92 [83 O p. Att’y

1 Appare nt ly t hree races would be designa ted in advance for the sweepsta kes. If all three races were conducted without problems, the resultsof one of the three, drawn by lot, would bec ome the sweepstakes event. GAMING

L OTTE RIES

) R ACING

) S WEEPSTAKE S IN W ORCESTER C OUNTY B ASED ON R ESULTS OF H ORSE R ACE W OULD B E U NLAWFUL

January 7, 1998

The Honorable K. Bennett Bozman House of D elegates

You have asked for our opinion ab o ut the l egali ty of a proposedsweepstakes , based on a r ace to be hel d at Ball y’ s at Ocean Downs (“Oce an D own s”), a harness ra ce tra ck in W or ce ste r C ou nt y. Ha lf of the proc eeds wo uld b enefit Atlan tic Ge neral H ospital. Our opi nio n is th at the sw eep stak es w oul d be unl aw ful.

I
Introducti on
We underst and the propos al to be as foll ows: The sweepstakes
wo uld be conducted by Ocean Dow ns, and would i nvolve sel ling tickets with number s r epresent ing allof the poss ible c ombinati ons of orders of

finis h in a race with nine hors es. The winner would be based on the order

of fini sh in a r ace run for t hat purpos e. 1 Each ticke t w oul d cost ten do llars. Assumin g that all of the tickets are sold, the gro ss gen erated wo uld b e $3,6 28,80 0. O f this su m, the winner wo uld be alloc ated $1, 000,000; t he hospit al, $1,814,400; the purse account for

the rac es, $300, 000; Ocean Downs, for capit al improvements, $25 0,000 ; adve rtising an d prin ti ng, $100,000; and “miscel laneous, ” $164,000. Gaming in M aryl and is pr ohibit ed by a variet y of s tatut es found in Ar ticle 2 7 of

the M arylan d C ode . S ecti on 237 prohibi ts t heGen. 92] 93 keeping of a g amin g table , or a house, vessel , or pl ace for t he purpose of gambling. Sec tion 24 0 prohibi ts book making, pool sell ing, and b etting o n the re sults of “any t rott ing, pa cing or

running
race of horses or

other beasts , or r ace, cont est or continge ncy of any kind.” Sec tion 356 p rovides that no person “sh all draw an y lottery
or sell any lottery

ticke t” or “s ell what

are cal led poli cies, certi ficat es or anyt hing by which t

he vendor or ot

her pers on promises . .. t hat any parti cular

num ber, character, ticket, or c ertificate shallin any event or on the happeni ng of a conti ng ency en ti tle the p urch aser ... to recei ve money, propert

y or evidence of debt .”
The proposed sweepstakes w ould violate one or more of these prohibi tions and is therefore invali d, unless it is aut hor iz ed b y som e othe r prov ision o f law . Tw o po ssible so urces for au thority to conductthe sweepst akes are t he Maryland Horse Racing Act, which perm its license d ho rse track s to co ndu ct g ami ng i n so me circumstances, and A rticle 27 , §251 B, w hic h perm its certa in ty pes of charitable gam ing in W orcester Co unty. It is our view, how ever, that ne ither

of these l aws authori zes the s weepstakes i n questi on.

II Horse Racing Act
Under the Maryl and Horse Racing Act, a per son “must have an appr opriate license whenever the per son holds a r ace meeti ng in the State wh ere pa ri-mu tu el b etting is al lowed or a purs e, reward or stake is offer ed .” §11-302 of the Busi ness Regulation (“BR”) Articl e. The Ac t g iv es th e Mary land Ra cing Commission broad autho rityto regu late racin g and betti ng on ra ci ng i n the S tate . BR §11-21 0(a)(1). See Lussi e r v. Maryland Racing Comm issi on , 343 Md. 681 , 6 88, 684 A. 2d 804 ( 1996). One except ion to t he Com mission’s plenary

authori ty , however, is that it may not by regulation allow a for

m of intertrack be tti ng, off-t rack betting, or tele phone betti ng that i s “curr ently unauthori zed.” BR §11- 210(b) (2). These provis ions, togethe r with t he rest of the Act and the legis lative hist oryof the l aws regulat ing racing and wagering on it, ev idence a l egisl ative goal to r estr ict t he gambling t

hat maybe conductedby a l icense d track. Among the restricti ons are t hat the permitt ed wagering gener ally must occur

at or thr ough the tr ack and that t he wagering i s li mited t o pari- mutuel wageri ng.94 [83 O p. Att’y Racing has been conducted in M aryl and since earliest colonia l times, and the fi rst s anc tio ned raci ng began in 1743 with the fou nding of th e M arylan d Jo cke y Clu b at A nna pol is. H icke y, The Thoroughbred: Maryland's Heri tage , in Virginia Gei ge r (e d.), Maryland, Our Maryland, at 255 (1987) . Gaming a n d betting on horse races w ere not prohibited at common law unless they cr eated
a pub lic nui san ce. Bender v. Arundel Arena Inc. , 248 Md. 181, 188, 236 A.2d 7 (196 7); Greenfeld v

