[Ord. #94-011, § 1]

If any pointholder is a corporation or similar entity, the licensee shall keep on file with the City Administrator at all times a current list showing the names and addresses of all officers, directors and shareholders of five (5%) percent or more of stock of such corporation or other entity.

§ 8-11.38 Pointholder Death.

[Ord. #94-011, § 1]

a. Upon the death of any pointholder, the pointholder's interest in the license shall be transferred in accordance with subsections 8-11.31 through 8-11.37.

 

Part 4

Operating Regulations

§ 8-11.39 Where Games Are Played.

[Ord. #94-011, § 1]

The playing of games shall be confined to the location specifically described in the license.

§ 8-11.40 Licensee Responsibility.

[Ord. #94-011, § 1]

All games conducted or operated in the City of Albany under this section shall be conducted and operated in full conformity with, and subject to, the laws of the State of California and the City of Albany.

No licensee, agent or employee of any game room licensed under this section shall knowingly engage in or knowingly permit any other person on the premises to engage in any act in violation of the laws of the State of California, of the ordinances and regulations of the City of Albany, or of the specific conditions of the game room's license.

At least one (1) responsible employee shall at all times during game room hours of operation be physically present at any gaming facility licensed under this section. Such responsible employee shall exercise personal control and direction over the operation of the game room, and shall be available to the Chief of Police and/or his or her designee. During any period of time (including hours within a day, or days) in which the gaming facility is not operating, if no responsible employee shall be physically present at the game room, the licensee shall have provided to the Police Department in advance the name, address and telephone number of a responsible employee who shall be available during such time(s) to the Chief of Police and/or his or her designee.

§ 8-11.41 Permitted and Prohibited Games; Wagering Limits; Hours of Operation.

[Ord. #94-011, § 1]

All games set forth in Penal Code Section 330, or such equivalent section as may be amended from time to time, are prohibited. All other games, as defined by this section, are permissible to the extent they can be and are played in accordance with the terms of a license issued hereunder. No game shall allow individual bets to be placed exceeding five hundred ($500.00) dollars, other than in established tournament play. Gaming facilities may operate on a twenty-four (24) hour basis. The maximum number of tables permitted in any one gaming facility is one hundred fifty (150), and in the City is one hundred fifty (150). Nothing in this section is intend to, or shall, preclude a licensee under a game room license issued hereunder from conducting or permitting to be conducted any other lawful and licensed activity consistent with applicable zoning provisions (including horse racing, parimutuel betting and related uses) within a licensed gaming facility.

§ 8-11.42 Lending Money or Things of Value Prohibited.

[Ord. #94-011, § 1]

It is unlawful for licensee, owner, employee or any other person associated with a game room licensed under this section to demand or collect a fee, charge or interest from any person or in connection with the lending of money, chips, tokens, or any other things of value, where the purpose of such transaction is to enable such person to eat, drink, or play cards at the game room.

§ 8-11.43 Operation of House Deposit or Credit System Prohibited.

[Ord. #94-011, § 1]

a. It is unlawful for a game room licensee, owner or employee to operate, maintain or propose to maintain a house, player or employee deposit or credit system or any similar system, whereby a person may deposit, draw or maintain an account or credit of money, checks or any other item or representation of value, except as authorized under paragraph b.

b. The licensee may accept a patron's chips or other winnings and provide the patron with a check drawn on the licensee's account for the amount of the patron's chips or other winnings.

§ 8-11.44 Posting Requirements.

[Ord. #94-011, § 1]

a. The licensee shall post all of the following in a conspicuous location in the game room. The posting shall occur in at least one (1) location for each twenty-five (25) game tables. Posting shall include:

1. The permitted games and game rules;

2. A set of operating regulations in a form approved by the Chief of Police and containing the essential provisions of this Part 4;

3. The dollar equivalent of chips or other representations of value; and

4. The telephone number of Gamblers Anonymous and a statement that literature is available.

b. Printed copies of all the posted information shall also be easily available to the public in English, Spanish, Vietnamese, Korean, and Mandarin and/or Cantonese-Chinese.

c. Copies of all the posted information shall be made available to the public and provided to the City.

§ 8-11.45 Rules and Regulations of Game Room.

