The Gaming Commission’s Hurry-Up Offense: Dispatch from the “ATM’s in Casinos” Battlefront

The latest episode in the drama concerning the legality of placing ATM’s in casinos here in Massachusetts.

Quick recap. At present, a state law says that no ATM “shall be located upon premises where there occurs legalized gambling.” This law presents an obstacle of major significance to the casino industry, under whose business model casino patrons must have ready access to all of their assets. In a very lightly attended legislative session on Christmas Eve, the State Senate included a repeal of that law in an amendment to a much larger bill concerning the regulation of state-chartered banks. The maneuver did not go undetected, and those who favored more careful deliberation on this policy question succeeded in removing the proposed repeal before allowing the bill to pass.

The Gaming Commission, in sympathy with the casino industry, had earlier asked the state’s Division of Banks for its views, and last week the agency responded: no repeal of the law is necessary because it has already happened. Their argument goes like this: the 2011 gambling law included a directive to several state agencies to ensure that casinos do not allow “any credit card or automated teller machine that would allow a patron to obtain cash from a government-issued electronic benefits transfer [EBT] card.” This prohibition against EBT cards, the Division of Banks reasons, also operated to repeal the earlier law prohibiting the placement of ATM’s in casinos altogether. Despite the fact that the Legislature did not expressly repeal the ATM prohibition (as it did with seven other statutes it regarded as inconsistent with the gambling law), the repeal nevertheless occurred “by implication,” because no other interpretation is conceivable: the prohibition against the use of EBT cards can mean only that the Legislature intended that ATM’s capable of rejecting EBT cards are permissible.

Whether the Division of Banks is correct in its interpretation is certainly a matter of dispute. (Courts are very relucant to conclude that repeals “by implication” have occurred: the test for the principle of implied repeal is “whether the prior statute is so repugnant to, and inconsistent with, the later enactment that both cannot stand.”) For one thing, the Legislature evidently lacked confidence that the gambling law repealed the entire ATM prohibition “by implication,” or else it would not have attempted to repeal it expressly last month.

In any event, now that it believes it has a green light of sorts from the Division of Banks, the Gaming Commission has a hurry-up offense going. Draft regulations allowing ATM’s as long as they are 15 feet or more from the gaming area have been issued and the Commission is requesting comments from the public by 4:00 pm on this Monday, January 19 (yes, it’s a federal holiday).

The Commission’s decision on ATM’s is far from the final word. And they should know what you think. So this weekend, maybe while you’re watching the Patriots’ hurry-up offense, drop a line to the Commission with your thoughts — and remember, the wisdom of the ATM policy is fair game, too. Use ‘draft regulation comment’ in the subject line and email to mgccomments@state.ma.us.

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