TITLE 16 CRIMES AND OFFENSES

Section 12. Offenses Against Public Health and Morals, 16-12-1 through 16-12-191.

ARTICLE 2 GAMBLING AND RELATED OFFENSES

16-12-35. Applicability of part; penalty for violation.

As used in this Code section, the term "some skill" means any presence of the following factors, alone or in combination with one another:
1. A learned power of doing a thing competently;
2. A particular craft, art, ability, strategy, or tactic;
3. A developed or acquired aptitude or ability;
4. A coordinated set of actions, including, but not limited to, eye-hand coordination;
5. Dexterity, fluency, or coordination in the execution of learned physical or mental tasks or both;
6. Technical proficiency or expertise;
7. Development or implementation of strategy or tactics in order to achieve a goal; or
8. Knowledge of the means or methods of accomplishing a task.
  The term some skill refers to a particular craft, coordinated effort, art, ability, strategy, or tactic employed by the player to affect in some way the outcome of the game played on a bona fide coin operated amusement machine as defined in paragraph (2) of subsection (b) of Code Section 50-27-70. If a player can take no action to affect the outcome of the game, the bona fide coin operated amusement machine does not meet the "some skill" requirement of this Code section.
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. This subsection shall not apply, however, to any game or device classified by the United States government as requiring a federal gaming tax stamp under applicable provisions of the Internal Revenue Code or any item described as a gambling device in subparagraph (B), (C), or (D) of paragraph (2) of Code Section 16-12-20.
1. Nothing in this part shall apply to a crane game machine or device meeting the requirements of paragraph (2) of this subsection.
2. A crane game machine or device acceptable for the purposes of paragraph (1) of this subsection shall meet the following requirements:
  1. The machine or device must be designed and manufactured only for bona fide amusement purposes and must involve at least some skill in its operation;
  2. The machine or device must reward a winning player exclusively with free replays or merchandise contained within the machine itself and such merchandise must be limited to noncash merchandise, prizes, toys, gift certificates, or novelties, each of which has a wholesale value not exceeding $5.00. A player may be rewarded with both free replays and noncash merchandise, prizes, toys, or novelties for a single play of the game or device as provided in this Code section;
  3. The player of the machine or device must be able to control the timing of the use of the claw or grasping device to attempt to pick up or grasp a prize, toy, or novelty;
  4. The player of the machine or device must be made aware of the total time which the machine or device allows during a game for the player to maneuver the claw or grasping device into a position to attempt to pick up or grasp a prize, toy, or novelty;
  5. The claw or grasping device must not be of a size, design, or shape that prohibits picking up or grasping a prize, toy, or novelty contained within the machine or device; and
  6. The machine or device must not be classified by the United States government as requiring a federal gaming stamp under applicable provisions of the Internal Revenue Code.
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:
  1. Free replays;
  2. 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;
  3. 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
  4. Any combination of rewards set out in two or more of subparagraph (A), (B), or (C) of this paragraph.
    This subsection shall not apply, however, to any game or device classified by the United States government as requiring a federal gaming stamp under applicable provisions of the Internal Revenue Code or any item described as a gambling device in subparagraph (B), (C), or (D) of paragraph (2) of Code Section 16-12-20.
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.
Any person who gives to any other person money for free replays on coin operated games or devices described in subsection (b), (c), or (d) of this Code section shall be guilty of a misdemeanor.
Any person owning or possessing an amusement game or device described in subsection (c) or (d) of this Code section or any person employed by or acting on behalf of any such person who gives to any other person money for any noncash merchandise, prize, toy, gift certificate, or novelty received as a reward in playing any such amusement game or device shall be guilty of a misdemeanor.
Any person owning or possessing an amusement game or device described in subsection (b), (c), or (d) of this Code section or any person employed by or acting on behalf of any such person who gives to any other person money as a reward for the successful play or winning of any such amusement game or device shall be guilty of a misdemeanor of a high and aggravated nature.
Any gift certificates, tokens, vouchers, tickets, or other evidence of winnings awarded under subsection (c) or (d) of this Code section must be redeemable only at the premises on which the game or device is located. It shall be unlawful for any person to provide to any other person as a reward for play on any such game or device any gift certificate, token, voucher, ticket, or other evidence of winning which is redeemable or exchangeable for any thing of value at any other premises. It shall be unlawful for any person at any premises other than those on which the game or device is located to give any thing of value to any other person for any gift certificate, token, voucher, ticket, or other evidence of winning received by such other person from play on such game or device. Any person who violates this subsection shall be guilty of a misdemeanor of a high and aggravated nature. This subsection shall not apply to any ticket or product of the Georgia Lottery Corporation.
The merchandise, prizes, toys, gift certificates, novelties, or rewards which may be awarded under subsection (c) or (d) of this Code section may not include or be redeemable or exchangeable for any firearms, alcohol, or tobacco. Any person who violates this subsection shall be guilty of a misdemeanor of a high and aggravated nature.
Any other laws to the contrary notwithstanding, this part shall not be applicable to the manufacturing, processing, selling, possessing, or transporting of any printed materials, equipment, devices, or other materials used or designated for use in a legally authorized lottery nor shall it be applicable to the manufacturing, processing, selling, possessing, or transporting of any gaming equipment, devices, or other materials used or designated for use only in jurisdictions in which the use of such items is legal. This part shall in no way prohibit communications between persons in this state and persons involved with such legal lotteries or gaming devices relative to such printed materials, equipment, devices, or other materials or prohibit demonstrations of same within this state.
Any person, location owner, or location operator who places, provides, or displays a bona fide coin operated amusement machine and offers it to play for consideration in Georgia in an establishment for which the location owner or location operator is not licensed or in a private residence shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than five years, a fine not to exceed $25,000.00, or both.

