92 [83 Op. Att’y

1

 Apparently three races would be designated in advance for the

sweepstakes. If all three races were conducted without problems, the

results of one of the three, drawn by lot, would become the sweepstakes

event.

GAMING

LOTTERIES ) RACING ) SWEEPSTAKES IN WORCESTER COUNTY

BASED ON RESULTS OF HORSE RACE WOULD BE UNLAWFUL

January 7, 1998

The Honorable K. Bennett Bozman

House of Delegates 

You have asked for our opinion about the legality of a

proposed sweepstakes, based on a race to be held at Bally’s at Ocean

Downs (“Ocean Downs”), a harness race track in Worcester County.

Half of the proceeds would benefit Atlantic General Hospital. Our

opinion is that the sweepstakes would be unlawful. 

I

Introduction

We understand the proposal to be as follows: The sweepstakes

would be conducted by Ocean Downs, and would involve selling

tickets with numbers representing all of the possible combinations

of orders of finish in a race with nine horses. The winner would be

based on the order of finish in a race run for that purpose.1 Each

ticket would cost ten dollars. Assuming that all of the tickets are

sold, the gross generated would be $3,628,800. Of this sum, the

winner would be allocated $1,000,000; the hospital, $1,814,400; the

purse account for the races, $300,000; Ocean Downs, for capital

improvements, $250,000; advertising and printing, $100,000; and

“miscellaneous,” $164,000.

Gaming in Maryland is prohibited by a variety of statutes found

in Article 27 of the Maryland Code. Section 237 prohibits the
Gen. 92] 93

keeping of a gaming table, or a house, vessel, or place for the

purpose of gambling. Section 240 prohibits book making, pool

selling, and betting on the results of “any trotting, pacing or running

race of horses or other beasts, or race, contest or contingency of any

kind.” Section 356 provides that no person “shall draw any lottery

or sell any lottery ticket” or “sell what are called policies, certificates

or anything by which the vendor or other person promises ... that any

particular number, character, ticket, or certificate shall in any event

or on the happening of a contingency entitle the purchaser ... to

receive money, property or evidence of debt.” 

The proposed sweepstakes would violate one or more of these

prohibitions and is therefore invalid, unless it is authorized by some

other provision of law. Two possible sources for authority to

conduct the sweepstakes are the Maryland Horse Racing Act, which

permits licensed horse tracks to conduct gaming in some

circumstances, and Article 27, §251B, which permits certain types

of charitable gaming in Worcester County. It is our view, however,

that neither of these laws authorizes the sweepstakes in question.

II

Horse Racing Act

Under the Maryland Horse Racing Act, a person “must have an

appropriate license whenever the person holds a race meeting in the

State where pari-mutuel betting is allowed or a purse, reward or

stake is offered.” §11-302 of the Business Regulation (“BR”)

Article. The Act gives the Maryland Racing Commission broad

authority to regulate racing and betting on racing in the State. BR

§11-210(a)(1). See Lussier v. Maryland Racing Commission, 343

Md. 681, 688, 684 A.2d 804 (1996). One exception to the

Commission’s plenary authority, however, is that it may not by

regulation allow a form of intertrack betting, off-track betting, or

telephone betting that is “currently unauthorized.” BR §11-

210(b)(2). These provisions, together with the rest of the Act and

the legislative history of the laws regulating racing and wagering on

it, evidence a legislative goal to restrict the gambling that may be

conducted by a licensed track. Among the restrictions are that the

permitted wagering generally must occur at or through the track and

that the wagering is limited to pari-mutuel wagering.
94 [83 Op. Att’y

Racing has been conducted in Maryland since earliest colonial

times, and the first sanctioned racing began in 1743 with the

founding of the Maryland Jockey Club at Annapolis. Hickey, The

Thoroughbred: Maryland's Heritage, in Virginia Geiger (ed.),

Maryland, Our Maryland, at 255 (1987). Gaming and betting on

horse races were not prohibited at common law unless they created

a public nuisance. Bender v. Arundel Arena Inc., 248 Md. 181, 188,

236 A.2d 7 (1967); Greenfeld v. Maryland Jockey Club, 190 Md. 96,

103, 57 A.2d 335 (1948). The forerunner of §237, which prohibits

gaming tables, was enacted in 1797, Chapter 110 of the Laws of

Maryland 1797, but this provision was held not to reach book

making and pool selling. James v. State, 63 Md. 242 (1885). The

provision was held to apply to the sale of lottery tickets, however,

where the winner was to be determined on the basis of race results.

Boyland v. State, 69 Md. 511, 16 A. 132 (1888). In 1890, the

General Assembly reacted to the holding in James by outlawing

betting, book making, and pool selling on races, except on the

grounds of the tracks where the races were held. Chapter 206 of the

Laws of Maryland 1890. Subsequent legislation limited the tracks

to meets of thirty days a year and required not only that the betting

be done at the track where the race was run but also that it occur on

the day that it was run. Chapter 232 of the Laws of Maryland 1894.

