STATE OF GEORGIA v. DAMANI et al.
A07A1015, A07A1016, A07A1017, A07A1018
Court of Appeals of Georgia
June 25, 2009
Reconsiderations denied July 15, 2009
288 Ga. App. 588 | 681 SE2d 635
ELLINGTON, Judge.
DECIDED JULY 14, 2009.
Drummond & Swindle, Jason W. Swindle, for appellant.
David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.
A07A1015. STATE OF GEORGIA v. DAMANI et al.
A07A1016. ULTRA TELECOM, INC. v. STATE OF GEORGIA.
A07A1017. ALLSTAR, INC. et al. v. STATE OF GEORGIA.
A07A1018. JACKSON v. STATE OF GEORGIA.
(681 SE2d 635)
ELLINGTON, Judge.
The Supreme Court of Georgia vacated our original decision1 in this case so that the appellees in Case No. A07A1015, and the cross-appellants in Case Nos. A07A1016, A07A1017, and A07A1018 could supplement the record with “exhibits necessary to assessing the true and complete facts as they occurred in the trial court.” Damani v. State of Ga., 284 Ga. 372, 373 (667 SE2d 372) (2008). Upon remand, we ordered the parties to supplement the appellate record and to submit supplemental briefs addressing that record evidence, and we granted the parties’ request for oral argument. Having fully considered this additional evidence and argument, we reissue our opinion as follows.
In Case No. A07A1015, the State of Georgia appeals from the final order and judgment of the Superior Court of Cobb County in this suit brought by the District Attorney to condemn illegal game machines pursuant to
The relevant procedural facts are as follows. The State of Georgia, by and through the District Attorney of Cobb County, filed 12 complaints for condemnation in the Superior Court of Cobb County. In each complaint, the State sought to condemn one or more game machines and the United States currency used or intended to be used in the seized machines. Upon the joint motion of the parties, the superior court consolidated the cases. By agreement of the parties, the State amended one of its complaints to add additional machines to the consolidated condemnation case. To simplify the action, the parties divided the machines into eleven classes and agreed to allow one machine from each class to serve as a representative of that class at trial. The court conducted a bench trial and the parties presented lay and expert witness testimony about how the machines were manufactured and programmed, how they were played, and how they dispensed rewards. Following the trial, the court asked the parties to present proposed findings of fact and conclusions of law. After considering the parties’ proposals, the court issued a 76-page final order detailing the evidence adduced with respect to each of the 11 machines, the position of the parties with respect to each machine, the court‘s analysis of the applicable law, and the court‘s findings of facts and conclusions of law with respect to each machine. The court concluded that four of the eleven machines were gambling devices subject to condemnation pursuant to
1. The State contends the trial court erred in construing
(a) Generally, possessing a gambling device in Georgia is illegal, and the gambling devices are subject to seizure and condemnation.
Any 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.
Nothing in this part shall apply to a coin operated game or device designed and manufactured for bona fide amusement purposes only which may by application of some skill entitle the player to earn replays of the game or device at no additional cost and to discharge the accumulated free replays only by reactivating the game or device for each accumulated free replay or by reactivating the game or device for a portion or all of the accumulated free plays in a single play.
(1) Nothing in this part shall 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) Free replays;
(B) Merchandise 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) Points, 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.
. . . .
(2) A player of bona fide coin operated amusement games or devices described in paragraph (1) of this subsection may accumulate winnings for the successful play of such bona fide coin operated amusement games or devices through tokens, vouchers, points, or tickets. Points may be accrued on the machine or device. A player may carry over points on one play to subsequent plays. A player may redeem accumulated tokens, vouchers, or tickets for noncash merchandise, prizes, toys, gift certificates, or novelties so long as the amount of tokens, vouchers, or tickets received does not exceed $5.00 for a single play.
(b) The State contends the trial court erred in construing
A player could also play a Machine, win points, redeem said points earned in that game, and then play again, win points, redeem said points, and continue to earn points and redeem points for each single play of the Machine. For a player to play a Machine in such a fashion is no different than playing a Machine for several plays, allowing the points to accumulate as permitted in [
OCGA § 16-12-35] (d) (2) , and then redeeming the points in the form of token or tickets for non-cash merchandise not to exceed $5.00 for a single play.
