LIVE AND LEARN, a California non-profit corporation, Petitioner and Respondent, v. CITY OF LOS ANGELES, Respondent and Appellant.
In this appeal, we must interpret the meaning and extent of Penal Code section 326.5's prohibition against payment of profits, wages or salaries by a tax-exempt organization “from any bingo game.”
Respondent Live and Learn, a non-profit corporation formed in 1980 to teach accelerated learning techniques, petitioned the superior court for a writ of mandate after appellant City of Los Angeles revoked its bingo license. The superior court granted partial relief by reversing findings of two of three alleged violations 1 and remanded the matter to the appellant's Department of Social Services for reconsideration of the penalty imposed.
Appellant appeals from a part of the superior court's judgment with respect to the revocation of respondent Live and Learn's bingo license. The alleged violation contested in this appeal concerns the use of respondent's bingo game revenues to pay a portion of respondent's payroll. Appellant claims that such payments violate Penal Code section 326.5, subdivisions (b) and (h).2
Pursuant to respondent's request following notification by appellant of an intention to revoke respondent's bingo license, a hearing was held on December 24, 1984. Certified public accountants employed as auditors for appellant testified that during the calendar year 1983 respondent's overall income was $696,803, of which $581,164 (or 83 percent of the total income) was derived from bingo fund-raising. The income from other sources, amounting to $116,551, could not have paid respondent's salaries and payroll expenses totalling $152,321. Therefore, bingo revenues were obviously used to offset a portion of respondent's employees' salaries.
Checks from respondent were paid to people who worked at the bingo games. Respondent produced evidence that these people were paid only for their non-bingo activities and received no compensation for their volunteer work at bingo games. There was no indication or contention that these employees were security personnel.
The hearing officer issued a report recommending that the Board of Social Service Commissioners find that charges 1, 2, and 3 were sufficient and sustained and that respondent's bingo license be revoked. The hearing officer specifically found that respondent “has violated Penal Code Section 326.5(b) in that individuals would receive a profit, wage, or salary from bingo proceeds.”
Respondent then submitted exceptions to the hearing officer's report. Dr. Robert D. Burns, General Manager of the Department of Social Services, in a report the trial court found to be one of the “most reasoned,” explained the reasons for revoking respondent's bingo license. Burns specifically addressed the issue before us herein: “The fact that the [L]egislature chose to disallow what is routinely considered to be a charitable expenditure, i.e., salaries, is a simple and very important reality. Penal Code Section 326.5(b) states ‘[I]t is a misdemeanor for any person to receive or pay a profit, wage, or salary from any bingo game.’ Penal Code Section 326.5(h) states, with respect to members of the charity that conduct bingo, ‘[S]uch members shall not receive a profit, wage, or salary.’ Between 326.5(b) and 326.5(h), the [L]egislature has made it very clear that, no matter how meritorious the payment of charitable salaries may be in all other contexts, in the specific area of bingo, the payment of salaries is definitely prohibited.”
Respondent then filed its petition for writ of mandate, seeking to set aside the decision to revoke its bingo license. The superior court issued an alternative writ of mandate and an order staying the revocation.
The parties filed thoughtful points and authorities in support of and opposition to the petition. The Attorney General, below as on appeal, was granted leave to file an amicus curiae brief in support of appellant.
The superior court's judgment reversed two of the three findings by the Department of Social Services, including that involving the section 326.5, subdivisions (b) and (h), allegations and remanded the case to appellant for redetermination of penalty in light of the court's statement of decision.
CONTENTIONS ON APPEAL
Appellant contends that section 326.5 clearly and unambiguously precludes the payment of revenues from bingo games as salaries to anyone. In an alternative construction, appellant argues that, even if the provisions of section 326.5, subdivision (h), were construed to prohibit only salary payments to members who operate and staff a bingo game, the provisions of that subdivision would still preclude the members who do operate and staff the bingo game from receiving a bingo-generated profit, wage, or salary even for other activities performed for the charitable organization.
