GAMBLING ‑- LOTTERIES ‑- CRIMES ‑- APPLICABILITY OF CHAPTER 9.46 RCW TO SPORTS POOLS AND CERTAIN DICE OR CARD GAMES

GAMBLING ‑- LOTTERIES ‑- CRIMES ‑- APPLICABILITY OF CHAPTER 9.46 RCW TO SPORTS POOLS AND CERTAIN DICE OR CARD GAMES

The proprietor or owner of a restaurant, tavern, coffee shop or similar establishment would be engaged in the conduct of prohibited gambling activities within the meaning of chapter 9.46 RCW if such proprietor or owner, without other participation in the game, were

(1) To maintain on the premises for use by its patrons, customers or others a board, sheet or other similar paraphernalia to be used in the conduct of a football, baseball or other sports pool, and in connection with such pool were to assign scores, receive wagers and distribute anything of value to a contestant, although without fee, commission or other profit for such services;

(2) Except to the extent of card games licensed under RCW 9.46.030, to furnish dice or playing cards to patrons, customers or others on the premises of the establishment to be utilized by such persons for gambling in order to determine which person in their number shall pay the cost of the meals, drinks or other sustenance purchased on the premises;

(3) To maintain on the premises for the convenience of his patrons, customers or others, any of the aforesaid devices which are in fact owned by such persons and utilized by them for the purposes set forth in (2) above.

                                                              - - - - - - - - - - - - -

                                                                    July 24, 1975

Honorable James P. Kuehnle
State Representative, 4th District
S. 1122 Skyline Pl.
Spokane, Washington 99206

                                                                                                                 Cite as:  AGO 1975 No. 16

Dear Sir:

            By letter previously acknowledged you have requested our opinion upon several questions involving chapter 9.46 RCW,  [[Orig. Op. Page 2]] which deals with lotteries and other gambling activities.  We have paraphrased your inquiry as follows:

            Would the proprietor or owner of a restaurant, tavern, coffee shop or similar establishment be engaged in the conduct of prohibited gambling activities within the meaning of chapter 9.46 RCW if such proprietor or owner, without other participation in the game, were

            (1) To maintain on the premises for use by its patrons, customers or others a board, sheet or other similar paraphernalia to be used in the conduct of a football, baseball or other sports pool, and in connection with such pool were to assign scores, receive wagers and distribute anything of value to a contestant, although without fee, commission or other profit for such services?

            (2) To furnish dice or playing cards to patrons, customers or others on the premises of the establishment to be utilized by such persons for gambling in order to determine which person in their number shall pay the cost of the meals, drinks or other sustenance purchased on the premises?

            (3) To maintain on the premises for the convenience of his patrons, customers or others, any of the aforesaid devices which are in fact owned by such persons and utilized by them for the purposes set forth in question (2)?

            We answer question (2) in the affirmative subject to a single qualification set forth in our analysis; questions (1) and (3) are answered in the unqualified affirmative for the reasons stated therein.

                                                                     ANALYSIS

            As noted, chapter 9.46 RCW deals with lotteries and other gambling activities.1/   The constitutional basis for its  [[Orig. Op. Page 3]] enactment by our legislature is to be found in Article II, § 24 of the state constitution, as amended in 1972 to read as follows:

            "The legislature shall never grant any divorce.  Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon."2/

             Consistent with this constitutional provision the pattern of the legislation is to prohibit some gambling activities entirely while at the same time permitting, and regulating, others.  The line of demarcation which has been drawn by the legislature is basically between that conduct which it has referred to as "professional gambling" and that which, though not specifically labeled, is ordinarily referred to as "social" gambling.

            Gambling is defined by RCW 9.46.020(8), in part, as follows:

            ". . .  A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome. . . ."

            A "contest of chance" is defined by RCW 9.46.020(6) to mean:

             [[Orig. Op. Page 4]]

            ". . . any contest, game, gambling 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."

