Shammy, Inc. v. Bd. of Cnty. Comm'rs for Calvert Cnty.
| Decision Date | 16 February 2021 |
| Docket Number | No. 79,79 |
| Parties | SHAMMY, INC. v. BOARD OF COUNTY COMMISSIONERS FOR CALVERT COUNTY, MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Calvert County
UNREPORTED
Shaw Geter, Gould, Wilner, Alan M. (Senior Judge), Specially Assigned, JJ.
Opinion by Wilner, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
This case takes us, once again, into the arcane world of legalized gambling in Calvert County, which has a long history. See CCI Entertainment v. State, 215 Md. App. 359 (2013). We are dealing here with a narrow issue of statutory construction that arises from and governs a quest to engage in a significant form of such gambling - instant electronic bingo.
Bingo is a game of chance, the roots of which can be traced back to the 16th Century. In its traditional form, as it developed and at one point was copyrighted in the United States, each player received a paper card containing a grid of five rows of five squares each. The five vertical columns were headed, from left to right, with a letter (B for column 1, I for column 2, N for column 3, G for column 4, and O for column 5). On each square was a preprinted number (1 through 15 in column 1, 16 through 30 for column 2, etc., ending with 60 through 75 for column 5). The middle square was unmarked; it was a "free space."
The host called out lettered numbers, from B to O, 1 to 75, at random, and the players marked their card if there was a match. The first player who was able to find five matched numbers in a row - vertically, horizontally, or diagonally - called out "bingo." Once those matches were verified, that player won a prize of some sort, usually money. Because winning was, and remains, purely a matter of chance rather than skill, bingo is considered a form of gambling. Indeed, current Maryland law regards bingo as both a"gaming device" and a "gaming event." See Md. Code, Criminal Law Article (CL), §§ 12-101 (d)(2) and 12-101 (e)(6).
In the halcyon days gone by, bingo in that form was tolerated as a harmless parlor game or as an acceptable moneymaker when run by charitable organizations, mostly church groups but others as well, such as PTAs and fire departments. When prizes were awarded, the payouts were modest, the game took some time to complete so there was somewhat of a social element to it, and, when run by charities, it was for a good cause. That began to change when casinos commercialized the game, made the prizes more lucrative, and created several new versions of the game. It came under increased scrutiny by Federal, State, and local authorities when, through computer technology, it could be played electronically.1 That developed into what became known as "instant bingo" and "instant electronic bingo."
Instant bingo was described in this case as involving a ticket or pull tab that a player purchases from an employee of the bingo parlor or from a machine. It is instant because the player's success or lack thereof is revealed instantly simply by looking at the ticket or tab. It varies from the traditional version in that it is not a competition among several players as to who first completes five contiguous matches but merely whether theticket or pull tab purchased by a player has a winning combination on it. In that sense, it is not unlike buying a lottery ticket.
Instant electronic bingo is yet a further deviation. It has a much closer affinity to slot machines, which are more heavily regulated, or not allowed at all, in part because of increasing concern that developed over the involvement of organized criminal enterprises in that business. As we shall see, a critical part of the laws dealing with bingo in Calvert County is the legislative determination that instant bingo, including instant electronic bingo, despite its close affinity to slot machines, as defined in CL, § 12-301, be regarded as bingo and not as slot machines. See CL § 13-705 (a).
In Maryland, the initial focus was principally, but not entirely, on five counties where commercial gambling of this kind was well-entrenched - Anne Arundel, Prince George's, Charles, Calvert, and St. Mary's. See Clerk v. Chesapeake Beach Park, 251 Md. 657 (1968); State v. 158 Gaming Devices, 304 Md. 404 (1985); and CCI Entertainment v. State, supra, 215 Md. App. 359. The focus is now Statewide.2 The current laws governing commercial bingo operations in Calvert County are found mostly in CL Title 13, Subtitle 7.
