Sweepstakes Machines and the Duck Offense: Illegality is in the Eyes of the Beholder

Abstract

467 THE FIRST HALF OF 2001 has been a bad, bad time for Lucky Shamrock Vending Machines. In key judicial opinions in such disparate venues as New York and Mississippi, the Lucky Shamrock machines were found to be illegal gambling machines under state law— for articulated reasons as divergent as the demographics of the respective states. The common lesson to be learned from the Mississippi and New York opinions is that courts and regulators will continue to construe anti-gambling statutes broadly, stretching their analyses to the very edges of reason in prohibiting the growth of activities that bear any resemblance to illegal gambling. For one dollar, the Lucky Shamrock machine dispenses a long-distance phone card, good for only one call to anywhere in the United States for up to two minutes.1 With each card purchase, however, the buyer also receives a game piece that displays a combination of symbols. Certain combinations are deemed “winners” and entitle the buyer to a cash prize ranging from $1 to $500. The game piece also contains a bar code on the reverse side. As the card is dispensed, the machine “reads” the bar code and displays the same combination of symbols as are printed on the game piece. If the game piece is a “winner,” the machine lights up and plays music. The establishment hosting the machine then pays the winning buyer, after verifying the validity of the game piece. The first blow against Lucky Shamrock was delivered by the Appellate Division of the New York State Supreme Court on March 21, 2001. In Black North Assocs., Inc. v. Kelly,2 the court found the Lucky Shamrock Vending Machine to be an illegal slot machine as prohibited by New York’s Alcoholic Beverage Control Law § 106(6). According to New York Penal Law, a slot machine is a