The term “a single play of the game or device” is key to our analysis. Unfortunately, it is not defined in the statute. See
Further, we hold that
We have reviewed6 the evidence adduced with respect to the seven machines at issue, including the supplemented record, and the record reveals that the State carried its burden of showing by a preponderance of the evidence that each of the seven machines was capable of rewarding a player with cash or noncash merchandise in excess of $5 for a single play of the game or device. The supplemental evidence presented by the owners of the game machines does not change our analysis. The owners’ expert opinion that the machines at issue comply with the redemption law is premised upon an erroneous assumption that the law allows the machines to offer payouts exceeding $5 for a single play of the game or device. As discussed above, the redemption provisions cannot be so construed. For these reasons, we conclude that the trial court erred in finding that these machines do not violate the rewards provisions of
(c) The State also contends the superior court erred in construing “[a]ny slot machine or any simulation or variation thereof,” pursuant to
Case Nos. A07A1016, A07A1017, A07A1018
2. In the cross-appeals, the game owners present identical issues. Specifically, they argue that the court erred in finding that the four condemned machines were gambling devices. The owners contend the four machines were designed and manufactured for bona fide amusement purposes only and do not violate the rewards provisions of
Judgment affirmed in part and reversed in part. Andrews, P. J., concurs. Adams, J., concurs specially.
ADAMS, Judge, concurring specially.
I concur specially because I disagree with the majority‘s reasoning but find the games to be illegal for a different reason. The machines are illegal gambling devices because, even under the defendants’ description of how the games work, they allow a player to redeem more than allowed for a single play of the game, and, accordingly, the games do not meet the definition in
The defendants’ expert Michael Pace testified that the games are run with computer software, some of which he himself programed in a specific attempt to create games that complied with the very statutes at issue in this case. He testified regarding the redemption feature of all the games at issue. He offered an example of how the feature worked. He explained that on the first play of a game, which might cost $1 to play, a lucky player could win 100 points, which are denominated as dollars on the game screen. If the player were to hit the redeem button and cash out at this point, he would receive a voucher worth $5 of merchandise. The machine keeps track of the number of plays and ensures that because the player has only played once, he is limited to redeeming this amount. This redemption complies with
Pace went on to explain that even if you hit the redeem button at that point, the machine would keep track of the fact that you still had 95 points/dollars and that these points are carried over to another game if you chose to spend another $1 or won one or more free replays during your first play. This provision also complies with provisions of the law that allow bona fide amusement games to accumulate winnings for successful play and accumulate points by accrual on the machine or device.
In Pace‘s example, the player decided to continue in the second game, and he or she spent another $1 to play. But in this game, the player only won one point/dollar. In other words, the player netted nothing in that game. Nevertheless, the player could hit redeem at this point and receive another $5 voucher. This is so because the
In Pace‘s opinion, this averaging technique complies with Georgia law, and the trial court relied on Pace‘s reasoning. I disagree. Under the example given above, it is plain to see that the player won $100 in “a single play of the game or device” and collected it all. He did so by collecting $5 vouchers in games in which he in fact won nothing. Thus, the game violates the letter and intent of the law.
The accumulation provision of the statute is no refuge for the defendants. It provides:
A player of bona fide coin operated amusement games or devices described in paragraph (1) of this subsection may accumulate winnings for the successful play of such bona fide coin operated amusement games or devices through tokens, vouchers, points, or tickets. Points may be accrued on the machine or device. A player may carry over points on one play to subsequent plays. A player may redeem accumulated tokens, vouchers, or tickets for noncash merchandise, prizes, toys, gift certificates, or novelties so long as the amount of tokens, vouchers, or tickets received does not exceed $5.00 for a single play.
Nothing in this paragraph can be construed as allowing the type of averaging performed by the games when calculating the redemption. In addition to free replays, subsection (d) (1) (B) provides that a bona fide amusement game may “reward” a player with noncash merchandise with a “wholesale value of not more than $5.00 received for a single play of the game or device.” (Emphasis supplied.) Subsection (d) (1) (C) provides that the games may also “reward” “evidence of winnings,” in the form of points, tokens,
We are reminded that when interpreting statutes, we must “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”
I disagree with the majority‘s definition of “a single play of the game or device.” The definition would necessarily exclude free replays, which are plainly allowed under the statute. See
Decided June 25, 2009 —
RECONSIDERATIONS DENIED JULY 15, 2009
Patrick H. Head, District Attorney, Amelia G. Pray, Christopher W. Timmons, Samuel W. Lengen, Assistant District Attorneys, for appellant.
Spix & Krupp, Mark V. Spix, Begner & Begner, Alan I. Begner, Wimberly, Lawson, Steckel, Schneider & Stine, Les A. Schneider, Paul Oliver, Jacqueline D. Joslyn, Rhonda L. Klein, Balch & Bingham, Michael J. Bowers, Howard J. Manchel, for appellees.