Abuses under this law, including the establishment of six

tracks in a single county, so that wagering could be conducted six

months out of every year, lead to amendments in 1898 requiring that

the tracks obtain a license from the circuit court of the county in

which it was located in order to be able to have legal betting on its

grounds. Chapters 285 of the Laws of Maryland 1898. See

Agricultural Society of Montgomery County v. State, 130 Md. 474,

101 A.2 139 (1917). The licensing provisions of this law were

found invalid in Close v. Southern Md. Agric. Ass’n., 134 Md. 629,

108 A.2 209 (1919), but the general prohibition on book making and

pool selling remained in place. In 1920, under pressure to eliminate

legal racing altogether, the General Assembly moved to fill the gap

left by the decision in Close and created the Maryland Racing

Commission to license and regulate racing. Chapter 273 of the Laws

of Maryland 1920. This provision was expressly held not to repeal

the general prohibition on pool selling and book making, but to

continue the exception that had allowed these activities only on the

grounds of licensed tracks where the race was run. Greenfield v.
Gen. 92] 95

Maryland Jockey Club, 190 Md. at 96; Nolan v. State, 157 Md. 332,

146 A. 268 (1929). 

Since Greenfield and Nolan, the General Assembly has

amended the Horse Racing Act often, but it has never made any

changes suggesting that the power of the tracks to conduct wagering

extended to other sites. In fact, the General Assembly has

underscored this limitation by expressly authorizing certain forms of

off-track betting and telephone wagering and denying the Racing

Commission the discretion to add others. 

The express authority for the Racing Commission to license

tracks to conduct harness racing was first enacted in Chapter 502 of

the Laws of Maryland 1947. Section 16, which was added to the

Horse Racing Act by that law, provided that: “Each licensee

licensed under the provisions of this Section shall at its option be

permitted to avail itself of the pari-mutuel betting privileges

heretofore granted in this Article,” subject to the limitation that not

more than one license with parimutuel betting privileges could be

issued in a single county. The law provided that the track could

retain six percent of the money wagered for its own use, together

with the breakage, and that it was to pay a State tax of four percent

on money wagered plus a license fee of $25 per day. A 1951

amendment, Chapter 696 of the Laws of Maryland 1951, further

emphasized that the betting authorized by the provision is parimutuel

wagering. Chapter 696 amended the first sentence of §17 to provide

that “the Commission is authorized in its discretion to issue licenses

for the holding of trotting and pacing meetings at which there may

be offered stakes, purses or awards, and at which there may be

exercised pari-mutuel betting privileges.” (Emphasis added.) This

language remained in the Act until it was revised in 1992. While the

revision did not retain the express authorization to conduct parimutuel wagering, the Revisor's Note made clear that the intent was

not to alter that authority. General Revisor's Note to Article,

Business Regulations Article at 666. See Nationwide Mutual Ins.

Co. v. United States Fidelity & Guar. Co., 314 Md. 131, 147, 550

A.2d 69 (1988). Moreover, the new language contains nothing that

could be construed to grant authority for other kinds of wagering,

and the law reflected in the revision contains a complex system

under which the proceeds of wagering, including the mutuel pools,

are divided among the tracks, the State, and various other entities
96 [83 Op. Att’y

2

See BR §§11-613(a)(2)(ii) (half of the breakage to Sires Stakes

Program at track with average handle over $150,000), 11-614(2) (0.25%

of mutuel pool to the Maryland Harness Track Employees Pension Fund

at tracks with average handle over $300,000), and 11-615(a) (percentage

of mutuel pool to Sires Stakes Program and the Foaled Stakes Program of

the Maryland Standardbred Race Fund).

involved in standardbred racing.2 These provisions would be

meaningless if the tracks could simply conduct some other form of

wagering in which there would be no breakage, and money would

not go into the mutuel pool. 

Therefore, we conclude that the Horse Racing Act permits the

tracks to conduct pari-mutual wagering only. If the proposed

sweepstakes is to be permitted, the legal basis must be found

elsewhere. 

III

Charitable Gaming in Worcester County

A. Scope of Authorization

Article 27, §251B authorizes the County Commissioners of

Worcester County to issue a permit to certain organizations to

“conduct a fund-raising affair at which merchandise or cash prizes

may be awarded by devices commonly known as paddle wheels,

wheels of fortune, chance books, raffles, or by any other gaming

device.” §251B(a)(2). The permissible groups are a county or

municipally supported volunteer fire company or auxiliary; a

nationally chartered veteran’s organization; a bona fide religious

organization; a fraternal, educational, civic, patriotic, or charitable

organization raising money for a charity in Worcester County; or a

nonprofit organization raising money for an exclusively charitable,

athletic, or educational purpose. Id. Ocean Downs evidently does

not meet any of these qualifications and therefore could not conduct

the proposed sweepstakes. 

