Citation Bingo, Ltd. v. Otten
| Decision Date | 29 November 1995 |
| Docket Number | No. 22736,22736 |
| Citation | 121 N.M. 205,910 P.2d 281 |
| Parties | CITATION BINGO, LTD., a New Mexico limited partnership, et al., Plaintiffs-Respondents, v. Robin D. OTTEN, Superintendent of Regulation and Licensing Department of the State of New Mexico, and Marianne Woodard, Director of Alcohol and Gaming Division of New Mexico, Defendants- Petitioners. |
| Court | New Mexico Supreme Court |
Tom Udall, Attorney General, Joel Cruz-Esparza, Assistant Attorney General, Santa Fe, for Petitioners.
Janet M. Velazquez, Albuquerque, for Respondents.
Victor R. Marshall & Associates, P.C., Victor R. Marshall, Alexis H. Johnson, Albuquerque, for Amici Curiae Clark, Coll & Buffett.
1. We issued a writ of certiorari to the Court of Appeals to review whether a hand-held electronic device known as "Power Bingo" is a permissible piece of gaming equipment under the Bingo and Raffle Act, NMSA 1978, §§ 60-2B-1 to -14 (Repl.Pamp.1991 & Cum.Supp.1995). The Superintendent of the New Mexico Regulation and Licensing Department and the Director of the Alcohol and Gaming Division each had made an administrative determination that Power Bingo is not permissible equipment under the Act, and the Department issued a memorandum to all bingo licensees directing them to discontinue use of such devices. Citation Bingo, a supplier of Power Bingo units, thereafter filed a complaint for declaratory relief and sought an injunction against the Department. The trial court entered a declaratory judgment determining that the devices are not excluded under the Act.
2. Following an appeal by the Department, the Court of Appeals issued a memorandum opinion in which it affirmed the trial court's determination. Relying solely on its earlier decision in Infinity Group, Inc. v. Manzagol, 118 N.M. 632, 884 P.2d 523 (Ct.App.), cert. denied, 118 N.M. 533, 882 P.2d 1046 (1994), the Court reasoned that both a player using a Power Bingo unit and a player using a paper bingo card "would be playing the same game even though the skills of one would not be as tested as the skills of the other." We conclude that Power Bingo units are "gambling devices" within the meaning of NMSA 1978, Section 30-19-2(B) (Repl.Pamp.1994) () and NMSA 1978, Section 30-19-3(F) (Repl.Pamp.1994) (). Further, consistent with this state's policy against gambling, we narrowly construe the terms of the Act, and finding no statutory provision that would authorize use of Power Bingo units, we conclude that such units may not be used in New Mexico. We therefore reverse the Court of Appeals and remand to the trial court for entry of a judgment for the Defendants.
3. Facts. Power Bingo consists of a plastic case, a keypad with numbers zero through nine, a small black and white display, a connection that allows the unit to accept data from a computer, and a computer chip capable of storing as many as two hundred simulated bingo "cards." These simulated cards are created using a program that randomly generates twenty-four numbers between one and seventy-five. All simulated cards are generated by a single computer and then downloaded into individual Power Bingo units. The precise number of cards a given unit will contain at any one time is determined by the number of cards purchased by the player using that unit.
4. Before the advent of the Power Bingo unit, the game of bingo was played using only paper or hardboard cards. Each paper card consists of a five-by-five matrix containing twenty-four numbered spaces and a center space marked "free." Numbers between one and fifteen inclusive appear in the first column, numbers between sixteen and thirty appear in the second column, numbers between thirty-one and forty-five appear in the third column, numbers between forty-six and sixty appear in the fourth column, and finally, numbers between sixty-one and seventy-five appear in the fifth column. Each column is designated by a letter of the word "bingo," the first column designated as "B" and the fifth column as "O." During the game, the caller draws from a bin one ping pong ball every twelve to fourteen seconds and announces to the hall the letter and number appearing on that ball. The letter is announced only to aid players in finding the correct column. After the letter and number are announced, each player must check all cards he or she is playing to see if there are any matches. If there are, the player marks each match using an ink dauber. As each mark is made, the player must determine whether it completes a pattern that matches a pre-established winning pattern. If it does, the player must call out "bingo" before the next letter and number are announced.
