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March 24, 1971
Honorable W. J. Daly
Port Townsend, Washington 98368
Cite as: AGLO 1971 No. 51 (not official)
This is written in response to your request for our opinion regarding the applicability of RCW 9.59.010, the lottery statute, to the following described factual situation:
"At the opening of a branch of the First American National Bank of Port Townsend, citizens of the area were invited to attend the ceremonies, and connected with the general invitation, the following language was printed in the local newspaper:
"FREE Portable COLOR TV With Stand Plus an . . . ALL-BAND PORTABLE RADIO
"To be given during our Open House. Everyone can register ‑ you need not be present at the drawing to win. Limited to customers and residents of Jefferson County over 15 years of age."
RCW 9.59.010 defines the term "lottery" and then proscribes the operation of such activities, as follows:
"A lottery is a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether it shall be called a lottery, raffle, gift enterprise, or by any other name, and is hereby declared unlawful and a public nuisance.
"Every person who shall contrive, propose or [[Orig. Op. Page 2]] draw a lottery, or shall assist in contriving, proposing or drawing a lottery, shall be punished by imprisonment in the state penitentiary for not more than five years, or by a fine of not more than one thousand dollars, or by both."
Under this statute, as well as pursuant to Article II, § 24 of our state constitution (prohibiting the legislature from authorizing any lottery) three separate elements are necessary in order for a violation to have occurred; namely, the elements of "prize," "chance," and "consideration." Accord, State ex rel. Schillberg v. Safeway, 75 Wn.2d 339, 450 P.2d (1969). Here, unquestionably, the elements of "prize" (a colored television set) and "chance" (a drawing to win) were present, leaving only for debate the question of whether the activities required of participants in the drawing may be said to constitute "consideration."
Although State ex rel. Schillberg v. Safeway, supra, was essentially a civil action for injunctive relief rather than a criminal prosecution under RCW 9.59.010, supra, the supreme court, in its decision, expressed its thinking with regard to the concept of "consideration" in a manner related not only to the constitutional prohibition against "any lottery" but, as well, to the criminal prohibition contained in RCW 9.59.010. Speaking of these two prohibitions interchangeable, the court said, at page 349:
"Since the legislature of this state may not, under the constitution, directly authorize any kind of lottery at all, it cannot, by means of a loose, uncertain or inapt definition, authorize indirectly that which the constitution forbids it to do directly. Given a scheme involving a prize to be won purely by chance or lot, the courts will look most closely to see if any substantial consideration moves from player to promoter, a procedure we think not only enjoined upon us by the constitution but also called for by the language of the lottery statute (RCW 9.59.010) which uses the broad term consideration and not the narrower term property or thing of value. Encompassed then within the term consideration, as the third element of lottery, would be those acts of forbearances, promises, or conduct which in law are [[Orig. Op. Page 3]] sufficient to support an agreement.
"Under our constitution and lottery statute, therefore, one need not part with something of value, tangible or intangible, to supply the essential consideration of a lottery. He may, in order to secure a chance to win a prize awarded purely by lot or chance, supply the consideration by his conduct or forbearance which vouchsafes a gain or benefit to the promoter of the scheme. The benefit or gain moving to the one need not be the same as the detriment to the other. Consideration for a lottery may be both gain and detriment or one without the other."
Then, on pages 350-351 of its decision, the court in the Safeway case described in some detail the benefits which it found to have been derived by the defendant Safeway Stores from its operation of the challenged "Bonus Bingo" game. The court described this benefit factor as follows:
"The agreed facts show that Safeway experienced a material increase in business not attributable to any factor other than the effects of Bonus Bingo. A participating member of the public who, in order to make himself eligible to win a prize wholly on chance or lot by playing Bonus Bingo, had first to procure and then peruse extensive Safeway advertising material, all proclaiming the worth and universality of the name 'Safeway,' and its merchandise. He had to expend time, energy and perhaps money, too, by visiting Safeway to procure a prize slip, the basic token employed in the game, for, even though the prize slips were issued on mere request without need to purchase any merchandise, the player must visit a store to procure one. The visit to a Safeway store and a perusal of the promoter's advertising under the Danz rationale amount to a consideration moving from player to promoter.
"During the Bonus Bingo promotion, it was agreed Safeway stores experienced a material increase in store traffic and business volume attributable to the game. At least one visit to a Safeway store was necessary in order to win a prize.
"If Safeway charged a solitary penny for a [[Orig. Op. Page 4]] Bonus Bingo booklet or for a prize slip, it could not be sensibly argued that Bonus Bingo would not then be a lottery. Where it received not a penny, but something worth far more to players and promoters‑-the time, attention, and the efforts of countless persons in studying Safeway store‑-it is apparent that the consideration moving from the players to promoters was actually greater than had there been a mere sale and distribution of booklets or prize slips for money.
". . .
Here there was a great gain and an appreciable loss. Safeway gained as a consequence of its attracting thousands of persons to its stores who would not otherwise go there; it won the time, thought, attention and energy of members of the public in studying Safeway's advertising and journeying at least once to its stores; and it won an actual increase in patronage from them, too. The players, on the other hand, wagered their time, attention, thought, energy, and money spent in transportation studying Safeway's advertising and in journeying at least once per game to a Safeway store for a chance to win a prize‑-all of which, we think, amounted to a valuable consideration moving from the players to the promoter."
Since we are not aware of the full extent of any factual analogy which may exist between this pattern of "benefit" in the Safeway case and such benefits as may have been derived by the First American National Bank of Port Townsend in connection with the drawing described in your letter, we cannot, of course, definitively advise you as to whether or not this particular scheme included, in addition to the elements of "prize" and "chance," the third requisite element of "consideration." We can only say that if the facts which your own investigation and study of this matter have revealed, supported by evidence competent for admission in a criminal prosecution, indicate a resulting "benefit" to the bank which is similar to that found by the court to have existed in the Safeway [[Orig. Op. Page 5]] case, the reasoning of the court's decision in that case would appear to sustain a legal conclusion that the over-all scheme in question amounted to a lottery prohibited both by Article II, § 24 of our constitution and by RCW 9.59.010, supra.
We trust that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General