Were the 'Wyoming Skill Games' that started appearing in Wyoming bars and convenience stores actually slot machines under state gambling law?

Plain-English summary

Natrona County District Attorney Michael Blonigen asked Attorney General Peter K. Michael whether "Wyoming Skill Games," manufactured by Banilla Games, Inc. and appearing in Wyoming bars and convenience stores, were illegal gambling devices. The AG concluded they were.

The games came in two variants ("Wyoming Skill 1" and "Wyoming Skill 2"), each offering five themed games. A player wagered between $0.25 and $1.00 per spin. The terminal could display, through a "Prize Viewer" function, the outcome of the next spin before the player committed money. If the next spin was a winner, the player had 15 seconds to "nudge" a reel or "swap" an icon to complete the winning combination. If the player swapped or nudged correctly, the predetermined prize was awarded. If the player did not, the wager was lost. Some spins were predetermined losers; on those spins nothing the player did could affect the outcome.

The AG worked through Wyoming's gambling statutes:

• Wyo. Stat. Ann. § 6-7-101(a)(iii) defines "gambling" as risking property for gain contingent in whole or in part on lot, chance, or the operation of a gambling device, with an exception for bona fide contests of skill.
• The games met the gambling definition. Players risked property (the wager) for gain (the prize) on an event (whether the spin was a programmed winner) that was outside the player's control. The "Prize Viewer" did not change the analysis: a player who used it still faced a chance event, since the order of winning and losing spins was predetermined by random number generator.
• The "skill" exception did not save the games. A "contest" requires more than one entrant. A solitary player tapping reels was not in a contest. A 15-second pattern-recognition tap was not a "skill" in the sense of "a special competence . . . cultivated through special training and experience." And the statute requires that "awards are made only to entrants or the owners of entries"; here the operator kept a percentage of every payout, breaking that requirement.
• Because the games met the gambling definition without falling within the skill exception, the terminals were "gambling device[s]" under § 6-7-101(a)(iv) and operating them was "professional gambling" under § 6-7-101(viii).

The AG drew on Florida's Gator Coin II, Inc. v. Florida Department of Business & Professional Regulation, 2018 Fla. App. LEXIS 12283, which had reached the same conclusion about a structurally identical "Version 67" game. The AG also relied on two Wyoming Supreme Court decisions cautioning against creative attempts to dress slot-machine-like devices in non-gambling clothing: 37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State, 694 P.2d 711 (Wyo. 1985), and Wyoming Rodeo Events v. State, 2006 WY 55, 134 P.3d 1223 (Wyo. 2006). The opinion ended with the California "if it looks like a duck" formulation from People ex rel. Lockyer v. Pacific Gaming Technologies, 98 Cal. Rptr. 2d 400 (Cal. Ct. App. 2000).

The opinion expressly limited itself to the games described and the gambling statutes cited, and excluded off-track betting devices, which Wyoming regulates under different statutes.

Currency note

This opinion was issued in 2018. 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.

Background and statutory framework

Wyoming has a relatively short and simple gambling statute. Wyo. Stat. Ann. § 6-7-102 makes gambling and professional gambling crimes. Section 6-7-101 supplies the definitions. The "gambling" definition at § 6-7-101(a)(iii) hinges on three elements: risking property, for gain, contingent on chance or the operation of a gambling device. The exception in § 6-7-101(a)(iii)(A) carves out "[b]ona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries."

The opinion's two main moves:

First, the chance element. The 15-second "nudge" or "swap" interaction did not eliminate chance, because chance was already baked into whether the spin was programmed to be a winner in the first place. The "Prize Viewer" did not eliminate chance either; it just disclosed what the random number generator had already produced. Florida's Gator Coin II opinion had reached the same conclusion using the same reasoning, treating predetermined-payout machines with previewable outcomes as still containing chance.

Second, the skill exception. The AG read the exception to require (a) more than one entrant (a "contest" implies competition), (b) an actual skill in the sense of a cultivated special competence, and (c) all awards going only to entrants. The Wyoming Skill Games failed all three: a solitary player against the machine, simple visual pattern matching, and a programmed payout percentage that retained money for the operator.

Once the games met the gambling definition without fitting an exception, the rest followed: the terminals were "gambling device[s]" under § 6-7-101(a)(iv), and an operator who knowingly aided or induced players to use them was engaged in "professional gambling" under § 6-7-101(viii).

Common questions

Q: How were the 'Wyoming Skill Games' supposed to be different from a slot machine?
A: The marketing relied on the "Prize Viewer" (which let the player see whether the next spin would be a winner before wagering) and the 15-second nudge or swap interaction (which the player had to perform to claim a winning prize). Proponents argued these elements turned the device into a game of skill rather than chance.

