O.C.G.A. § 16-12-20 (2019)
Definitions
As used in this part, the term: (1) “Bet” means an agreement that, dependent upon chance even though accompanied by some skill, one stands to win or lose something of value. A bet does not include: (A) Contracts of indemnity or guaranty or life, health, property, or accident insurance; or (B) An offer of a prize, award, or compensation to the actual contestants in any bona fide contest for the determination of skill, speed, strength, or endurance or to the owners of animals, vehicles, watercraft, or aircraft entered in such contest. (2) “Gambling device” means: (A) 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; (B) Any slot machine or any simulation or variation thereof; (C) Any matchup or lineup game machine or device, operated for any consideration, in which two or more numerals, symbols, letters, or icons align in a winning combination on one or more
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lines vertically, horizontally, diagonally, or otherwise, without assistance by the player. Use of skill stops shall not be considered assistance by the player; or (D) Any video game machine or device, operated for any consideration, for the play of poker, blackjack, any other card game, or keno or any simulation or variation of any of the foregoing, including, but not limited to, any game in which numerals, numbers, or any pictures, representations, or symbols are used as an equivalent or substitute for cards in the conduct of such game. Any item described in subparagraph (B), (C), or (D) of this paragraph shall be a prohibited gambling device subject to and prohibited by this part, notwithstanding any inference to the contrary in any other law of this state. (3) “Gambling place” means any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the principal uses of which is the making or settling of bets; the receiving, holding, recording, or forwarding of bets or offers to bet; or the conducting of a lottery or the playing of gambling devices. (4) “Lottery” means any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win such prize, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, policy game, or by some other name. Except as otherwise provided in Code Section 16-12-35, a lottery shall also include the payment of cash or other consideration or the payment for merchandise or services and the option to participate in or play, even if others can participate or play for free, a no skill game or to participate for cash, other consideration, other evidence of winnings, or other noncash prizes by lot or in a finite pool on a computer, mechanical device, or electronic device whereby the player is able to win a cash or noncash prize, other consideration, or other evidence of winnings. A lottery shall also include the organization of chain letter or pyramid clubs as provided in Code Section 16-12-38. A lottery shall not mean a: (A) Promotional giveaway or contest which conforms with the qualifications of a lawful promotion specified in paragraph (16) of subsection (b) of Code Section 10-1-393; (B) Scheme whereby a business gives away prizes to persons selected by lot if such prizes are made on the following conditions: (i) Such prizes are conducted as advertising and promotional undertakings in good faith solely for the purpose of advertising the goods, wares, and merchandise of such business;
(ii) No person to be eligible to receive such prize shall be required to: (I) Pay any tangible consideration to the operator of such business in the form of money or other property or thing of value; (II) Purchase any goods, wares, merchandise, or anything of value from such business; or (III) Be present or be asked to participate in a seminar, sales presentation, or any other presentation, by whatever name denominated, in order to win such prizes; and (iii) The prizes awarded shall be noncash prizes and cannot be awarded based upon the playing of a game on a computer, mechanical device, or electronic device at a place of business in this state; (C) Raffle authorized under Code Section 16-12-22.1; (D) National or regional promotion, contest, or sweepstakes conducted by any corporation or wholly owned subsidiary or valid franchise of such corporation, either directly or through another entity, provided that, at the time of such promotion, contest, or sweepstakes, such corporation: (i) Is registered under the federal Securities Exchange Act of 1934; and (ii) Has total assets of not less than $100 million; or (E) Savings promotion raffle that conforms with the requirements of Code Section 7-1-239.10. The provisions of this part shall not be applicable to games offered by the Georgia Lottery Corporation pursuant to Chapter 27 of Title 50.
History
Code 1933, § 26-2701, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1975, p. 1072, § 2; Ga. L. 1982, p. 1661, § 3; Ga. L. 1985, p. 437, § 1; Ga. L. 1986, p. 1313, § 3; Ga. L. 1987, p. 1386, § 3; Ga. L. 1995, p. 832, § 1; Ga. 2001, Ex. Sess., p. 312, § 1; Ga. L. 2012, p. 1136, § 2/SB 431; Ga. L. 2019, p. 736, § 2/HB 193.
Annotations
Code Commission notes. Pursuant to Code Section 28-9-5, in 1988, in paragraph (4) a period was added at the end of the second sentence and a comma was added following “presentation” the second time it appeared in division (4)(B)(ii)(III).