            A person is deemed to be engaged in "professional gambling" when, in the words of RCW 9.46.020(15),

            "(a) Acting other than as a player or in the manner set forth in RCW 9.46.030 as now or hereafter amended, he knowingly engages in conduct which materially aids any other form of gambling activity; or

            "(b) Acting other than as a player, or in the manner set forth in RCW 9.46.030 as now or hereafter amended, he knowingly accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity;

            "(c) He engages in bookmaking; or

            "(d) He conducts a lottery as defined in subsection (13) of this section."; i.e.,

            ". . . a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance."3/

             This subsection then goes on to provide that:

            "Conduct under subparagraph (a), except as exempted under RCW 9.46.030 as now or hereafter amended, includes but is not limited to conduct directed toward the creation or establishment of the  [[Orig. Op. Page 5]] particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases, or toward any other phase of its operation.  If a person having substantial proprietary or other authoritative control over any premises shall permit said premises to be used with the person's knowledge for the purpose of conducting gambling activity other than gambling activities as set forth in RCW 9.46.030 as now or hereafter amended, and acting other than as a player, and said person permits such to occur or continue or makes no effort to prevent its occurrence or continuation, he shall be considered as being engaged in professional gambling: . . ."

            Professional gambling, as thus defined, is a felony by reason of RCW 9.46.220 which states that:

            "Whoever engages in professional gambling, or knowingly causes, aids, abets, or conspires with another to engage in professional gambling, shall be guilty of a felony and fined not more than one hundred thousand dollars or imprisoned not more than five years or both:  PROVIDED, HOWEVER, That this section shall not apply to those activities enumerated in RCW 9.46.030 or to any act or acts in furtherance thereof when conducted in compliance with the provisions of this chapter and in accordance with the rules and regulations adopted pursuant thereto."

            On the other hand, RCW 9.46.030, to which reference is made in both of the last above quoted sections of the law,  [[Orig. Op. Page 6]] expressly authorizes (as contemplated by the constitution,supra) certain "bona fide charitable and nonprofit organizations"4/ to conduct bingo games,5/ raffles,6/ and amusement games,7/ to operate punchboards and pull-tabs,8/ and to allow members and guests to use the premises of the organization to play certain social card games.9/   It also allows other persons, associations and organizations to conduct such card games and to operate punchboards and pull-tabs as a commercial stimulant.  These authorizations, however, are all subject to compliance with specified statutory requirements and rules of the Washington state gambling commission, and, with the exception of a limited class of raffles under RCW 9.46.030(2), to licensure by the commission ‑ a regulatory agency provided for in RCW 9.46.040.10/   The authority of this agency to license such activities, in turn, is spelled out in considerable detail in RCW 9.46.070.

            With this resume of the law in mind we turn, now, to your questions.

             [[Orig. Op. Page 7]]

            Question (1):

            First you have asked:

            Would the proprietor or owner of a restaurant, tavern, coffee shop or similar establishment be engaged in the conduct of prohibited gambling activities within the meaning of chapter 9.46 RCW if such proprietor or owner, without other participation in the game, were

            (1) To maintain on the premises for use by its patrons, customers or others a board, sheet or other similar paraphernalia to be used in the conduct of a football, baseball or other sports pool, and in connection with such pool were to assign scores, receive wagers and distribute anything of value to a contestant, although without fee, commission or other profit for such services?

            The type of sports pools about which you thus inquire typically includes a board, sheet of paper, or similar device, divided into squares or "chances".  Each square represents a possible final score, or score by period of play, of a particular sporting event to be played in the future.  Persons then purchase the squares, or chances, representing such scores.  Each participant's name is written upon the square(s) of the board or sheet that he has purchased, to record the purchase.

