CHESAPEAKE AMUSEMENTS, v. Riddle

• Decision Date: 13 February 2001
• Docket Number: No. 124,124
• Citation: 363 Md. 16,766 A.2d 1036
• Parties: CHESAPEAKE AMUSEMENTS, INC., v. Robert B. RIDDLE.
• Court: Maryland Court of Appeals

766 A.2d 1036

363 Md. 16

CHESAPEAKE AMUSEMENTS, INC., v. Robert B. RIDDLE.

No. 124, Sept. Term, 1998.

Court of Appeals of Maryland.

February 13, 2001.

John C. Richowsky, Friendship, for appellant.

Kathleen H. Dachille, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General; Elisabeth A. Sachs, Assistant Attorney General, on brief), Baltimore, for appellee.

Argued before BELL, C.J., ELDRIDGE, Rodowsky,¹ CHASANOW,² RAKER, WILNER and CATHELL, JJ BELL, Chief Judge.

The issue this case presents is whether a dispensing machine with a video screen that displays the contents of the tickets that it dispenses and emits a musical tone that signals when a winning ticket is being dispensed is a "slot machine" prohibited by Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 264B.³ Seeking the answer, the appellant, Chesapeake Amusements, Inc., filed an action for declaratory judgment in the Circuit Court for Calvert County, naming the State's Attorney for Calvert County as the defendant.⁴ That court declared that such a machine is an illegal slot machine. We shall reverse the judgment of the Circuit Court for Calvert County.

I.

Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 259A (a)(2) authorizes commercial bingo in Calvert County and, in implementation of that authorization, permits the County Commissioners to issue various classes of licenses, including a "Class NG, beach license," "for the operating or conducting of games of bingo." § 259A (b).⁵ Section 259A (a)(1) provides that "`bingo' includes the game of instant bingo for a Class NG beach license.'" The holder of an NG, beach license is not limited in its seating or player capacity, see § 259A (b)(1), and is not restricted in the value of the prizes or awards it may give. See § 259A (b)(2).

The appellant is a for-profit Maryland corporation providing commercial bingo, including instant bingo, under a valid NG beach license, at its principal place of business, the Rod `N Reel Restaurant, located in Chesapeake Beach, Calvert County, Maryland. At the time relevant to this action, i2t offered several ways for its customers to play bingo: (a) they could play the traditional live bingo game; (b) they could purchase instant bingo tickets, also known as "pull-tabs" or "pull-tab" tickets, from employees, who walk around the hall with large reels of tickets; (c) they could purchase paper pull-tab tickets from a dispenser, either a machine known as "Play & Win" or a machine known as "Lucky Tab II," the latter of which displays a video image of the symbols contained on the inside of each pull-tab dispensed; or (d) they could purchase the electronic version of the pull-tab ticket, using a machine known as the "Oasis."⁶ There is no dispute on this appeal as to the traditional bingo game, and the parties are in agreement as to how instant bingo works. As to the latter, the Agreed Statement of the Case states:

"Instant bingo tickets are often referred to as `pull-tab tickets' or `pull-tabs.' A customer purchases one or more instant bingo/pull-tab tickets from a `game' or `deal' of such tickets. All the tickets in a given deal are identical in their outward appearance; some of the tickets entitle the persons who purchase them to receive prizes of specified value. Winning tickets are those that contain symbols on the inside that match designated winning combinations of such symbols. The total number of instant bingo tickets in a deal is a large but finite number⁷; that number is determined when the deal is created or `constructed' and does not change thereafter. The number of winning tickets at each prize level in a deal is also determined and known in advance; the winning tickets are randomly placed in the deal at the time the deal is constructed. Thus, the chances of purchasing a winning ticket are precisely calculable for the deal as a whole. As tickets (including winning tickets) are purchased, the chances of purchasing a winning ticket from among the tickets remaining in the deal will vary, but because the number of tickets involved is large and the tickets are purchased by many different individuals over a period of time, it is a practical impossibility for customers to calculate or even estimate how the chances of winning have been affected by previous purchases."

