Could Thibodaux limit where businesses with more than three video poker machines opened?

Plain-English summary

In 2014, the Louisiana Attorney General concluded that Thibodaux could use its zoning authority to restrict the location of new establishments with more than three video poker machines. The proposed ordinance identified where those licensed businesses could operate; the AG said it did not regulate the game itself. The opinion read Louisiana's video poker statute as preserving local zoning power, while forbidding a locality from exempting licensees from state gaming restrictions.

The AG noted that the proposal could affect more than truck stops and offtrack wagering sites. Hotels could also qualify for more than three devices under the statute discussed in the opinion. Its answer addressed the proposed location restriction and did not approve every possible restriction on video poker operations.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the city limit where larger video poker sites opened?

The AG said yes for the proposed zoning amendment, which limited establishments licensed for more than three devices to specified city areas.

Did state video poker licensing eliminate municipal zoning authority?

No. The opinion explained that the state law exempted devices from certain local taxes, fees, and licensing restrictions, but a separate provision expressly preserved local authority to zone video poker devices.

Could the city use zoning to rewrite the state's gaming rules?

No. The AG distinguished a location rule from direct regulation of gaming and said a local ordinance could not exempt owners or licensees from state restrictions on video poker devices.

Were hotels outside the proposed restriction?

The AG cautioned that hotels might be affected too, because the law it discussed allowed qualifying hotels to operate up to twelve devices.

Background and statutory framework

The city council administrator asked whether an amendment restricting the location of establishments with more than three machines was within local authority. The AG read local land-use power in La. Const. art. VI, § 17 and La. R.S. 33:4721 together with La. RS. 27:451 and La. RS. 27:452. It concluded that the proposed ordinance exercised zoning authority rather than gaming regulatory authority.

Citations

• La. Const. art. VI, § 17 and La. R.S. 33:4721 (local zoning authority).
• La. RS. 27:451 and La. RS. 27:452 (video poker restrictions and zoning).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0201

Original opinion text

~tate of 1flouisiana
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWEll
ATIORNEY GENERAL

JAN 22 2014
OPINION 13-0201

15A - CONSTITUTIONAL LAW
Jennifer Morvant
48 - GAMBLING
Council Administrator
71 - MUNICIPALITIES
174-Z0NING
City of Thibodaux
Post Office Box 5418
La. Const. art. VI, § 17; La. RS. 27:451; La. RS.
27:452; La. RS. 33:4721
310 West Second Street
Thibodaux, Louisiana 70302
City of Thibodaux's proposed ordinance restricting
the location of new gaming establishments with more than three (3) video poker machines is within the City's jurisdiction and authority and is not prohibited by Louisiana Video Poker Gaming Law.

Dear. Ms. Morvant:

This office is in receipt of your recent request for an opinion regarding whether a proposed amendment to the City of Thibodaux's zoning ordinance, which restricts the location of gaming establishments with more than three (3) video poker machines is within the City's governing authority. For the reasons that follow, it is the opinion of this office that the proposed zoning ordinance is within the City of Thibodaux's jurisdiction and authority and is not prohibited by the Video Draw Poker Devices Control Law, La.
R.S. 27:401, et. seq. and the regulations promulgated pursuant thereto and found in the Louisiana Administrative Code at LAC 42:X1.2401, et. seq. (hereinafter collectively referred to a "Louisiana Video Poker Gaming Law").

The Louisiana Constitution provides local governments broad powers to adopt regulations for land use, zoning, and historic preservation. La. Const. art. VI. § 17.
Louisiana's zoning enabling act also confers upon local governments the authority to enact municipal zoning regulations for the purpose of promoting the health, safety, morals, or general welfare of the community. La. R.S. 33:4721. Accordingly, the City of Thibodaux, through its Planning and Zoning Commission, has the authority to enact and enforce zoning regulations.

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Ms. Jennifer Morvant
OPINION 13-0201
Page 2

Louisiana Video Poker Gaming Law does provide some restrictions in regard to the location(s) of gaming establishments with video poker devices. Those restrictions are found in La. RS. 27:417(A)(1), La. RS. 27:422 and LAC 42:XI.2415(E). Paragraph 1 of Subsection (E) of 2415 provides that video gaming activities shall be prohibited as provided in La. RS. 26:281. La. RS. 26:281 is found in the Alcohol and Tobacco Control Law and provides location restrictions for businesses permitted by ATC for the sale of alcohol. La. RS. 26:281 (A) provides that "no permit shall be granted under this Chapter in contravention of any municipal ordinance adopted pursuant to the zoning laws of the state." Paragraph 1 of Subsection (E) of 2415 applies to all types of establishments licensed for video draw poker. Paragraphs 2 and 3 of Subsection (E) of 2415 apply to truck stop facilities only, and were promulgated pursuant to La. RS. 27:417(A)(1) and La. RS. 27:422.

