CERTAIN GAMES CONSTITUTE GAMBLING AND ARE AMUSEMENT GAMES

GAMBLING ‑- AMUSEMENT GAMES ‑- CERTAIN GAMES CONSTITUTE GAMBLING AND ARE AMUSEMENT GAMES 

If the outcome of a mechanical or coin-operated game is "as the result of the operation of an element of chance" and "depends in a material degree upon the skill of the contestant," such a game may constitute gambling and be an "amusement game" under RCW 9.46 [chapter 9.46 RCW].

The Gambling Commission may approve "digger" or "crane" games as amusement games if warranted by the facts and all statutory criteria have been met.

The award of prizes directly from the game does not affect the classification of a game as an "amusement game" or "gambling device."

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                                                                 October 2, 1987

Honorable Ronald O. Bailey, Director
Washington State Gambling Commission
1110 South Jefferson, PC-21
Olympia, Washington 98504-8121 

Cite as:  AGO 1987 No. 20                                                                                                                

 Dear Mr. Bailey:

             By letter previously acknowledged you requested our opinion concerning the classification of certain electronic or mechanical coin-operated devices as "amusement games" or "gambling devices" under RCW 9.46 [chapter 9.46 RCW], the state gambling act.  We paraphrase your questions as follows:

             1.         If the outcome of a mechanical or coin-operated game is "as the result of the operation of an element of chance"and "depends in a material degree upon the skill of the contestant" is such a game a "gambling device" or an "amusement game" under RCW 9.46 [chapter 9.46 RCW]?

             2.         May the Gambling Commission approve "digger" or "crane" games as amusement games?

             3.         Does the award of prizes directly from the game affect the classification of a game as an "amusement game" or "gambling device"?

              [[Orig. Op. Page 2]]

             We answer your questions as set forth in our analysis.

                                                                      ANALYSIS

 Question 1:

             RCW 9.46 [chapter 9.46 RCW] was extensively restructured by the 1987 Legislature.  Laws of 1987, ch. 4.  While the format of the statute has changed, its substance remains unchanged.  See Laws of 1987, ch. 4, § 1, p. 14.

             RCW 9.46 [chapter 9.46 RCW] defines "gambling device" as follows:

             "Gambling device," as used in this chapter, means:  (1) Any device or mechanism the operation of which a right to money, credits, deposits or other things of value may be created, in return for a consideration,as the result of the operation of an element of chance; (2) any device or mechanism which, when operated for a consideration, does not return the same value or thing of value for the same consideration upon each operation thereof; (3) any device . . . designed primarily for use in connection with professional gambling; and (4) any subassembly or essential part designed or intended for use in connection with any such device . . . .

 Laws of 1987, ch. 4, § 11, p. 17 (emphasis added).

             RCW 9.46 [chapter 9.46 RCW] defines "amusement game" as follows:

             "Amusement game," as used in this chapter, means a game played for entertainment in which:

             (1) The contestant actively participates;

             (2)The outcome depends in a material degree upon the skill of the contestant;

             (3) Only merchandise prizes are awarded;

             (4) The outcome is not in the control of the operator;

             (5) The wagers are placed, the winners are determined, and a distribution of prizes or property is made in the presence of all persons placing wagers at such game; and

              [[Orig. Op. Page 3]]

             (6) Said game is conducted . . . in such manner and at such locations as may be authorized by the rules and regulations adopted by the [gambling] commission . . . .

 Laws of 1987, ch. 4, § 2, p. 15 (emphasis added).

             The definitions of "gambling device" and "amusement game" cannot be read in isolation, but must be read in conjunction with the accompanying definitions of "gambling" and "contest of chance", as well as the statutory authority and mandate of the Gambling Commission to determine the interpretations which should be given to each.

             RCW 9.46 [chapter 9.46 RCW] defines "contest of chance" as "any contest, game, gaming scheme, or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein."  Laws of 1987, ch. 4, § 8, p. 17 (emphasis added).

