State v. Crescent Cities Jaycees Foundation, Inc.

MURPHY, Chief Judge. This case raises a question of statutory construction under the Maryland gaming laws, Maryland Code (1957, ⁴⁶³ 1992 RepLVol.), Art. 27, § 236 et seq. 1 While these statutes generally prohibit gambling in this State, they provide some exemptions for charitable organizations in a number of designated counties. In particular, § 255(b), applicable in eighteen counties, including Prince George’s County, permits certain gambling activities by charitable organizations, but explicitly prohibits any individual or group of individuals from benefitting financially from any such activity. Section 258B, applicable only in Prince George’s County, permits charitable organizations to conduct “benefit performances,” denominated as “casino nights,” at which designated gaming events are permitted.

This section does not include an express requirement that no individual or group of individuals can benefit financially from the event. The issue is whether, in view of the provisions of §§ 255(b) and 258B, volunteer dealers and other workers at casino night events in Prince George’s County may benefit financially by receiving gratuities or tips from patrons. I Section 255(b), enacted in its original form by ch. 679 of the Acts of 1949, provides in subsection (b)(1) that it is not unlawful for a charitable organization “to conduct or hold a carnival, bazaar, or raffle for [its] exclusive benefit ..., if no individual or group of individuals benefits financially from the holding of any [such event] or receives or is paid any of the proceeds from [the event], for personal use or benefit.” Subsection (b)(2) authorizes the charitable organization to “award prizes in cash or in merchandise by such devices as are commonly designated as paddle wheels, wheels of fortune, chance books, bingo, or any other gaming device.” Subsection (b)(3) requires that such “carnivals, bazaars, or raffles shall be managed by the members of [the charitable organization] personally through its members.” It was not until the enactment of ch. 438 of the Acts ⁴⁶⁴ of 1973 that § 255(b) was made applicable to Prince George’s County, having been passed by the Legislature on April 9, 1973, and signed into law by the Governor on May 21, 1973, with an effective date of July 1, 1973. Also enacted at the same 1973 session of the Legislature by ch. 342 was § 258B(a) and (b), applicable only in Prince George’s County.

This section was passed as an emergency measure pursuant to Art. XVI, § 2 of the Maryland Constitution and was signed by the Governor on May 7, 1973, and took effect on that date. Section 258B(a) authorizes charitable organizations in Prince George’s County “to conduct and operate any benefit performance, such as an outdoor or indoor carnival, fair, picnic, dance, card party, bingo party, bazaar, concert, contest, exhibition, lecture, barbecue or dinner, at which the public is invited or admitted ..., the net proceeds of which benefit performance shall inure to [the charitablé organization] ..., and not for the private gain of any member.” This subsection further makes it lawful at such a “benefit performance ... to award prizes in merchandise ... and other things of value ... or by such mechanical devices as are commonly designated as paddle wheels, wheels of fortune, bingo, or other similar methods,” and to award cash prizes not to exceed $1,000 per prize. Also required by this subsection as a condition to operate any such benefit performance is a written permit from the county and the further requirement that the benefit performance be “managed and operated only by members of such ... [charitable] organization personally.” Section 258B(b) authorizes charitable organizations to conduct “raffles” under conditions similar to those set forth in subsection (a). Subsection (c)(2) of § 258B was enacted by ch. 194 of the Acts of 1987; it defined the term “casino night” to mean “a benefit performance conducted under the provisions of this section at which card games, wheels of fortune, or roulette are played and prizes are awarded.” Subsection (c)(3), enacted by the same 1987 Act, requires that a county ⁴⁶⁵ permit fee of $50 be charged “for each casino night to be conducted.” 2 From the aforegoing, it is clear that § 255(b), as it applies in Prince George’s County, requires compliance with three conditions: (1) the proceeds of any event must inure to the exclusive benefit of the organization; (2) no individual may benefit financially from any event or be paid from its proceeds; and (3) members of the organization must personally manage any event.

Under § 258B, five conditions are imposed: (1) the public must be invited or admitted to any event; (2) the proceeds of any event must accrue to the organization for the promotion of its charitable purposes, and not for the private gain of any member; (3) prizes may not exceed one thousand dollars; (4) the organization must obtain a permit for a benefit performance; and (5) members of the organization must personally manage and operate the event. It is thus readily evident that the second condition in § 255(b) — that no individual benefit financially from any event — is not expressly included as a condition in § 258B(a). II The Crescent Cities Jaycees Foundation and the Prince George’s Jaycees Foundation (Jaycees) are non-profit, charitable organizations in Prince George’s County. In order to raise money for their philanthropic endeavors, the Jaycees periodically conduct “casino nights,” at which patrons play various games of chance such as card games, roulette, and wheels of fortune.

