208 BIENNIAL REPORT OF THE ATTORNEY GENERAL CRIMES-GAMBLING GAMES OF CHANCE, CONSIDERATION PRIZE CONSTRUCTION OF , F. S.

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1 ,.,.~' ',' "'.:~ : ~ ~ ". ) i I! I I t 208 BIENNIAL REPORT OF THE ATTORNEY GENERAL December 15, 1965 To: CRIMES-GAMBLING GAMES OF CHANCE, CONSIDERATION PRIZE CONSTRUCTION OF , F. S. Paul Antinori, Jr., State Attorney, Tampa QUESTIONS: 1. Does the operation of games of skill wherein prizes are given to a successful player who has paid the concessionaire a monetary consideration for the opportunity to play, constitute gambling under , F. S.? 2. If the answer to question 1 is in the affirmative, are the games described in , F. S., specifically excluded from the operation of the gambling laws, particularly in view of the express admonitions and prohibitions set forth in and (1)(1), F. S.? 3. If the answer to questions 1 and 2 are both in the affirmative, is the enactment of Ch , ( , F. S.) constitutional under 16, Art III, State Const., requiring sufficient expression in the title of the act, since the act in question purports to repeal in part the gambling laws of the state? AS TO QUESTION 1: It is my opinion that the operation described in question 1 violates , F. S., which reads as follows: Unlawful to bet on result of trial or contest of skill, etc.-whoever stakes, bets or wagers any money or other thing of value upon the result of any trial or contest of skill, speed or power or endurance of man or beast, or whoever receives in any manner whatsoever any money or other thing of value staked, bet or wagered, or offered for the purpose of being staked, bet or wagered; by or for any other person upon any such result, or whoever knowingly becomes the custodian or depositary of any money or other thing of value so staked, bet, or wagered upon any such result, or whoever aids, or assists, or abets in any manner in any of such acts all of which are hereby forbidden, shall be guilty of gambling, and shall be punished by imprisonment not exceeding six months or by fine not exceeding five hundred dollars. A trial of skill is involved when a player plays a game of skill in the hope that he will play it so skillfully as to win a valuable prize which he will receive from the operator if he meets the required standard of excellence. When a player pays a monetary consideration for the opportunity to play such a game, he also bets or wagers such monetary consideration against the prize offered by the operator. The words "bet" and "wager" are defined in 38 C.J.S , Gaming, 1-c(1), as follows: The definitions of 'bet' and 'wager' ordinarily given imply that there must be two or more contracting parties having mutual or reciprocal rights with respect to the money or other things that are wagered, and usually called the stakes of the bet or wager, and that each of the parties shall jeopardize something, and have the chance to make something or to recover the stakes or thing bet or wagered on the determination of the contingent or uncertain event in his favor; but accord- \ \ II!

2 ls r BIENNIAL REPORT OF THE ATTORNEY GENERAL 209 ing to some decisions it is not essential that both parties should stand to lose, it being sufficient if one party stands to lose or win... The transaction between the operator and the player meets this definition. There are two contracting parties, viz., the operator and the player. They have mutual rights with respect to the money and prize that are wagered, that is, the player receives the operator's prize if he wins, and the operator gets the money paid by the player, with.no return to the player if he fails to win. Each of them jeopardizes something; the player jeopardizes his money and the operator jeopardizes a prize. Each has the chance to make something on the determination of the contingent or uncertain event of whether the player will play the game with such skill as to win the prize.. It is true that the money paid by the player buys an opportunity to play the game, but it is equally true that his money also furnishes a consideration which he bets or wagers against the prize offered by the operator. A merchant conducts a gambling operation when he sells goods for their market value and by way of inducement gives the purchaser a chance to win a prize by chance. The reason for this is that the money which the purchaser pays for the goods also furnishes the consideration for a chance to win the prize. (See 54 C.J.S , Lotteries, 4; 34 Am. Jur. 654, Lotteries, 10.) Likewise, a person conducts a gambling operation when he sells bonds issued for the purpose of obtaining a loan when the bonds undertake to pay the principal with interest and also any additional sum which the holder may win at a drawing, since the money paid for the bonds also furnishes the consideration for the chance to win something for nothing. (See 54 C.J.S. 857, Lotteries, 10b; 34 Am. Jur. 658, Lotteries, 15.) By the same token, the money paid to the operator of a skill game not only pays for the opportunity to play the game but also furnishes the consideration for the chance to get the operator's prize for nothing, with the result that the money is bet or wagered against the prize. The very purpose of the operator's offer of a valuable prize, which in most instances is worth more than the amount of money paid by the player, is to induce people to pay for playing games when they would not otherwise be interested in doing so. Most of the people who pay their money are induced to do so by the offer of a prize; if no prize were offered, they would not pay for the opportunity to play the game. In determining whether a given operation constitutes gambling, the courts look to substance rather than form and when we look at the substance of a game of the kind here under consideration, it is apparent that the player actually pays his money as a bet or wager against the prize offered by the operator and the operator throws in for good measure the means of ascertaining the result, that is to say, he furnishes the place to play and the equipment with which to play. For the purpose of illustration, let us assume that the operator raises his charge to $10 and agrees to give the player a prize worth $100 if he wins the game. In such a case, it could hardly be doubted that the $10 paid by the player constitutes a bet or wager against the operator's prize. And the fact that in the ordinary operation of this sort the player puts up a sum much smaller than $10 against the operator's prize worth much less than $100 in no way minimizes the fact that the sum paid by the player is a bet or wager. Consequently, I think that the operation mentioned in question 1 falls under the condemnation of said , F. S., and that said question is properly answered in the affirmative.,. ;i i! 11 [ " ~ I I i'