[Ord. #94-011, § 1]

Rules and regulations will be established and promulgated with reference to legal games for which a license is issued under the provisions of this section. All such rules and regulations shall have the force of law and any violation thereof shall be considered a violation of this section and a ground for revocation or suspension proceedings.

Licensee agrees to be bound by and observe each and all of the provisions of this section relating to such licenses, and rules promulgated hereunder.

§ 8-11.46 Cheating.

[Ord. #94-011, § 1]

a. Definitions. For the purposes of this section, the words and phrases hereinafter set forth shall have the following meanings ascribed to them unless the context clearly requires to the contrary:

1. "Blind cut" or "false cut" shall mean a maneuver which appears to cut the deck, but does not in fact do so;

2. "Blind shuffle" shall mean to false shuffle, or to give the deceptive impression of intermixing playing cards, while actually retaining the same sequence of all or a group of cards;

3. "Burn" is a discard in accordance with the rules of the game, made before the draw when playing draw poker;

4. "Capping the deck" shall mean to place cards which should not be there onto the top of the deck;

5. "Cooler" shall mean a deck of cards, secretly prearranged in a known sequence or marked to be substituted for the deck in play;

6. "Daubing" shall mean to mark cards by applying a faintly visible substance to the back of the cards;

7. "Greek deal" or "second bottom" shall mean to deal a card which is second from the bottom of the deck;

8. "Hand mucking" shall mean the surreptitious switching of cards from those that are dealt to a player;

9. "Hold-out" shall mean a mechanical device used for the purpose of surreptitiously switching or retaining cards;

10. "Hopping the cut" shall mean to surreptitiously nullify the cutting of the deck;

11. "Middle dealing" shall mean to deal a card from the center section of the deck;

12. "Punching" shall mean to mark the back of the cards by creating a dimple or indentation thereon;

13. "Roughing fluid" shall mean a liquid chemical applied to the back of the cards for the purpose of marking them by roughening the surface;

14. "Run-up" or "stacking" or "stocking" shall mean to shuffle the cards in such a fashion as to surreptitiously arrange the sequence of known cards;

15. "Sanding" shall mean to mark cards by applying an abrasive substance to the cards;

16. "Shiner" shall mean a mirror or other reflecting device used for the purpose of enabling a player to see cards which the player is not entitled to see under the rules of the game being played;

17. "Slick sleeve" or "mohair sleeve" shall mean a long sleeve on a clothing garment to assist in holding out a playing card;

18. "Slug" shall mean a group of cards;

19. "Transmitter" shall mean an electronic or radio device used for the purpose of transmitting signals or information to another player, who receives such signals or information by use of a "receiver";

20. "White flash" shall mean a form of daubing whereby a chemical is used to create a "white on white" marking on the back of the cards.

b. Techniques Generally. It is unlawful for any person or persons to use any of the cheating techniques described by this section, or such other techniques as may be identified and prohibited, whether or not such techniques are successful. The licensee or key management employees or responsible employees shall immediately notify the police department upon the detection of any person(s) suspected of cheating.

§ 8-11.47 Exclusions of Certain Individuals.

[Ord. #94-011, § 1]

a. A licensee shall exclude, remove, or cause to have excluded or removed, from the premises of a gaming facility any of the following persons that the licensee knows or reasonably should know to be:

1. A person who has engaged in or been convicted of bookmaking, sale or possession for sale of a controlled substance, illegal gambling activities, pimping or prostitution; or

2. A person who, in the opinion of a licensee or its employees, is obviously under the influence of an intoxicating beverage, narcotic or drug; or

3. A person who is under the age of twenty-one (21) years; or

4. A person engaged in cheating as defined by subsection 8-11.45 or a "shill".

b. A licensee, owner, or employee of a game room, or any law enforcement officer of the City of Albany, may exclude or eject from any game room a person described in paragraph a.

c. A person who is excluded or ejected from a game room may apply to the Chief of Police for a hearing on the question of whether this section is applicable to him or her. The hearing shall be held within ten (10) days after receipt of the hearing request, or sooner if required by law, or at such other times as the applicant and Chief of Police may agree.

d. If, upon the hearing, the Chief of Police determines that the exclusion or ejection would not apply to the applicant, all game rooms licensed by the City shall be notified in writing of such determination. If the determination is that the exclusion or ejection was proper, the Chief of Police shall inform the applicant and game rooms of that determination in writing. Such determination is subject to review by any court of competent jurisdiction.

e. No game room which excludes an individual based upon this section shall be subject to civil liability.