. Maryland Jockey Club , 190 Md. 96, 103, 57 A .2d 33 5 (19 48). T he fo rerun ner o f §2 37, w hich p rohib its gaming table s, was enact ed in 1797, Chap ter 1 10 of the Laws of Maryland

1797, bu t this provisi on was held not t o reach book making and poo l sellin g. Jam es v. Sta te , 63 Md. 242 (18 85) . Th e provisi on w as he ld to apply to the sale of lottery tickets, howe ver, whe re the winner

was to be determined on the basis of race results

. Boyland v. State , 69 Md. 511, 16 A. 132 ( 1888). I n 1890 , the General Assembly r eacted t o the holding in James b y out lawing betting, book making, and poolsell ing on races, except on t he grounds of

the tracks w here the rac es were held. Chapter 206 of t he Laws of Maryland 1890. Subsequent l egisl ation l imit ed the tracks to meets of thirt

y day s a y earand r equire d no t only that t he bett ing be done at the trac k where the ra ce was run but al so that it occ ur on the day t hat it was run. Chapter

232 of the Laws of M ary land 1894.
Abuses und er th is law , i ncl udin g the e stablish men t of six tracks in a si ngle county, so that wagering could be co ndu cted six months out of ev ery year, lead t o amendments in 1898 r equiri ng that t he tra ck s o bt ain a li ce ns e f ro m th e c irc ui t co ur t o f th e c ou nt y i n which it was locate d in o rder to be ab le to hav e lega l betting on its grounds. Chapters 285 of t he Laws o f M arylan d 18 98. See Agricultural Society of

Mon tgomery Co unty v . State , 130 Md. 474, 101 A.2 139 (1917). The licens ing pr ovisions o f this law w ere found invalid in Close v. Sou ther n Md. A gric . Ass ’n., 134 Md. 629, 108 A.2 209 (1919), but the gener al prohibi tion on book maki ng and pool selling remaine d in place. In 192 0, und er pres sure to elimin ate legal racing altoge ther, the Ge neral A ssem bly mov ed to fillthe gap left by t he decisi on in Close a nd cr eated t he Maryland Racing Commission to license and r egula te ra ci ng. Chapt er 273 of th e Laws of Maryland 1920. This provi sion was expre ssly held not to repea l the general prohibi tion on poolsell ing and bookmaking, but to continue the except ion that ha d allowed these act ivities only on the grounds of

licen sed track s w her e the race wa s run

. Greenfiel d v.Gen. 92] 95 Maryland

Jockey Club , 190 M d. at 96 ; Nolan v. State , 157 Md. 332, 146 A. 2 68 ( 192 9).
Since Gre enfield and Nolan, the GeneralAssembly ha s amen ded the Horse Raci ng Act often, but it has never made any changes suggesting that the power of

the tr acks to conduc t wagering extendedto o ther sites

. In fac t, the GeneralAssembly ha s underscor ed this limi tati on by expr essly authori zing certain f orms of off -tr ack betting and tel ephone wagering and denying the Raci ng Co mm issio n th e dis creti on t o ad d ot her s.
The expres s au thority

for the Racing Com mission to license tracks to conduct

harness racing was first ena cted in Chapter 502 of the Laws of M ary land 1947. Section 16, which was added to the Horse Racing Act by

that l aw, provided t

hat: “ Each lice n se e lice nsed under t he provisi ons of thi s Secti on shallat it s opti on be permitt ed to avai l it self of t he pari- mutuel bet

ting privil eges heretofore gran ted in this Articl e,” subj ect t o the limi tati on that not
more than on e lice nse with parimutuel betting privi leges coul d be issued in a sing le cou nty. The law p rovid ed tha t the track could retain six pe rcent o f the m oney w agere d fo r its own use , toge ther with the br eakage, and t hat it was t o pay a St ate t ax of four percent
on money wagered plus a li cense fee of $2 5 per day . A 1951
ame ndm ent, C ha pter 696 of t he Laws of Maryland 1951, further emphasizedthat t

he bett ing authori zed by t he provis ion is parimutue l wagering. Chapter 696 amendedthe fi rst s entence of §17 t o provide that “the C om missio n is au thorize d in its discr etionto is sue li censes for the holding of trot

ting and pa cing meeti ngs at which t h ere may be offered stak es, p urse s or a wa rds, and at which there may be exerci sed pari-mutuel betting pri vileges. ” (Em phas is add ed.) This language remainedin the Act untilit was r evised i n 1992. While t he revis ion did not r etai n the expre ss authorizat ion to con duc t parimutuel wagering, t

he Revisor' s Note made clear that the int ent was not to alt er that

authori ty . General Revisor' s Note to Art icle , Busi ness Re gul ation s A rticle at 66 6. See N ationw ide M utua l I ns