(g.1)Any location owner or location operator or person employed by a location owner or location operator who violates subsection (h) or (i) of this Code section for the second separate offense shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than five years, a fine not to exceed $25,000.00, or both, as well as loss of location license and all other state licenses.

(Code 1933, § 26-2713, enacted by Ga. L. 1976, p. 1158, § 1; Ga. L. 1978, p. 1779, § 1; Ga. L. 1985, p. 886, § 1; Ga. L. 1991, p. 1396, § 1; Ga. L. 1991, p. 1398, § 1; Ga. L. 1992, p. 1489, § 1; Ga. L. 1996, p. 309, § 1; Ga. L. 1997, p. 689, § 1; Ga. L. 1998, p. 563, § 1; Ga. L. 1999, p. 1224, § 1; Ga. L. 2001, Ex. Sess., p. 312, § 2; Ga. L. 2007, p. 47, § 16/SB 103; Ga. L. 2013, p. 37, § 2-1/HB 487; Ga. L. 2018, p. 1112, § 16/SB 365.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "paragraph (2) of subsection (b) of Code Section 50-27-70" for "paragraph (2) of Code Section 50-27-70" at the end of the first sentence in the ending undesignated paragraph of subsection (a).

Cross references.

- Restrictions on percent of income from coin operated machines, § 48-17-15.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, a semicolon was substituted for a period at the end of subparagraph (c)(2)(B).

Pursuant to Code Section 28-9-5, in 1999, "subparagraph" was substituted for "subparagraphs" in subparagraph (d)(1)(D) and "subsection" was substituted for "subsections" in subsection (e).

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."

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. 2013, p. 37, § 3-1/HB 487, not codified by the General Assembly, provides, in part, that: "(b) If any section of this Act is determined to be unconstitutional by a final decision of an appellate court of competent jurisdiction or by the trial court of competent jurisdiction if no appeal is made, with the exception of subsection (g) of Code Section 50-27-78 and Section 2-1 of this Act, this Act shall stand repealed by operation of law.

"(c) This Act is not intended to and shall 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 made illegal 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 remain prohibited."

U.S. Code.

- The provisions of the Internal Revenue Code related to the wagering tax stamp are codified at 26 U.S.C. § 4901.

JUDICIAL DECISIONS

O.C.G.A. § 16-12-35 decriminalizes certain pinball machines because they are no longer to be considered as gambling devices. Total Vending Servs., Inc. v. Gwinnett County, 157 Ga. App. 28, 276 S.E.2d 89 (1981).

State statutes preempted city's ordinance.

- Conviction and fine against a convenience store operator for violating a city ordinance that prohibited certain retailers of packaged alcoholic beverages from allowing coin operated amusement machines (COAMs) on the same premises was reversed because the state's COAM Laws, O.C.G.A. §§ 16-12-35 and50-27-70, et seq., preempted the city's ordinance at least insofar as the ordinance applied to COAMs as defined by the state statutes. Gebrekidan v. City of Clarkston, 298 Ga. 651, 784 S.E.2d 373 (2016).

O.C.G.A. § 16-12-35 deals with pinball machines in isolated context of criminal gambling laws of Georgia. Total Vending Servs., Inc. v. Gwinnett County, 157 Ga. App. 28, 276 S.E.2d 89 (1981).

Gambling device.

- In Georgia, O.C.G.A. § 16-12-35 (d)(2) did not require success in every single play of the game in order for a player to carry over and redeem points accumulated during an earlier successful play of the machine or device. As such, the trial court did not err by using the long-established common meaning of the term "slot machine," i.e., an apparatus by which a person depositing money therein could, by chance, get directly or indirectly money or articles of value worth either more or less than the money deposited. Ultra Telecom, Inc. v. State, 288 Ga. 65, 701 S.E.2d 144 (2010).

Skill in operation of machine.

- There was no evidence that any of the gambling machines seized for civil forfeiture proceedings from stores involved some skill in the machine's operation as required under O.C.G.A. § 16-12-35(d)(1); the sole evidence was that a player simply pressed a button to play these machines. Patel v. State, 289 Ga. 479, 713 S.E.2d 381 (2011).

Statute did not void preexisting contracts.

- In a suit for tortious interference with contractual relations, the trial court erred by granting partial summary judgment against the owners of coin-operated amusement machines because O.C.G.A. § 50-27-70 et seq. did not void preexisting contracts and it was error to interpret the statute otherwise. All Star, Inc. v. Ga. Atlanta Amusements, LLC, 332 Ga. App. 1, 770 S.E.2d 22 (2015).

Cited in Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574 (1980); Patel v. State of Ga., 341 Ga. App. 419, 801 S.E.2d 551 (2017); Jester v. Red Alligator, LLC, 344 Ga. App. 15, 806 S.E.2d 920 (2017); Ga. Lottery Corp. v. Tabletop Media, LLC, 346 Ga. App. 498, 816 S.E.2d 438 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Coin-operated games.

- 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 (decided prior to 1996 amendment).

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.

RESEARCH REFERENCES

Am. Jur. 2d.

- 38 Am. Jur. 2d, Gambling, § 74.

ALR.

- Coin-operated or slot machine other than slot vending machine which may be played for amusement only or which confines winner's reward to privilege of additional play or other form of amusement, as within anti-gambling provisions, 148 A.L.R. 879; 89 A.L.R.2d 815.

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.

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