1 98-1103

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

BILL LOCKYER

Attorney General

 

OPINION

of

BILL LOCKYER

Attorney General

CLAYTON P. ROCHE

Deputy Attorney General

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No. 98-1103

May 5, 1999

 

THE HONORABLE ELAINE ALQUIST, MEMBER OF THE

CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question:

May a person, on behalf of another, purchase California state lottery tickets

from an authorized retailer and charge a fee for the services rendered?

CONCLUSION

A person may not, on behalf of another, purchase California state lottery

tickets from an authorized retailer and charge a fee for the services rendered.
1 All references to the Penal Code prior to footnote 2 are by section number only.

2 98-1103

ANALYSIS

A company is proposing to buy state lottery tickets on behalf of its customers.

A customer would telephone the company, ordering a specified number of tickets and paying

for the tickets by credit card. The company would purchase the tickets from an authorized

ticket retailer and deliver the tickets to the customer. If a prize is won, the company would

assist the customer in receiving the prize. For its services, the company would charge the

customer a fee, for example, 50 cents per ticket purchased. We are asked whether the

company may operate such a business. We conclude that it may not.

Generally speaking, conducting a lottery in California is illegal. The

Constitution provides in part: “The Legislature has no power to authorize lotteries and shall

prohibit the sale of lottery tickets in the State.” (Cal. Const., art. IV, § 19, subd. (a).) The

Legislature has carried out with this constitutional directive by enacting Penal Code sections

319-329.1

 In addition, the Legislature has proscribed numerous gaming (§§ 330-337s) and

horse racing (§§ 337.1-337.9) activities. Of particular significance here is the prohibition

contained in section 337a:

“Every person,

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“3. Who, whether for gain, hire, reward, or gratuitously, or otherwise,

receives, holds, or forwards, or purports or pretends to receive, hold, or

forward, in any manner whatsoever, any money, thing or consideration of

value, or the equivalent or memorandum thereof, staked, pledged, bet or

wagered, or to be staked, pledged, bet or wagered . . . upon the result, or

purported result, of any lot, chance, casualty, unknown or contingent event

whatsoever . . .

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“. . . is punishable by imprisonment in the county jail for a period of not

more than one year or in the state prison.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
3 98-1103

With respect to the proposal in question, the company would be receiving

money from its customers to be wagered on the results of the state lottery by purchasing

lottery tickets. Section 337a prohibits a person from acting as the agent of another in

purchasing lottery tickets and charging for the services rendered.

The proposal considered here is similar to the one examined by the court in

Advanced Delivery Service, Inc. v. Gates (1986) 183 Cal.App.3d 967. In Gates, a company

proposed taking money from customers and going to a race track to place bets on horses

picked by the customers. The company would charge a fee for the “messenger” service

rendered and return the pari-mutual tickets to the customers. The court had no difficulty in

concluding that the proposal would violate section 337a, relying upon a long line of cases

(see, e.g., In re Walker (1938) 11 Cal.2d 464, 468-469; People v. Tompkins (1952) 109

Cal.App.2d 215, 221-222; People v. Haughey (1941) 48 Cal.App.2d 506, 509-511). (Id.,

at pp. 972-975.) The court noted that nothing in the Horse Racing Act provided an

exemption from the provisions of section 337a where the company would be betting with

money it had received in the capacity as an agent. (Id., at pp. 975-977.)

In Gates, the court examined the Horse Racing Act as an exception to the

general Penal Code prohibitions against gambling, since the Constitution expressly allows

the Legislature to regulate “horse race meetings and wagering on the results.” (Cal. Const.,

art. IV, § 19, subd. (b).) Likewise, the Constitution authorizes the California State Lottery

as an exception to the operation of lotteries generally proscribed by the Constitution and the

Penal Code. (Cal. Const., art IV, § 19, subd. (d).) The California State Lottery Act of 1984

(Gov. Code, §§ 8880-8880.72; “Act”) implements this constitutional authorization. We

have previously determined that the Act’s provisions create an exception to the general

Penal Code prohibitions. (77 Ops.Cal.Atty.Gen. 89, 92 (1994); see §§ 8880.6, 8880.70.)

An examination of the Act reveals nothing that would exempt the proposed

activity from the prohibition of Penal Code section 337a. The company, it is conceded,

would not qualify as a “retailer” of state lottery tickets. (See §§ 8880.47-8880.55.) While

the company would purchase the lottery tickets from an authorized retailer, such purchase

would not convert the company itself into an authorized retailer.

The proposal does not constitute a lottery “pool” of multiple purchasers of a

lottery ticket. (§ 8880.33; see 77 Ops.Cal.Atty.Gen., supra, at 90-93.) While multiple

purchasers may have a representative to purchase tickets and manage the pooling

arrangement (77 Ops.Cal.Atty.Gen., supra, at 90-93), such is not the proposal here.
4 98-1103

No other law would exempt the company’s proposal from the prohibition of

Penal Code section 337a. As pointed out by the court in Advanced Delivery Service, Inc.

v. Gates, supra, 183 Cal.App.3d at 977, any changes in the governing statutes are “a matter

best left to the Legislature with its fact finding capabilities through hearings at which all

interested parties may have input.”

We conclude that a person may not, on behalf of another, purchase California

state lottery tickets from an authorized retailer and charge a fee for the services rendered.

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