Amici argue that it is not permissible to use bingo proceeds to pay staff for non-bingo related activities, relying on the face of the statute, the rules of statutory construction, legislative history, and public policy considerations.
Respondent argues that it may use revenues from its bingo games to pay the wages, salaries and/or payroll taxes of its employees, if such payments are solely for work performed in connection with its charitable programs and not, in whole or in part, for the assistance, if any, rendered by the employees in connection with the bingo games. Respondent argues that the lower court's interpretation ascribes a reasonable intent to the Legislature and avoids the harsh and absurd results flowing from appellant's interpretation of the statute.
1. The Rules of Statutory Interpretation
“In construing a statute ‘we begin with the fundamental rule that a court “should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’ [Citations.] ‘An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.’ [Citations.] Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature. [Citations.] ‘If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.’ [Citations.]” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856.)
As our Supreme Court stated in People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473, “It is settled that ‘ “We are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.]” ' (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658 [147 Cal.Rptr. 359, 580 P.2d 1155]․) Stated otherwise, ‘When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.’ [Citations.]” (West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 851, 226 Cal.Rptr. 132, 718 P.2d 119; California Teachers' Assn. v. Governing Board (1983) 141 Cal.App.3d 606, 614, 190 Cal.Rptr. 453.) “ ‘We have declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results. [Citations.]’ (People v. Belleci [supra] 24 Cal.3d [at p.] 884 [157 Cal.Rptr. 503, 598 P.2d 473]․)” (Atlantic Richfield Co. v. Workers' Comp. Appeals Bd. (1982) 31 Cal.3d 715, 726, 182 Cal.Rptr. 778, 644 P.2d 1257.)
We find section 326.5 to be clear and unambiguous according to the usual, ordinary import of the language employed in framing the statute. As will be discussed below, we conclude that section 326.5 proscribes the payment of salaries to respondent's employees, whether or not such salaries were for bingo or non-bingo-related activities.
2. Section 326.5 On Its Face Prohibits the Types of Payment Made in the Case at Bench
A. The Statutory Scheme Is Clearly Intended to Provide Extremely Strict Regulation of Bingo Games in the Charitable Context
Subdivision (b) of section 326.5 provides: “It is a misdemeanor for any person to receive or pay a profit, wage, or salary from any bingo game authorized by Section 19 of Article IV of the State Constitution. Security personnel employed by the organization conducting the bingo game may be paid from the revenues of bingo games as provided in subdivisions (j) and (k).” Subdivision (h) provides: “A bingo game shall be operated and staffed only by members of the authorized organization which organized it. Such members shall not receive a profit, wage, or salary from any bingo game. Only the organization authorized to conduct a bingo game shall operate such game, or participate in the promotion, supervision, or any other phase of such game. This subdivision does not preclude the employment of security personnel who are not members of the authorized organization at such bingo game by the organization conducting the game.” 3 (Emphasis added.)
These subdivisions are part of a larger statute that regulates bingo games for charity in many ways.4 For organizations such as respondent, under subdivision (j), all profits derived from a bingo game must be kept in a special fund and not commingled with any other fund or account. Such profits “shall be used only for charitable purposes.” For other organizations, not exempt from tax by section 23701d of the Revenue and Taxation Code, there are broader, but still stringent regulations on payment of the proceeds of bingo games. (Subd. (k).) Subdivision (h) itself provides that the game shall be operated and staffed only by members of the authorized organization that organized it.
We agree with appellant that the scheme of section 326.5 indicates that the Legislature was trying to encourage funds for charitable purposes.5 The Legislature also wanted to keep the criminal element out of bingo game activities and to discourage big-time bingo. Volunteers and not professionals are to operate and staff the games. Profits and proceeds from bingo games musl be kept in special accounts and not commingled with other accounts. Commingling makes tracing of profits or proceeds more difficult. Such funds must be separate and traceable in order to prevent their use for non-charitable purposes, or any other purpose deemed possibly suspect by the Legislature.
