S05302 Summary:

Add Art 14 §§1400 - 1405, RWB L; amd §225.00, add §225.36, Pen L
Allows certain interactive poker games be considered games of skill rather than games of luck; includes definitions, authorization, required safeguards and minimum standards, the scope of licensing review and state tax implications; makes corresponding penal law amendments.
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S05302 Actions:

01/07/2016PRINT NUMBER 5302A
01/25/2016PRINT NUMBER 5302B
05/13/2016PRINT NUMBER 5302C
06/02/20161ST REPORT CAL.1402
06/06/2016AMENDED 5302D
06/06/20162ND REPORT CAL.
06/14/2016referred to racing and wagering
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S05302 Committee Votes:

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S05302 Floor Votes:

There are no votes for this bill in this legislative session.
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S05302 Memo:

Memo not available
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S05302 Text:

                STATE OF NEW YORK
            Cal. No. 1402
                               2015-2016 Regular Sessions
                    IN SENATE
                                      May 13, 2015
        Introduced  by  Sens. BONACIC, AVELLA -- read twice and ordered printed,
          and when printed to be committed to the Committee  on  Racing,  Gaming
          and  Wagering  --  recommitted  to the Committee on Racing, Gaming and
          Wagering in accordance  with  Senate  Rule  6,  sec.  8  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee  --  committee  discharged,  bill amended, ordered
          reprinted as amended and recommitted to  said  committee  --  reported
          favorably  from  said  committee  and  committed  to  the Committee on
          Finance -- committee discharged, bill amended,  ordered  reprinted  as
          amended  and  recommitted to said committee -- reported favorably from
          said committee, ordered to first  report,  amended  on  first  report,
          ordered  to a second report and ordered reprinted, retaining its place
          in the order of second report
        AN ACT to amend the racing, pari-mutuel wagering and  breeding  law  and
          the penal law, in relation to allowing certain interactive poker games
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The  racing,  pari-mutuel  wagering  and  breeding  law  is
     2  amended by adding a new article 14 to read as follows:
     3                                 ARTICLE 14
     4                             INTERACTIVE GAMING
     5  Section 1400. Legislative findings and purpose.
     6          1401. Definitions.
     7          1402. Authorization.
     8          1403. Required safeguards/minimum standards.
     9          1404. Scope of licensing review.
    10          1405. State tax.
    11    § 1400. Legislative findings and purpose. The legislature hereby finds
    12  and  declares  that: 1. Under the New York penal law a person engages in
    13  gambling when he or she stakes or risks  something  of  value  upon  the
    14  outcome  of  a  contest of chance or a future contingent event not under
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5302--D                          2
     1  his or her control or influence, upon an agreement or understanding that
     2  he or she will receive something of value in  the  event  of  a  certain
     3  outcome.
     4    2.  A contest of chance is defined as any contest, game, gaming scheme
     5  or gaming device in which the outcome depends in a material degree  upon
     6  an  element of chance, notwithstanding that skill of the contestants may
     7  also be a factor therein. (Subdivision 1 of section 225.00 of the  penal
     8  law).  Thus,  games of chance may involve some skill, but in those games
     9  the level of skill does not determine  the  outcome  regardless  of  the
    10  degree  of  skill employed. See People v. Turner, 165 Misc. 2d 222, 224,
    11  629 N.Y.S.2d 661, 662 (Crim. Ct. 1995).  On  the  other  hand,  where  a
    12  contest  pits  the  skill  levels of the players against each other, New
    13  York courts have found a game to be one of skill rather than chance. See
    14  People v. Hunt, 162 Misc. 2d 70, 72, 616 N.Y.S.2d 168,  170  (Crim.  Ct.
    15  1994)  ("Played  fairly, skill rather than chance is the material compo-
    16  nent of three-card monte.");
    17    3. Poker in many instances has been defined as a game of skill  and  a
    18  New  York federal court in U.S. v. DiCristina, 886 F. Supp. 2d 164, 224,
    19  assessed that under federal law poker was predominantly a game of skill;
    20    4. New York courts have interpreted New  York  law  to  apply  a  more
    21  rigorous  test  in  identifying a "contest of chance" than is applied by
    22  most states in this nation and  the  courts  have  found  that  where  a
    23  contest  pits  the skill levels of the players against each other, those
    24  games are games of skill and  not  games  of  chance.  Furthermore,  the
    25  courts  have  not  limited  the  legislature's ability to determine that
    26  certain forms of poker should fall outside  the  general  definition  of
    27  gambling since those games are games of skill;
    28    5.  Texas  Hold'em  poker  involves  two cards dealt face down to each
    29  player and then five community cards placed face-up  by  the  dealer,  a
    30  series  of  three, then two additional single cards, with players deter-
    31  mining whether to check, bet, raise  or  fold  after  each  deal.  Omaha
    32  Hold'em  poker  is  a  similar  game, in which each player is dealt four
    33  cards and makes his or her best hand using exactly  two  of  them,  plus
    34  exactly three of the five community cards. These games are considered to
    35  be  complex  forms  of poker which involve player strategy and decision-
    36  making and which pit the skill levels of the players against each other.
    37  As games of skill, these forms of poker do not fall under the definition
    38  of gambling as prohibited by the penal law; and
    39    6. The legislature further finds that as the internet  has  become  an
    40  integral  part  of  society,  and  internet poker a major form of enter-
    41  tainment for many consumers,  any  interactive  gaming  enforcement  and
    42  regulatory  structure  must  begin from the bedrock premise that partic-
    43  ipation in a lawful and licensed gaming industry is a privilege and  not
    44  a  right,  and  that  regulatory  oversight is intended to safeguard the
    45  integrity of the games and participants and to ensure accountability and
    46  the public trust.
    47    § 1401. Definitions. As used in  this  article,  the  following  terms
    48  shall have the following meanings:
    49    1.  "Authorized  game" means Omaha Hold'em and Texas Hold'em poker, as
    50  well as any other poker game that the commission determines is the mate-
    51  rial equivalent of either of those, whether in a cash  game  or  tourna-
    52  ment.
    53    2.  "Authorized  participants" means persons who are either physically
    54  present in this state when placing a wager or who otherwise are  permit-
    55  ted  by  applicable  law,  as  determined  by the commission, to place a
    56  wager. The intermediate routing of electronic data  in  connection  with

