|The following article was
originally published in Casino
Executive and is presented in Gaming floor with permission of the author.
Professor Rose can be reached at his web site: www.GamblingAndTheLaw.com
Is It A Crime To Give A Casino A Bum Marker?
Licensed casinos have fought for years for the right
to collect their
gaming debts in courts of law.
A recent decision from the Court of Appeals in Louisiana
and a law suit
filed in federal court in California have raised the stakes.
The question now is whether players who sign casino
markers when their bank
accounts are empty are violating state criminal "Bad Check" laws.
A lot more than money is riding on the answer.
In the Louisiana case, the
player received a suspended sentence of prison with two years at hard
The federal suit is a class action complaint filed
against the Clark County
District Attorney and the Las Vegas Hilton. It accuses the defendants
"filing false criminal complaints... and causing false arrests."
The cases raise questions never faced by any other legitimate
1) Is a marker a check? and,
2) Is it a crime to write a bad check when the check is legally
Not paying a debt may hurt a person's credit rating
and subject him to an
unpleasant civil law suit, but in general, it is not a crime.
There are no
debtors' prisons. Even buying something on credit and being unable
pay the bill is not illegal, so long as the buyer thought he would
money when the bill came due.
But, buying something on credit with the intention
of not paying is a
crime, specifically, theft by false pretenses. Writing a bum
it will bounce, can be seen as a form of fraud and larceny.
Checks are an important part of modern society:
The economy would break
down if checks could not be treated like money. Legislatures
special laws against forging or "uttering" a check and also against
who knowingly write bad checks.
Is a marker a check? The answer depends
upon whom and when you ask.
From the players' point of view, a marker is not a check, but
written record of a loan. The casino loans the player money,
usually in the
form of chips, with which to gamble. If the player wins, the loan is
off on the spot and the marker is torn up.
From the casinos' point of view, a marker is a check
because it looks and
acts like a check. If the player loses, the casino can deposit the
like any other check, and collect money from the player's bank account.
Nevada law is not as clear as it could be on the
subject. The Nevada law
is the same as the rest of the English-speaking world: In general,
debts "are void and unenforceable and do not give rise to any administrative
or civil cause of action."
There are two important exceptions: Players
who think they had winning
bets that should have been paid can complain to the Gaming Control
Casinos stuck with bad markers can file lawsuits in courts.
Unfortunately, the Legislature never called markers
"checks." In fact, it
did not even call them "markers." They are "credit instruments,"
as in the
following law from the Gaming Control Act: "A credit instrument
or after June 1, 1983, and the debt that the credit instrument represents
are valid and may be enforced by legal process."
The Act defines "credit instrument" as "a writing
which evidences a gaming
debt owed to a person who holds a nonrestricted [casino] license at
the debt is created, and includes any writing taken in consolidation,
redemption or payment of a previous credit instrument."
Years earlier, as part of its Uniform Commercial
Code, the Nevada
Legislature defined "check" as "a draft, other than a documentary draft,
payable on demand and drawn on a bank... An instrument may be
a check even
though it is described on its face by another term, such as 'money
What was the Legislature trying to do? Did
it intend for "credit
instruments" to be merely documentary representations of gambling debts,
like promissory notes? Or, did it want markers to be treated
for all purposes, including falling under the criminal "Bad Check"
Nevada has at least made it clear that checks written
to casinos may be
collected in civil suits. In other jurisdictions gambling debts
unenforceable. This has led to a unique defense in bad check
In 1996, the U.S. Court of Appeals for the Armed
Forces overturned a
court-martial conviction for "making and uttering worthless checks
dishonorably failing to maintain sufficient funds." No one doubted
airman wrote bum checks at the Ramstein (Germany) Air Base Enlisted
But the checks were given in exchange for rolls of quarters, which
airman quickly lost in the club's slot machines.
The Court held the checks were legally unenforceable.
The charge of
dishonorable conduct by writing bum checks had to be dismissed, "because
checks were written in order to facilitate gambling."
In November, 1999, the Louisiana Court of Appeals
held exactly the
opposite. The defendant was convicted of issuing worthless checks
licensed riverboat casino. This Court held "What we have here is a
legitimate business providing a check cashing service to its customers."
The same Court ruled in 1988 that an agreement
to pool money to gamble in
Las Vegas was unenforceable because Louisiana public policy considered
gaming "contra bonos mores" - against good morals.
In the next decade, expect to see more courts holding gaming is
"contra bonos mores" and is now a legitimate business.
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trademark of Professor I. Nelson Rose, Whittier Law School, Costa Mesa,