3 ,... :~, 210 BIENNIAL REPORT OF THE ATTORNEY GENERAL The foregoing construction of , F. S., is in accord with the views expressed by my predecessor in office, Hon. Richard W. Ervin in AGO (attorney general's biennial report, , p. 80' and opinion p. 246). ' Further, I am of the opinion that the operator of the skill game mentioned in said question violates , F. S., which provides that: Keeping gambling houses, etc.-whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be punished by imprisonment in the. state prison not exceeding three years, or by fine not exceeding five thousand dollars. The purpose and intent of said , F. S., was dealt with by the Sup. Ct. of Fla., in McBride v. State, 22 So. 711, in words as follows: The purpose and intent of the section of the statute under discussion was to prohibit, not the gaming or gambling itself, but the keeping of a house or other place for any manner of gaming or gambling. If money or other thing of value is staked or wagered therein upon any result or event whatsoever, such house falls within the inhibition of this statute, whether the means adopted for the decision of the question as to who is the winner or loser of the amount wagered be a game prohibited by law or not. and in the same case, the Sup. Ct. of Fla., said that: The consensus of the better opinions is that the wagering, betting, or laying of money or other thing of value upon the transpiring of any event whatsoever, whether it be upon the result of a game of chance or upon a contest of skill, strength, speed, or endurance, whereby one party gains and the other loses something for nothing, whether the parties betting be the actors in the event upon which their wager is laid or not, is gaming or gambling, within the meaning of these acts. I think that when the operator of a skill game permits a person to put up a sum of money for which he receives two things, 1. the right to play a skill game, and 2. an opportunity to win a valuable prize, the operator is permitting the player to play at a game for a valuable thing within the condemnation of said , F. S. AS TO QUESTION 2: I find nothing in , F. S., which excludes the games therein described from the operation of the gambling laws. Section , F. S., was first enacted in Subsection (1) (a) - (kk), purports to do no more than establish trade standards for the operation of shows and amusement devices in connection with public fairs and expositions, and subsection (2), which contains paragraphs (a)-(r), merely specifies safety standards for the operation of amusement devices and temporary structures at public fairs and expositions. The same Ch , which brought , F. S., into being amended the previously existing , F. S., in particulars which are not pertinent to this discussion, so as to cause the same to read: Not authorized to carryon gambling, etc.; forfeiture of charte1' for violations; annulment proceedings.-