§ 8-11.48 Alcoholic Beverages.

[Ord. #94-011, § 1]

a. Alcoholic beverages may be sold, dispensed, consumed, or permitted in licensed gaming room facilities in accordance with applicable State and local laws and regulations.

b. No on-duty employee of a gaming facility shall consume alcoholic beverages or controlled substances, whether on or off the premises.

c. No complimentary or reduced price alcoholic beverages shall be offered in violation of State law.

d. No licensee or other person in charge or control of any game at a gaming room shall permit any person to play in any game licensed by the provisions of this section at any time while such person appears to be, or is, under the influence of any alcoholic beverage or controlled substance.

e. No licensee or other person in charge or control of any game at a gaming room shall permit any person to enter the premises while such person appears to be, or is, in the opinion of the licensee or duly authorized agents or employees, under the influence of an alcoholic beverage or controlled substance.

§ 8-11.49 Record Keeping and Audits.

[Ord. #94-011, § 1]

a. The licensee shall keep and maintain all gaming room books, documents, records and accounts (whether recorded in printed form or as electronic media) in accordance with generally accepted accounting principles consistently applied. Such books, documents, records and files must be retained for a period of at least three (3) years and must be made available for inspection or audit at the demand of the City. Any and all video or audio tape recordings made for security or other purposes shall be marked with the date and time made and shall be kept, in an unaltered state, for a period of thirty (30) days, or for a longer period when so directed in writing by the City, and must be made available to any law enforcement agency for duplication upon demand.

b. The licensee shall provide to the City Administrator, as and when required under this section, a daily record of gross revenue. Such records shall be in a form acceptable to the City Administrator.

c. Nothing in this section shall limit the City's right to inspect or audit the books, documents, records and accounts of the licensee, at any time, relating to items other than gross revenues.

 

Part 5

Miscellaneous Provisions

§ 8-11.50 Indemnification.

[Ord. #94-011, § 1]

In addition to the indemnity requirement set forth in subsection 8-11.17, the licensee and licensee's successors, heirs, and assigns, shall defend, indemnify, and hold harmless the City, its agents, officers, and employees from any claim, action or proceedings against the City, its agents, officers or employees arising out of or resulting from the negligence of the licensee or the licensee's agents, employees, or contractors in the construction or operation of a gaming facility.

§ 8-11.51 Campaign Contributions.

[Ord. #94-011, § 1]

The City Council finds that the gaming industry is a highly regulated and controlled industry due to the nature of its operations, the amount of money amassed, and the fears and perceptions that some elements in the industry may use such funds to incur political debts from legislators who are aided by their contributions. In order to eliminate the appearance of impropriety and corruption associated with such contributions, the City Council hereby determines that it shall be unlawful for any corporation, partnership or other legal entity licensed under this section, or the licensee's employee's or agents, or any pointholder, to make or cause to be made, either directly or indirectly, any monetary contributions to any elected official of the City, any candidate seeking elected office within the City, or any candidate seeking an elected office who held an elected position within the City of Albany during the time in which the licensee was doing business in the City or the gaming facility permitted under the license was operating, or to their respective campaign organizations.

§ 8-11.52 Financial Disclosure.

[Ord. #94-011, § 1]

Licensee, any owner, employee, or pointholder as described herein, or any agent thereof, either directly or indirectly, shall disclose the payment to any City of Albany elected official, employee of the City of Albany, any consultant or agent of the City of Albany, any former employee or former City Council member or elected official who served the City of Albany within the last eight (8) years, any commission member or committee member, present or former, within the last eight (8) years prior to application for the license. City shall deliver a list of persons to the licensee informing the licensee of those persons who City determines are covered by this provision. Said requirement to disclose includes disclosure of the payment of one hundred ($100.00) dollars or its economic equivalent in any calendar year. Said disclosure shall be made within thirty (30) days of the time of such payment for any payment made after issuance of the license and receipt by the licensee of the list of persons provided by the City, and shall include the amounts of money so paid. A payment of one hundred ($100.00) dollars or more shall include any monies or other items of value which have been given, promised, provided to, paid as salary or compensation, or otherwise transferred or directed to, either indirectly or directly, to those persons designated herein. Failure to disclose such information shall constitute grounds for suspension and/or revocation of a permit or license.

