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Hey It’s The Law – Funny Man!
Russ Jensen has documented the history of “gambling
machines” and the law quite well and as you are aware, for the bingos it
start with the Korpran Decision that deemed them gambling machines and
therefore to need regulating under the 1950 Johnson
Well, after many legal
hassles, the 1957 “Korpran Decision” of the Supreme Court ruled that these
“bingo pinballs” were “gambling devices” and thus subject to the Johnson
Act. This severely cut back the use of the machines except in a few states,
such as Tennessee and South Carolina, where they were legal. Bally
continued to manufacture bingos, however, for many years to come to supply
these states and foreign markets, even making improvements in the games,
such as the popular “OK Bingos” of the early Sixties, until the early
Eighties when Tennessee (the largest U.S. user of these machines
………but that just part of a story that appears to be
pretty huge. Operators, owners, and most assuredly some organized grime
groups were making some good money on these things, and the death of these
babies was a little bit more involved then one day everyone collectively
agreeing to banish the bingos……….
Even
today the controversy associated with the “bingo” pins continues; if you
doubt me, ask anybody who is married that has a couple of these things -
how his wife is taking it :)
1996 – South Carolina:
Miss Nevada and Bingo pins
STATE
OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
Docket No.: 96-ALJ-17-0390-CC
South Carolina Department of Revenue,
Petitioner,
vs.
Scott Sheets, d/b/a S & S Amusements,
Respondent.
ORDER AND DECISION
APPEARANCES: Nicholas P. Sipe, Esquire for Petitioner
James Griffin, Esquire for Respondent and
Greg Harris, Esquire for Respondent
STATEMENT OF THE CASE
This matter comes before me pursuant to a citation
issued by the Department of Revenue ("Department") against Scott
Sheets, d/b/a S&S Amusements for violating S.C. Code Ann.
12-21-2720(A)(3) (Supp. 1995), by operating a nonpayout type in-line pin
game without the proper license at Porter's Quick Stop. After notice to the
parties, a hearing was conducted on November 4, 1996.
STIPULATED FACTS
Prior to the hearing, the parties stipulated to the
following facts:
1.
The "Miss Nevada" machine is owned by Scott Sheets, d/b/a S&S
Amusements.
2. The "Miss Nevada" machine was in operation on April 4, 1996 at
Porter's Quick Stop, 3601 Parris Bridge Road, Spartanburg, South Carolina,
and had a valid and current Class II license displayed.
3. The parties stipulated to the admission of Plaintiff's exhibits #1-5 and
Respondent's exhibits #1-6, which were accepted.
FINDINGS OF FACT
I make the following findings of fact, taking into
consideration the burden on the parties to establish their respective cases
by a preponderance of the evidence and taking into account the credibility
of the witnesses:
1. This Division has subject matter jurisdiction in
this case.
2. Notice of the date, time, place and nature of the hearing was given to
all parties.
3. On April 4, 1996, during an inspection of Porter's Quick Stop, Revenue
Officer Kermit Hines issued an administrative violation for operating the
"Miss Nevada" (Serial #862632) without a Type III machine
license.
4. The Department inspected and photographed the Miss Nevada machine and in
its Final Determination Letter dated July 17, 1996, the Department
determined that the "Miss Nevada" is an in-line pin game machine
and is required to have a Type III license.
5. The "Miss Nevada" is a nonpayout pin table game. Specifically,
it is an in-line pin table and it is equipped with levers or flippers that
can be used to alter the course of the ball.
6. Previously, the Department, through its Public Assistance Supervisor
Michael W. Dawes, sent a letter dated July 28, 1995 to Frank McGuire
Amusements in Rock Hill, South Carolina, stating that machines such as the
"Miss Nevada" meet the definition of "Type II" machines
as long as they have flippers.
7. On August 8, 1995, the Department rescinded that letter stating that Mr.
Dawes had incorrectly classified the "Miss Nevada."
8. Mr. Joe Kirby, manager of the Department's Beaufort Office, was
qualified as an expert in the area of the Department's licensing procedures
for amusement machines.
9. According to Mr. Kirby, the "Miss Nevada" should be classified
as a Type III machine because it is a gambling type machine associated with
prizes, as opposed to the Type II amusement type machines that are not
associated with prizes.
10. Pin ball machines can be classified as either Class II or Class III.
Class II pinball machines are typically called "flipper"
machines. They are considered amusement type machines. The machines are
played by 1-4, 6 or 8 players. Each game costs between 25 - 50 cents per
player. When the coins are deposited the machine will allow between three
to five balls to be played. The balls are set into motion by the spring
plunger. The object of the game is to keep the ball in play to achieve
maximum points and bonus points. A replay feature is available contingent
upon the number of points scored. There are a limited number of replays.