            By the purchase of a square, one agrees that the money he has paid will be pooled with that of other participants to form a prize fund to be paid to that participant, or those participants, purchasing the square or squares representing the ultimate score of the subject contest, or the scores of various periods of play of that event.  If one purchases a square to which has been assigned the score which actually occurs in the subject period of play, he wins.  If not, he loses.  Usually, scores are assigned to squares on the board or sheet, and physically written upon it, after sales are closed.  Occasionally, however, scores are assigned in advance of sale.

            In our opinion, such sports pools as these are gambling games under RCW 9.46.020(8),supra.  The participant is risking something of value (the price to compete or purchase a chance or chances in the pool) upon the outcome of a future contingent event not under his control or  [[Orig. Op. Page 8]] influence (the sports event) upon an agreement or understanding that he, or someone else, will receive something of value (the prize or prizes consisting of the money paid into the pool by all contestants, or a portion thereof) in the event of a certain outcome (the particular score assigned).  Moreover, such sports pools are not authorized and made licensable under RCW 9.46.030 and 9.46.070, supra.

            To knowingly furnish the sports pool board and other devices for use in such a gambling game, and to knowingly furnish the premises therefor, is conduct which "materially aids the gambling act."  Further, by keeping such devices upon the premises ready for the patrons' use the proprietor or owner also engages in conduct directed toward the "maintenance of premises, paraphernalia, equipment or apparatus" for the gambling activity.  Therefore, the proprietor or owner would engage in professional gambling under RCW 9.46.020(15)(a),supra, by operating such a sports pool.11/   Further, he would be engaging in "conduct directed toward the establishment of" the sports pool and "the inducement of persons to participate therein," each of which also constitutes professional gambling under that statute.

            Clearly, a person operating such a pool would be engaged in conduct directed toward "the arrangement of any of its financial or recording phases," which is also to engage in professional gambling under RCW 9.46.020(15)(a),supra.  By knowingly permitting the premises to be used for the conduct of the gambling activity by its patrons, the proprietor or owner would also be engaged in professional gambling under the last paragraph of RCW 9.46.020(15) ‑ as in the case of one permitting his establishment to be used for dice games or unlicensed card games under our answer to question (2) below.  As there, the furnishing of the paraphernalia or devices for the games would patently indicate knowledge of the activity and permission that it take place on the premises.

             [[Orig. Op. Page 9]]

            Finally, the proprietor would also quite probably be conducting a lottery and thus be guilty of professional gambling under RCW 9.46.020(15)(d),supra.  Prize and consideration are obviously present, and the element of chance is also self evident as to those pools wherein the winners and scores are assigned after sales of chances in the pool are closed.  In addition, we believe that chance proximately influences the final result of such pools and, therefore, is sufficiently present to support the conclusion that such a sports pool is a lottery even where the teams and scores are assigned in advance of sales so that a contestant may select the winner and score from those still available at the time he purchases his right to compete.  See,Seattle Times Co. v. Tielsch, 80 Wn.2d 502, 495 P.2d 1366 (1972).  And without any doubt, the activities described in this portion of your inquiry include virtually all acts necessary to manage, direct and control the pool ‑ i.e., to "conduct" it so as to constitute professional gambling under RCW 9.46.020(15)(d).

            In thus concluding we note that the word "conduct" is not expressly defined in chapter 9.46 RCW.  However, in the absence of any indication of legislative intent to the contrary, words used in a statute are to be given their usual and ordinary meaning.  Rena-Ware Distrib.,Inc. v. State, 77 Wn.2d 514, 463 P.2d 622 (1970).  The term is used in RCW 9.46.020(15)(d) as a verb.  The dictionary meaning of "conduct" as a verb is:

            "(6) to direct, manage, carry on, transact [etc.]"1/Oxford English Dictionary Compact Edition, page 791.

            "2. to manage, control or direct" Webster's New World Dictionary of the American Language, Second College Edition, page 296.

            See, also,Scholz v. Leuer, 7 Wn.2d 76 at 88, 89, 109 P.2d 294 (1941).

