Could the Arkansas Lottery show draw results on retailer monitors and market games as keno or bingo?

Arkansas AG Opinion 2013-082: Lottery Keno and Bingo

Plain-English summary

Opinion 2013-082 said an Arkansas lottery draw game could generally communicate drawing results through monitors at licensed lottery retailers. Neither the Scholarship Lottery Act nor the operational rules made the means of communicating results decisive to whether a game was permitted.

"The answer to your first question is, generally, ‘yes.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"I find nothing in either the Act or the Rules to suggest that the method or means of communicating results is relevant to a game’s permissibility under the Act."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Calling a game "keno" did not itself make the game authorized or prohibited. The Arkansas Lottery Commission had to review the game's specific features in the first instance. The Commission also had authority to regulate drawing frequency. A state lottery game marketed as "bingo" was not charitable bingo because the state was not an authorized organization under the charitable-bingo law.

"The Act does not authorize or prohibit any individual game or any particular type of game based upon the game’s title."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"The ALC is specifically authorized to adopt rules regarding the frequency of drawings."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"The State of Arkansas obviously is not an ‘authorized organization,’ under this enabling legislation to Amendment 84."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could draw results be shown on monitors inside licensed lottery retailers?

Generally, yes. The opinion treated the means of communicating results as a matter within the Lottery Commission's regulatory authority and found no rule making that delivery method relevant to game permissibility.

"determining the particular means of communicating results of drawings to players is a matter generally falling within the ALC’s regulatory authority."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Was a lottery game legal just because it was called keno?

No. The name did not control. The Commission had to examine the game's actual features to decide whether it qualified as a lottery authorized by the Act.

"The latter inquiry — whether a particular game may be conducted as a lottery under the Act — is one that involves reviewing the game’s specific features, and as such must be undertaken in the first instance by the ALC."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Did the AG decide whether a specific keno game was permissible?

No. The opinion said that game-specific review belonged first to the Lottery Commission and that the AG lacked the resources and authority to conduct it.

"I lack both the resources and the authority to undertake that task."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Who could set the frequency of lottery drawings?

The Arkansas Lottery Commission could adopt rules addressing how frequently lotteries and drawings occurred.

"The ALC is specifically authorized to adopt rules regarding the frequency of drawings."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Was a state lottery game named bingo governed as charitable bingo?

No. The charitable-bingo law applied to qualifying nonprofit organizations, while the state's lottery authority came from a different constitutional amendment and the Scholarship Lottery Act.

"As noted above, the State’s authority to offer a lottery draw game or an instant ticket game derives from Amendment 87 to the Arkansas Constitution and its enabling legislation, the Arkansas Scholarship Lottery Act."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Background and statutory framework

The opinion explained that the statutory definition of "lottery" included a draw game and that an approved draw game used a process to select winners among players who chose numbers or combinations of numbers.

"‘Lottery’ includes without limitation: (i) An instant ticket; (ii) A draw game; (iii) Participation in a multistate or multisovereign game; and (iv) A raffle."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"A ‘draw game’ is therefore an approved lottery game that involves a process for selecting winners among players who have selected numbers or a combination of numbers in the course of playing the game."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Section 23-115-904 protected participation in lotteries authorized under the Act from otherwise applicable criminal anti-gambling laws, but the opinion said that protection did not itself decide whether a particular game was authorized.

"this statute does not bear directly on any particular game’s permissibility under the Act."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Holding

The AG answered that monitor-displayed results were generally permissible, a game's title was not determinative, the Commission could regulate drawing frequency, and a state lottery game called bingo was not charitable bingo.

"The answer to your fourth question is ‘no,’ in my opinion."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Citations and references

Statutes discussed by Opinion 2013-082:

• "Ark. Code Ann. § 23-115-102" Official opinions search
• "A.C.A. § 23-115-904" Official opinions search
• "A.C.A. § 23-114-102(1)(A)" Official opinions search
• "A.C.A. § 23-115-207(a)(1)" Official opinions search

Cases cited by Opinion 2013-082:

• "Scott v. Dunaway, 228 Ark. 943, 944, 311 S.W.2d 305 (1958)" Official opinions search
• "Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429" Official opinions search
• "Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22" Official opinions search

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-082

October 1, 2013

The Honorable Mark Perry

State Representative

Post Office Box 97

Jacksonville, Arkansas 72078-0097

Dear Representative Perry:

This is in response to your request for my opinion on the following questions concerning lottery games:

1. Is a lottery draw game, as defined under Ark. Code Ann. § 23-
   115-102, whereby the results of the lottery drawings are
   communicated to player via monitors located on the premises of
   licensed lottery retailers, a permissible lottery game under the Arkansas Scholarship Lottery Act?