Flippers are used to keep the ball in play to strike the pins or bumpers to
score points.
11. A Class III pinball machine does not have levers or flippers. A machine
similar to the "Miss Nevada" without the flippers is commonly
called a "bingo" machine by the revenue agents. In this machine,
only one person may play. The player may deposit varying amounts of money
which activate various features on the backboard and which determine the
number of replays. The object of the game is to line up the balls in
various positions which correspond to the number and positions on the
backboard similar to the game Bingo. The balls are also set into motion by
the spring plunger.
12. Mr. Kirby had never seen a "bingo" machine with flippers
until the "Miss Nevada". He would classify the "Miss
Nevada" as a Class III machine whether it has flippers or not.
13. The Department issued several Revenue Rulings thereby offering to the
public its interpretation of the law regarding the classification of
certain games and machines. Revenue Ruling 90-9 was utilized by the
Department in issuing the letter to Frank McGuire Amusements which stated
that the "Miss Nevada" type machines were Class II machines.
14. In January 1996, the Department issued Revenue Ruling 96-2 which
changed its interpretation. After the issuance of Revenue Ruling 96-2, the
"Miss Nevada" type machines are considered Class III machines.
15. According to Mr. Kirby, Revenue Rulings are not used by field officers
to classify game machines. Field officers of the Department use Technical
Advise Memos issued by the Department as a guide to determine
classifications. Technical Advise Memoranda are not available to the
public. Revenue Rulings are disseminated to the public as general
information.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I
conclude, as matter of law, the following:
1.
Pursuant to S. C. Code Ann. 12-4-30(D) (Supp. 1995) and Chapter 23 of
Title 1 of the 1976 Codes, as amended, the South Carolina Administrative
Law Judge Division has jurisdiction to hear this contested case.
2. Pursuant to S. C. Code Ann. 12-21-2720(A)(2) (Supp. 1995), a Class
II machine is:
a machine for the playing of amusements or video
games, without free play feature, or machines of the crane type operated by
a slot in which is deposited a coin or thing of value and a machine for
the playing of games or amusements, which has a free play feature, operated
by a slot in which is deposited a coin or thing of value, and the machine
is of the nonpayout pin table type with levers or "flippers"
operated by the player by which the course of the balls may be altered or
changed. A machine required to be licensed under this item is exempt
from the license fee if an admissions tax is imposed.
(emphasis added).
3. Pursuant to S. C. Code Ann. 12-21-2720(A)(3) (Supp. 1995), a Class
III machine is:
a machine of the nonpayout type, in-line pin game, or
video game with free play feature operated by a slot in which is deposited
a coin or thing of value except machines of the nonpayout pin table type
with levers or "flippers" operated by the player by which the
course of the balls may be altered or changed.
(emphasis added).
4. When the terms of the statute are clear and unambiguous, they must be
applied according to their literal meaning. State v. Blackmon, 304 S.C.
270, 403 S.E.2d 660 (1991). The clear and plain language of the statute
establishes the criteria to determine classification. The "Miss
Nevada" is an in-line pin game; however, it is also a machine, with a
free play feature, and is of the nonpayout pin table type with levers or
"flippers" operated by the player by which the course of the
balls may be altered or changed. The "Miss Nevada" is expressly
excluded from the Type III machine classification.
5. Revenue Ruling 90-9 applies to coin operated devices and interprets S.C.
Code 12-21-2720 and 12-21-2730. This ruling distinguishes
between pin tables with levers and in-line pin games without levers. It
classifies pin tables with levers as Class II machines under Code Section
12-21-2720(2), and in-line pin games without levers as Class III machines
under Code Section 12-21-2720(3). The Revenue Ruling acknowledges that both
machines (pin tables with levers and in-line pin game without levers) are
pinball machines, one with levers or "flippers" and one without
levers or "flippers". SC Revenue Ruling #90-9 at p.4.
6. Revenue Ruling 90-9 was in effect and contained the Department's policy
and interpretation in 1995 when the machine was licensed.
7. In 1996, the Department issued Revenue Ruling 96-2. This revenue ruling
addressed the identical issues raised in Revenue Ruling 90-9 and renders
the same interpretation, except Revenue Ruling 96-2 classifies all in-line
pin games as Class III, irrespective of levers or flippers.