            In addition to engaging in professional gambling, a felony, the proprietor or owner acting as outlined in your first question, by making, possessing or selling chances on the sports pool board or sheet upon which the names of those  [[Orig. Op. Page 10]] purchasing scores and the scores assigned to those persons are recorded, would violate RCW 9.46.230(5) which provides, in part,

            "Whoever knowingly prints, makes, possesses, stores or transports any gambling record, or . . . sells, offers or solicits any interest therein, whether through an agent or employee or otherwise, shall be guilty of a gross misdemeanor: . . .  In the enforcement of this subsection direct possession of any such gambling record shall be presumed to be knowing possession thereof."

            The term "gambling record" is defined by RCW 9.46.020(12) as:

            ". . . any record, receipt, ticket, certificate, token, slip or notation given, made, used or intended to be used in connection with professional gambling."

            Question (2):

            This question asks whether the proprietor or owner of a restaurant, tavern, coffee shop or similar establishment would be engaged in the conduct of prohibited gambling activities within the meaning of chapter 9.46 RCW if such proprietor or owner, without other participation in the game, were:

            To furnish dice or playing cards to patrons, customers or others on the premises of the establishment to be utilized by such persons for gambling in order to determine which person in their number shall pay the cost of the meals, drinks or other sustenance purchased on the premises.

            Except to the extent of such card games as are conducted under licenses issued by the gambling commission under RCW 9.46.030, supra, we also answer this question in the affirmative.

             [[Orig. Op. Page 11]]

            Subsection (3) of this statute provides, in part:

            "The legislature hereby authorizes any person, association or organization to conduct social card games . . . as a commercial stimulant when licensed and utilized or operated pursuant to the provisions of this chapter and rules and regulations adopted pursuant thereto."12/

             Other sections of chapter 9.46 RCW establish requirements for the conduct of such card games and provide for licensing by the commission.13/   The commission has also been given the authority to pass rules with respect thereto14/ and it has done so.  Therefore, if a proprietor or owner is licensed to conduct such card games as a commercial stimulant and the games are conducted and played in accordance with the statutory requirements and commission rules, such proprietor or owner would not be engaged in prohibited professional gambling by furnishing cards to his patrons to play authorized card games.  Conceivably, although not generally, such licensed card games could be played, indirectly, for the purposes outlined in your first question.  But see, WAC 230-40-130, which requires that wagers in such card games be made only with chips furnished by the licensee.  This and other commission requirements would appear to make card games conducted on such licensed premises a rather unlikely vehicle to be used simply to determine who among the players is to pay for their meals or drinks, etc.

             [[Orig. Op. Page 12]]

            Under all of the other circumstances posited by your second question a clear case of illegal "professional gambling" would, however, appear to exist.

            A patron of an establishment who risks the price of meals, drinks, or other such items upon the outcome of a dice game, card game, or similar game, is "risking something of value" upon the agreement or understanding that he will receive "something of value" in the event of a particular outcome of a game.  38 Am.Jur.2d, Gambling, § 29;Shepard v. Dye, 137 Wash. 180, 242 Pac. 381 (1926).  The particular outcome of a roll or series of rolls of dice is obviously based upon chance.  Likewise, in nearly all card games there is a material or substantial element of chance in the deal or assignment of cards to the players.  State ex rel. Schillberg v. Barnett, 79 Wn.2d 578, 488 P.2d 255 (1971); State ex rel. Evans v. Brotherhood Etc., 41 Wn.2d 133, 247 P.2d 787 (1952).  Therefore, such games are gambling games as defined by RCW 9.46.020(8),supra.  And, except as above noted in the case of certain card games, none of these activities is authorized and made licensable under RCW 9.46.030 and 9.46.070,supra.

            As we also said earlier with respect to sports pools, to knowingly furnish the basic paraphernalia, or devices, for use in any of these games, and the premises therefor, would be conduct which "materially aids the gambling activity."  RCW 9.46.020(15),supra.  Moreover, by keeping such devices upon the premises ready for the patrons' use, the proprietor or owner would also be engaged in conduct directed toward the "maintenance of premises, paraphernalia, equipment or apparatus" for the gambling activity within the meaning of that statute.  Therefore, such proprietor or owner would be engaged in "professional gambling" as defined therein.