If the answer to (1) is “yes,” then:

2. In light of Ark. Code Ann. § 23-115-904, is a lottery draw game
   marketed under the title “keno” a permissible lottery game under the Arkansas Scholarship Lottery Act?

3. Are there any provisions of the Arkansas Scholarship Lottery Act
   that restrict or otherwise regulate the frequency of lottery game drawings?

4. Does a lottery draw game or instant ticket game offered by the
   Arkansas Scholarship Lottery and marketed under the title
   “bingo” constitute “conducting or participating in charitable
   bingo and raffles under the Charitable Bingo and Raffles
   Enabling Act, § 23-114-101 et seq.?”

323 CENTER STREET, SUITE 200 * LirrLe Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Mark Perry
State Representative
Opinion No. 2013-082
Page 2

RESPONSE

The answer to your first question is, generally, “yes.” With regard to your second question, in my opinion, neither A.C.A. § 23-115-904 nor a game’s title is determinative of whether a particular game may be conducted under the Act. In response to your third question, the Act authorizes the Arkansas Lottery Commission to adopt rules regarding the frequency of drawings. The answer to your fourth question is “no,” in my opinion.

DISCUSSION

Question I - Is a lottery draw game, as defined under Ark. Code Ann. § 23-115- 102, whereby the results of the lottery drawings are communicated to player via monitors located on the premises of licensed lottery retailers, a permissible lottery game under the Arkansas Scholarship Lottery Act?

Section 23-115-102 does not define a lottery draw game. This section instead expresses the legislative intent of the Arkansas Scholarship Lottery Act.' You may be referring to A.C.A. § 23-115-103, the Act’s definitional section, wherein it defines “lottery” to include “a draw game”:

(A) “Lottery” means a game of chance approved by the Arkansas
Lottery Commission and operated under this chapter.

(B) “Lottery” includes without limitation:
(i) An instant ticket;
(ii) <A draw game;

(iii) Participation in a multistate or multisovereign game; and

"The Act, codified at A.C.A. §§ 23-115-101 through-1102 (Supp. 2011), implements Amendment 87 to the Arkansas Constitution, which amended Article 19, section 14 of the Arkansas Constitution to authorize the General Assembly to “enact laws to establish, operate, and regulate State lotteries.” Ark. Const. art. 19, § 14(a) (Supp. 2011). The proceeds of such lotteries must be used to pay the lotteries’ operating expenses and to fund or provide for higher education scholarships and grants. Jd. at (b).

The Honorable Mark Perry
State Representative
Opinion No. 2013-082
Page 3

(iv) Araffle.’

“Draw game” is undefined, but the Operational Rules for conducting the Arkansas Scholarship Lottery’ define “drawing”:

? A.C.A. § 23-115-103(12) (Supp. 2011) (emphasis added). “Lottery” is defined in full under the Act as follows:

(A) “Lottery” means a game of chance approved by the Arkansas Lottery Commission and operated under this chapter.

(B) “Lottery” includes without limitation: —
(i) An instant ticket;
(ii) A draw game;
(iii) Participation in a multistate or multisovereign game; and (iv) A raffle.

(C) “Lottery” does not include:
(i) Casino gambling;
(ii) A video lottery;
(iii) Pari-mutuel wagering on horse racing or greyhound racing governed by the Arkansas Horse Racing Law, § 23-110-101 et seq., or the Arkansas Greyhound Racing Law, § 23-111-101 et seg., whether the pari-mutuel wagering is on live racing, simulcast racing, or races conducted in the past and rebroadcast by electronic

means;

(iv) Wagering on electronic games of skill under the Local Option Horse Racing and Greyhound Racing Electronic Games of Skill Act, § 23-113-101 et seq.; or

(v) Conducting or participating in charitable bingo and raffles under the Charitable Bingo and Raffles Enabling Act, § 23-114-101 et seq.[.]