8. Revenue Rulings are "the Department's official advisory opinion of
how laws administered by the Department are to be applied to a specific
issue . . . and as guidance for all persons or a particular group."
See Revenue Ruling 96-2 and 90-9. The Respondent can and should reasonably
rely on this information that is disseminated to the public.
9. The Department urges that its longstanding interpretation of the
"bingo" machine as a Class III should be given great deference
and that Revenue Ruling 96-2 correctly states the Department's longstanding
practice.
10. Where the construction of the statute has been uniform for many years
in administrative practice, and has been acquiesced in by the General
Assembly for a long period of time, such construction is entitled to
weight, and should not be overruled without cogent reasons. Etiwan
Fertilizer Co. v. S.C. Tax Comm'n, 217 S.C. 354, 60 S.E.2d 682 (1950)
(citing City of Spartanburg v. Leonard, 180 S.C. 491, 186 S.E. 395 (1936)).
For approximately six years, the Department continually classified pin
tables with levers as Class II machines. The "Miss Nevada" meets
this criteria.
11. Administrative interpretations of statutes by the agency charged with
their administration and not expressly changed by the legislative body are
entitled to great weight. Marchant v. Hamilton, 279 S.C. 497, 309 S.E.2d
781 (1983). The legislature has had ample opportunity to change the
Department's interpretation of the law as contained in Revenue Ruling 90-9.
It has not amended the statute to reflect any changes. If the Department
has encountered a change in the coin-operated machines industry that it
feels is contrary to the intent of the General Assembly in regulating this
area, it should seek the appropriate change through legislative action.
12. Machines must be licensed before placement or operation in a licensed
establishment pursuant to S.C. Code Ann. 12-21-2778 (Supp. 1995). The
Miss Nevada was so licensed by the Department.
13. S.C. Code Ann. 12-21-2738 (Supp. 1995) sets out the penalties for
failure to comply with the terms and provisions of Article 19 dealing with
coin-operated machines and devices and other amusements. The Department has
not demonstrated that the Respondent has violated Article 19, therefore, no
penalty should be assessed.
ORDER
Based upon the foregoing Findings of Fact and
Conclusions of Law, the Department of Revenue and Taxation improperly
issued a citation against the Respondent Scott Sheets, d/b/a S&S
Amusements. IT IS ORDERED, that the citation and violation are dismissed.
AND IT IS SO ORDERED:
ALISON RENEE LEE
Administrative Law Judge
November _____, 1996
Columbia, South Carolina.
1968
California:
Joe and Dorothy Tressler were under the spotlight:
Equalization.pdf
As were Alexander and Josephine Zobisky
Eq II.pdf
Russ
Jensen’s “Pingames and Gambling” article:
http://members.aol.com/rusjensen/gambling.htm
Hawaii 1980:
It wasn’t until 1980 — a half century after the threat
of pinball began — that the Hawai‘i Supreme Court, in a unanimous decision,
struck down laws that prohibited operators from allowing, or kids from
playing, pinball.
Hawaii
1995:
Plaintiffs also sought a declaration that ownership
and operation of the machines was legal.
The complaints were consolidated for trial. The machines at issue in this appeal are
(1) three “Match 5 Jukeboxes”; and (2) three flipperless pinball machines.
A bench trial was held in December 1995. In April 1996, the trial court issued a
statement of decision concluding all six machines were illegal gambling
devices. The statement of decision
found as follows: “The owners are directed to remove the machines from the
establishment.”
Russ Jensen shares more
in his “The year that could have ended pinballs”
…..Apparently it was
1967…..
The proposed amendment to the Criminal Code replaced
the section that excluded pingames from the definition of gambling devices
with a new section which would explicitly prohibit the operation and
possession of “pinball, bagatelle, or pigeon-hole games”. It was obviously
the inclusion of the term “pinball” that worried the coinmen even though
the further definition of these devices seemed to be aimed primarily at
“bingo pinballs”. The people in the industry who had analyzed this proposed
legislation had come to the conclusion that it could very likely result in
the outlawing of “flipper pinball games” as well as the “bingos”.
THE YEAR THAT
COULD HAVE ENDED PINBALL
………back to the money thing for a second………
In this same article, Russ references a 1939 Saturday
Evening Post article titled: “Ten Billion Nickels”
The
“Do-Gooders”
Name: Johnny Henry
E-mail address: rockinjohn55@yahoo.com
Homepage URL: http://rockinjohnhenry.com
Comments: Hi Cindy, Pinball machines were a regular habit with
me when growing up. I remember a type of pinball machine that had no
flippers and worked like a bingo game where by getting five in row you'd
win free games. These free games could be used to increase the odds or
cashed in for money. If memory serves it cost 5 cents per play. These were
illegal in Oklahoma but like liquor by the drink (also illegal in Okla. at
the time) people ignored the law, but somewhere along the way the usual
crowd of "do-gooders" managed to get rid of them. Are these
pinball machines still around anywhere and are they still illegal?..