        S. 5302--D                          3
     1  interactive  gaming  shall  not  determine  the location or locations in
     2  which a wager is initiated, received or otherwise made.
     3    3.  "Core  function"  means  any of the following: (a) the management,
     4  administration or control of  wagers  on  interactive  gaming;  (b)  the
     5  management,  administration  or  control  of  the games with which those
     6  wagers are associated; or (c) the development, maintenance, provision or
     7  operation of an interactive gaming platform.
     8    4. "Commission" means the New York state gaming commission.
     9    5. "Division" means the division of gaming,  established  under  para-
    10  graph  (c) of subdivision two of section one hundred three of this chap-
    11  ter.
    12    6. "Interactive gaming" means the conduct of games through the use  of
    13  the  internet  or  other communications technology that allows a person,
    14  utilizing money, checks,  electronic  checks,  electronic  transfers  of
    15  money, credit cards, debit cards or any other instrumentality, to trans-
    16  mit  to  a  computer information to assist in the placing of a wager and
    17  corresponding information related to  the  display  of  the  game,  game
    18  outcomes  or  other  similar  information. The term does not include the
    19  conduct of (a) non-gambling  games  that  do  not  otherwise  require  a
    20  license  under  state  or  federal law; or (b) games that occur entirely
    21  among participants who are located on a licensed  casino  premises.  For
    22  purposes of this provision, "communications technology" means any method
    23  used  and  the components employed by an establishment to facilitate the
    24  transmission of information, including, without limitation, transmission
    25  and reception by systems based on wire, cable, radio, microwave,  light,
    26  optics  or  computer  data  networks, including, without limitation, the
    27  internet and intranets.
    28    7. "Interactive gaming gross revenue" means the total of all sums paid
    29  to a licensee from interactive gaming involving authorized participants,
    30  less only the total of all sums paid out  as  winnings  to  patrons  and
    31  promotional  gaming credits; provided, however, that the cash equivalent
    32  value of any merchandise or other non-cash thing of value included in  a
    33  contest  or  tournament  shall  not be included in the total of all sums
    34  paid out as winnings to players for purposes of determining  interactive
    35  gaming gross revenue.
    36    (a) Neither amounts deposited with a licensee for purposes of interac-
    37  tive  gaming  nor amounts taken in fraudulent acts perpetrated against a
    38  licensee for which the licensee is not reimbursed shall be considered to
    39  have been "paid" to the licensee for purposes of calculating interactive
    40  gaming gross revenue.
    41    (b) "Promotional gaming credit" includes bonuses, promotions  and  any
    42  amount  received  by a licensee from a patron for which the licensee can
    43  demonstrate that it or its affiliate has not received cash.
    44    8. "Interactive gaming platform" means the  combination  of  hardware,
    45  software  and data networks used to manage, administer or control wagers
    46  on interactive gaming or the games with which those wagers  are  associ-
    47  ated.
    48    9.  "Internet"  means  a  computer  network  of  interoperable packet-
    49  switched data networks.
    50    10. "Licensee" means a person who is licensed  by  the  commission  to
    51  offer  interactive  gaming,  using  an  interactive  gaming  platform to
    52  authorized participants. A licensee  may  utilize  multiple  interactive
    53  gaming  platforms provided that each platform is approved by the commis-
    54  sion.
    55    11. "Omaha Hold'em poker" means  the  poker  game  marketed  as  Omaha
    56  Hold'em  poker  or  Omaha poker in which each player is dealt four cards