Q: Why did the AG conclude that the 'Prize Viewer' and the nudge or swap did not save the game?
A: Because chance was still embedded in the underlying spin outcome generated by the random number generator. The Prize Viewer just revealed that outcome; it did not let the player change it. And the 15-second tap was simple pattern matching, not the cultivated skill the exception requires. The statute also requires that awards go only to entrants, but the machine's programming guaranteed a portion of every wager went to the operator.

Q: What did the Wyoming Supreme Court cases on Cheyenne Elks Club and Wyoming Rodeo Events stand for?
A: Both stood for the principle that the courts will not be "easily beguiled" by attempts to dress slot-machine-like devices in non-gambling clothing. The Cheyenne Elks Club decision was about the seizure of physical gambling machines; Wyoming Rodeo Events was about an "Instant Racing" terminal that looked and acted like a slot machine but was marketed as parimutuel wagering. In both, the Court treated the underlying mechanics, not the marketing, as controlling.

Q: How did Florida's Gator Coin II case factor in?
A: The Florida court analyzed Banilla's structurally identical "Version 67" game and held it was an illegal slot machine because the element of chance was inherent in its preset win-and-loss ratio and the player could not affect the outcome. The Wyoming AG relied on the Florida court's reasoning as persuasive on the same question of whether a preview feature defeats the "chance" element.

Q: Did the opinion address other amusement devices?
A: No. The AG limited the opinion to the specific Wyoming Skill Games described and the gambling statutes cited. Off-track betting and similar parimutuel devices fall under different Wyoming statutes and were not analyzed.

Q: What were the criminal exposures the opinion identified?
A: Three categories. Players engaged in "gambling" under § 6-7-101(a)(iii). The terminals themselves were "gambling device[s]" under § 6-7-101(a)(iv). And persons aiding or inducing players, including the operators and locations hosting the machines, engaged in "professional gambling" under § 6-7-101(viii). All three are criminal under Wyo. Stat. Ann. § 6-7-102.

Citations and references

Wyoming statutes:
- Wyo. Stat. Ann. § 6-7-102
- Wyo. Stat. Ann. § 6-7-101(a)(iii) and (a)(iii)(A)
- Wyo. Stat. Ann. § 6-7-101(a)(iv)
- Wyo. Stat. Ann. § 6-7-101(viii)

Cases (Wyoming):
- 37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State, 694 P.2d 711, 717 (Wyo. 1985)
- Wyoming Rodeo Events v. State, 2006 WY 55, 134 P.3d 1223, 1230 (Wyo. 2006)

Cases (other states):
- Gator Coin II, Inc. v. Fla. Dep't of Bus. & Prof'l Regulation, 2018 Fla. App. LEXIS 12283 (Fla. Dist. Ct. App. 1st Dist. Aug. 30, 2018)
- Broward Vending, Inc., 696 So. 2d 851 (Fla.) (cited within Gator Coin II)
- People v. One Machine Known as "Circus Days," 163 N.E.2d 223, 228 (Ill. App. Ct. 1960)
- People ex rel. Lockyer v. Pacific Gaming Technologies, 98 Cal. Rptr. 2d 400, 401 (Cal. Ct. App. 2000)

Reference works:
- Merriam-Webster's Collegiate Dictionary (11th ed. 2012)
- Black's Law Dictionary (10th ed. 2014)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/1m8Op25WMGDAWyTbz5vZHLy6YkcHe7bfy/view

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Office of the Attorney General
Administration
Kendrick Building
2320 Capitol Avenue
Cheyenne, Wyoming 82002
307-777-7841 Telephone
307-777-6869 Fax

Governor Matthew H. Mead
Attorney General Peter K. Michael
Chief Deputy Attorney General John G. Knepper

December 11, 2018

FORMAL OPINION 2018-002

Michael A. Blonigen
Natrona County District Attorney
201 North David Street, 4th Floor
Casper, WY 82601

Dear District Attorney Blonigen:

You asked our office about the legality of certain games appearing in Wyoming or Natrona County, specifically, "Wyoming Skill Games" manufactured by Banilla Games, Inc. The main challenge in determining whether these games constitute illegal gambling under Wyoming law has been learning how these games actually function. Until recently, that information has been unavailable. However, our office was able to work with the attorney who represents individuals distributing the games in Wyoming, and also with a representative of the manufacturer to obtain this information. After reviewing the information and researching and analyzing the applicable Wyoming law, I conclude that these games are illegal gambling devices, that those playing them are engaging in gambling, and that those providing the games are engaging in professional gambling.