Enjoyed the site and the memories.
Johnny Henry
Sunday, January 21st 2001 -
11:34:25 AM
Morality
BY WHAT MORAL STANDARD?
by
Loraine Boettner D.D.*
(taken from his book “Roman Catholicism” first
published 1962)
Chapter 17.
1. Basic Principles. 2. Liquor. 3. Oaths. 4. Theft. 5. Gambling. 6. Questionable
Hospital Practices. 7. Conclusion.
Excerpt:
Historically, organized gambling has
meant organized crime. Recently a high-ranking legal expert declared that
gambling is the life blood of organized crime, and that if gambling could
be wiped out much large-scale crime would die for lack of sustenance.
Organized gambling flourishes in a twilight zone of society where coercion
and corruption are the methods of doing business. An evil atmosphere
envelops such a community and eats into the fabric of law and order. The
bribery and corruption of officials, with attendant social abuses, is a
common result. Yet in the United States, for example, the Roman Church,
which receives substantial revenues from gambling games, has not only
failed to oppose legalized gambling but frequently has itself run foul of
state anti-gambling laws. On the other hand Protestant groups, which
believe that it is a sin to gamble, have taken the lead in a great many
places and have succeeded in having bingo, and particularly professional
gambling, outlawed. In the bingo pinball devices commonly found in taverns,
the millions of nickels flow into millions of dollars. Usually these
devices return the tavern owners 50 per cent of the take, and the operators
greedily reach for the profits. So the foundation for the underworld is
built.
Gambling is a violation of one of
God’s first commands to man: ‘In the sweat of thy face shalt thou eat
bread’ (Gen. 3:19). It is also a violation of other Scripture commands and
of the general spirit of Scripture teaching: ‘Thou shalt not steal’ (Ex.
20:15); ‘Thou shalt not covet’ (Ex. 20:17); ‘Thou shalt love thy neighbour
as thyself’ (Matt. 19:59); ‘Wherefore do ye spend money for that
which is not bread? and your labour for that which satisfieth not?’ (Is.
55:2). ‘Whether therefore ye eat, or drink, or whatsoever ye do, do all to
the glory of God’ (1 Cor. 10:31).
The Minker
Era
Inside THE MINKER ERA Years
An explosion of corruption between 1956 & 1965 exposed
Reading ties to organized crime as never before
by Edward A. Taggert
We
start with unquestioned historical fact: The Democratic administrations of
mayors Daniel F. McDevitt and John C. Kubacki were embarrassments to even
the most broadminded citizens. The steady salvo of bad publicity the City
of Reading endured during that era was summed up in a television
documentary aptly titled The Corrupt City.
The
June 1951 U.S. Senate Committee on Organized Crime had revealed that Reading
law enforcement was, at best, lax regarding racketeering. Ralph Kreitz, the
Berks slot machine kingpin, told the committee that anti-vice candidates
could not get elected. That opinion was somewhat validated by the election
of Republican James Bamford as mayor in November 1951. He didn't say he
would close all the gambling and prostitution joints in town, but he did
promise to put the squeeze on organized crime in Reading.
Once
in office, Bamford's administration took a "pearly gray" stance
on gambling and prostitution. There were no internal scandals or outside
probes to indicate elected officials were taking graft. But the rackets did
not go away. To believe there were no payoffs flies in the face of a
long-standing theory that vice exists only through an exchange of money and
political favors. Profits for out-of-town Mafia kingpins dwindled, but ties
to the New York and Philadelphia "families" were not severed.
Abe
Minker did not control City Hall during the Bamford administration. But an abundance
of slot machine and number bank operators were providing gamblers with
their daily fix. Illegal punch-boards could be found all over town. There
were numerous bawdyhouse raids, but prostitution continued to thrive. As
long as nobody tried to get too big, law enforcement was accommodating.
Complaints were not ignored, however. Threats of arrest might convince a
card operator to return a losing poker player's stake if his wife groused
to police. A social club risked closure if it allowed a fellow with five
kids to drop his paycheck into a quarter slot machine.
