Patel v. State, A17A0067

• Decision Date: 18 May 2017
• Docket Number: A17A0067
• Parties: PATEL et al. v. STATE of Georgia.
• Court: Georgia Court of Appeals

341 Ga.App. 419

801 S.E.2d 551

PATEL et al.

v.STATE of Georgia.

A17A0067

Court of Appeals of Georgia.

May 18, 2017

Paul Joseph Oeland IV, Watkinsville, for Appellant.

Lee Darragh, Gainesville, Shiv Sachdeva, Wanda Lynn Vance, for Appellee.

Doyle, Chief Judge.

The State of Georgia filed a complaint for forfeiture in rem against the owners of a Citgo gas station based on alleged illegal commercial gambling on the premises using video gaming machines. The trial court granted the relief sought, and Tejaskumar Satish Patel and Dharmasut, LLC ("the defendants"), the owners of the station, appeal. For the reasons that follow, we affirm.

"We begin by noting that the interpretation of a statute is a question of law, which we review de novo on appeal. Moreover, because the trial court's ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review."¹

The evidence in this case is undisputed. In 2015, the Hall County Sheriff's Department was informed that employees at the gas station were paying out cash to winners using the store's coin-operated amusement machines. On May 25, 2015, a confidential informant placed $40 in a machine and redeemed the accumulated $20 credit with a store employee in exchange for two scratch-off lottery tickets.² On June 1, 2015, the informant returned to the gas station, again placed $40 in a machine, and obtained a credit of $60. In exchange for the credit, a store employee gave the informant a $10 scratch-off lottery ticket and $40 in cash, and she put $10 in her own pocket.

On June 4, 2015, police executed a search warrant for the gas station and seized $12,027.50 in cash from video gaming machines, the registers, a cash bag, a safe, drawers, boxes, Patel's wallet, and an ATM machine. The State then filed a complaint for forfeiture in rem pursuant to OCGA § 16-12-32. Following a hearing, the trial court approved the forfeiture, concluding that by paying out cash and lottery tickets as winnings for customers using the amusement machines, the appellants converted the machines to "gambling devices"; the gas station qualified as a gambling place; and the currency was "used in, intended for use in, used to facilitate, derived from, or realized through" gambling activity. This appeal followed.

The defendants contend that the trial court erred by granting the forfeiture because the video gaming machines at issue were not "gambling devices" under Georgia law. We disagree.

OCGA § 16-12-20 (a)(2) (2015) defines "a gambling device" as "[a]ny contrivance which for a consideration affords the player an opportunity to obtain money or other thing of value, the award of which is determined by chance even though accompanied by some skill, whether or not the prize is automatically paid by contrivance."³ Because the gaming machines in this case offer players the opportunity to obtain value, and the award they receive is determined by chance even though they do involve an element of skill, they qualify as gambling devices under OCGA § 16-12-35.⁴ OCGA § 16-12-35 (d) (1) (2015), however, provides an exception, stating that Georgia's gambling statutes do not apply to

a coin operated game or device designed and manufactured only for bona fide amusement purposes which involves some skill in its operation if it rewards the player exclusively with: (A) [f]ree replays; (B) [m]erchandise limited to noncash merchandise, prizes, toys, gift certificates, or novelties, each of which has a wholesale value of not more than $5.00 received for a single play of the game or device; (C) [p]oints, tokens, vouchers, tickets, or other evidence of winnings which may be exchanged for rewards set out in subparagraph (A) of this paragraph or subparagraph (B) of this

paragraph or a combination of rewards set out in subparagraph (A) and subparagraph (B) of this paragraph; or (D) Any combination of rewards set out in two or more of subparagraph (A), (B), or (C) of this paragraph.

Here, the machines themselves do not produce cash or lottery tickets to players as rewards to players. The trial court concluded, however, that by giving players cash and lottery tickets as rewards for winning...