One such possibly suspect purpose is the payment of a “profit, wage, or salary from any bingo game․” It would be easy to skim funds from the huge revenues generated by bingo in order to pay inflated salaries to the charity's personnel.6 The Legislature chose to proscribe such payments, and that decision is not unreasonable.
We cannot agree with respondent's reading of the phrase “from any bingo game” to mean that charitable employees are prohibited only from receiving payment for their involvement in the bingo games themselves. Justice Kingsley's remarks in City of Pomona v. Christian Fellowship Center (1981) 125 Cal.App.3d 250, 253, 177 Cal.Rptr. 897, that section 326.5 expressly “prohibits the payment of any salaries or wages and makes it a criminal offense ․ ‘to receive or pay a profit, wage, or salary’ for any bingo game” is certainly dicta. (Emphasis added.) The dicta is correct in that the statute does prohibit salaries for any bingo game; however, in our opinion, the statute further prohibits paying a profit, wage or salary from the revenues of any bingo game. As discussed below, we believe the legislative history in no way contradicts this interpretation.
Neither are we persuaded by respondent that “such members” in subdivision (h) somehow negates the words “any person” in subdivision (b), a section of the statute ignored by respondent in its argument that the words “such members” were used in contrast to “all members” or “all employees,” thereby purportedly reflecting a limited restriction on the operation of the bingo game itself. “Such members” are not to receive payments pursuant to subdivision (h); “any person” is so restricted by subdivision (b). Respondent simply ignores the language in subdivision (b) prohibiting payments to any person.
The words of the statute compel our interpretation. As we shall now discuss, the legislative history also supports that view.
B. The Legislative History Supports the Plain Meaning of the Statute
While the documents reflecting the legislative history of section 326.5 are less helpful than looking at the plain words of the statute, we have reviewed the documents provided by the parties and find those that are admissible support or are neutral to our conclusion.
For example, the Legislative Counsel's Digest 7 to Assembly Bill No. 144 enacting section 326.5 provides in part, “This bill makes it a misdemeanor for any person to receive either a wage or salary, or to make a profit from the conduct of any such bingo game.” (Emphasis added.) Respondent cites this and examples of similar language to argue that the section applies only to the “conduct” or operation of bingo games and is not a restriction on the payment of salaries for other purposes.
Section 326.5 does not use the word “conduct” in this context. And, in any event, the statute uses the word “from” not the word “for,” which indicates to us that the prohibition is against using revenues derived from bingo games, not merely to prohibit receiving a wage “for” working at bingo games.
In 1983, the co-author of Assembly Bill No. 144, who was also the author of the argument in favor of Proposition 9 in the Voter's Pamphlet for the June 1976 primary election, introduced Senate Bill No. 557, which would have amended section 326.5 and specifically permitted bingo-generated revenues to be used for charitable salaries if the recipients of such funds did not participate in any way with the games. The Legislative Counsel's Digest to Senate Bill No. 557, which failed in Committee, explains that current law prohibits such payments, with an exception for security personnel. That interpretation may be considered by this court. (California Teachers' Assn. v. Governing Board, supra, 141 Cal.App.3d at p. 613, 190 Cal.Rptr. 453.) We find this interpretation far more persuasive than the author's representation to respondent's attorney that his intent in introducing Senate Bill No. 557 was to “clarify” section 326.5, which he believes allows such payments, and “in particular, to correct Los Angeles County's mistaken interpretation” of section 326.5.8
We are convinced that the admissible legislative history supports, or at least does not defeat, our reading of section 326.5.
We next turn to respondent's argument that the superior court's interpretation is the only reasonable one and the only one that avoids harsh and absurd results.