"Everybody
was happy under Bamford," a former Schuylkill Avenue bar-room
proprietor recalled. "We all made money, not like when the Minkers
took over and wanted a piece of everything."
The McDevitt
Administration
Pearly
gray became midnight black the day after Daniel F. McDevitt occupied the
mayor's office. Even before he was sworn in, McDevitt and Abe Minker had
worked out a master plan for the resurrection of organized crime in
Reading. Independent slot machine and pinball operators headed Minker's hit
list. McDevitt's police force swung into action right away.
"The
mayor called me into his office with a crowd of other people," Bernard
Dobinsky recalls. "I immediately was suspicious when I saw Abe Minker
there." Sixteen years later, Dobinsky would become Reading's police
chief, but on that eventful day in 1956 he was still a patrolman.
"McDevitt told me I was being promoted to sergeant, and along with
Robert Bitting we would be the vice squad. Our first assignment was to
close down all the slot machine operations.
Dobinsky
did as instructed, arresting one of the biggest of such operators, Charles
"Chuck" Schwambach, who also owned a diner with his wife.
Schwambach later told a reporter for The Corrupt City documentary:
"The mayor made a statement to the newspapers that all pinball
machines were illegal. So my telephone began ringing from my various
customers: 'Please take them out, we don't want any trouble.' I sent my
employees to start pulling out machines. Sometimes as our trucks pulled
away, trucks belonging to the mob backed up and installed their
machines."
Dobinsky
quickly realized what was happening. He informed the mayor he did not want
the vice job even if it meant losing his new stripes. McDevitt said no, he
could remain a sergeant, and reassigned him. In Dobinsky's place, Danny
appointed his brother, Raymond McDevitt, to team with Bitting on the vice
squad.
The
next move by Minker was to have his nephew, Alex Fudeman, give a
presentation to the Berks County Amusement Operators Association. The
meeting was in Mike Carpin's place of business in the 100 block of Penn
Street that ran along and below the Penn Street Bridge. For many years the
slots had been controlled by Ralphie Kreitz and Tony Moran. After Moran's
murder in 1945, Minker and others moved to fill the void. During the Pearly
Gray interlude, numerous other slot and pinball operators edged into the
lucrative business, even starting an association which lent some kind of
legitimacy to what they were doing.
Fudeman
invited the operators to employ him as their public relations
representative. It was a hire-me-or-else offer. He guaranteed that City
Hall and the courthouse would cause the operators no trouble if they paid
their weekly fees. Alex was somewhat of a non-entity - he ran a grocery
store - but he spoke for Uncle Abe and his audience listened.
When
newspaper articles began appearing that multiple-coin pinball machines were
as prevalent as before, Mayor McDevitt dragged out a 1943 law in which the
State Supreme Court ruled the machines were legal. And he brushed off
questions about the slot machine issue, claiming he was not aware of any
complaints in that area.
Reluctantly,
most of the operators began paying tribute to Minker, some as much as $500
a week. But there were holdouts. In June, Fudeman dropped off two bulky
thugs at Mike Carpin's place. One of the toughs announced to stragglers
hanging out there, "Stand back fellas, if you don't want to get
hurt." He grabbed Carpin, pushed him around and became genuinely ugly.
"You been told to break up this association. Now, goddammit, do
it!" He took Carpin to a back room and inflicted further damage.
One
hanger-on slipped out of the building to call the police. The strong-arm
pair was long gone and still no cops arrived. Carpin's wife called Judge
Warren Hess. Chief Bernard Richards, the mayor's appointee, blamed
miscommunication for his cops' no-show. District Attorney Frederick
Brubaker, when queried about the incident, said no one had complained to
him. Carpin let the matter drop rather than face more harassment. However,
the state's attorney general's office eventually learned of local law
enforcement's indifference to the incident and began its own investigation.
In
the summer of 1956 the gambling machine operators faced trouble on another
front. The IRS moved in, seizing 55 machines that did not carry federal
gambling stamps. There were no federal laws prohibiting gambling, but
one-arm bandits required $250 tax stamps and other mechanical games of
chance, $50 stamps.
Of the places raided on July 5, the
Reading House, 424 North 6th Street, was of particular note. The bar was
owned by the mayor and operated by his brother, T. Nathaniel McDevitt.
………1969 and Washington gets serious………..
