What types of land-based gambling are permitted in your jurisdiction, and is gambling regulated at a national or subnational level?
Gambling is regulated at the state or tribal and local levels in the United States. States serve as the primary regulators, enforcing criminal gambling prohibitions and licensing legal gambling operations, whereas the federal government mainly plays a supporting role in prosecuting multistate enterprises that violate state gambling laws or offer unlawful sports betting.
As of 2019, land-based commercial casinos are permitted in 18 states - Colorado, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Dakota and West Virginia - and six states permit riverboat casinos - Illinois, Indiana, Iowa, Louisiana, Mississippi and Missouri. Other states host ‘racinos’, racetracks that offer gambling, and Native American tribes in several states (including California) operate casinos and card rooms. Massachusetts is expected to open its first land-based casino later in 2019.
Until early 2018, sports betting was prohibited as a matter of federal law by the now-defunct Professional and Amateur Sports Protection Act (PASPA). Only Nevada was fully exempted from the PASPA prohibition and was able to offer intrastate sports betting, while Delaware, Oregon and Montana enjoyed more limited exemptions. See 28 USC section 3701 et seq (PASPA). At present, 15 jurisdictions (in addition to Nevada) - Arkansas, Delaware, Illinois, Indiana, Iowa, Mississippi, Montana, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, West Virginia and the District of Columbia - have either authorised or actually commenced sports betting. (In New Mexico, the Pueblo tribe of Santa Ana began offering sports betting at their casino property without need for state legislation.) Of those, all but five (Arkansas, Mississippi, New Mexico, New York and Rhode Island) authorise mobile or online sports betting. Interestingly, Tennessee’s law is mobile-only, with no land-based/retail component.
Many states also permit pari-mutuel wagering on horse racing, with a few permitting wagering on greyhound racing and one (Florida) on the game of jai alai.
Every state except Alabama, Alaska, Hawaii, Mississippi, Nevada and Utah operates a state lottery as well. Lotteries are operated by the state directly and are not offered by commercial operators.
Our focus in response to most of these questions is on casino gambling and sports betting, although, where appropriate, we refer to horse-race wagering and other gambling activities.Establishment licensing
Please describe the licensing criteria to operate land-based gambling of each type or classification. Does your jurisdiction limit the number of available licences?
States will generally limit the number of available licences, and the licensing criteria will vary from state to state. For example, in New Jersey, licences or registrations are required for casino owners and operations, casino employees, and companies that do business with casinos. See, eg, NJAC 13:69C (Casino Licencees); NJAC 13:69J (Persons Doing Business with Casino Licencees). Nevada also has a licensing regime for, inter alia, gaming employees and locations, such as taverns, where the gaming is incidental to the main business (known as a ‘restrictive’ licence in Nevada). See Nev Gaming Reg 3 (Licencing: Qualifications).Director, officer and owner licensing
Must individual directors, officers or owners of licensees also be licensed or reviewed for suitability?
In the states where gambling is legalised, regulatory schemes are complex and comprehensive. As a result, state licensing regimes are typically intrusive and require deep scrutiny of the licensee applicant. The purpose of the suitability review is to ensure that licensees are honest and of good character and integrity. For example, in Nevada, casino licences are not granted unless applicants show that they possess adequate business acumen, competence and experience, and that they have secured adequate and appropriate financing. See Nev Rev Stat section 463.170(3). In New Jersey, as another example, key employees, who include, inter alia, pit bosses, casino managers and casino operators, must undergo a rigorous licence application process that shows the financial stability, integrity and responsibility of the person, and the good character and reputation of the person for honesty and integrity. See NJAC 19:41A-5.5.Location
May a gambling location be part of a resort, restaurant or other multi-purpose location? What limitations apply?
Yes, but every state that has permitted gambling will have different limitations. In Nevada, an owner of a tavern can receive a ‘restricted’ licence, which permits the establishment to have 15 or fewer slot machines that are incidental to the main business - the tavern itself. Six states - Illinois, Indiana, Iowa, Louisiana, Mississippi and Missouri - permit riverboat casinos.Passive/institutional ownership
Are there provisions for passive or institutional ownership that allow for exemption or modification of licensing requirements?
State laws in this area vary, but it is common for states to exclude from licensing requirements institutional owners of licensees up to certain specified thresholds, so long as those owners are passive - ie, they take no active role in the operation or management of the gambling enterprise. The permitted thresholds vary, with an upper range typically of 10 per cent. Importantly, institutional owners able to avail themselves of this exemption remain subject to the oversight of the gambling authorities, which can ‘call them forward’ for review in their sole discretion, should they believe it warranted.Responsible gambling
What responsible gambling obligations apply to licensees?
Responsible gambling obligations for licensees will vary from state to state. In Nevada, licensees that engage in the issuance of credit, check cashing or direct mail marketing of gaming opportunities are required to implement a programme that allows patrons to self-limit their access to such marketing by that licensee. The programme devised by the licensee sets forth the standards and procedures that allow a patron to be removed from such marketing. Licensees are also required to train all employees who directly interact with gaming patrons, and the training shall consider the nature and symptoms of problem gambling behaviour. See Nev Gaming Reg 5.170. Many states require licensees to maintain their own self-exclusion lists that allow individuals to self-identify and then require the licensee to refuse service to any individual so listed. In New Jersey, the Division of Gaming Enforcement provides and maintains a centralised list of persons self-excluded from gaming activities at all licensed casinos and simulcasting facilities. See NJSA section 5:12-71.2; section 5:12-71.3. Missouri established the first such state-wide voluntary exclusion programme, which is known for its stringency. In Missouri, a person who places him- or herself on the self-exclusion list but is found at a gaming location will have a criminal complaint filed against him or her for trespassing. See 11 Mo Code of State Regulations section 45-17-010.Taxes
What type of tax and what tax rate applies to each form of lawful land-based gambling activity?
Land-based gambling activity is generally taxed based on gross gaming revenue (GGR). The rate varies from jurisdiction to jurisdiction. Although the definition of GGR also varies, at a high level it refers to the gross amount received from wagerers minus winnings and bonuses or promotional credits offered to the wagerer.