For definitions of “casino gambling” and “video lottery,” see A.C.A. § 23-115-103(3) and (26).

> See Operational Rules of the Arkansas Scholarship Lottery, available at http://myarkansaslottery.com/
about/rules-and-enabling-legislation-0 (last visited August 28, 2013). These rules were promulgated by the Arkansas Lottery Commission (ALC) which has rule-making authority under the Act. See A.C.A. §§ 23- 115-205 and -207.

The Honorable Mark Perry
State Representative
Opinion No, 2013-082
Page 4

“Drawing” means the procedure used to select the winning numbers or combination of numbers in accordance with the game rules of the particular lottery game.’

A “draw game” is therefore an approved lottery game that involves a process for selecting winners among players who have selected numbers or a combination of numbers in the course of playing the game.”

Both the Act and the Operational Rules address certain matters related to “drawings,” including the “means of conducting” them, as well as their method, location, and frequency.° But according to my review, neither the Act nor the Rules specifically address the method or means of communicating results to players, It appears instead that the ALC has general authority to regulate in this area, pursuant to its power to “adopt rules regulating the conduct of lotteries in general,”’ as well as its authority to adopt rules specifying “[a]ny other matters necessary, desirable, or convenient toward ensuring the efficient and effective operation of lotteries, the continued entertainment and convenience of the public, and the integrity of the lotteries.”*

In response to your particular question, therefore, it seems clear that determining the particular means of communicating results of drawings to players is a matter generally falling within the ALC’s regulatory authority. Additionally, I find

“Td. at Section 1.13.
° An “online game” is a particular type of game that involves a drawing process.

“Online Game” means a state or multi-state lottery game in which a player pays a fee to a lottery retailer and selects or uses a computer terminal to select a combination of digits, numbers, or symbols, the type and amount of play, and the drawing date, and receives a computer-generated ticket with those selections printed on it.

Id. at Section 1.24 (emphasis added).

®° A.C,A, § 23-115-207(a)(4), (7), and (8) (authorizing the ALC to adopt rules regarding “[t]he method and location of selecting or validating winning tickets or shares[,]” “[t]he frequency of lotteries and drawings...[,]” and “[t]he means of conducting drawings”); Operational Rules, Sections 2(k) and (1)

(authorizing the ALC Director to determine “the location, times, and days of prize drawings and promotions[,]” and “the manner and frequency of online game drawings[.]”)

7 ACA, § 23-115-207(a).

• 7d. at (a)(11).

The Honorable Mark Perry
State Representative
Opinion No. 2013-082
Page 5

nothing in either the Act or the Rules to suggest that the method or means of communicating results is relevant to a game’s permissibility under the Act.

Question 2 - In light of Ark. Code Ann. § 23-115-904, is a lottery draw game marketed under the title “keno” a permissible lottery game under the Arkansas Scholarship Lottery Act?

The permissibility of a game “marketed under the title ‘keno’” does not turn on A.C.A, § 23-115-904, The Act does not authorize or prohibit any individual game or any particular type of game based upon the game’s title. And the application of section 23-115-904 leaves unaddressed the question whether any particular game in fact qualifies as a “lottery” under the Act.

This statute makes the criminal anti-gambling statutes, and all other laws that are inconsistent with the Act, inapplicable to those who participate in lotteries authorized under the Act:

(a) Section 5-66-101 et seq. and all other laws and parts of laws inconsistent with this chapter are expressly declared not to apply to any person engaged in, conducting, or otherwise participating in lotteries.

(b) A person is not guilty of any criminal offense set forth in § 5-66- 101 et seq. or any other law relating to illegal gambling to the extent the person relied on any rule, order, finding, or other determination by the Arkansas Lottery Commission that the activity was authorized by this chapter.’

This statute is clearly designed to protect persons participating in approved lotteries who might otherwise be subject to prosecution for illegal gambling. It thereby acknowledges that some types of lotteries conducted under the Act may fall under the anti-gambling statutes.’ In my opinion, however, this statute does not bear directly on any particular game’s permissibility under the Act. The latter inquiry — whether a particular game may be conducted as a lottery under the Act —

? A.C.A, § 23-115-904 (Supp. 2011).

'° Indeed, I note that the undefined term “keno” is identified as a prohibited “gaming device” under A.C.A.
§ 5-66-110 (Repl. 2005). While I cannot be certain, this may explain your question’s reference to a game marketed under that title.