Editor’s notes. Ga. L. 2001, Ex. Sess., p. 312, § 4, not codified by the General Assembly, provides that: “This Act is not intended to, and should not be construed to, affect the legality of the repair, transport, possession, or use of otherwise prohibited gambling devices on maritime vessels within the jurisdiction of the State of Georgia. To the extent that such repair, transport, possession, or use was lawful prior to the enactment of this Act, it shall not be prohibited by this Act; and to the extent that such repair, transport, possession, or use was prohibited prior to the enactment of this Act, it shall not be permitted by this Act.”
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Ga. L. 2001, Ex. Sess., p. 312, § 5, not codified by the General Assembly, provides that: “During the period beginning January 1, 2002, and ending June 30, 2002, it shall not be unlawful to possess in this state a machine or device described in subparagraph (B), (C), or (D) of paragraph (2) of Code Section 16-12-20, if: (1) Such machine is not in use; (2) Such machine is in transit to a storage facility or in a storage facility, which said storage facility is a secured facility and no part of same is accessible by anyone other than employees of said facility or employees of the owner of said machine; and (3) Such machine is not located in a place which is open to the public and is not located in a private club.” Ga. L. 2012, p. 1136, § 4/SB 431, not codified by the General Assembly,
provides, in part, that this Code section shall apply to conduct that occurs on and after May 2, 2012. It is not the intention of this Act to abate any prosecution undertaken for conduct occurring under the law in effect prior to such date, and any offense committed before May 2, 2012, shall be prosecuted and punished under the statutes in effect at the time the offense was committed. Law reviews. For comment on Boyd v. Piggly Wiggly S., Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967), see 2 Ga. L. Rev. 132 (1967). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B.J. 124 (1970).
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Penal Code 1895, § 406, former Penal Code 1910, §§ 397 and 398, and former Code 1933, §§ 266501 and 26-6502, as they read prior to revision of this title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section. Applying the “actual use” test to case concerning confiscation of gambling equipment, evidence was not sufficient to subject the equipment to confiscation where it was not shown that it was actually used for gambling. Monte Carlo Parties, Ltd. v. Webb, 253 Ga. 508, 322 S.E.2d 246, 1984 Ga. LEXIS 1009 (1984). It was error to use the functional use test to find that video poker game machines were gambling devices. To reason that a machine is a gambling device merely because it mimics a card game that “historically” had been used for gambling is much the same as saying the machine is a gambling device because it could be used for gambling purposes, whether it is actually so used or not. This is the functional use test rejected in Monte Carlo Parties, Ltd. v. Webb, 253 Ga. 508, 322 S.E.2d 246 (1984). Webb v. City of Rossville, 198 Ga. App. 294, 401 S.E.2d
312, 1991 Ga. App. LEXIS 28 (1991), superseded by statute as stated in State v. Old South Amusements, Inc., 275 Ga. 274, 564 S.E.2d 710, 2002 Ga. LEXIS 449 (2002). One may be acquitted of gambling but convicted of operating a gambling house. - Gambling is one thing and operating a gambling house is a kindred but entirely different thing and different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964, 213 S.E.2d 91, 1975 Ga. App. LEXIS 2350 (1975). In a lottery, there must be union of consideration, chance, and prize. Barker v. State, 56 Ga. App. 705, 193 S.E. 605, 1937 Ga. App. LEXIS 208 (1937) (decided under former Code 1933, §§ 26-6501, 26-6502); Harrington v. State, 97 Ga. App. 315, 103 S.E.2d 126, 1958 Ga. App. LEXIS 766 (1958) (decided under former Code 1933, §§ 26-6501, 26-6502); Boyd v. Piggly Wiggly S., Inc., 115 Ga. App. 628, 155 S.E.2d 630, 1967 Ga. App. LEXIS 1194 (1967), superseded by statute as stated in Talley v. Mathis, 212 Ga. App. 330, 441 S.E.2d 854, 1994
