The term some skill refers to a particular craft, coordinated effort, art, ability, strategy, or tactic employed by the player to affect in some way the outcome of the game played on a bona fide coin operated amusement machine as defined in paragraph (2) of subsection (b) of Code Section 50-27-70. If a player can take no action to affect the outcome of the game, the bona fide coin operated amusement machine does not meet the "some skill" requirement of this Code section.
This subsection shall not apply, however, to any game or device classified by the United States government as requiring a federal gaming stamp under applicable provisions of the Internal Revenue Code or any item described as a gambling device in subparagraph (B), (C), or (D) of paragraph (2) of Code Section 16-12-20.
(g.1)Any location owner or location operator or person employed by a location owner or location operator who violates subsection (h) or (i) of this Code section for the second separate offense shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than five years, a fine not to exceed $25,000.00, or both, as well as loss of location license and all other state licenses.
(Code 1933, § 26-2713, enacted by Ga. L. 1976, p. 1158, § 1; Ga. L. 1978, p. 1779, § 1; Ga. L. 1985, p. 886, § 1; Ga. L. 1991, p. 1396, § 1; Ga. L. 1991, p. 1398, § 1; Ga. L. 1992, p. 1489, § 1; Ga. L. 1996, p. 309, § 1; Ga. L. 1997, p. 689, § 1; Ga. L. 1998, p. 563, § 1; Ga. L. 1999, p. 1224, § 1; Ga. L. 2001, Ex. Sess., p. 312, § 2; Ga. L. 2007, p. 47, § 16/SB 103; Ga. L. 2013, p. 37, § 2-1/HB 487; Ga. L. 2018, p. 1112, § 16/SB 365.)
The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "paragraph (2) of subsection (b) of Code Section 50-27-70" for "paragraph (2) of Code Section 50-27-70" at the end of the first sentence in the ending undesignated paragraph of subsection (a).
Cross references.- Restrictions on percent of income from coin operated machines, § 48-17-15.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1996, a semicolon was substituted for a period at the end of subparagraph (c)(2)(B).
Pursuant to Code Section 28-9-5, in 1999, "subparagraph" was substituted for "subparagraphs" in subparagraph (d)(1)(D) and "subsection" was substituted for "subsections" in subsection (e).
Editor's notes.- Ga. L. 2001, Ex. Sess., p. 312, § 4, not codified by the General Assembly, provides that: "This Act is not intended to, and should not be construed to, affect the legality of the repair, transport, possession, or use of otherwise prohibited gambling devices on maritime vessels within the jurisdiction of the State of Georgia. To the extent that such repair, transport, possession, or use was lawful prior to the enactment of this Act, it shall not be prohibited by this Act; and to the extent that such repair, transport, possession, or use was prohibited prior to the enactment of this Act, it shall not be permitted by this Act."
Ga. L. 2001, Ex. Sess., p. 312, § 5, not codified by the General Assembly, provides that: "During the period beginning January 1, 2002, and ending June 30, 2002, it shall not be unlawful to possess in this state a machine or device described in subparagraph (B), (C), or (D) of paragraph (2) of Code Section 16-12-20, if: (1) Such machine is not in use; (2) Such machine is in transit to a storage facility or in a storage facility, which said storage facility is a secured facility and no part of same is accessible by anyone other than employees of said facility or employees of the owner of said machine; and (3) Such machine is not located in a place which is open to the public and is not located in a private club."
Ga. L. 2013, p. 37, § 3-1/HB 487, not codified by the General Assembly, provides, in part, that: "(b) If any section of this Act is determined to be unconstitutional by a final decision of an appellate court of competent jurisdiction or by the trial court of competent jurisdiction if no appeal is made, with the exception of subsection (g) of Code Section 50-27-78 and Section 2-1 of this Act, this Act shall stand repealed by operation of law.
"(c) This Act is not intended to and shall not be construed to affect the legality of the repair, transport, possession, or use of otherwise prohibited gambling devices on maritime vessels within the jurisdiction of the State of Georgia. To the extent that such repair, transport, possession, or use was lawful prior to the enactment of this Act, it shall not be made illegal by this Act; and to the extent that such repair, transport, possession, or use was prohibited prior to the enactment of this Act, it shall remain prohibited."
U.S. Code.- The provisions of the Internal Revenue Code related to the wagering tax stamp are codified at 26 U.S.C. § 4901.
JUDICIAL DECISIONS
O.C.G.A. § 16-12-35 decriminalizes certain pinball machines because they are no longer to be considered as gambling devices. Total Vending Servs., Inc. v. Gwinnett County, 157 Ga. App. 28, 276 S.E.2d 89 (1981).
