Kamp, 091583 CAAGO, AGO 83-610

• Case Date: September 15, 1983
• Court: California

JOHN K. VAN DE KAMP Attorney General JOHN T. MURPHY Deputy Attorney General AGO 83-610 No. 83-610 California Attorney General Opinion Office of the Attorney General State of California September 15, 1983          THE HONORABLE WILLIAM C. CURTIS, DISTRICT ATTORNEY, MONTEREY COUNTY, has requested an opinion on the following question:          Is a coin-operated video game which simulates the games of blackjack, draw poker, hi-lo and craps, but which does not itself furnish the winning player with a free replay, extra playing time or any other direct pay-out, an illegal gambling device within the meaning of Penal Code sections 330b and 330.1?          CONCLUSION          A coin-operated video game which simulates the games of blackjack, draw poker, hi-lo and craps, but which does not itself furnish the winning player with a free replay, extra playing time or any other direct pay-out, is not an illegal gambling device per se within the meaning of Penal Code sections 330b and 330.1. However, if the device were used for gambling purposes, such as to furnish a thing of value to the winner or high scorer, it would become an illegal gambling device.          ANALYSIS          We are asked for our opinion on the legality under the state gaming laws of a coin-operated video device which reproduces several popular gambling games. As described to us, the device is essentially a video screen and a computer combined in a single cabinet. By placing a coin in a slot, the machine is activated and the player may select one of four games: blackjack, draw poker, hi-lo or craps. Each game is played by pressing the appropriate buttons with the video screen displaying representations of cards or dice in a manner consistent with the rules of the game and the choices of the player. Points are bet by the player during the course of each game and at the end of play a total point score is recorded on the screen. If the player is among the top ten scorers, he or she may be listed on the screen ranked according to the score achieved. The machine itself does not provide for free games, extra playing time for winning or any direct pay-outs, such as the release of coins, tokens or coupons. We have not been furnished with the rules of the video games involved but assume that these games simulate their counterparts as played with actual cards or dice.1          There are three California statutes relevant to our analysis. Penal Code2section 330b provides:

"(1) Unlawful acts; regulation of machines on vessels in interstate or foreign commerce. It is unlawful for any person to manufacture, repair, own, store, possess, sell, rent, lease, let on shares, lend or give away, transport, or expose for sale or lease, or to offer to repair, sell, rent, lease, let on shares, lend or give away, or to permit the operation of, or for any person to permit to be placed, maintained or kept in any place, room, space or building owned, leased or occupied by him or under his management or control, any slot machine or device as hereinafter defined, or to make or to permit to be made with any person any agreement with reference to any slot machine or device, as hereinafter defined, pursuant to which the user thereof, as a result of any element of hazard or chance or other outcome unpredictable by him, may become entitled to receive any money, credit, allowance, or thing of value or additional chance or right to use such slot machine or device, or to receive any check, slug, token or memorandum entitling the holder to receive any money, credit, allowance of thing of value; provided, however, that this section, insofar as it relates to owning, storing, possessing, or transporting any slot machine or device as hereinafter defined, shall not apply to any slot machine or device as hereinafter defined, located upon or being transported by any vessel regularly operated and engaged in interstate or foreign commerce, so long as such slot machine or device is located in a locked compartment of the vessel, is not accessible for use and is not used or operated within the territorial jurisdiction of this State. "(2) Definition of slot machine. Any machine, apparatus or device is a slot machine within the provisions of this section if it is one that is adapted, or may readily be converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object, or by any other means, such machine or device is caused to operate or may be operated, and by reason of any element of hazard or chance or of any other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value or additional chance or right to use such slot machine or device, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, irrespective of whether it may, apart from any element of hazard or chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment or other thing of value. "(3) Misdemeanor. Every person who violates this section is guilty of a misdemeanor. "(4) Games of skill. It is expressly provided that with respect to the provisions of Section 330b only of this code, pin ball, and other amusement machines or devices which are predominantly games of skill, whether affording the opportunity of additional chances or free plays or not, are not intended to be and are not included within the term slot machine or device as defined in said Section 330b of this code." (Emphasis added.)

         Section 330.1 states:

"Every person who manufactures, owns, stores, keeps, possesses, sells, rents, leases, lets on shares, lends or gives away, transports or exposes for sale or lease or offers to sell, rent, lease, let on shares, lend or give away or who permits the operation

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