4 ... BIENNIAL REPORT OF THE ATTORNEY GENERAL 211 the "in, 80, me It: Ie ;: Nothing in this chapter shall be held or construed to authorize or permit any association organized hereunder to carryon, conduct, supervise, permit or suffer any gambling or game of chance, lottery, betting or other act in violation of the criminal laws of the state; provided that nothing in this chapter shall permit horse or dog racing or any other pari-mutuel wagering, for money or upon which money is placed, and any association organized under this chapter which shall violate any of said laws or which shall knowingly permit the same to be done shall be subject to forfeiture of its charter; and if any citizen shall complain to the attorney general that any association organized under this chapter was organized for or is being used as a cover to evade any of the laws of Florida against crime, and shall submit prima facie evidence to sustain such charge, the attorney general shall institute, and in due time prosecute to final judgment such proceedings as may be necessary to annul the charter and incorporation of such association, and writs of injunction or other extraordinary process shall be issued by courts of competent jurisdiction on the application of the attorney general on complaint pending any such annulment proceeding and in aid thereof, and all such cases shall be given precedence over all civil cases pending in such courts, and shall be heard and disposed of with as little delay as practicable. This indicated that, despite the enactment of , F. S., the legislature intended to retain the prohibitions of , F. S., against gambling. Furthermore, (1) (1), F. S., specifically recognizes that Florida law forbids gambling at fairs by saying: Since the Florida law forbids lotteries, gambling, raffles, and other games of chance at community, county, district and state fairs,.and since enforcement is the responsibility of local boards and authorities, the inspectors will have fulfilled their responsibility by informing the local fair association and the agricultural and livestock fair committee in writing whenever they observe such illegal pursuits. (Emphasis supplied.) I am not unaware of the opinion of the Sup. Ct. of Fla., in the case of Carswell, Tax Collector v. State ex rel Marlowe, 159 So. 15, which involved a mandamus action to coerce the tax collector to collect occupationallicense taxes from persons operating amusements at a public fair, which opinion (p. 19) contains expressions as to the need for fair associations to provide amusements and attractions for the public. However, following said expressions, and on the same page, the Sup. Ct. took care to point out that:. There is no question involved here challenging the legality of the amusements offered or the concessions employed except for the nonpayment of the tax, and, assuming that they were all proper enterprises to be conducted for the patronage of the public, then it would seem that for the fair association to be denied the right to show its necessity for resorting to such legitimate means to produce money with which to conduct its agricultural, horticultural, and live stock exhibitions would be to deny the association the right to prove the very elements which in part justify its conducting these concessions. (Emphasis supplied.) and it is clear from a perusal of the court's entire opinion that it in no way dealt with or decided the legality of the operation of the amuse-

5 212 BIENNIAL REPORT OF THE ATTORNEY GENERAL ments and attractions involved in the case. Therefore, the decision in that case in no way conflicts with the views herein expressed. Question 2 is answered in the negative. AS TO QUESTION 3: Question 3 does not require an answer because it requests one only in the event that questions 1 and 2 are both answered in the affirmative, and question 2 has been answered in the negative. However, I deem it appropriate to observe that Ch , which first enacted , F. S., has been incorporated in the 1965 re,:" vision of the Florida Statutes by Ch. 65-1, and that the Sup. Ct. of Fla., has said that any defect in the title to an act of the legislature is cured by the inclusion of the act in a revision of the statutes (Spangler v. Florida State Turnpike Authority, 106 So.2d 421) December 15, 1965 To: TAXATION EXEMPTION-STATE-OWNED MURPHY ACT LANDS Robert C. Parker, Director, Trustees of the Internal Improvement Trust Fund, Tallahassee QUESTIONS: 1. May special assessments or other taxes be levied by any special taxing district against Murphy act lands owned by the state and administered by the trustees of the internal improvement trust fund? 2. Are Murphy act lands subject to normal ad valorem taxes to secure funds for county operations? Lands which are designated as Murphy act lands became the absolute property of the state by authority of Ch , 1937, as subsequently amended and now carried into , F. S. These lands are administered by the trustees of the internal improvement trust fund, but the fee simple title to such lands was absolutely vested in the state. Thus these lands differ in ownership from those conveyed to the state by the U. S. as reflected in and , F. S. Murphy act lands are administered by the trustees, but their title is in the state. Title to sovereignty lands and certain other classifications is in the 5 trustees. Section , F. S., provides: Land held by the trustees of the internal improvement trust fund shall be subject to the tax imposed under authority of this chapter,.. For facilitating the assessment of district taxes on land of said fund, the trustees thereof are authorized to prepare lists of land held by them and, timely for the purpose, to transmit a list of said land to the tax assessor of each county in which such land is located,.. Certain other sovereignty lands, title to which is in the trustees, are excluded from taxation by , F. S., which applies only to assessments by the central and southern Florida flood control district. Section , F. S., lists property exempt from taxation as, among others: "All property, real and personal,. of this state.." Section , F. S., in amplification of this exemption, reads in part: No taxes or special assessments shall be levied by any taxing district, special taxing district, or other governmental unit