Case Date:May 31, 1995
Court:New York
New York Attorney General Opinions 1995. AGO 95-F3. May 31, 1995Formal Opinion No. 95-F3Hon. Michael D. Zagata Commissioner NYS Department of Environmental Conservation 50 Wolf Road Albany, NY 12233NY CONST, ART I, § 9; ENVIRONMENTAL CONSERVATION LAW §§ 3-0113, 3-0301; GENERAL BUSINESS LAW § 369-e(1); L 1993, CH 57, § 78.The New York State Department of Environmental Conservation may not undertake a promotional sweepstakes to promote subscriptions to "The Conservationist" absent express statutory authority to do so.Dear Commissioner Zagata: Your counsel inquires whether the New York State Department of Environmental Conservation (the "DEC") may participate in a promotional sweepstakes program described hereafter. We conclude that in the absence of express statutory authority, the DEC may not do so. To "promote a wider understanding of the problems affecting conservation of natural resources", the DEC publishes, as its official magazine, the "New York State Conservationist" ("The Conservationist"), available to subscribers at an annual subscription fee established by the Commissioner of the DEC, after consultation with the State Division of the Budget (Environmental Conservation Law § 3-0113; hereafter, "ECL"). DEC staff advise that in order to encourage subscriptions and renewal of subscriptions for "The Conservationist", the DEC proposes to undertake a promotional sweepstakes. A person could enter by subscribing to "The Conservationist". However, anyone could enter without making any purchase or paying any fee or other consideration. Prizes distributed by DEC to winners in the sweepstakes will be donated to the DEC by private entities. As outlined above, the promotional sweepstakes constitutes the permissible use of a game and not a form of gambling prohibited by Article I, section 9, of the New York State Constitution except as otherwise provided therein. The DEC sweepstakes does not constitute prohibited gambling because it does not involve an element of gambling, the placing of a wager in order to participate in the game. See generally. Op Atty Gen (Inf) No. 86-27. An entrant would not have to pay any consideration or make a purchase to participate in the DEC sweepstakes. See generally, GBL § 369-e. With respect to the donation to...

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