April 30, 1969
Honorable Joel M. Pritchard
State Senator, 36th District
Legislative Building
Olympia, Washington 98501
Honorable R. Ted Bottiger
State Representative, 29th District
Legislative Building
Olympia, Washington 98501Cite as: AGO 1969 No. 9
Gentlemen:
This
is written in response to your request for an opinion of this office on
several questions relating to the antigambling statutes of this state. We paraphrase your questions [[Orig. Op. Page 2]] as
follows:
(1)
Is the possession of (a) a multiple coin "bingo" type pinball
machine, or (b) a punchboard or pull tab as you have described each
of these devices unlawful per se, under RCW 9.47.030 and
9.47.110, without extrinsic proof that the particular machine or device is
being operated for the winning or losing of money or property?
ANALYSIS
Question
(1): Introduction.
Our
consideration of your first question will be divided into parts (a) and (b)
relating, respectively, to multiple coin "bingo" type
pinball machines and to punchboards and pull tabs. The statutes involved are RCW 9.47.030
and 9.47.110, which provide as follows:
RCW
9.47.030:
"Every
person who shall have in his possession or shall permit to be placed or
kept in any
[[Orig. Op. Page 3]] building or boat, or part
thereof, owned, leased or occupied by him, any table, slot machine, or
any other article, device or apparatus of a kind commonly used for gambling,
or operated for the losing or winning of any money or property, or any
representative of either, upon any chance or uncertain or contingent event,
shall be guilty of a gross misdemeanor." (Emphasis supplied.)
RCW
9.47.110:
"Seizure
and disposition of gambling devices.
It shall be the duty of all peace officers to search for and seize
all tables, slot machines, or other article, machine, device or
apparatus of the kind commonly used for gambling, or operated for the
winning or losing of money or property, or any representative of either,
upon any chance or uncertain or contingent event, and all property useful
in the operation or maintenance of a bucket shop, and take the same before
a magistrate. If in the judgment of
such magistrate any of such articles may be useful as evidence in the trial
of any case, he may order the same held for such trial or delivered to the
prosecuting attorney; otherwise, he shall order the same to be forthwith
destroyed. After the final hearing
and disposition of any case in which any of said articles may be held or used
as evidence, whether such case result in a conviction or acquittal, the
magistrate or judge having jurisdiction of such case shall forthwith order
all such articles destroyed."
(Emphasis supplied.)
The
first point to be noted from a reading of these two statutes is that the
terms "pinball machine," "punchboard" or "pull
tab" do not expressly appear therein.
However, this by no means excludes such devices from the coverage of
these statutes; rather, it merely means that if a prosecution is to be
based upon the possession of one of these machines or devices, the charge
must go beyond a simple mention of the article by name. In the case of such a prosecution,
according to the ruling of our state supreme court in State v. Parent,
156 Wash. 604, 287 Pac. 662 (1930),
". . .
the charge must go further and show that the device possessed is of the
kind prohibited.
. . ."
Question
(1) (a): Multiple coin
"bingo" type pinball machines.
As
described by you in your letter the operational and [[Orig. Op. Page 6]]
mechanical features of these machines are as follows:
"To
operate these machines the player deposits a coin which releases five balls
for play. The balls are propelled
by a plunger onto a playing field which contains a number of pegs and
bumpers and a series of numbered holes.
When a ball falls into a hole, a corresponding number on a
bingo-type card on the backboard of the machine is lighted. The object of the game is to light
three, four or five numbers in a line on the bingo card. When three or more numbers in a line are
lighted the machine registers free plays on a three digit counter
located on the backboard. The
number of free plays which are awarded, as well as the number of possible winning
combinations, may be increased by depositing additional coins after the
first, although the rate of increase is controlled only by the machine and
may or may not increase by the deposit of a particular coin. Free plays may be used for further operations
of the machine by pressing a button on the front of the machine. In addition, free plays may be removed
from the machine without playing them by operating a switch on the bottom
of the machine. When this switch is
operated the free plays are removed from the counter on the backboard but
are recorded on a meter located inside the machine. These machines also may contain a device
which automatically increases or decreases the difficulty of winning free
plays, depending on the success or failure of the player in past operations
of the machine."
Before
proceeding further, we shall digress, briefly, to consider the
developmental history of coin-operated gambling machines for we
believe that some understanding of their history is essential to place the
type of machine with which we are dealing in proper context.1/ The first coin-operated [[Orig. Op. Page 7]]
gambling machine was invented before the turn of the century. It featured three reels adorned with
oranges, lemons, bells and bars; was operated by depositing a coin and
manually pulling a lever; and quickly became known as the "slot
machine" or "one armed bandit." The importance of this invention to the
gambling industry cannot be overstated.