. Co. v. United States Fideli ty & Guar. Co. , 314 M d. 13 1, 1 47, 550 A.2d 69 (1988). Moreover, the new language contai ns nothi ng that could be constr

ued t o grant aut

horit y for other ki nds of wagering, and the law reflected in the r evision contains acomplex sys tem under which the proceeds of w agering, includi ng the mutuel pools,
a re divided among the tra cks, t he State , and vari ous other entities96 [83 O p. Att’y

2 SeeBR §§11-613(a)(2)(ii) (half of the bre akage to Sires Stakes Program at track with average handle

over $150,000), 11-614(2) (0.25% of mutuel pool to the Maryland Har ness Track Employe es Pension Fund at tracks w ithaverage handl e over $ 300,0 00), a nd 11- 615(a ) (perc entage of mutuel pool to Sires Stakes Program and the Foaled StakesProgram of the Maryland Standa

rdbred Race Fund). involve d in st andardbred r acing. 2 These provis ions would be meaningles s if t

he tracks could simply

conduct some other form of wagering in which t here w ould be no break age, a nd m oney w ould not go i nto the m utu el po ol. Therefore, we conclude that the Horse Raci ng Act permit s the tracks to con duct p ari-mu tual w agerin g on ly. If th e prop osed sweepstakes is t o be permitted, the le gal ba si s mu st be found else wh ere.

III

Ch aritable G amin g in W orcester C ounty
A. Scope of Authorization
Article 27, §251B author ize s the County Commissi oners of Worcester

Coun ty to is sue a perm it to certain orga nizatio ns to “conducta fund-rai sing affair at whichmerchandise or cash pri zes may be awarded by de vices commonly known as paddle w hee ls, wh eels of fortune, chance books , raff les, or byany ot

her gaming dev ice.” §251B(a)(2) . The permis sibl e gr oups are a count y or mu nic i pally supp orted v olun teer fire com pany or auxilia ry; a nation ally charte red vete ran’s organ izati on; a bona fi de reli gious organization; a frate rnal, ed ucatio nal, civic , patriotic, o r charita ble organizationraising mon ey for a charity in Worcester C ounty; or a non prof it organization r aisi ng money for an exclusi vely charit able, athle tic, or e duc ation al pu rpo se. I d. Ocean Dow ns evident ly does not meet any of these qualif icat ions and there fore coul d not conduct the p rop ose d sw eep stak es.
Even assuming, however, that a qual ifie d organization conductedthe sw eeps takes, it is our vi ew that this t ype of g amin g is not perm itted by §2 51B . The prop osed swe epstak es is not a pad dleGen. 92] 97

3 The legislative history

of the provision, Chapter 463 of the Laws of Maryland 1988, c ontains fra gmenta ry evidenc e that the General Assembly intended simply to authorize a gr eater number of

what a re conventi onally

understo od as raf

fles, but the histor

y as a whole

is inconclusive. wh eel, wheel of fort

une, or chance book. Whether it might qualif y as a raffl e, or as “any ot her gaming devi ce,” r equ ire s further analysi s.
B. “Raffle”
Article 27, §251B(a)(1) (ii i) defines “raffl e” as “alott ery using paperchances i n which prize s are won bypersons who buy chances in the lotter y.” This p rovisio n un ques tionab lycreat es an except ion to the g ene ral p roh ibitio n on lotte ries in §35 6. Ameri can Legion, ClopperMichael Post # 10, Inc. v. State , 294 Md. 1, 8, 447 A.2d 842 (1982). M ore ove r, if the d efini tion were a ll t hat the General Ass emb lym ea ntwh en it e nacted t he term “r affle, ” the propos ed sweepstakes would b e a “r affle,” for it is undo ubtedly a “lottery usin g p aper chances in which pri zes are won .. ..” See Boyland v. State , 69 Md. at 512.