La. RS. 27:451 provides that video poker devices are exempt from local taxes, fees, and licensing restrictions. Section 451 was passed with the original gaming legislation in 1991. There was apparently some confusion as to what constituted "licensing restrictions" under Section 451 and whether the statute prohibited local governing authorities from zoning gaming establishments. See La. Atty. Gen. Op. No. 92-148 (April 16, 1992); La. Atty. Gen. Op. No. 93-659 (October 26, 1993); La. Atty. Gen. Op. No. 94-85 (March 14, 1994). Consequently, in 1994 the Louisiana Legislature passed La. RS. 27:452 to clarify the meaning and intent of Section 451 in that it does not prohibit a local governing authority from exercising its constitutional right to zone. Subsection (A) of 452 explicitly authorizes local governing authorities to enact zoning ordinances to regulate and restrict the placement or use of video draw poker devices. Beyond the clear recognition of a local governing authority's right to zone, Subsection (B) of 452 provides:

The provisions of this Section shall not be construed as limiting, superseding, or repealing any grant of zoning authority heretofore granted to any governing authority either by statute or home rule charter.

A local governing authority's constitutional right to zone is limited in that ordinances "shall not exempt any device owner or operator or any other licensee from any of the restrictions on the ownership, operation, use, or location of video poker devices" as provided for in Louisiana Video Poker Gaming Law. La. RS. 27:452(A).

Moreover, Louisiana jurisprudence provides that zoning is a legislative function, the authority for which flows from the police power of governmental bodies. Sf. Charles Gaming Co., Inc. v. Riverboat Gaming, 94-2697 (La. 1/17/95); 648 So.2d 1310. The ordinance at issue in Sf. Charles was enacted after the Louisiana Riverboat Gaming Commission awarded the St. Charles Gaming Company a certificate of preliminary approval to berth and conduct gaming operations at a site located in St. Charles Parish. However, the Parish subsequently enacted an ordinance that frustrated efforts of the St. Charles Gaming Company to berth in the parish. The Supreme Court found that the

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Ms. Jennifer Morvant
OPINION 13-0201
Page 3

ordinance did not purport to regulate the activity of gaming itself. Instead, the Court found that the local ordinance was designed "merely to designate an area in which such legal activity may be conducted and to limit legal gaming to that district." Id. at 1315.

The Supreme Court further found that nothing in the Riverboat Gaming Act purported to prevent localities from confining legal gaming activities to reasonable and fair zones in accord with surrounding uses of property and comprehensive zoning ordinances to promote the better good of the community. Id. at 1317. In fact, the Court expressed that by the constitutional grant of land use and zoning power to local governments, the promotion and protection of the better good of any community is best accomplished with respect to land use and zoning by permitting regulation at a local level. Id. The court found nothing in the Riverboat Gaming Act that indicated a legislative intent to remove this power from local government. Although Sf. Charles concerned casino gaming and not video poker, it is our opinion that the Court's legal analysis and conclusions reached therein would apply equally to video poker.

It should be noted that the ordinance amendment proposed by the City of Thibodeaux will not only affect pari-mutuel wagering, offtrack wagering, and truck stop facilities, but may affect hotels located in the City of Thibodeaux as well, because under the Louisiana Video Poker Gaming Law hotels may qualify for up to twelve (12) devices. La. R.S. 27:414.

It is also our opinion that any ordinance affecting the operation of video draw poker devices must be deemed a "zoning ordinance or building code" consistent with La. R.S. 27:452 and the constitutional and statutory authority granted to local governments to regulate land use, zoning and historic preservation and not an attempt to regulate gaming.

In conclusion, it is the opinion of this office that the proposed zoning ordinance at issue is within the City of Thibodaux's jurisdiction and authority and is not prohibited by Louisiana Video Poker Gaming Law. The proposed ordinance does not purport to regulate the activity of gaming itself, but limits the location of establishments licensed for the operation of more than three (3) video gaming devices to specific areas within the City of Thibodeaux. Therefore, the proposed ordinance is not an illegal regulation of gaming, and Louisiana Video Poker Gaming Law does not prevent the City of Thibodeaux from restricting the location of establishments with more than three (3) video poker machines to certain areas by exercising its constitutional right to regulate zoning and land use.

I trust that the foregoing adequately responds to your request. Should you have other questions as to which our office may provide assistance, please let us know.

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Ms. Jennifer Morvant
OPINION 13-0201
Page 4

Sincerely,

JAMES D. "BUDDY" CALDWELL
Attorney General

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Assistant Attorney General
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