Ga. App. LEXIS 235 (1994) (for comment, see 2 Ga. L. Rev. 132 (1967)) (decided under former Code 1933, § 26-6501). Three essentials of a lottery are consideration, prize, and chance. Equitable Loan & Sec. Co. v. Waring, 117 Ga. 599, 44 S.E. 320, 1903 Ga. LEXIS 301 (1903), superseded by statute as stated in Williams v. Studstill, 251 Ga. 466, 306 S.E.2d 633, 1983 Ga. LEXIS 798 (1983); Sparkman v. State, 209 Ga. App. 763, 434 S.E.2d 564, 1993 Ga. App. LEXIS 986 (1993), cert. denied, No. S93C1811, 1993 Ga. LEXIS 1080 (Ga. Nov. 4, 1993) (decided under former Penal Code 1895, § 406). It matters not that value of thing hazarded is small or infinitesimal. - “Lottery” imports a scheme or device for hazarding of money or other thing of value by chance. It matters not that value of thing hazarded is small or infinitesimal if in fact it does have some value. AAA Amusements, Inc. v. State, 106 Ga. App. 663, 127 S.E.2d 919, 1962 Ga. App. LEXIS 804 (1962) (decided under former Code 1933, §§ 26-6501, 26-6502). When only priority of payment is determined by chance, scheme does not constitute lottery. Equitable Loan & Sec. Co. v. Waring, 117 Ga. 599, 44 S.E. 320, 1903 Ga. LEXIS 301 (1903), superseded by statute as stated in Williams v. Studstill, 251 Ga. 466, 306 S.E.2d 633, 1983 Ga. LEXIS 798 (1983) (decided under former Penal Code 1895, § 406). Gift enterprise defined. - Gift enterprise is a sporting artifice by which, for example a merchant or tradesman sells wares for their market value, but, by way of inducement, gives to each purchaser a ticket which entitles the purchaser to a chance to win certain prizes, to be determined after the manner of a lottery. Barker v. State, 56 Ga. App. 705, 193 S.E. 605, 1937 Ga. App. LEXIS 208 (1937) (decided under former Code 1933, § 26-6501). For definitions of “chance,” “similar scheme,” and “gift enterprise,” see Russell v. Equitable & Sec. Co., 129 Ga. 154, 58 S.E. 881, 1907 Ga. LEXIS 324 (1907) (decided under former Penal Code 1895, § 406). Punchboard constituting gambling device. - See Hobbs v. K. & S. Sales Co., 35 Ga. App. 226, 132 S.E. 775, 1926 Ga.
App. LEXIS 651 (1926) (decided under former Penal Code 1910, § 397). Slot machines are not for amusement when played for something of value. - An apparatus known as a slot machine, by which a person depositing money therein may, by chance, get directly or indirectly money or articles or value worth either more or less than money deposited, falls within purview of former Code 1933, §§ 26-6501, 26-6502, and cannot be treated as one kept only for amusement. Childs v. State, 70 Ga. App. 99, 27 S.E.2d 470, 1943 Ga. App. LEXIS 255 (1943) (decided under former Code 1933, §§ 26-6501, 26-6502). Possession of machines designed for gambling purposes. - Possession of machines designed for gambling purposes is illegal under the Georgia Video Poker Act of 2001, O.C.G.A. § 16-12-20 et seq. Jones v. State, 276 Ga. App. 810, 625 S.E.2d 4, 2005 Ga. App. LEXIS 1236 (2005), cert. denied, No. S06C0809, 2006 Ga. LEXIS 327 (Ga. Apr. 25, 2006). One may be guilty of operating a gambling house without participating in actual gambling. Miller v. State, 48 Ga. App. 786, 173 S.E. 491, 1934 Ga. App. LEXIS 193 (1934) (decided under former Code 1933, §§ 26-6501, 26-6502). “Gambling devices.” - Trial court did not err in allowing the witnesses in defendant’s trial for possession of illegal gambling machines to testify that the machines were “gambling devices,” as the jury had to determine whether defendant sold a machine that detectives testified was set up for gambling to a witness, who then sold the machine to the detectives, and whether that machine was illegal under O.C.G.A. § 16-12-20(2); describing the machines the detectives seized as “gambling machines” did not answer those questions. Jones v. State, 276 Ga. App. 810, 625 S.E.2d 4, 2005 Ga. App. LEXIS 1236 (2005), cert. denied, No. S06C0809, 2006 Ga. LEXIS 327 (Ga. Apr. 25, 2006). Actions converted amusement machines into gambling devices. - Judgment approving forfeiture was affirmed because by giving players cash and lottery tickets as rewards for winning games on the amusement machines, the
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gas station employees effectively converted the machines into gambling devices under O.C.G.A. § 16-12-32(b)(4), which clearly violated the gambling laws of Georgia prohibiting cash payouts for winning games on machines when the
winnings are determined by chance even if the games involve an element of skill. Patel v. State of Ga., 341 Ga. App. 419, 801 S.E.2d 551, 2017 Ga. App. LEXIS 214 (2017), cert. dismissed, No. S17C1777, 2017 Ga. LEXIS 903 (Ga. Oct. 16, 2017).
OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 26-6501 and 26-6502 are included in the annotations for this Code section. Electronic slot machines are gambling devices per se; the slot machines are contraband; the slot machines can be seized and destroyed as contraband; possession of such devices is a crime; no demonstration of operation of any such device is necessary antecedent to the machine’s seizure, nor is any demonstration necessary to establish basis of criminal prosecution for possession of that device. 1971 Op. Att’y Gen. No. 71-167. Fund-raising activities constituting gambling. - Certain fund-raising activities, often for charitable purposes and generally designated as “Las Vegas Night” or “Casino Night,” constitute gambling or commercial gambling and the equipment used at these activities is gambling paraphernalia. 1983 Op. Att’y Gen. No. 83-48. Pinball machines operated for amusement and not gaming or gambling are legal. - Keeping, maintaining or employing of slot machines is a misdemeanor, however, keeping, maintaining or employing of pinball machines is not illegal where they are operated for purpose of amusement and no gaming or gambling is connected
with their operation. 1945-47 Ga. Op. Att’y Gen. 104 (decided under former Code 1933, § 26-6502). Only if a coin-operated game can register more than fifteen free replays and has a “trip switch” allowing games to be erased other than by reactivating the machine for additional plays is the device a prohibited gambling device; if such a game is for bona fide amusement purposes only, it is legal. However, the transfer of anything of value in exchange for a free replay on any coin operated device, whether or not the device constitutes a gambling device per se, is illegal. 1990 Op. Att’y Gen. No. 90-15. Video slot machine which involves no skill in the machine’s operation and offers a ticket for a value of up to $5.00 in merchandise is a “gambling device”. 1996 Op. Att’y Gen. No. U96-18. Operation of a sweepstakes where a player can determine if the player has the “winning number” by calling a “dial-it” number is a “lottery,” as that term is defined by O.C.G.A. § 16-12-20. 1984 Op. Att’y Gen. No. 84-83. Gift-enterprise and sweepstake schemes constitute lotteries, and are prohibited in Georgia. 1973 Op. Att’y Gen. No. U73-115. Bonuses or rebates to customers who provide for additional sales of produce are not lotteries. 1962 Ga. Op. Att’y Gen. 447 (decided under former Code 1933, § 26-6501).
RESEARCH REFERENCES Am. Jur. 2d. 38 Am. Jur. 2d, Gambling, § 1 et seq. C.J.S. 38 C.J.S., Gaming, §§ 1, 2, 12 et seq., 152 et seq.
ALR. Loan or investment association as a lottery, 28 A.L.R. 1311. Scheme by which award depends upon votes as a lottery, 41 A.L.R. 1484.
Scheme for advertising or stimulating legitimate business as a lottery, 48 A.L.R. 1115; 57 A.L.R. 424; 103 A.L.R. 866; 109 A.L.R. 709; 113 A.L.R. 1121. Slot vending machine as gambling device, 81 A.L.R. 177. Coin-operated or slot machines as lottery, 101 A.L.R. 1126. “Numbers (or number) game” or “policy game” as a lottery, 105 A.L.R. 305. Constitutionality of statute prohibiting giving of premiums or trading stamps with purchases of commodities, 124 A.L.R. 341; 133 A.L.R. 1087. Slot machine within prohibitory statute or ordinance as limited to gambling device, 132 A.L.R. 1004. What are games of chance, games of skill, and mixed games of chance and skill, 135 A.L.R. 104. Punchboard as a lottery, 163 A.L.R. 1279.
Coin-operated pinball machine or similar device, played for amusement only or confining reward to privilege of free replays, as prohibited or permitted by antigambling laws, 89 A.L.R.2d 815. Bridge as within gambling laws, 97 A.L.R.2d 1420. Paraphernalia or appliances used for recording gambling transactions or receiving or furnishing gambling information as gaming “devices” within criminal statute or ordinance, 1 A.L.R.3d 726. Validity of pyramid distribution plan, 54 A.L.R.3d 217. Validity of statute or ordinance prohibiting or regulating bookmaking or pool selling, 80 A.L.R.4th 1079. Right to recover money lent for gambling purposes, 74 A.L.R.5th 369.