Ye t, we find it

diffi cult to belie ve that , when the General Ass emb lyauthori zed “raffl es,” i t int ended to all ow any and all ty pes of lotteri es. 3 Had it so i nt en ded, pres umably i t would have authori zed “lott eries ,” not “raffl es.” M oreo ver, w e are e njoine d to constr ue §251B, li ke other pr ovisi on s rela ting t o gambling, “libe ral ly, so as to pr event the mischie fs int ended to be pr ovided against .” §246.
The better reading o f §251 B, in our v ie w, is that the General Ass emb ly authori zed only those l otteries t

hat pres ent feat

ures chara cteristic of a raffle. One court, r eflect ing common usage, has described this kind of lot tery as one “wherei n a prize is a wa rded to the per sonhol di ng t

he t ic ket , t

he numb er or n ame upon which
corres ponds to that

on the counterf

oil or ticke t st ub drawn at random fr om a con tainer in wh ich ha ve be en pla ced th e stub s of a ll th e tickets distribut ed.” United States v. Baker , 364 F.2d107, 111 (3d. Cir.), cert. denied

385 U.S. 986 (1966) . The proposed s weepstakes
wo uld not fit w ithin the c om mo n un der stan din g of a raffle.98 [83 O p. Att’y

We acknowledge that our inter pretation of thi s provis ion is not free from doubt. Should the pr omoters of the sweeps takes find a qu alif iedorganization t o conduct i t and desi re to pr ocee d on th e th eo ry, contrar

y t o our opinion, that t

he sweepstakes is a “r affle, ” the promo ters wo uld b e w ell advis ed to d iscuss th e issue with the State’s Attorney for W orces ter Co unty. Of cour se, the G enera l Ass emb ly could also cl arify

the st atute one way ort he other, so that the legis lative object ive maybe discer ned with greater conf

idence.
C. “Gam ing Device”
The cases t

hat have conside red the i ssue of whatis a “gami ng device” or a “gam bling d evice ” seem to agree that the se ter ms refer to a ma chine or a

pparatus upon which a game is pl ayed. To meet this defini tion, the machine or apparat us it self must , by

its operati on, determi ne whether the play er is the winner of a p rize. St ate v. Ferr is , 284 A.2 d 28 8 (M e. 197 1); Petition of Dis tri ct Att orney , 644 A.2d 240 (Pa. C mw lth. 199 4); Co mm onw ealth v. Mihalow , 16 A.2d 656, 659 (Pa. Sup. 1940) (“A ‘devi ce or appar atus for gambling’ is
a device or

apparat us designe d for carr

yi ng on the act

ual gambling

)for dete rmining whethe r the player is t o win or lose , li ke the wheel of fortune . .. and cont r ivances of that sort.”) (citation omitted). These cases have conc luded that a h orse ra ce is no t a gaming device. State v. Shaw , 39 N.W. 305, 307 ( Minn. 1888) ; Co mmo nwealth v. Mihalow , 16 A.2d at 659; In re Teletype Machine No. 33335 , 1 91 A

. 210 , 212 (Pa . Su p. 19 37)

. In Maryland, it has been held that a blackboar d and other mate rials used to facil itat e bett ing on h orse s are not “ga min g tab les,” because that t erm, l ike the term “gaming de vic e,” re quires the play ing of a gam e of

cha nce

. Ja me s v. State , 63 Md. at 251. Maryland

law also di sti nguishes be tween gambling games and gaming table s, onthe one h and, and schem es of lottery, on the other. Bender v. Arundel

Arena , 248 M d. at 189-9 0. The fir st i nvolve acti viti es in which the pla yer particip ates pe rsona lly and dire ctly and is present

when the game ends and the result b ecom es kn ow n, w hile the second covers sc hemes foraw arding a prize by lot or ch ance in which the only

direct or pe rso nal participation by the seeke r of the prize is his p urc has e of

a tick et or its eq uiv alen t. Id. As discusse d above, the propos ed sweepstakes is a for m of lott ery

in which the winner is det erminedby the ord er of finish in a horse r ace. As such,Gen. 92] 99

4 Inlight 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 prope rty owned or le ased by a qua lified organization or in an approved public place. it is not a gaming tabl e, nor d oes it meet the def

inition of gaming dev ic e, andit

is not aut hor iz ed b y §25 1B. 4

IV
Conclusion

In summary, it i s o ur opini on that t he proposed sweepst akes
wo uld vio late M arylan d law

.
J. Joseph C urran, Jr. AttorneyGeneral

Kathry n M. Rowe Assist antAttorney Gener al
Jack Sch wa rtz Chief Counsel Opinions and Advic e

Editor’ s Note:
The various prov isions re lated to gam ing in W orces ter Co unty have been recod ified a nd n ow appe ar in T itle 13, Subtit le 26 of the CriminalLaw Article.