        S. 5302--D                          4

     1  and must make his or her best hand  using  exactly  two  of  them,  plus
     2  exactly three of the five community cards.
     3    12.  "Significant  vendor" means any person who offers or who proposes
     4  to offer any of the  following  services  with  respect  to  interactive
     5  gaming:    (a)  a core function; (b) sale, licensing or other receipt of
     6  compensation for selling or licensing a database  or  customer  list  of
     7  individuals  residing  in the United States selected in whole or in part
     8  because they placed wagers or participated in  gambling  games  with  or
     9  through  an  internet  website  or operator (or any derivative of such a
    10  database or customer list); (c) provision of any  trademark,  tradename,
    11  service  mark or similar intellectual property under which a licensee or
    12  significant vendor identifies interactive games  to  customers;  or  (d)
    13  provision  of any product, service or asset to a licensee or significant
    14  vendor in return for a percentage of  interactive  gaming  revenue  (not
    15  including  fees  to  financial  institutions  and  payment providers for
    16  facilitating a deposit or withdrawal by an authorized participant).  The
    17  term  "significant  vendor"  shall  not  include  a provider of goods or
    18  services to a licensee that are not specifically designed  for  use  and
    19  not principally used in connection with interactive gaming.
    20    13.  "Texas  Hold'em  poker" means the type of poker marketed as Texas
    21  Hold'em poker that involves two cards being  dealt  face  down  to  each
    22  player and then five community cards being placed face-up by the dealer,
    23  a  series of three then two additional single cards, with players having
    24  the option to check, bet, raise or fold after each deal.
    25    § 1402. Authorization.  1. The commission shall,  within  one  hundred
    26  eighty days of the date this article becomes law, promulgate regulations
    27  to  implement interactive gaming in this state and shall authorize up to
    28  eleven licenses  to  operate  interactive  gaming  involving  authorized
    29  participants, subject to the provisions of this article and other appli-
    30  cable provisions of law.
    31    2. Applicants eligible to apply for a license pursuant to this article
    32  shall be those entities:
    33    (a)  licensed  by the state pursuant to section sixteen hundred seven-
    34  teen-a of the tax law to operate video lottery gaming and has experience
    35  in the operation of interactive gaming by being licensed in a state with
    36  comparable licensing requirements or guarantees acquisition of  adequate
    37  business  competence  and  experience  in  the  operation of interactive
    38  gaming; or
    39    (b) licensed by the state to  operate  a  class  III  gaming  facility
    40  pursuant  to  article thirteen of this chapter and has experience in the
    41  operation of interactive gaming by being licensed in a state with compa-
    42  rable licensing requirements or guarantees acquisition of adequate busi-
    43  ness competence and experience in the operation of interactive gaming.
    44    3. The commission shall, to the extent practicable, issue licenses  to
    45  multiple  applicants  no  sooner  than one hundred eighty days after the
    46  promulgation of regulations in order to ensure a robust and  competitive
    47  market  for  consumers  and  to  prevent early licensees from gaining an
    48  unfair competitive advantage.
    49    4. No person may operate, manage  or  make  available  an  interactive
    50  gaming  platform or act as a significant vendor with respect to interac-
    51  tive gaming that is offered to persons  located  in  this  state  unless
    52  licensed by the commission pursuant to this article and only those games
    53  authorized by the commission shall be permitted.
    54    5.  License  applicants may form a partnership, joint venture or other
    55  contractual arrangement in order to  facilitate  the  purposes  of  this
    56  article.