For the first time, professional gambling was possible without the
"house" having to have a person actually present to protect its
interests while the gambling was being conducted. The machines could profitably operate on very small wagers,
and for the first time, gambling could be conducted in any place where
people congregated, without the tremendous overhead previously required.
However,
these early machines soon ran afoul of constitutional and statutory
antilottery provisions,2/ and their manufacturers countered by
developing countless variations to conceal their essential nature. The factor of a prize was most often
concealed. Slot machines which
returned tokens or trade checks instead of cash appeared.3/ A mint
vendor was attached to one version so that the player "won"
something (a mint) on every play.4/ Another variation merely indicated how much a person had
won, requiring him to insert a second coin to receive his [[Orig. Op. Page 8]]
winnings.5/ Sometimes the
machines paid winnings in merchandise,6/ or (during World War II) in
ration tokens.7/ Machines
also appeared which were not coin operated at all, but required payment to
the location owner who then automated the machine mechanically or
electronically.8/
Such subterfuges were not generally
successful, and by the 1930's, slot machines were becoming a dying
industry. Then, however, the most
successful modification of all was developed. The ancient parlor game of bagatelle was modified into what
became known as the "pinball" machine. In the early machines, a single ball was shot into a playing
field covered with numbered holes.
If the ball fell into a numbered hole which corresponded to a
lighted number on the backboard, the player had won and the machine
returned the winnings to the player directly through a slot on the machine.
At
the outset of their development, these machines were single coin machines
the player would deposit one coin, and one coin only, per play. However, later versions were equipped
with an apparatus known as a "search relay unit." With this mechanism, it was still
possible for a player to play the game upon inserting a single coin, if he
desired to do so; however, by means of this unit, he could, instead,
deposit additional coins before playing, and thereby increase both the
stake for which the game ultimately was played and the number of possible
winning combinations. The unit
operated in precisely the same manner as the three reels on a slot machine,
and remains an integral component of the type of pinball machine which we
are considering in this opinion as we will note in more detail
shortly.
[[Orig. Op. Page 9]]
This
modern five ball "in line" or "bingo" type game was
developed as machines of the one ball variety began to meet judicial
disapproval.9/ Aside from
the more sophisticated five ball game which is played on these
machines, the principal difference between them and the earlier versions is
the elimination of the automatic pay-off apparatus. Instead, these modern machines as you
have described them are equipped with mechanisms commonly referred to
as the "three digit counter" and the "knock-off"
circuit, which function as follows:
The
Three Digit Counter:
This
device on the backboard of the machine records the number of "free
plays" which have been won by the player. On some current models, we understand that it is possible to
win up to 600 free games on one operation of the machine and to accumulate
free games up to a total of 999.
The
"Knock-Off" Circuit:
This
device allows unplayed "free games" to be "knocked off"
i.e., subtracted from the number appearing on the three digit
counter by means of triggering a concealed button or switch. Simultaneously, the games removed are
recorded on a meter locked inside the machine.10/
In addition as previously noted
the type of machine which we are now considering continues to be
equipped with the multiple coin "search relay" unit feature
by which a player may increase the stake and number of possible winning
combinations through the deposit of additional coins before playing.
[[Orig. Op. Page 10]]
The
operation of this mechanism on this type of machine may be illustrated as
follows: On depositing the first
coin in a current bingo model, the player will win four free games for
lighting three numbers in a row, sixteen free games for four in a row, and
seventy-five free games for five in a row.
Depositing additional coins may increase the number of free
games which can be won to a maximum, on current models, of 192 free games
for three in a row, 480 games for four in a row, and 600 games for five in
a row although the rate of increase is controlled solely by the
search relay unit, and may or may not increase by the deposit of any
particular coin.11/
In connection with the search relay unit,
these machines are often equipped, as well, with what is referred to as a
"reflex" unit, which automatically adjusts the difficulty of
winning free games, depending on the immediate past record of the machine.12/ After a period of successful play, the
reflex unit will automatically adjust the search relay unit to reduce the
chance of increasing the stakes with each coin, and conversely, after a
period of unsuccessful play, it will make it progressively easier to
increase the stakes with each coin.
This,
then, is the type of machine with which we are concerned in this opinion
of which you ask: Is the
possession of one of such a machine unlawful per se, under RCW
9.42.030 and 9.47.110, supra, without extrinsic proof that the
particular machine is being operated for the winning or losing of
money? In answering this question,
we shall look both to the pertinent decisions of the Washington supreme
court and to those of other jurisdictions which have dealt with coin
operated gambling devices.