§ 8-11.53 Unlawful Interests.

[Ord. #94-011, § 1]

It shall be unlawful and a conflict of interest for any City Council member, City employee or City official to directly or indirectly own, operate or have any interest, legal or equitable, in any gaming room facility licensed under this section. It shall be unlawful for any City Council member, City employee or City official to directly or indirectly conduct business with or be employed in any manner whatever by a person or entity licensed under this section.

It shall be unlawful for licensee, any pointholder, or management or other employee of licensee to enter into any agreement, arrangement or other financial contract with any City Council member, City employee, or City official by which those person(s) directly or indirectly own, operate, or have any interests, legal or equitable, in any gaming room facility licensed under this section.

§ 8-11.54 Nonseverability with Respect to Taxes and Fees; Severability with Respect to Remaining Provisions.

[Ord. #94-011, § 1]

The provisions of this section providing for the payment of business license taxes are not severable. Should any law enacted after the date of adoption of this section have the effect of depriving the City of Albany in any manner of receiving payment of all or any portion of the business license tax payable under this section, then the passage of such law shall be grounds for revocation or suspension of any license issued pursuant to this section, subject to any amortization required by applicable law. Should the requirements of this section relating to the payment of business license taxes as herein set forth or as subsequently amended be held to be invalid or unenforceable for any reason by the final judgment of a court of competent jurisdiction, then this section in its entirety shall thereupon become null and void, any licenses issued pursuant to this section shall likewise become null and void, and the playing of such games within the City shall thereupon become unlawful to the same extent as such playing was unlawful prior to the adoption of this section. Should any nonfinal judicial ruling or order of a court of competent jurisdiction have the effect of depriving the City of Albany in any manner of receiving payment of all or any portion of the business license tax payable under this section, then any licenses issued pursuant to this section shall be automatically suspended until such ruling or order is stayed, lifted, dissolved, or overturned.

Except as provided immediately hereinabove with respect to business license tax payments to the City, if any remaining section, subsection, paragraph, sentence, clause or phrase of this section is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The people hereby declare that, they would have passed this section and each subsection, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared invalid.

§ 8-11.55 Limitations of Actions.

[Ord. #94-011, § 1]

Any action or proceeding challenging the constitutionality or validity of this section shall be brought within sixty (60) days following its adoption, according to the limitations period and procedures set forth in Chapter 9 of Title 10 of Part 2 of the Code of Civil Procedure (commencing with Section 860). No challenge to the constitutionality or validity of this section shall be made other than within the time and manner therein specified.

Any action by any person to attack, review, set aside, annul, or void any action or decision rendered hereunder shall not be maintained by any person unless such action or proceeding is commenced within ninety (90) days after the date of final decision or action is made or taken hereunder. If any action or proceeding is instituted by someone challenging an approval to grant a license or registration, or challenging the validity of any action taken under the provisions of these regulations, or any decision taken or made hereunder, the licensee shall reimburse the City of Albany for all costs and fees in defense of such action or proceedings.

§ 8-11.56 Standard of Review.

[Ord. #94-011, § 1]

Any action or proceeding to attack, or review, set aside, void or null a determination, finding, or any decision of the City of Albany made as a result of proceedings in which a hearing was required to be given, information or evidence required to be taken in discretion of the termination of facts vested in the City of Albany, on the grounds of noncompliance with the provisions of this section, shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure. In any such action, the court shall only determine whether the act or decision is supported by substantial evidence in light of the whole record, except to the extent the court determines that the provisions of 1094.5 (c) of the Code of Civil Procedure for the exercise of its independent judgment on the evidence applies.

§ 8-11.57 Amendment of Section.

[Ord. #94-011, § 1]

Amendment or modification of the provisions of subsection 8-11.3 or subsection 8-11.4 of this section shall require an affirmative vote by a majority of the voters voting in a election within the City of Albany. The provisions of subsection 8-11.15, subsection 8-11.24 or subsection 8-11.41 of this section shall require an affirmative vote of a super majority of the City Council. Except as otherwise provided in this subsection 8-11.57, the people of the City of Albany so grant to the City Council, and the City Council reserves the right, to amend or modify the provisions of this section without the necessity of voter approval.