CL § 13-705 (b) requires a person to obtain a license from the county commissioners before conducting bingo in the county. [Hereafter in this Opinion, we shall refer to the county commissioners as "the county."] There are seven classes of bingo licenses, each of which is subject to one or more kinds of limitation on its operation. The limitations deal with the number of players who can participate, ranging from 500 to no limit, the amount of payout allowed ($100 except for the Class NG beach license), and the days or months they can operate.
With respect to the Class NA, NB, and NC licenses, there is nothing in the law that could be read as tying their operation to any particular location in the county. Indeed, because Shammy is currently operating under a Class NB license in Solomons, Md., we may fairly infer that there is no geographical limit as to where in the county Class NA, NB, or NC licensees may be permitted to operate, other than what may be stated in the particular license. That was confirmed by the county at oral argument before us. The other four - Classes ND, NE, NF, and NG - each have the word "beach" after the capital letters and, as to them, CL § 13-705 (e) says that they "may be operated within the town limits of North Beach or Chesapeake Beach."
The Class NG beach license is unique in that there is no limit on the number of players or on the payout, it can operate throughout the year and on Sunday afternoon, and it can operate instant bingo. The question is whether it is limited to North Beach and Chesapeake Beach.
Appellant Shammy, Inc., trading as Island Bingo, operates a bingo parlor in Solomons under a Class NB Bingo License. As noted, that allows Shammy to conduct bingo, but limits the operation to a seating or player capacity of not more than 500 persons, limits the payout to $100, does not allow the conduct of bingo games on Sundays, and does not allow instant bingo, at least not expressly, as is the case with the Class NG beach license. CL § 13-709 permits the county to adopt regulations to govern the conduct or play of bingo, the issuance of bingo licenses, the fees to be charged for bingo licenses, the determination of the election districts and precincts in which bingo may be conducted, and the setting of fees.
This case arose when Shammy wanted to continue its operation in Solomons without the restrictions attached to a Class NB license and with the ability to conduct instant bingo. The parties agree that eliminating the restrictions on the number of players and the amount of allowable award and the prohibition of Sunday operations requires a Class NG beach license, which is why Shammy says it applied for one. The direct dispute is over whether a Class NG beach license is required in order to conduct instant bingo and whether that license is restricted to operations within the town limits of North Beach and Chesapeake Beach and thus not allowed for Shammy's operation in Solomons. Lurking in the shadow of that dispute is the 800-pound gorilla in this case - instant electronic bingo.
There is agreement between Shammy and the county that conducting instant electronic bingo requires a license from the State Lottery and Gaming Control Commission [hereafter "Gaming Commission"], which has taken the position that a prerequisite for such a license in Calvert County is a county Class NG beach license. That is not a problem or issue for the county, but it is for Shammy. If Shammy's ultimate goal is to be able to conduct instant bingo, whether electronic or non-electronic, which it does not deny, it needs a Class NG beach license which, according to the county, is not available for Shammy's operation in Solomons. As we shall explain, in the circumstances of this case, that is a matter of statutory construction.
CL § 13-705 (e)(1)(vii), together with the introductory clause, provides:
The precise question is whether the language "may be operated within the town limits of North Beach of Chesapeake Beach" is restrictive or merely permissive: when read in conjunction with the provisions governing the other licenses. Does it mean (1) that a bingo operation under a Class NG beach license is allowed only in those two beach communities and not anywhere else in the county, or (2) that a Class NG beach licensecan be operated anywhere in the county and the reference to those beach communities is merely permissive?
In October 2018, appellant filed a request for a Class NG beach license along with a request for a hearing.3 Although it was then operating in Solomons under a Class NB Bingo License, Shammy acknowledged that 60 electronic gaming devises were then being used at its facility. The county regarded that license as unique in Calvert County by allowing a Class NG beach licensee to operate instant bingo, including, if approved by the Gaming Commission, on electronic gaming devices and took the view that the law limited that authority to parlors in Chesapeake Beach and North Beach. Asserting that an actual...
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