On this appeal, only the Lucky Tab II machine is at issue. Neither in the trial court nor in this Court has the legality of pull-tab tickets sold manually been challenged. The question in the trial court was whether any or all of the machines used to dispense pull-tab tickets are prohibited slot machines. The circuit court determined, with respect to the Play & Win machine, that it was a simple pull-tab dispenser with no player enhancements and, therefore, a legal gaming device. By contrast, the court found both the Lucky Tab II and the Oasis machines illegal slot machines. It characterized the Oasis machine as "exactly the type of machine that the Legislature has sought to prohibit," noting that it is "entirely electronic" with a "number of player enhancement[s]" and a choice of games and concluding that the Oasis machine, rather than a pull-tab dispenser, was a machine which tracks a player's winnings and losses through "an internal credit system," such that the player is not responsible for identifying a winning ticket." The appellant appealed the ruling as to the Lucky Tab II machine, but not as to the Oasis machines, and the appellee has not sought review with respect to the Win and Play machines. Therefore, the correctness of those rulings is not now at issue.

Turning to the Lucky Tab II, it is an electrically operated machine that dispenses paper pull-tab tickets from a roll of preprinted paper pull-tabs inserted in the machine by a Chesapeake Amusements employee. Like the tickets that are sold manually or dispensed by the Play & Win machine, each ticket dispensed by the Lucky Tab II is part of a particular deal of outwardly identical tickets, in which the total number of tickets, as well as the number of winning tickets, were determined when the deal was constructed and printed. A deal of the Lucky Tab II pull-tab tickets consists of four rolls of tickets containing seven thousand five hundred tickets each, for a total of thirty thousand tickets in the deal, each having printed on it for accounting and control purposes, the serial number of that deal and a roll number and ticket number. The tickets dispensed consist of two strips of paper sealed together by the manufacturer when the ticket is printed. When the two strips are separated, certain symbols appear on the inside of the ticket and certain combinations of those symbols entitle the purchaser to a prize, the amount of which is also determined by those symbols. The front of the ticket indicates to the purchaser where to pull it open. A winning ticket is labeled as such on the inside. In addition, the combinations of symbols that entitle the customer to a prize and the amount of the prize associated with each winning combination are listed on the front of the Lucky Tab II machine.

The agreed statement of facts detail the actual operation of the Lucky Tab II machine:

"A customer inserts money into the Lucky Tab II and pushes a button located on the front of the machine; a pull-tab ticket is then dispensed into a tray on the front of the machine. When a ticket is purchased from the Lucky Tab II, a bar code reading device in the interior of the machine reads the bar code on the back of the ticket as it is being severed from the roll of tickets and dispensed into the tray. The information from the bar code is used to create a video image of the symbols that appear on the inside of the ticket, and that image is then displayed on the video screen located on the front of the Lucky Tab II. The video image of the symbols on the inside of the ticket is displayed on the screen after a brief delay, which can vary from one machine to another and may be momentary or as long as six seconds after the ticket is dispensed. As in a retail store setting, the bar code reader also reads and records accounting information relating to the ticket purchase. The video display of a winning ticket is accompanied by a musical signal. Depending on the amount of money deposited into the machine by the customer, the dispensing button can be pushed again to dispense another ticket."

While a customer who purchases a pull-tab ticket from the Lucky Tab II may open the ticket manually and/or refer to the image on the machine's video screen to view the symbols on the inside of the ticket, the parties agree that it is only on the basis of the symbols that appear on the inside of the paper ticket that a winning ticket is determined. Thus, the symbols that are displayed on the video screen are not used to determine whether the customer is entitled to a prize. Moreover, the Lucky Tab II machine does not make any payment to or record any credit on behalf of a customer as a result of a winning ticket. As is true with respect to manually sold tickets and those purchased from a Win and Play machine, a customer must take what he or she believes to be a winning ticket purchased from the Lucky Tab II to a Chesapeake Amusements employee to have the winning combination of symbols and the genuineness of the ticket verified before the prize associated with the symbols on the ticket may be awarded and paid.

Although not entirely electronic as is the case with the Oasis machine—the paper ticket being necessary, even dispositive, for payment, the Circuit Court concluded that the Lucky Tab II too fell in the category of a prohibited slot machine, adopting the Attorney's General's characterization: it is "a pull tab machine that reads the printed card and tells the player whether he or she has won, thus making the card unnecessary except as a voucher to get payment of winnings." It held that the operation of Lucky Tab II is prohibited by § 264B because it "entitles the player to...