3. Prohibiting the Payment of Salaries from Bingo Revenues Does Not Produce an Absurd Result
The superior court found that the overall scheme “is to allow charities to raise money and to function and, given the proposition that charities have to have employees in order to function, and is paying them a charitable purpose itself, to bar payment from bingo proceeds of employees who are not working at the bingo game who are full-time charitable employees, teachers at the seminars, for example, or the classes this outfit gives, doesn't make any sense to me at all. It seems to contravene a legislative purpose.” Neither was the court convinced about the organized crime argument, stating, “I think it's pure speculation of what the Legislature intended․”
At another point, responding to the Attorney General's argument, the trial court stated: “It's argued that this was an attempt by the Legislature to keep organized crime out of—in connection with bingo games, and that if the employees said, ‘Well, we do other things for the charity as well as work at the bingo games,’ it would be too hard to establish what they did, but—for what salary and what they did for free for the bingo games and so forth. I think that is a self-made difficulty. I don't think it's a real one. I think the intent of the statute read realistically is to allow these bingo games when the city ordinances are enacted to allow them․ [¶ ] I think the intent of the ordinance was to raise money to allow—the statute was to allow these charities to raise money by means of bingo. Clearly charities properly operating for charitable purposes need employees to carry out those purposes, and as recognized in the hearing and in the papers, the payment of those employees is itself a charitable purpose. [¶ ] It seems to me, given the ease [of] subdivision[s] (b) and (h) to be argued about language going either way that I have to get beyond the precise language and go to the overall thrust of the statute. In doing that, the petitioner's position makes an awful lot more sense to me than the respondent's position․”
Respondent herein, petitioner below, naturally suggests that we adopt the reasoning of the trial court. Respondent delineates allegedly absurd results flowing from an interpretation other than that section 326.5 prohibits persons assisting at games from receiving payment for their activities at those games and otherwise allows those people to receive bingo proceeds so long as they are paid and received for non-bingo-related charitable purposes.
The first example respondent gives of a “harsh and absurd” result stemming from appellant's interpretation of subdivisions (b) and (h) is that a charity could use the bingo proceeds to provide educational materials to the students but could not pay a teacher to instruct pupils on how to use the materials, even though hiring of a teacher is certainly a “charitable purpose.” Respondent further argues that a charity, as is the case with Live and Learn, may not have enough non-bingo-generated funds to pay such salaries and would have unexpended bingo proceeds and no other unpaid expenses for which it could use its bingo proceeds. Respondent also asserts that if the charity did pay its employees from bingo proceeds, they may, without any knowledge of the bingo game or ability to discover or control the source of funds, be guilty of a misdemeanor for receiving said payment. Respondent further hypothesizes that even if the employee were aware of the bingo game and requested that the salary be paid from non-bingo-generated funds, the employee would still be guilty of a misdemeanor and subject to a large fine if the charity, inadvertently or not, used bingo proceeds to pay the payroll taxes related to the employee's salaries.
As to the first example, we have discussed above reasons why salaries to charity employees present a possible danger. The result may in some cases be harsh,9 such as when Live and Learn can pay for educational materials but cannot pay for the hiring of a teacher; but prior to the enactment of section 326.5 and Proposition 9, those funds were completely unavailable. Certainly, respondent is in a better position with bingo-generated funds, even if they cannot be used for salaries, than it would be without such funds. Again, these restrictions and limitations are aimed at protecting the beneficiaries of the charity and the integrity of the charitable process and not to assist in the financial solvency of the charitable organization.
Respondent next argues that employees could unwittingly receive bingo-generated salaries and thereby, pursuant to subdivisions (b) and (c) be guilty of a misdemeanor punishable by a fine not to exceed $10,000.
“It is the universal rule that it is within the power of the Legislature to declare an act criminal, irrespective of the knowledge of the doer that the facts exist which make the act unlawful. [Citations.]” People v. Daniels (1953) 118 Cal.App.2d 340, 343, 257 P.2d 1038; Brodsky v. Cal. State Bd. of Pharmacy (1959) 173 Cal.App.2d 680, 688, 344 P.2d 68.) If the scenario presented by respondent is present in a future case, where such an unwitting employee is charged with a misdemeanor, the court can then decide the issue. (See People v. Corkrean (1984) 152 Cal.App.3d 35, 199 Cal.Rptr. 375.) “Whether knowledge is an essential element of permitting an act proscribed by statute is a matter of construction to be determined by considering the subject matter of the statute, its language, the evil sought to be prevented, its obvious purpose, and the consequences of the several constructions to which the statute may be susceptible. [Citations.]” (Brodsky, supra, 173 Cal.App.2d at p. 688, 344 P.2d 68.)
