What's Legal?  What's Being Enforced?
TPJ Talks to the DA's and the ALE

August 2005

Everybody agrees that current NC law prohibits the playing of poker for money.   Placing a bet on a game of chance, and NC law definitely categorizes poker as such a game, is illegal.  But with the explosion of poker in bars and pool halls and even for charity, is playing poker without betting also illegal?

Mike Robertson, direction of the North Carolina Alcohol Law Enforcement Division, the people responsible for policing any facility with an alcohol license, says yes. "If you play for any kind of prize, it's illegal," said Mike Robertson, director of the state Alcohol Law Enforcement Division. "The tables themselves are illegal. A roulette wheel is illegal. A Texas Hold 'Em table is illegal. I get a tremendous amount of complaints and inquiries about poker tournaments." (1)  Yet Robertson doesn't go after no-bet poker unless there is a complaint.  With only 104 people on staff to cover a whole state of thousands of restaurants, bars, and other places offering alcohol, he's clearly got more serious issues to address, like monitoring establishments serving to minors.

Robertson references a February 2005 opinion letter sent out by David Adinolfi, Assistant North Carolina Attorney General, defining gambling as games in which players have tendered some consideration for a chance to win a prize.  Adinolfi contends that for the popular tavern leagues, despite the fact there are no entry fees and no cash on the table, that buying food or drinks while playing constitutes consideration and is therefore illegal.

Violation and enforcement, however, are two different things, for now.   Robertson advises callers inquiring about no-fee poker to contact their local District Attorney's and see if they are willing to prosecute such tournaments.   So taking his advice to heart, I contacted the area DA's for interviews to see where they stand.

Jim Woodall, Orange County District Attorney, called me back the next day.  "If anything is bet, that's illegal in North Carolina.  If you can win something, that makes it illegal, too. The theory underlying all of this is that poker is a game of chance.  Even though most people I know say poker is a game of skill, no North Carolina court has ever considered any card game to be other than a game of chance."

Overall, said Woodall, "I don't care about it.  It's not on my radar screen."  No one in recent memory has been charged for playing poker in his jurisdiction.  A number of years ago, a home game was robbed of approximately $15,000 and the organizer called the police after escaping being tied up by the robbers, who were later caught. The organizer was charged but those charges were dropped due to more pressing issues in the DA's office and after the organizer agreed to forfeit most of the money.   "Not many DA's offices are interested in the friendly neighborhood poker game.  But when you move from the kitchen into public establishments, there is the association of gambling with other vices.  That will get law enforcement's attention.  And people will run into trouble eventually if they are playing for prizes unless the NC Legislature changes the statute."

In Wake County, District Attorney Colon Willoughby's office did not return multiple calls.  Jim Nesbitt of the News and Observer noted back in May that "Willoughby said he isn't interested in making cases against charity casino nights. Nor does virgin poker pique his interest." (1)

In that same article, Willoughby said, "How is it gambling if you don't put up any of your own money?  The opportunity to put up your money and win other people's money is the evil the legislature was trying to curtail. That's what we have sought to focus on with gambling -- whether it's an illegal lottery or a poker parlor where they take a cut of the pot to provide liquor, food and protection or illegal sports betting." (1)  Willoughby 's position explains why so far there have been no poker tavern cases in Wake County.

Mike Nifong, Durham County District Attorney, refused an interview, stating in a fax to me that "the duties of the District Attorney do not include the giving of advisory opinions as to whether a particular proposed activity would violate the law, and I can not imagine that any District Attorney would want to put himself in the position where a person arrested for violation of a statute would say 'But the District Attorney told me I could.' "  

Yet back in May, he offered this opinion.  "It's not a black-and-white issue. It's arguably legal and arguably illegal, and that makes it a gray area legally." (1)

Peter Gilchrist, DA for Charlotte and Mecklenberg County, sees the role of the DA as interpreter of what's legal differently than Nifong.  In a recent interview, Gilchrist told me "With no entry fee involved, directly or indirectly to enter, that kind of poker doesn't meet the gambling test."

Guilford County District Attorney Stuart Albright broke up a game last December, an ongoing high-stakes setup in the Lawndale Business Park in Greensboro.  In response to a complaint, undercover ALE agents got in and busted 14 people.  The group played tournaments for $1000 a person and for hundreds of dollars in other cash games.  The organizer received a suspended sentence and charges were dismissed against the others when they agreed to forfeit the money, more than $25,000. “I think we punished (them) right where it counts,” Albright said. “Gambling is all about money.” (2)

This was a black-and-white bust, but a March case involved a the gray area of no-fee poker.  It happened at Ham's, also in Greensboro.  In response to a complaint, Albright prosecuted Ham's and the tournament organizers they hired to run a tournament, 5th Street Entertainment out of Charlotte.  This was a typical no-fee tavern game with one exception, a larger than usual prize.   People competed for a satellite seat leading to the 2005 WSOP in Las Vegas.  Fortunately, 5th Street had done its homework.  Albright dismissed the case when he found out an NC Alcoholic Beverage Control Commission attorney advised 5th Street that tournaments are legal without money at stake.   5th Street is currently suing Attorney General Roy Cooper, Stuart Albright, Mike Robertson, and Mecklenberg ABC Enforcement Director William Cox (see Poker Litigation Timeline).

Albright told me "I do not actively seek out law enforcement to handle poker games.  And echoing Jim Woodall, he said "Poker is not on my radar screen.  I've got cable, and poker is fun to watch.  But I don't have a dog in this fight.  I'm not a puritan."

(1) Quotes from The News and Observer, "Poker Tourneys Illegal" by Jim Nesbitt, May 15, 2005. 

(2) Quotes from The Greensboro News and Record, "Poker Players Ante Up in Deal" by Eric Collins, March 5, 2005.