            Likewise, depending upon the extent of his promotion of the games, such a proprietor or owner could further be engaged in "conduct directed toward the establishment of the particular game, contest, scheme, device or activity involved" or "the inducement of persons to participate therein."  Each of these categories of conduct also constitutes professional gambling under RCW 9.46.020(15)(a), supra.

             [[Orig. Op. Page 13]]

            Similarly, by knowingly permitting the premises to be used for the conduct of an illegal gambling activity by his patrons, the proprietor or owner would be engaged in professional gambling under that portion of the last paragraph of this same statute which (repeated for ease of reference) provides:

            ". . .  If a person having substantial proprietary or other authoritative control over any premises shall permit said premises to be used with the person's knowledge for the purpose of conducting gambling activity other than gambling activities as set forth in RCW 9.46.030 as now or hereafter amended, and acting other than as a player, and said person permits such to occur or continue or makes no effort to prevent its occurrence or continuation, he shall be considered as being engaged in professional gambling: . . ."

            The furnishing of the paraphernalia or devices for the games would clearly indicate knowledge and permission that the games be played on the premises.

            Finally, at least in most of the situations falling within the purview of your question, the proprietor or owner could also be guilty of professional gambling by virtue of RCW 9.46.020(15)(d) which states that a person is so engaged if he ". . . conducts a lottery as defined in subsection (13) of this section"; i.e.,

            ". . . a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance."15/

             Each of the gambling activities listed in your question, excepting certain specific card games in which skill and judgment may override the element of chance in the long run, are lotteries.  The elements of prize and consideration are self evident in these activities.

             [[Orig. Op. Page 14]]

            While merely having paraphernalia such as dice or cards available for play in a lottery would not be to "conduct" the lottery if the patrons involved use them with little or no management or control on the part of the proprietor or owner furnishing the devices, the greater the degree of control or management by the proprietor or owner over their use, the closer he will be to the point at which he is conducting a lottery and, thus, is engaging in professional gambling under RCW 9.46.020(15)(d), supra.  For example, if the proprietor or owner were to require that the dice or card game in question be conducted according to rules of the house, he could then be said to be managing, and thus conducting, the lottery within the scope of the above‑cited definitions.

            Furthermore, even if the proprietor or owner does not himself conduct a lottery with the devices he furnishes the patrons, if one of those patrons does so with the knowledge of the proprietor or owner who furnished the devices the latter would also be engaged in professional gambling himself under the last paragraph of RCW 9.46.020(5),supra, by virtue of furnishing aid to a person engaged in professional gambling.

            Question (3):

            By this question you have asked if the above conclusions would still be applicable if the owner or proprietor merely allowed persons to keep the devices for the gambling games on the premises for use there, rather than providing them directly.  We believe this modification would make no difference and, hence, we also answer this question in the affirmative.  The proprietor or owner would still be engaged in "professional gambling" under RCW 9.46.020(15).

            To maintain upon the premises, for the convenience of the patrons, such paraphernalia or devices, and to furnish the premises for the games, materially aids the gambling activity.  Such conduct appears to us to be the maintenance of premises, paraphernalia, equipment or apparatus therefor even though the items other than the premises are not directly furnished by the proprietor or owner.  Therefore, to do so would be to engage in professional gambling under RCW 9.46.020(15)(a).

             [[Orig. Op. Page 15]]

            Furthermore, even if the proprietor or owner does not maintain the items on the premises at all, to knowingly permit the premises to be used for the gambling games, and to fail to make efforts to prevent such activities from occurring, or continuing, alone would cause him to be engaged in professional gambling under this statute.16/

             We trust the foregoing will be of assistance to you.

Very truly yours,