Finally, respondent argues that the charity cannot use the bingo funds to pay any expenses of the charity, which is an absurd result for legislation that expands funding for charitable purposes. Under appellant's interpretation, according to respondent, such use of bingo proceeds necessarily involves the payment by the charity and the receipt by the vendor of a “profit” from bingo proceeds and subdivisions (b) and (h) of section 326.5 specifically proscribe paying or receiving a “profit ․ from any bingo game.”
Respondent misconstrues the word “profit” as used in subdivisions (b) and (h). “Profit” in those subdivisions is not the equivalent of the word “profits derived from a bingo game” in subdivision (j) or “proceeds” or “receipts of bingo games” as used in subdivisions (a) and (k). Rather, “a profit” as used in subdivisions (b) and (h) is used in the context of a share of the net proceeds of the bingo game as payment for “compensation” for services; that is why it is used in conjunction with the terms “wage or salary” which follow immediately thereafter in those subdivisions. In contrast, the term “profits” as used in subdivision (j), can only be interpreted reasonably to mean the net proceeds in a non-compensatory sense. Therefore, it would be, contrary to appellant's position, more harsh to a charitable organization to interpret it in any other sense because it would lead one to conclude that any expenditures for charitable purposes, including scholarship payments, would be illegal as a distribution of profits in the compensatory sense as contrasted with its usage in the net proceeds or non-compensatory sense.
We agree with respondent that “ ‘ “When language which is reasonably susceptible of two constructions is used in a penal law, ordinarily that construction which is more favorable to the offender will be adopted.” [Citations.] The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute. [Citations.]’ [Citations.]” (People v. Alotis (1964) 60 Cal.2d 698, 708, 36 Cal.Rptr. 443, 388 P.2d 675.) We do not believe that the statute before us is “reasonably susceptible of two constructions” so the preference for the defendant in Alotis is not applicable.10
Respondent's arguments are even less persuasive when one considers appellant's alternative interpretation of subdivisions (b) and (h). If this court is not persuaded that all salaries from bingo proceeds are proscribed, appellant argues in the alternative that such salaries are clearly proscribed for those “volunteers” who worked at respondent's bingo games and are also employed by respondent in another capacity. Several such “volunteers” fall within that category.11
While still possible, the likelihood of such a dual employee unwittingly receiving bingo-related proceeds is certainly much smaller than the other examples posited by respondent. In addition, the possible dangers of compensation of such people from bingo proceeds is directly involved in the purpose behind subdivisions (b) and (h). While the prohibiting of all salaries from those proceeds makes regulation easier for the Department of Social Services, the prohibition of the charitable employees receiving salaries goes to the precise danger that the Legislature intended to avoid by proscribing all such salaries. Therefore, even if the narower interpretation is adopted, section 326.5 was violated by respondent.
The finding of the superior court that section 326.5, subdivisions (b) and (h), were not violated is reversed. The case is remanded to the superior court for further proceedings consistent with this opinion. Respondent is to pay costs on appeal.
1. The hearing officer for the Department of Social Services had sustained allegations of three violations of the rules relating to bingo games for charity; the Department agreed with the hearing officer and approved revocation of the bingo license.A fourth allegation was withdrawn prior to the hearing. Respondent does not at this point contest the department's finding that respondent commingled bingo game revenues with the organization's general funds, a finding approved by the superior court. Appellant does not contest the superior court's decision reversing the hearing officer and subsequent department findings regarding pull-tabs used in the bingo games; the superior court found a denial of procedural due process regarding that allegation.