        S. 5302--D                          5
     1    6. Any person found suitable by the commission may be issued a license
     2  as an operator or significant vendor pursuant to this article. In deter-
     3  mining suitability, the commission shall consider those factors it deems
     4  relevant in its discretion, including but not limited to:
     5    (a)  Whether  the applicant is a person of good character, honesty and
     6  integrity;
     7    (b) Whether the applicant is person whose prior  activities,  criminal
     8  record, if any, reputation, habits and associations do not:
     9    (i)  pose  a  threat  to the public interest or to the effective regu-
    10  lation and control of interactive gaming; or
    11    (ii) create or enhance the dangers of unsuitable,  unfair  or  illegal
    12  practices,  methods  and activities in the conduct of interactive gaming
    13  or in the carrying on of the business and financial  arrangements  inci-
    14  dental to such gaming;
    15    (c)  Whether  the  applicant  is  capable of and likely to conduct the
    16  activities for which the applicant is licensed in  accordance  with  the
    17  provisions  of this article, any regulations prescribed under this arti-
    18  cle and all other applicable laws;
    19    (d) Whether the applicant has or guarantees  acquisition  of  adequate
    20  business  competence  and experience in the operation of licensed gaming
    21  or of interactive gaming in this state or in  a  state  with  comparable
    22  licensing requirements; and
    23    (e)  Whether the applicant has or will obtain sufficient financing for
    24  the nature of the proposed operation and from a suitable source.
    25    7. The commission further shall develop standards by which to evaluate
    26  and approve  interactive  gaming  platforms  for  use  with  interactive
    27  gaming.  Interactive gaming platforms must be approved by the commission
    28  before being used by a licensee or significant vendor to conduct  inter-
    29  active gaming in this state.
    30    8. The commission shall require all licensees to pay a one-time fee of
    31  ten million dollars.  Such fee paid by each licensee shall be applied to
    32  satisfy,  in  whole or in part, as applicable, that licensee's tax obli-
    33  gation pursuant to section fourteen hundred  five  of  this  article  in
    34  sixty  equal  monthly installments, allocated to each of the first sixty
    35  months of tax owed after the licensee has  begun  operating  interactive
    36  gaming  pursuant  to this article. No amounts not required to be used to
    37  satisfy such tax obligation during that period  shall  be  allocated  to
    38  payment of such tax obligation after that period.
    39    9.  Licenses  issued  by the commission shall remain in effect for ten
    40  years.
    41    10. The commission, by regulation, may authorize  and  promulgate  any
    42  rules necessary to implement agreements with other states, or authorized
    43  agencies thereof (a) to enable patrons in those states to participate in
    44  interactive  gaming  offered  by  licensees under this article or (b) to
    45  enable patrons in  this  state  to  participate  in  interactive  gaming
    46  offered by licensees under the laws of those other states, provided that
    47  such  other state or authorized agency applies suitability standards and
    48  review materially consistent with the provisions of this article.
    49    11. Any regulations  adopted  pursuant  to  subdivision  ten  of  this
    50  section must set forth provisions that address:
    51    (a)  Any  arrangements to share revenue between New York and any other
    52  state or agency within another state; and
    53    (b) Arrangements to ensure the integrity of interactive gaming offered
    54  pursuant to any such agreement and the protection of patrons located  in
    55  this state.

