Attorney General: Paul A. Young, Executive Director, Division of Special Revenue, 2005-002 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 4, 2005

Paul A. Young
Executive Director
Division of Special Revenue
555 Russell Road
Hartford, CT 06111

Dear Mr. Young:

This is in response to the request for an opinion from your agency on the legality of devices known as "three button slot machines," and whether these devices fall within the definition of "video facsimile" as used in the agreements between the State of Connecticut and the Mashantucket Pequot Tribe and Mohegan Tribe. The agreements require the tribes to contribute twenty-five percent of their gross operating revenues from the operation of video facsimile machines at the tribal casinos, provided no other person within the state may lawfully operate "video facsimile games or other commercial casino games." Mashantucket Pequot Second Amendment MOU of April 25, 1994, pp. 1-2; see also Mohegan MOU of May 17, 1994, pp. 2, 8, Attachments A, B. For the following reasons, we conclude that these devices are illegal slot machines that are not permitted in Connecticut. In addition, permitting their use would violate the agreements with the Tribes.

Our analysis must focus on the nature of the devices, and the applicability of the statutes on point. You describe the machines as follows:

Members of my staff have observed examples of the machines. The appearance of the devices is no different from that of a traditional slot machine. To play, a person inserts a token or tokens into a slot. On the particular machines observed, a person pulls a small lever on the front to start the three reels spinning (it appeared that at one time the machines had longer, more traditional side levers). The player must push a button to stop each reel from spinning. Each reel has a separate button, so the player can control how long each reel spins. Once they stop spinning, the reels reveal the symbols traditionally found on slot machines. Presumably, tokens would come out of the machines when certain combinations of the symbols appear.

The devices can be operated by the deposit of quarters, with slight adjustment, and if the spinning reels stop on matching symbols the machine yields a payoff of tokens or coins which fall into a tray at the base of the device for removal by the player. The devices are electronic, and their similarity to slot machines at the Indian casinos is unmistakable. Wording on the sample device observed labels it as a "slot machine."

Of course, the name on the machine is not dispositive; rather, we must examine the manner and result of its operation. Gambling, 38 Am. Jur. 2d 101 at p. 151. The criminal statutes, which render gambling a misdemeanor, define gambling as "risking any money, credit, deposit or other thing of value by gain contingent in whole or in part upon lot, chance or the operation of a gambling device, including the playing of a casino gambling game such as blackjack, poker, craps, roulette or a slot machine (with certain exceptions not here relevant)." Conn. Gen. Stat. 53-278a(2) (emphasis added). Also, professional gambling involves "maintaining slot machines." Conn. Gen. Stat. 53-278a(3). Additionally, the statutes define "gambling device" as follows:

(4) "Gambling device" means any device or mechanism by the operation of which a right to money, credits, deposits or other things of value may be created, as a result of the operation of an element of chance; any device or mechanism which, when operated for a consideration, does not return the same value of thing of value for the same consideration upon each operation thereof; any device, mechanism, furniture or fixture designed primarily for use in connection with professional gambling; and any subassembly or essential part designed or intended for use in connection with any such device, mechanism, furniture, fixture, construction or installation, provided an immediate and unrecorded right of replay mechanically conferred on players of pinball machines and similar amusement devices shall be presumed to be without value. "Gambling device" does not include a crane game machine or device or a redemption machine;

Conn. Gen. Stat. 53-278a(4) (emphasis added).

Possession of a gambling device, except as permitted under certain circumstances not here relevant, is a misdemeanor. Conn. Gen. Stat.  53-278c(d). These statutes make it absolutely clear that slot machines are gambling devices and it is illegal to possess or play them, except in circumstances not relevant to your question. However, the statutes do not define what is a slot machine.

Case law does provide guidance in this area. Thus, in Farina v. Kelly, 147 Conn. 444 (1960), our Supreme Court ruled:

Webster's New International Dictionary (2d Ed.) defines a slot machine as a machine the operation of which is started by dropping a coin into a slot. Under this definition, which we adopt, the plaintiff's machines are slot machines. However, that fact alone does not make possession of them illegal. Otherwise, it would be unlawful to have a pay telephone with a coin slot or a candy vending or soft-drink dispensing machine, or other lawful devices which operate upon the insertion of a coin. Section 53-278 makes it illegal to keep a slot machine which is used or designed for the purpose of a lottery or gaming. The word 'gaming' is synonymous with gambling. Opinion of the Justices, 78 N.H. 625, 628, 63 A. 505; 18 Words and Phrases, p. 31. We have held that a lottery is characterized by three constituent elements, namely, a prize, a chance, and a price. State v. Dorau, 124 Conn. 160, 168, 198 A. 573; State v. Mola, 128 Conn. 407, 409, 23 A.2d 126. Other jurisdictions have held that the same three elements are to be found in gambling. State v. One 'Jack and Jill' Pinball Machine, Mo.App., 224 S.W.2d 854, 860 and Williams v. State, 65 Ga.App. 843, 844, 16 S.E.2d 769. In Westerhaus Co. v. Cincinnati, 165 Ohio St. 327, 335, 135 N.E.2d 318, gambling is defined as the payment of a price for a chance to gain a thing of value as a prize, while in State v. Mint Vending Machine, 85 N.H. 22, 23, 154 A. 224, it is stated that, as commonly understood, gambling involves not only chance but a hope of gaining something beyond the amount played, or, as it is frequently expressed, the chance of winning something for nothing.