2. Penal Code section 326.5 provides:“(a) Neither this chapter nor Chapter 10 (commencing with Section 330) applies to any bingo game which is conducted in a city, county, or city and county pursuant to an ordinance enacted under Section 19 of Article IV of the State Constitution, provided that such ordinance allows games to be conducted only by organizations exempted from the payment of the bank and corporation tax by Sections 23701a, 23701b, 23701d, 23701e, 23701f, 23701g, and 23701[L] of the Revenue and Taxation Code and by mobilehome park associations and senior citizens organizations; and provided that the receipts of such games are used only for charitable purposes.“(b) It is a misdemeanor for any person to receive or pay a profit, wage, or salary from any bingo game authorized by Section 19 of Article IV of the State Constitution. Security personnel employed by the organization conducting the bingo game may be paid from the revenues of bingo games as provided in subdivisions (j) and (k).“(c) A violation of subdivision (b) of this section shall be punishable by a fine not to exceed ten thousand dollars ($10,000), which fine shall be deposited in the general fund of the city, county, or city and county which enacted the ordinance authorizing the bingo game. A violation of any provision of this section, other than subdivision (b), is a misdemeanor.“(d) The city, county, or city and county which enacted the ordinance authorizing the bingo game may bring an action to enjoin a violation of this section.“(e) No minors shall be allowed to participate in any bingo game.“(f) An organization authorized to conduct bingo games pursuant to subdivision (a) shall conduct a bingo game only on property owned or leased by it, or property whose use is donated to the organization, and which property is used by such organization for an office or for performance of the purposes for which the organization is organized. Nothing in this subdivision shall be construed to require that the property owned or leased by or whose use is donated to the organization be used or leased exclusively by or donated exclusively to such organization.“(g) All bingo games shall be open to the public, not just to the members of the authorized organization.“(h) A bingo game shall be operated and staffed only by members of the authorized organization which organized it. Such members shall not receive a profit, wage, or salary from any bingo game. Only the organization authorized to conduct a bingo game shall operate such game, or participate in the promotion, supervision, or any other phase of such game. This subdivision does not preclude the employment of security personnel who are not members of the authorized organization at such bingo game by the organization conducting the game.“(i) No individual, corporation, partnership, or other legal entity except the organization authorized to conduct a bingo game shall hold a financial interest in the conduct of such bingo game.“(j) With respect to organizations exempt from payment of the bank and corporation tax by Section 23701d of the Revenue and Taxation Code, all profits derived from a bingo game shall be kept in a special fund or account and shall not be commingled with any other fund or account. Such profits shall be used only for charitable purposes.“(k) With respect to other organizations authorized to conduct bingo games pursuant to this section, all proceeds derived from a bingo game shall be kept in a special fund or account and shall not be commingled with any other fund or account. Proceeds are the receipts of bingo games conducted by organizations not within subdivision (j). Such proceeds shall be used only for charitable purposes, except as follows:“(1) Such proceeds may be used for prizes.“(2) A portion of such proceeds, not to exceed 20 percent of the proceeds before the deduction for prizes, or one thousand dollars ($1,000) per month, whichever is less, may be used for rental of property, overhead, including the purchase of bingo equipment, administrative expenses, security equipment, and security personnel.“(3) Such proceeds may be used to pay license fees.“(4) A city, county, or city and county which enacts an ordinance permitting bingo games may specify in such ordinance that if the monthly gross receipts from bingo games of an organization within this subdivision exceed five thousand dollars ($5,000), a minimum percentage of the proceeds shall be used only for charitable purposes not relating to the conducting of bingo games and that the balance shall be used for prizes, rental of property, overhead, administrative expenses and payment of license fees. The amount of proceeds used for rental of property, overhead, and administrative expenses is subject to the limitations specified in paragraph (2) of this subdivision.