        S. 5302--D                          6
     1    12. The commission may delegate its responsibilities to administer the
     2  provisions  of  this article to the division, as it sees fit, except for
     3  its responsibilities to approve licenses.
     4    §  1403.  Required safeguards/minimum standards.  The commission shall
     5  require licensees to implement measures to meet the standards set out in
     6  this section, along with such other standards that the commission in its
     7  discretion may choose to require.
     8    (a) Appropriate safeguards  to  ensure,  to  a  reasonable  degree  of
     9  certainty,  that participants in interactive gaming are not younger than
    10  twenty-one years of age.
    11    (b) Appropriate safeguards  to  ensure,  to  a  reasonable  degree  of
    12  certainty,  that  participants  in  interactive  gaming  are  physically
    13  located within the state or such other jurisdiction that the  commission
    14  has determined to be permissible.
    15    (c)  Appropriate  safeguards  to  protect,  to  a reasonable degree of
    16  certainty, the privacy and online security of participants  in  interac-
    17  tive gaming.
    18    (d)  Appropriate  safeguards  to  ensure,  to  a  reasonable degree of
    19  certainty, that the interactive gaming  is  fair  and  honest  and  that
    20  appropriate  measures  are  in place to deter, detect and, to the extent
    21  reasonably possible, to prevent cheating, including collusion,  and  use
    22  of  cheating  devices,  including  use  of  software programs (sometimes
    23  referred to as "bots") that make bets or wagers according to algorithms.
    24    (e) Appropriate  safeguards  to  minimize  compulsive  gaming  and  to
    25  provide notice to participants of resources to help problem gamblers.
    26    (f)  Appropriate  safeguards to ensure participants' funds are held in
    27  accounts segregated from  the  funds  of  licensees  and  otherwise  are
    28  protected from corporate insolvency, financial risk or criminal or civil
    29  actions against the licensee.
    30    §  1404. Scope of licensing review.  1. In connection with any license
    31  issued pursuant to this article, the  licensee,  significant  vendor  or
    32  applicant shall identify and the commission shall review the suitability
    33  of  such  licensee's,  significant  vendor's or applicant's owner, chief
    34  executive officer, chief financial officer  and  any  other  officer  or
    35  employee  who  the  commission  deems  is  significantly involved in the
    36  management or control of the licensee, significant vendor  or  applicant
    37  or  of  the  interactive gaming platform.   "Owner" for purposes of this
    38  provision means any person who directly or indirectly holds any  benefi-
    39  cial  or  ownership interest in the applicant of five percent or greater
    40  or any amount of ownership that the commission determines to be  signif-
    41  icant ownership of the licensee, significant vendor, or applicant.
    42    2.  Institutional  investors  are subject to the provisions set out in
    43  this section.
    44    (a) An institutional investor holding under twenty-five percent of the
    45  equity securities of a licensee's or  significant  vendor's  (or  appli-
    46  cant's)  holding or intermediary companies, shall be granted a waiver of
    47  any investigation of suitability or other requirement if such securities
    48  are those of a corporation, whether publicly traded or  privately  held,
    49  and  its  holdings  of  such  securities  were  purchased for investment
    50  purposes only and it files a certified statement to the effect  that  it
    51  has  no intention of influencing or affecting the affairs of the issuer,
    52  the licensee (or significant vendor or applicant, as applicable) or  its
    53  holding  or  intermediary companies; provided, however, that it shall be
    54  permitted to vote on matters put to the vote of the outstanding security
    55  holders. The commission may grant such  a  waiver  to  an  institutional
    56  investor  holding  a higher percentage of such securities upon a showing