Farina v. Kelly, supra at 448-49.

The elements of price and prize are not seriously questionable in the devices in question. The machines operate by token, and pay off in tokens, but this can be easily modified or credited by operators for coins. Anything of value can be used in an illegal gambling device under Conn. Gen. Stat. 53-278a(4). Moreover, it has been held that "[a]rticles which ordinarily serve other purposes may be found to be devices and apparatus for gambling purposes if they are reasonably adapted to, and at the time in question are intended and actually used for, those purposes." State v. DeNegris, 153 Conn. 5, 12 (1965) quoting State v. Tolisano, 136 Conn. 210, 215 (1949). These token operated machines are obviously intended for gambling.

We also conclude that the element of chance is present in these devices. An argument could be made that because the player of a three button slot machine can stop the spinning reels manually, a person of great quickness of hand and eye and exquisite timing could cause the machine to stop on three matching images resulting in a win.

When operating, the reels in the machine spin so quickly it is highly improbable that skill could influence the outcome. However, the possibility that skill could, in some way, affect the outcome of the game does not convert this device into a game of skill outside the reach of the gambling laws. Gambling involves risking a value "in whole or in part upon chance or the operating of a gambling device" Conn. Gen. Stat.  53-278a(2) (emphasis added). A gambling device involves "an element of chance." Conn. Gen. Stat.  53-278a(4). Chance must be partly responsible for a win, but need not be exclusively responsible. On the other hand, games outside the scope of the gambling laws are "Legal contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries." Conn. Gen. Stat. 53-278a(2). Thus it has been held that where the use of skill is minimal compared with the element of chance in winning, the device is an illegal slot machine. See State v. Parker, 3 Conn. Cir. Ct. 598, 601 (App. Div. 1966). Also, the possibility that a machine could be "rigged" so that a player could win by some manipulation does not convert it into a game of skill. Farina v. Kelly, supra at 450. The element of chance is the predominant, if not exclusive, factor in determining a win in the use of the three button slot machine. Accordingly, we conclude that three button slot machines are illegal slot machines.1

You also ask us whether permitting use of such a device in Connecticut could constitute the use of a "video facsimile" which, if permitted, could cause Connecticut to be in violation of the State's agreements with the Indian tribes. You also ask us for a definition of "video facsimile." As noted earlier, the agreements with the tribes cover not only "video facsimile games" but also "commercial casino games." A slot machine is certainly a commercial casino game. See, 2002 Conn. Op. Atty. Gen. No. 2002-003 (Letter to Ex. Dir. Townsley, Jan. 31, 2002) at p. 5. For the reasons stated above, the three button slot machine is a slot machine and, therefore, is a commercial casino game under the agreements. Indeed, we were informed that the sample we tested had once been used at a casino in Japan.

It is also a video facsimile. The term video facsimile is defined in the Mashantucket Gaming Procedures and Mohegan Sun Compact as follows:

(cc) "Video facsimile" means any mechanical, electrical or other device, contrivance or machine, which, upon insertion of a coin, currency, token or similar object therein, or upon payment of any consideration whatsoever, is available to play or operate, the play or operation of which is a facsimile of a game of chance, and which may deliver or entitle the person playing or operating the machine to receive cash or tokens to be exchanged for cash or to receive any merchandise or thing of value, whether the payoff is made automatically from the machine or in any other manner whatsoever.

Mashantucket Pequot Procedures, Sec 2 (cc); Mohegan Sun Compact, Sec. 2 (cc).

A three button slot machine, as we have found, is a gambling game involving the element of chance. A video facsimile, as described in the above definition, includes an electrical facsimile of that game. The three button slot machine, an electrical slot machine, is, therefore, a video facsimile under the agreements.

In conclusion, we are of the opinion that three button slot machines are illegal slot machines that are not allowed in Connecticut.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Robert F. Vacchelli
Assistant Attorney General

RFV/ni
Attachments


1This office does not have jurisdiction over criminal matters generally. Conn. Gen. Stat. 3-125. However, we have asked the Chief State's Attorney to review this opinion, and he concurs in this conclusion.

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