At these casino nights, the Jaycees permit patrons to tip volunteer dealers and other workers who staff the events. In the spring of 1990, the Prince George’s County Department of Environmental Resources (DER) revoked the Jaycees’ permit to conduct casino nights on the ground that the ⁴⁶⁶ organizations unlawfully permitted their volunteer dealers and workers to accept tips from patrons in violation of the “no-financial-benefit” provision of § 255(b)(1). The Jaycees appealed to the Board of Administrative Appeals for Prince George’s County. After a hearing, the Board vacated the revocations.

It held that the “no-financial-benefit” provision of § 255(b)(1) does not apply to casino nights and, in any event, “is not a substantive provision, but is a rule of construction on how to interpret the regulation.” The Board also determined that tips are not part of the net proceeds of a casino night event and, consequently, no worker received any financial benefit from the net proceeds of the event. In concluding that no applicable provision of the gaming laws prevented casino night volunteer workers from receiving tips, the Board observed that the giving of tips “is not an element or step of the gambling transaction itself” but rather was a gratuity “voluntarily given to one who performs a service.” The County appealed the Board’s decision to the Circuit Court for Prince George’s County; the State was permitted to intervene in support of the County’s position that § 255(b)(1) prohibited the tipping of volunteer workers. The court (Rymer, J.) affirmed the Board’s decision. It agreed with the Board that tips are not part of the net proceeds of the benefit performance and that nothing in § 258B(a) prohibits tipping.

It concurred with the Board that § 255(b) has no application to casino nights, in effect rejecting the argument that the “no-financial-benefit” clause of § 255(b)(1), which prohibits tipping, is incorporated into the provisions of § 258B. The court reasoned that the wording of § 255(b), which provides that the gaming laws “may not be construed to make it unlawful” for charitable organizations to conduct gambling events under certain conditions, indicates that the Legislature was merely creating a “presumption of legality” for events conducted in compliance with those conditions. Where an event violates one of the conditions, according to the court, the presumption of legality afforded to the event by § 255(b) • simply ⁴⁶⁷ falls away, and a reviewing court would evaluate the event under the remaining provisions of the gaming laws. The State appealed.

We granted certiorari before review by the intermediate appellate court to consider the issue of significant import raised in the case to the sponsors of charitable gaming events in Prince George’s County. Ill Reduced to its essence, § 255(b) instructs that it “may not be construed [as] unlawful” for charitable organizations such as the Jaycees to conduct specified gambling activities at “carnivals, bazaars and raffles,” as long as they comply with the three conditions previously outlined. By contrast, § 258B applies to casino nights and expressly permits Prince George’s County charitable organizations such as the Jaycees to conduct such benefit events, as long as they comply with the five conditions previously set forth. The State does not suggest that the provisions of § 258B(a) expressly prohibit tipping, or that tips are part of the proceeds of a casino night event; rather, the State argues that § 255(b) applies to casino nights, that its provisions are in effect superimposed upon and supplement those of § 258B(a), and that the “no-financial-benefit” clause of § 255(b) therefore prohibits tipping at casino nights in Prince George’s County.

The Jaycees do not deny that gratuities given to the volunteer workers at casino nights constitute a “financial benefit” as that term is used in § 255(b). They argue, rather, that § 255(b) does not apply to casino nights and, even if it does, its provisions are not applicable to casino nights conducted in compliance with § 258B(a). The Jaycees essentially endorse the circuit court’s view, arguing that §§ 255(b) and 258B(a) are separate statutes and do not conflict. Refining the circuit court’s “presumption of legality” concept, they submit that § 255(b) cannot be read to limit what is lawful under the gaming laws, but only limits what the gaming laws might suggest is unlawful.

Since ⁴⁶⁸ casino nights which comply with the provisions of § 258B(a) (but which allow tipping) are clearly lawful, the Jaycees assert, § 255(b) has no bearing on their legality because that section only serves to protect some events which might otherwise be illegal, without outlawing events which would otherwise be legal. The Jaycees maintain that the Board’s decision was predicated on its factual finding, to which we should defer, that tips are not part of the net proceeds of a casino night event and thus are not violative of § 258B(a). As we see it, however, the dispositive issue in the Board’s decision was its determination that § 255(b) does not apply to casino nights but rather is merely a rule of construction. This obviously is a purely legal conclusion to which the appellate court owes no deference.

As we have so often said, the cardinal rule of statutory construction is to ascertain and effectuate legislative intention. State v. Bricker, 321 Md. 86, 92 , 581 A.2d 9 (1990); Privette v. State, 320 Md. 738, 744 , 580 A.2d 188 (1990); Jones v. State, 311 Md. 398,