How illegal is your weekly poker game?

California Penal Code proscribes1“to denounce or condemn (a thing) as dangerous or harmful; prohibit.” “faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a-half, twenty-one, hokey-pokey, or any banking or percentage game played with cards, dice, or any device, for money, checks, credit, or other representative of value.”2Pen. Code, § 330. Prior to 1991, the list included “stud-poker”, but otherwise remained the same.3Pen. Code, § 330, historical notes.

The legislature also gives each county the ability to outlaw “draw poker” in Penal Code section 337s. Interestingly, this ability only exists in counties with more than 4 million residents,4Pen. Code, § 337s, subd. (a). and then only after the county has had the crime approved by its own citizens in a referendum.5Pen. Code, § 337s, subds. (c) & (d).

In 1990, the court specifically asked whether Texas Hold’em was a form of stud-poker as prohibited by section 330.6Tibbetts v. Van De Kamp (1990) 222 Cal.App.3d 389 [271 Cal.Rptr. 792]. After reviewing a history of Penal Code section 330 and the history of poker, the court found that Texas Hold’em was a distinctly different game and was not included among the prohibited games.7Tibbetts v. Van De Kamp, supra, 222 Cal.App.3d 389, 392 [271 Cal.Rptr. 792].

Originally, I pondered: why didn’t the court evaluate the game as a “banking . . . game played with cards . . . for money”? The court quickly answers my question by defining a “banking game.”

“A banking game is one in which the ‘house’ or ‘bank’ is the principal participant in the game, taking on all players, paying all winners and collecting from all losers. A percentage game is one in which the ‘house’ does not directly participate in the game, but collects a percentage from it which may be computed from the amount of bets made, winnings collected, or the amount of money changing hands. ( Sullivan v. Fox (1987) 189 Cal.App.3d 673, 678-679 [235 Cal.Rptr. 5].)”8Tibbetts v. Van De Kamp, supra, 222 Cal.App.3d 389, 393 [271 Cal.Rptr. 792]. Because poker does not have a “house” like blackjack, it is not concidered a banking game and thus is not prohibited as a banking game played with cards for money.

California prohibits “banking or percentage games, . . . because, among other reasons, the house had an advantage and limitless funds.”9Tibbetts v. Van De Kamp , supra, 222 Cal.App.3d 389, 393 [271 Cal.Rptr. 792].

In 1993, California upheld an injunction against police officers who attempted to break up a pai-gow poker game.10City of Bell Gardens v. County of L.A. (1991) 231 Cal.App.3d 1563 [283 Cal.Rptr. 91]. The sheriff’s department argued that Pai-Gow Poker is a type of banking game, because the dealer rotates, and while acting as the dealer, the player serves as a bank that collects from and pays out to all players. The court looked back to an earlier case in which the court already decided that games like Pai-Gow Poker are not “banking games.”11City of Bell Gardens v. County of L.A. (1991) 231 Cal.App.3d 1563, 1567 [283 Cal.Rptr. 91], referencing Huntington Park Club Corp. v. County of Los Angeles (1988) 206 Cal.App.3d 250. Huntington Park held that Pai-Gow is not a banking game because there is no “house” or “bank” that participates in the game.12City of Bell Gardens v. County of L.A. (1991) 231 Cal.App.3d 1563, 1567. Because the “bank” in Pai-Gow poker is a regular player-participant in the game, any person can be the bank and the bank is not representing a casino with odds against the player and a large slush fund from which to draw.

In 2000, the California legislature made this question even easier to answer by putting the holding of Huntington Park in statutory form. Penal Code section 330.11 expressly states: “‘Banking game’ or ‘banked game’ does not include a controlled game if the published rules of the game feature a player-dealer position and provide that this position must be continuously and systematically rotated amongst each of the participants during the play of the game . . .”13Pen. Code, § 330.11.

After reviewing the case law on poker games, it appears quite simple that California does not ban poker games, but you should check your local county ordinances to determine if draw poker has been outlawed (or just avoid draw-poker to be safe).