(a)
The Washington cases:
The
first Washington decision to be noted is Dwyer & Co. v. Seattle,
116 Wash. 449, 199 Pac. 720 (1921).
This case involved the status under the gambling statutes
of a coin
[[Orig. Op. Page 11]] operated vending machine which,
when a five cent piece was deposited, dispensed tickets which were
redeemable for one cent postcards.
Some of the tickets were also redeemable for more valuable
merchandise such as cameras or pipes.
Holding the machine to be an illegal gambling device, the court
stated at page 452:
"The
facts . . . demonstrate beyond question that, in its practical
operation, this ingenious device is intended to, and does, appeal to the
gambling instinct or habit, and were there none inclined to take chances in
the hope of getting 'something for nothing' there would be no tickets sold,
and the machine would never be operated."
By
way of contrast, the court eight years later in D'Orio v. Jacobs,
151 Wash. 297, 275 Pac. 563 (1929) in holding that a punchboard checker
game was not a gambling device or a lottery, observed that:
". . .
This is not a device which appeals to the gambling spirit, or such as is
likely to engage the interest of the young and inexperienced. To us it would seem to appeal only to
experienced checker players who may desire to pit their skill against the
expert knowledge of the inventor of the device. The prize seems inconsequential, as compared with the thrill
of victory."
From
these two cases we may derive at least one form of a test to be applied in
determining what is, per se, an illegal gambling device; namely, is
the device one of a kind which is intended to, and does, appeal to the
gambling instinct or habit? In Dwyer,
this question was answered affirmatively, and the machine involved was held
to be a gambling device whereas in D'Orio, at least partly because
of a negative answer to this same question, the punchboard checker game was
determined not to be a gambling device.
Manifestly, an affirmative answer is called for in the case of the
machines with which we are presently dealing; however, since neither of
these two early cases was a pinball case, they offer little further
assistance in resolving the question at hand.
Of
much more significance is the next case in line Miller v. Spokane,
35 Wn.2d 113, 211 P.2d 165 (1949), supra in which our court
was first called upon to determine whether certain pinball machines were
gambling devices within the meaning of
[[Orig. Op. Page 12]] RCW 9.47.030, supra. The court stated the question, and then
set forth the stipulated facts, as follows:
"Is
a pinball machine a gambling device?
"It
was stipulated during the trial that certain facts as alleged in the city's
affirmative defense were true. That
defense was as follows:
"'The
cabinets of said pinball machines have a flat horizontal top in the shape
of a rectangular table, mounted upon a base, with one end of the table at a
lower elevation than the other. The
game is played on the top of said table by the use of a plunger which
propels a metal ball to the top of said table, from which point the ball
rolls to the lower end unless it falls into one of a number of holes in the
surface of said table. There are
four series of holes, numbered from 1 to 7, inclusive, which numbers correspond
to numbers lighted on a backboard set above the high end of the table. The game is played by placing a nickel
in a coin slot which causes a metal ball to drop into a receptacle from
which receptacle it may be elevated to the playing surface of the board by
the player, so that the ball is in a channel which extends the length of
the right-hand side of said table and directly in front of the
plunger. The insertion of the coin
also causes one or several numbers of the backboard to light, and the object
of the game is then for the player to put the metal ball into one of the
holes on the table which corresponds with a number or numbers which may be
lighted on the backboard. The
insertion of the coin also indicates the odds which the player will receive
in the event he is successful in putting the ball into a proper hole. The ball is shot by pulling the plunger
back along a scale, marked by degrees, and then releasing the plunger. The distance from the ball at which the
plunger is released determines the speed which the ball will have when
propelled from the channel on the playing surface [[Orig. Op. Page 13]] on the table. In addition to the holes on said table,
there are metal springs and pins at various places between the holes. If the player is successful in lodging
the ball in a hole which corresponds to one of the numbers lighted on the
backboard, the machine automatically returns to him the number of nickels
shown in the list of odds on the backboard, and, if not successful in
lodging the ball in one of said holes, he receives nothing.'
"It
was further agreed in open court as follows:
"'. . .
that said machines are so constructed that the lighted numbers on the
back-board are determined and automatically lighted by the machine and the player
has no choice in the selection thereof on the first coin but ultimately he
may obtain the number which he desires to select by inserting additional
coins until such number appears.
Likewise, the odds which will be paid if the player is successful are
automatically determined by the machine without any choice on the part of
the player and all odds except the minimum odds to be paid are selected
automatically by the machine. Said
machines are so constructed that the pitch of the incline of the playing
surface can be adjusted by the person having control of the machine but not
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