“( [L] )(1) A city, county, or city and county may impose a license fee on each organization which it authorizes to conduct bingo games. The fee, whether for the initial license or renewal, shall not exceed fifty dollars ($50) annually, except as provided in paragraph (2). If an application for a license is denied, one-half of any license fee paid shall be refunded to the organization.“(2) In lieu of the license fee permitted under paragraph (1), a city, county, or city and county may impose a license fee of fifty dollars ($50) paid upon application. If an application for a license is denied, one-half of the application fee shall be refunded to the organization. An additional fee of 1 percent of the monthly gross receipts over five thousand dollars ($5,000) derived from bingo games shall be collected monthly by the city, county, or city and county issuing the license.“(m) No person shall be allowed to participate in a bingo game, unless the person is physically present at the time and place in which the bingo game is being conducted.“(n) The total value of prizes awarded during the conduct of any bingo games shall not exceed two hundred fifty dollars ($250) in cash or kind, or both, for each separate game which is held.“(o) As used in this section ‘bingo’ means a game of chance in which prizes are awarded on the basis of designated numbers or symbols on a card which conform to numbers or symbols selected at random. Notwithstanding Section 330c, as used in this section, the game of bingo shall include cards having numbers or symbols which are concealed and preprinted in a manner providing for distribution of prizes. The winning cards shall not be known prior to the game by any person participating in the playing or operation of the bingo game. All such preprinted cards shall bear the legend, ‘for sale or use only in a bingo game authorized under California law and pursuant to local ordinance.’ It is the intention of the Legislature that bingo as defined in this subdivision applies exclusively to this section and shall not be applied in the construction or enforcement of any other provision of law.” (Emphasis added.)Unless otherwise indicated, all further statutory references are to the Penal Code.
3. The sentences in each subdivision regarding security personnel were added by Statutes of 1981, chapter 804, page 3103, section 1.
4. In June 1976, the voters of California approved Proposition 9, which permitted the Legislature to authorize cities and counties “to provide for bingo games, but only for charitable purposes.” Proposition 9 had been approved by the Legislature as Assembly Constitutional Amendment No. 3; the Legislature had enacted enabling legislation (Assem.Bill No. 144, Stats.1975, ch. 869), which would become operative on adoption of Proposition 9. Assembly Bill No. 144 enacted section 326.5.
5. It is the beneficiaries of the “charitable purposes” and not the charities themselves that are aided by our reading of section 326.5. The statute ensures that revenues from bingo games go to the recipients of the charitable purposes and not to those who administer them.Dr. Burns recognized that the payment of charitable salaries can be “meritorious.” Many talented individuals devote countless hours to charitable work. However, in Dr. Burns' opinion as in our own, the Legislature had ample reason to prohibit the payment of salaries from a source that had previously been illegal.
6. We recognize that the testimony before the hearing officer was that various employees of respondent received $1,600 a month in compensation and, at times, did not even get paid. Nevertheless, it is the Legislature's concern with the possibility of the practice, not with a specific organization which may or may not have employed the practice, that is our concern. The reasonable concern with such a possible practice could well motivate a prohibition on all salaries from bingo proceeds.
7. The Legislative Counsel's Digest may be used in ascertaining legislative history but it “must be disregarded” if the law is otherwise clear. (California Teachers' Assn. v. Governing Board, supra, 141 Cal.App.3d at pp. 613–614, 190 Cal.Rptr. 453.)
8. The individual opinion of the author is not admissible to demonstrate legislative intent. (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at pp. 699–700, 170 Cal.Rptr. 817, 621 P.2d 856.)
9. The Legislature is free to address any harshness that might result from our reading of section 326.5. As noted above, such action was attempted and rejected when Assembly Bill No. 557 died in Committee in 1983.
10. Therefore, we need not decide an issue raised in the brief of amici curiae as to whether section 326.5 is essentially a civil and regulatory measure and not a criminal one. (See Barona Group of Capitan Grande Band, Etc. v. Duffy (9th Cir.1982) 694 F.2d 1185.)
11. For example, respondent's bingo manager was employed five to six hours a week as a fund-raising consultant and five hours a week as bingo manager. It is conceded that several members of respondent's permanent staff have worked at the bingo games.
LUI, Acting Presiding Justice.
DANIELSON and HOM,* JJ., concur.