        S. 5302--D                          7
     1  of good cause and if the conditions specified above are met. Any  insti-
     2  tutional  investor  granted  a  waiver under this paragraph which subse-
     3  quently determines to influence or affect  the  affairs  of  the  issuer
     4  shall provide not less than thirty days' notice of such intent and shall
     5  file  with  the  commission  a  request for determination of suitability
     6  before taking any action that may influence or affect the affairs of the
     7  issuer; provided, however, that it shall be permitted to vote on matters
     8  put to the vote of the outstanding security holders. If an institutional
     9  investor changes its investment  intent,  or  if  the  commission  finds
    10  reasonable cause to believe that the institutional investor may be found
    11  unsuitable,  no  action  other  than  divestiture shall be taken by such
    12  investor with respect to its security  holdings  until  there  has  been
    13  compliance  with  any  requirements established by the commission, which
    14  may include the execution of a trust agreement. The licensee (or signif-
    15  icant vendor or applicant, as  applicable)  and  its  relevant  holding,
    16  intermediary  or  subsidiary  company  shall notify the commission imme-
    17  diately of any information about, or actions of, an institutional inves-
    18  tor holding its equity securities where such information or  action  may
    19  impact  upon the eligibility of such institutional investor for a waiver
    20  pursuant to this paragraph.
    21    (b) If at any time the commission finds that an institutional investor
    22  holding any security of a holding or intermediary company of a  licensee
    23  or  significant  vendor  or  applicant,  or,  where relevant, of another
    24  subsidiary company of a holding or intermediary company of a licensee or
    25  significant vendor or applicant which is  related  in  any  way  to  the
    26  financing  of  the licensee or significant vendor or applicant, fails to
    27  comply with the terms of paragraph (a) of this section,  or  if  at  any
    28  time the commission finds that, by reason of the extent or nature of its
    29  holdings,  an institutional investor is in a position to exercise such a
    30  substantial impact upon the  controlling  interests  of  a  licensee  or
    31  significant  vendor or applicant that investigation and determination of
    32  suitability of the institutional investor is necessary  to  protect  the
    33  public  interest, the commission may take any necessary action otherwise
    34  authorized under this article to protect the public interest.
    35    (c) For purposes of this section, an  "institutional  investor"  shall
    36  mean  any retirement fund administered by a public agency for the exclu-
    37  sive benefit of federal, state, or local  public  employees;  investment
    38  company registered under the Investment Company Act of 1940 (15 U.S.C. §
    39  80a-1  et  seq.);  collective  investment trust organized by banks under
    40  Part Nine of the Rules of the Comptroller of the  Currency;  closed  end
    41  investment  trust; chartered or licensed life insurance company or prop-
    42  erty and casualty insurance company;  banking  and  other  chartered  or
    43  licensed  lending  institution;  investment advisor registered under The
    44  Investment Advisors Act of 1940 (15 U.S.C. § 80b-1 et  seq.);  and  such
    45  other  persons  as  the  commission may determine for reasons consistent
    46  with the public interest.
    47    § 1405. State tax. Licensees engaged in  the  business  of  conducting
    48  interactive  gaming  pursuant  to this article shall pay a privilege tax
    49  based on the licensee's interactive gaming gross revenue  at  a  fifteen
    50  percent rate.
    51    §  2.  Subdivision  1 of section 225.00 of the penal law is amended to
    52  read as follows:
    53    1. "Contest of chance" means  any  contest,  game,  gaming  scheme  or
    54  gaming  device  in  which  the  outcome  depends  [in a material degree]
    55  predominantly upon an element of chance, notwithstanding that  skill  of
    56  the contestants may also be a factor therein.

        S. 5302--D                          8

     1    §  3.  The penal law is amended by adding a new section 225.36 to read
     2  as follows:
     3  § 225.36 Interactive gaming offenses and exceptions.
     4    1.  The  knowing and willful offering of unlicensed interactive gaming
     5  to persons in this state,  or  the  knowing  and  willful  provision  of
     6  services with respect thereto, shall constitute a gambling offense under
     7  this article.
     8    2.  Licensed  interactive  gaming  activities  under  section fourteen
     9  hundred two of the racing, pari-mutuel wagering and breeding  law  shall
    10  not be a gambling offense under this article.
    11    3.  A person offering unlicensed interactive gaming to persons in this
    12  state shall be liable for  all  taxes  set  forth  in  section  fourteen
    13  hundred five of the racing, pari-mutuel wagering and breeding law in the
    14  same  manner  and  amounts  as  if  such  person were a licensee. Timely
    15  payment of such taxes shall not constitute a defense to any  prosecution
    16  or other proceeding in connection with the interactive gaming except for
    17  a prosecution or proceeding alleging failure to make such payment.
    18    §  4. Severability clause. If any provision of this act or application
    19  thereof shall for any reason be  adjudged  by  any  court  of  competent
    20  jurisdiction  to  be invalid, such judgment shall not affect, impair, or
    21  invalidate the remainder of the act, but shall be confined in its opera-
    22  tion to the provision thereof directly involved in  the  controversy  in
    23  which the judgment shall have been rendered.
    24    § 5. This act shall take effect on the one hundred eightieth day after
    25  it shall have become a law.
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