David O. Markus, a Miami attorney who successfully defended a Pompano Beach penny arcade owner accused of running an illegal gambling house in 2006, convinced a jury that some machines do require an element of skill.
“It’s not that they’re 100 percent games of skill — no one would argue that,” Markus told the Herald/Times. “It’s that they have an element of skill, just like poker.”
He brought players into the courtroom and demonstrated to the jury that the more experienced players could produce better results than rookies.
Markus calls Sertell a “hired gun” who always testifies that the games are gambling devices but, he notes, “the state rolled the dice against us and lost.”
For Sertell, the evidence against Allied Veterans comes down to the guts of the machine and the play of the players.
Gaming centers operate, says Sertell, by selling a product that most people don’t use — such as Internet access, minutes of long distance phone time, or even Red Box movie rentals.
“That’s code for wink, wink, you are really buying minutes you will never use and for every $1 you purchase you will get 100 free entries” into the electronic sweepstakes game, Sertell explained
But players don’t use the Internet — the computer keyboard is tucked behind the monitor — and for every $1 they spend are given 100 entries or credits to play the sweepstakes game. They sit down at the screen, click on a waiver — that they agree it’s not gambling — and then choose from a list of electronic games and are asked to wager or “reveal” the credits they had been given.
One spin of the wheel, which according to Sertell’s analysis takes about six seconds, and the customer can wager or bet up to 500 credits. For most people, that amounts to five times the free entries they were given when they purchased their Internet or phone time, “and it’s all used up in six seconds,” he said.
If a game results in a winning combination, the winning amount is automatically added to the total on the “win” meter. If a customer loses the free credits, he must purchase more Internet or phone time to continue play.
“We found customers who had months of phone time that were unused and yet they came back day after day to buy more and more,’’ he said.
Critical to the operation of the profitable gaming centers were the customer incentives to keep playing. Posters in the cafes advertised “instantly win cash” and players were offered free soda, coffee and snacks.
Sertell said he met people who could tell him when the free lunch or free dinner is and could “predict what’s going to be on the menu.” He watched as people cashed personal checks, welfare checks, payroll checks and were then asked how many minutes they wanted to put on the access cards.
But Sertell contends in his affidavit for police that the while the player stations “are designed to show sights and sounds that replicate those found on acknowledged Las Vegas type slot machines to heighten the suspense and excitement of play,” the computers have also been configured to operate like slot machines.
“They have been loaded with proprietary gambling software, and each has had its internal register ‘locked down’ in such a fashion that all customers are forced to use only the pathways and programs that are available within the proprietary software,” he wrote in his affidavit.