State statutes preempted city's ordinance.
- Conviction and fine against a convenience store operator for violating a city ordinance that prohibited certain retailers of packaged alcoholic beverages from allowing coin operated amusement machines (COAMs) on the same premises was reversed because the state's COAM Laws, O.C.G.A. §§ 16-12-35 and50-27-70, et seq., preempted the city's ordinance at least insofar as the ordinance applied to COAMs as defined by the state statutes. Gebrekidan v. City of Clarkston, 298 Ga. 651, 784 S.E.2d 373 (2016).
O.C.G.A. § 16-12-35 deals with pinball machines in isolated context of criminal gambling laws of Georgia. Total Vending Servs., Inc. v. Gwinnett County, 157 Ga. App. 28, 276 S.E.2d 89 (1981).
Gambling device.
- In Georgia, O.C.G.A. § 16-12-35 (d)(2) did not require success in every single play of the game in order for a player to carry over and redeem points accumulated during an earlier successful play of the machine or device. As such, the trial court did not err by using the long-established common meaning of the term "slot machine," i.e., an apparatus by which a person depositing money therein could, by chance, get directly or indirectly money or articles of value worth either more or less than the money deposited. Ultra Telecom, Inc. v. State, 288 Ga. 65, 701 S.E.2d 144 (2010).
Skill in operation of machine.
- There was no evidence that any of the gambling machines seized for civil forfeiture proceedings from stores involved some skill in the machine's operation as required under O.C.G.A. § 16-12-35(d)(1); the sole evidence was that a player simply pressed a button to play these machines. Patel v. State, 289 Ga. 479, 713 S.E.2d 381 (2011).
Evidence was insufficient to support the defendant's convictions of commercial gambling, possession of a gambling device, and keeping a gambling place because the seized machines were coin operated amusement machines (COAMs), as there was no evidence that the defendant tampered with the COAMs or otherwise did anything to remove the element of player skill and the state's evidence at most showed that the COAMs malfunctioned in some way to allow the police officer to win without nudging the wheels. Bartlett v. State, 351 Ga. App. 476, 829 S.E.2d 187 (2019), cert. denied, No. S20C0008, 2020 Ga. LEXIS 254 (Ga. 2020).
Statute did not void preexisting contracts.
- In a suit for tortious interference with contractual relations, the trial court erred by granting partial summary judgment against the owners of coin-operated amusement machines because O.C.G.A. § 50-27-70 et seq. did not void preexisting contracts and it was error to interpret the statute otherwise. All Star, Inc. v. Ga. Atlanta Amusements, LLC, 332 Ga. App. 1, 770 S.E.2d 22 (2015).
Cited in Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574 (1980); Patel v. State of Ga., 341 Ga. App. 419, 801 S.E.2d 551 (2017); Jester v. Red Alligator, LLC, 344 Ga. App. 15, 806 S.E.2d 920 (2017), cert. denied, 2018 Ga. LEXIS 479 (Ga. 2018); Ga. Lottery Corp. v. Tabletop Media, LLC, 346 Ga. App. 498, 816 S.E.2d 438 (2018), cert. denied, No. S18C1520, 2019 Ga. LEXIS 175 (Ga. 2019); Amusement Leasing, Inc. v. Ga. Lottery Corp., 352 Ga. App. 243, 834 S.E.2d 330 (2019).
OPINIONS OF THE ATTORNEY GENERAL
Coin-operated games.
- Only if a coin-operated game can register more than fifteen free replays and has a "trip switch" allowing games to be erased other than by reactivating the machine for additional plays is the device a prohibited gambling device; if such a game is for bona fide amusement purposes only, it is legal. However, the transfer of anything of value in exchange for a free replay on any coin operated device, whether or not the device constitutes a gambling device per se, is illegal. 1990 Op. Att'y Gen. No. 90-15 (decided prior to 1996 amendment).
Video slot machine which involves no skill in the machine's operation and offers a ticket for a value of up to $5.00 in merchandise is a "gambling device". 1996 Op. Att'y Gen. No. U96-18.
RESEARCH REFERENCES
Am. Jur. 2d.
- 38 Am. Jur. 2d, Gambling, § 74.
ALR.
- Coin-operated or slot machine other than slot vending machine which may be played for amusement only or which confines winner's reward to privilege of additional play or other form of amusement, as within anti-gambling provisions, 148 A.L.R. 879; 89 A.L.R.2d 815.
Coin-operated pinball machine or similar device, played for amusement only or confining reward to privilege of free replays, as prohibited or permitted by antigambling laws, 89 A.L.R.2d 815.