The Honorable Mark Perry
State Representative
Opinion No. 2013-082
Page 6

is one that involves reviewing the game’s specific features, and as such must be undertaken in the first instance by the ALC. I lack both the resources and the authority to undertake that task."

Question 3 - Are there any provisions of the Arkansas Scholarship Lottery Act that restrict or otherwise regulate the frequency of lottery game drawings?

The ALC is specifically authorized to adopt rules regarding the frequency of drawings."

Question 4 - Does a lottery draw game or instant ticket game offered by the Arkansas Scholarship Lottery and marketed under the title “bingo” constitute “conducting or participating in charitable bingo and raffles under the Charitable Bingo and Raffles Enabling Act, § 23-114-101 et seg.?”

No. The Charitable Bingo and Raffles Enabling Act implements Amendment 84 to the Arkansas Constitution, which allows the operation of bingo or raffles by an

'' Determining a particular game’s permissibility may further require constitutional analysis. The Arkansas Constitution prohibits “lotteries.” Ark. Const. art. 19, § 14(f) (‘Except as herein specifically provided, lotteries and the sale of lottery tickets are prohibited.”) In a line of decisions spanning a century, the courts have emphasized that a prohibited “lottery” is a game in which the result is controlled purely by chance. See, e.g., Scott v. Dunaway, 228 Ark. 943, 944, 311 S.W.2d 305 (1958) (“It is essential to a lottery that the winners be determined by chance alone.”’)

Amendment 87, on the other hand, creates a limited exception to the Article 19 ban on lotteries by authorizing “State lotteries.” Ark, Const. art. 19, § 14(a). Amendment 87, however, does not define “State lotteries.” And the courts have not yet determined the precise scope of this exception. See, eg., Coax v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008) (in a ballot title case, refusing to speculate on the precise contours of permissible “State lotteries” as distinct from impermissible “lotteries.”)

At issue, then, is just what the voters intended when they granted the General Assembly authority to “enact laws to establish, operate, and regulate State lotteries.” To date, it has not been judicially established that voters intended to sanction any and all games controlled purely by chance. J believe prudence dictates in these circumstances that any new game of chance closely associated with traditional casino gaming should receive close scrutiny. To be sure, the Arkansas Scholarship Lottery Act appears to vest the Arkansas Lottery Commission with considerable discretion to determine what games may be conducted, and the Commission’s interpretation of the Act will be accorded considerable deference. See generally Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429; Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22. But until we have the benefit of case law interpreting both Amendment 87 and the Act, there will remain some question which games the Commission may approve without running afoul of the continuing constitutional prohibition on “lotteries.”

2 ACA. § 23-1 15-207(a)(7) (authorizing the ALC to adopt rules regulating “(t]he frequency of lotteries and drawings or selection of winning tickets or shares.”)

The Honorable Mark Perry
State Representative
Opinion No. 2013-082
Page 7

“authorized bingo and raffles organization.””? Consistent with Amendment 84,

A.C.A. § 23-114-102 defines “authorized organization” as:

an organization eligible for a license to conduct games of bingo and raffles that is a nonprofit tax-exempt religious, educational, veterans, fraternal, service, civic, medical, volunteer rescue service, volunteer firefighters organization, or volunteer police organization that has been in continuing existence as a nonprofit tax-exempt organization in this state for a period of not less than five (5) years immediately prior to conducting the game of bingo or raffles.'*

The State of Arkansas obviously is not an “‘authorized organization,” under this enabling legislation to Amendment 84.

As noted above, the State’s authority to offer a lottery draw game or an instant ticket game derives from Amendment 87 to the Arkansas Constitution and its enabling legislation, the Arkansas Scholarship Lottery Act. Pursuant to that Act, the State — through the Arkansas Lottery Commission — may approve different types of lotteries.'° As stated in response to Question 2 above, determining whether a particular game may be conducted as a lottery is a task to be undertaken in the first instance by the ALC.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.

Sincercly,

DM/EAW:cyh

'? Ark. Const. amend. 84(a)(1).

4 A.C.A. § 23-114-102(1)(A) (Supp. 2011) (emphasis added).

'S See A.C.A. § 23-115-207(a)(1) (authorizing the ALC to adopt rules specifying “[t]he types of lotteries to be conducted|.]”)