             RCW 9.46 [chapter 9.46 RCW] defines "gambling" as staking or risking something of value "upon the outcome of a contest of chance . . . ."  Laws of 1987, ch. 4, § 10, p. 17.  Thus, to constitute "gambling", a person must engage in a "contest of chance"; a "contest of chance" is a game that depends in a material degree upon an element of chance.  It is reasonable to conclude that the degree of chance required to constitute "gambling" should be the same as the degree of chance required to constitute a "gambling device".  Therefore, games that depend at least to a material degree upon an element of chance are "gambling devices," and subject to regulation by the Gambling Commission.  "Material" means "important; more or less necessary; having influence or effect."  Black's Law Dictionary 880 (5th rev. ed. 1979).

             Gambling activity (including gambling devices) is the general category of activity over which the Gambling Commission has regulatory authority.  Under the umbrella of "gambling activity" exist several subsets of activity which the Commission regulates.  "Amusement games" are one such subset, as is illustrated by RCW 9.46.070(9) which enables the Commission

             [to] require that all income from bingo games, raffles, and amusement games be recorded and reported as established by rule or regulation of the commission to the extent deemed necessary by considering the scope and character of the gambling activity in such a manner that will disclose gross income from anygambling activity,  [[Orig. Op. Page 4]] amounts received from each player, the nature and value of prizes, and the fact of distributions of such prizes to the winners thereof;

 (Emphasis added.)

             Thus, after affirmatively answering the question of whether the outcome of a particular game or device depends in a material degree upon chance, the next question is whether that game or device falls into the subset of "amusement game".  Returning to the definition of "amusement game", if the outcome of the game or device also depends in a material degree upon theskill of the contestant, the game or device is an amusement game (assuming the other elements are met).  If a game is purely one of skill, without the requisite chance element present, it would not be subject to regulation by the Commission because it would not constitute gambling at all.  See AGO 1971 No. 21 at 5, 8.

             Your question seems to presume that a game may be either a gambling device or an amusement game, but not both.  Our analysis leads us to conclude that a game may be a "gambling device" alone or it may be both a "gambling device" and an "amusement game."  It cannot, however, be an "amusement game" alone.  In making the determination as to whether a game is an "amusement game," the Commission must first find that the questioned game constitutes "gambling" in order to invoke the Commission's regulatory authority.  Thereafter, the Commission may conclude that it is an "amusement game" after finding that all statutory requirements have been met, including a finding that the outcome of the game depends in a material degree upon skill.

 Question 2:

             A "digger" machine or "crane" game can be designed to operate in many ways.  Any given machine must be examined to reach a determination as to whether it should be classified as an "amusement game."  Digger machines have been the subject of legal inquiry in several jurisdictions.  The various cases we have found involved machines of differing design and operation, but all these cases reached the conclusion that digger machines were gambling devices.  See United States v. 24 Digger Merchandising Machines, 202 F.2d 647 (8th Cir. 1953);Boosalis v. Crawford, 99 F.2d 374 (D.C. Cir. 1938); Tooley v. United States, 134 F. Supp. 162 (D. Nev. 1955);Commonwealth v. Plissner, 295 Mass. 457, 4 N.E.2d 241 (1936);Commonwealth v. Ward, 281 Mass. 119, 183 N.E. 271 (1932); see also 27 Cal. Ops. Att'y Gen. 389 (1956).  The statutory  [[Orig. Op. Page 5]] language under which these cases were decided, however, varied from case to case and differed from RCW 9.46 [chapter 9.46 RCW].

             Due to the variety of ways in which any game may operate, we reiterate our statement in AGO 1971 No. 21, at 8:

             Of course, it is not possible to pass, definitively, upon each and every [game] without a full detailed description of all the facts pertaining to each game.  In other words, the applicability of the various criteria . . . will, necessarily, depend upon all of the facts involved in each game.

 Question 3:

             Finally, the award of prizes directly from the game seems to have no bearing upon the classification of the machine as either an "amusement game" or a "gambling device."  "Gambling device" is defined in part as

             "[a]ny device or mechanism the operation of which a right to money, credits, deposits or other things of value may be created . . ."  Laws of 1987, ch. 4, § 11, p. 17.

             From this part of the definition it seems reasonable to conclude that whether the machine dispenses something of value directly or by way of a token, or some other indirect award, the machine is a gambling device if the other requirements of the definition are met.

             Similarly, if a machine meets the other requirements of the definition of "amusement game," how the merchandise prize is awarded seems to have no affect on the classification of the machine.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

NANCY THYGESEN DAY
Assistant Attorney General