5. Power Bingo does not change the rules of the game, but it does change the method of play. When a letter and number are called, Power Bingo users simply enter the two-digit number into their device using the keypad. For example, if the caller announces "B-6," Power Bingo users simply press "06." The unit then compares the number entered with each of its currently stored numbers, placing the entered number in memory if there is a match. The unit also compares any pattern formed by all numbers so stored against the pre-established winning pattern to see if there is a match. If there is, the unit immediately notifies the user. Thus Power Bingo differs from traditional bingo in that players of Power Bingo cannot see the cards they have purchased, need not locate and mark numbers on their cards, and need not visually identify any winning pattern.
6. Gambling is a crime in New Mexico. With limited exceptions, gambling is a crime in New Mexico. See NMSA 1978, §§ 30-19-1 to -15 (Repl.Pamp.1994). Specifically, the legislature has made it a misdemeanor to make a bet (to agree to chance anything of value) or even to be in a gambling place with the intent to make a bet, participate in a lottery, or play a gambling device. Section 30-19-2(A) & (B). Further, the legislature has made it a felony to engage in commercial gambling, which consists of dealing in or setting up any gambling device, participating in the earnings or operation of any gambling place, making book, and conducting or possessing facilities with the intent to conduct a lottery when the consideration and prize are money. Section 30-19-3. A person losing at cards or at a gambling device--or the spouse, children, heirs, and creditors of the person losing--may recover in court any lost money or property. NMSA 1978, §§ 44-5-1 to -14.
7. There are, of course, exceptions to the criminal prohibitions. Licensed pari-mutuel wagering on horse races has been legalized. NMSA 1978, § 60-1-10 (Cum.Supp.1995). Under New Mexico's permissive lottery statute, § 30-19-6, the "sale"1 or drawing of any prize at a fair is permitted "when all the proceeds of such fair shall be expended in this state for the benefit of [any] church, public library, religious society or charitable purpose[ ] ... and [when] no part of such proceeds go to any individual member or employee thereof." Section 30-19-6(A). Religious, educational, benevolent, and other not-for-profit organizations may operate lotteries twice in any calendar year for the exclusive benefit of such organization or other public purposes. Section 30-19-6(D).
8. In addition to the exceptions created by the permissive lottery statute, the New Mexico Lottery Act, NMSA 1978, §§ 6-24-1 to -34 (Cum.Supp.1995), authorizes for the support of public educational institutions the conduct of "an instant win game in which disposable tickets contain certain preprinted winners," § 6-24-4(F)(1), and "an on-line lottery game in which ... a player selects a specified group of numbers or symbols out of a predetermined range of numbers or symbols and purchases a ticket bearing the player-selected numbers or symbols for eligibility in a [regularly scheduled] drawing," § 6-24-4(F)(2). Video forms of these authorized lotteries are expressly prohibited. Section 6-24-4(F).
9. Finally, under the Bingo and Raffle Act, any licensed organization may conduct games of chance commonly known as "bingo" or "raffles" for educational, charitable, patriotic, religious, or public-spirited purposes. Sections 60-2B-3, 60-2B-8. Such games may not be conducted more than five times in any calendar week, more than four hours on any occasion, or more than twice in one day. Section 60-2B-8(K). In bingo, as we have described, the prizes are awarded on the basis of numbers selected at random to form on the participant's card one or more of seventeen different designated patterns, whereas in raffles the prizes are awarded on the basis of winning names or numbers being "drawn." Any attempt to distinguish "raffles" and "lottery" is superficial at best. What either the courts or legislature has said of the one is applicable to the other.2
10. Power Bingo is a prohibited gambling device. Citation Bingo asks this Court to determine that use of Power Bingo is authorized under the Bingo and Raffle Act because it "does not alter the statutory directives on how the game [of bingo] is to be played." As support for its argument, Citation Bingo principally relies on two cases: Infinity Group and State ex rel. Rodriguez v. American Legion Post No. 99, 106 N.M. 784, 750 P.2d 1110 (Ct.App.), cert. denied, 106 N.M. 588, 746 P.2d 1120 (1987), and cert. denied, 107 N.M. 16, 751 P.2d 700 (1988).
11. Infinity Group overruled. In Infinity Group the Court of Appeals held that machines which electronically simulate the game of pull tabs are permissible under the Bingo and Raffle Act. 118 N.M. at 633, 884 P.2d at 524. There, the Regulation and Licensing Department had refused to allow the operation of electronic pull-tab simulations under its definition of pull tabs as "printed tickets that have a pull tab or seal to be opened by the purchaser where a winning...
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