Even assuming, however, that a qualified organization

conducted the sweepstakes, it is our view that this type of gaming is

not permitted by §251B. The proposed sweepstakes is not a paddle
Gen. 92] 97

3

 The legislative history of the provision, Chapter 463 of the Laws

of Maryland 1988, contains fragmentary evidence that the General

Assembly intended simply to authorize a greater number of what are

conventionally understood as raffles, but the history as a whole is

inconclusive.

wheel, wheel of fortune, or chance book. Whether it might qualify

as a raffle, or as “any other gaming device,” requires further

analysis.

B. “Raffle”

Article 27, §251B(a)(1)(iii) defines “raffle” as “a lottery using

paper chances in which prizes are won by persons who buy chances

in the lottery.” This provision unquestionably creates an exception

to the general prohibition on lotteries in §356. American Legion,

Clopper Michael Post # 10, Inc. v. State, 294 Md. 1, 8, 447 A.2d 842

(1982). Moreover, if the definition were all that the General

Assembly meant when it enacted the term “raffle,” the proposed

sweepstakes would be a “raffle,” for it is undoubtedly a “lottery

using paper chances in which prizes are won ....” See Boyland v.

State, 69 Md. at 512.

Yet, we find it difficult to believe that, when the General

Assembly authorized “raffles,” it intended to allow any and all types

of lotteries.3

 Had it so intended, presumably it would have

authorized “lotteries,” not “raffles.” Moreover, we are enjoined to

construe §251B, like other provisions relating to gambling,

“liberally, so as to prevent the mischiefs intended to be provided

against.” §246.

The better reading of §251B, in our view, is that the General

Assembly authorized only those lotteries that present features

characteristic of a raffle. One court, reflecting common usage, has

described this kind of lottery as one “wherein a prize is awarded to

the person holding the ticket, the number or name upon which

corresponds to that on the counterfoil or ticket stub drawn at random

from a container in which have been placed the stubs of all the

tickets distributed.” United States v. Baker, 364 F.2d 107, 111 (3d.

Cir.), cert. denied 385 U.S. 986 (1966). The proposed sweepstakes

would not fit within the common understanding of a raffle. 
98 [83 Op. Att’y

We acknowledge that our interpretation of this provision is not

free from doubt. Should the promoters of the sweepstakes find a

qualified organization to conduct it and desire to proceed on the

theory, contrary to our opinion, that the sweepstakes is a “raffle,” the

promoters would be well advised to discuss the issue with the State’s

Attorney for Worcester County. Of course, the General Assembly

could also clarify the statute one way or the other, so that the

legislative objective may be discerned with greater confidence.

C. “Gaming Device”

The cases that have considered the issue of what is a “gaming

device” or a “gambling device” seem to agree that these terms refer

to a machine or apparatus upon which a game is played. To meet

this definition, the machine or apparatus itself must, by its operation,

determine whether the player is the winner of a prize. State v.

Ferris, 284 A.2d 288 (Me. 1971); Petition of District Attorney, 644

A.2d 240 (Pa. Cmwlth. 1994); Commonwealth v. Mihalow, 16 A.2d

656, 659 (Pa. Sup. 1940) (“A ‘device or apparatus for gambling’ is

a device or apparatus designed for carrying on the actual gambling

) for determining whether the player is to win or lose, like the wheel

of fortune ... and contrivances of that sort.”) (citation omitted).

These cases have concluded that a horse race is not a gaming device.

State v. Shaw, 39 N.W. 305, 307 (Minn. 1888); Commonwealth v.

Mihalow, 16 A.2d at 659; In re Teletype Machine No. 33335, 191 A.

210, 212 (Pa. Sup. 1937). 

In Maryland, it has been held that a blackboard and other

materials used to facilitate betting on horses are not “gaming tables,”

because that term, like the term “gaming device,” requires the

playing of a game of chance. James v. State, 63 Md. at 251.

Maryland law also distinguishes between gambling games and

gaming tables, on the one hand, and schemes of lottery, on the other.

Bender v. Arundel Arena, 248 Md. at 189-90. The first involve

activities in which the player participates personally and directly and

is present when the game ends and the result becomes known, while

the second covers schemes for awarding a prize by lot or chance in

which the only direct or personal participation by the seeker of the

prize is his purchase of a ticket or its equivalent. Id. As discussed

above, the proposed sweepstakes is a form of lottery in which the

winner is determined by the order of finish in a horse race. As such,
Gen. 92] 99

4

 In light of our conclusion, we need not consider the effect of other

provisions of §251B ) for example, the requirement in §251B(e) that the

fundraiser be conducted on property owned or leased by a qualified

organization or in an approved public place. 

it is not a gaming table, nor does it meet the definition of gaming

device, and it is not authorized by §251B.4

IV

Conclusion

In summary, it is our opinion that the proposed sweepstakes

would violate Maryland law. 

J. Joseph Curran, Jr.

Attorney General

Kathryn M. Rowe

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice

Editor’s Note:

The various provisions related to gaming in Worcester County

have been recodified and now appear in Title 13, Subtitle 26 of the

Criminal Law Article.