I will note that our analysis is limited to these games and the gambling statutes cited herein. The legality of other somewhat similar devices in the context of off-track betting is not the subject of this opinion and is governed by other Wyoming statutes.

Background

At present, two different games are operating in Wyoming at numerous locations, "Wyoming Skill 1" and "Wyoming Skill 2." Each terminal offers the following "Nudge" and "Hot Swap" game themes:

Wyoming Skill Game 1
1. Bathtime Bucks (Hot Swap)
2. Fruity Sevens (Hot Swap)
3. Searing Sevens (Nudge)
4. Snake Eyes (Nudge)
5. Wheel Deal (Nudge)

Wyoming Skill Game 2
1. Spooky's Loot (Hot Swap)
2. Mega Money Reel (Hot Swap)
3. Lucky Striker (Nudge)
4. Major Cash (Nudge)
5. Pedro's Hot Tamales (Nudge)

For each of these ten game themes, a player has the option of wagering $.25, $.50, $.75, or $1.00 on each "game outcome." For ease of understanding, this analysis will refer to these "game outcomes" as "spins," as this is what the average player would consider them to be.

Each game theme contains a "Prize Viewer" function that a player may access prior to placing a wager. If a player presses the prize viewer icon on the touchscreen, the terminal will display either $.01 or some other greater amount as high as $2,500 (which in at least some instances is advertised to the player as the jackpot amount), depending upon the amount wagered. The amount displayed (other than the $.01 amount) is the amount that the player will win if he correctly "nudges" or "swaps" the game's reels after he makes a wager on that "spin." The $.01 amount is the amount displayed when the "spin" is a predetermined losing spin. On these losing spins, there is nothing that a player can do to affect the outcome of that "spin." The player may, however, press the "Take a Penny" icon to retain $.01 of his wager.

The "Nudge" games display three electronic reels, similar to what one would see on a slot machine. Once the player presses the "Play" button, the reels spin and then come to a stop. The player then determines whether the spin is a potential winner by "nudging" one of the reels. The player then has 15 seconds to nudge one of the reels either up or down to display a winning combination, i.e., three cherries lined up in a row. If a winning combination is "nudged" correctly, the player will be awarded the predetermined prize. If the player does not nudge properly within the allotted time, he will lose his wager.

The "Hot Swap" games display five electronic reels, also similar to what one would see on a slot machine. Once the player presses the "Play" button, the reels spin and then come to a stop. The reels will stop spinning and will be missing one icon. The player then determines whether the spin is a potential winner by "swapping" in one of a variety of icons for the missing icon. The player has 15 seconds to swap one of a variety of icons into the missing icon's space to display a winning combination similar to that of a winning slot machine. If a winning combination is "swapped" correctly, the player will be awarded the predetermined prize. If the player does not swap properly within the allotted time, he will lose his wager.

The machines are programmed to yield predetermined amounts that will potentially be awarded on each spin. Because of this programming, a significant percentage of the money inserted in the machine will be paid out to the players, assuming that at least some of them will nudge or swap to complete a game. However, the programming also ensures that under no circumstances will the owner or operator pay out all of the money inserted. In other words, the machines are always to keep some total of the wagered amount for the owners and operators.

Relevant Law

In Wyoming, law provides that both "gambling" and "professional gambling" are crimes. Wyo. Stat. Ann. § 6-7-102. "Gambling" is defined by Wyoming Statute § 6-7-101:

(iii) "Gambling" means risking any property for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include any of the following:

(A) Bona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries[.]

Wyo. Stat. Ann. § 6-7-101(a)(iii)(A).

"Gambling device" is defined as "any device, machine, paraphernalia or equipment except an antique gambling device that is used or usable in the playing phases of any professional gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine[.]" Wyo. Stat. Ann. § 6-7-101(a)(iv).

"Professional gambling" means: "(A) Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or (B) Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one (1) or more of the other participants." Wyo. Stat. Ann. § 6-7-101(viii).

Analysis

As set forth above, whether a person is "gambling" for the purposes of Wyoming Statute § 6-7-101(a)(iii) requires a two part analysis. Is the player risking property for gain contingent in whole or in part upon chance, the happening of an event over which the player has no control? If the answer is yes, the analysis turns to whether the activity falls under any of the statutory gambling exceptions. If no exception applies, then the activity constitutes gambling and is a crime. Wyo. Stat. Ann. § 6-7-102.

The first determination for the analysis of whether gambling is occurring is whether the player is risking property for gain. When a person places a wager on Wyoming Skill Games, he is doing so in the hopes of winning one of the potential prizes. It could be argued that because the player can use the "Prize Viewer" function and know that the next spin is a losing spin, he is not required to risk property for gain. Even assuming the educated player were to intentionally wager on a losing outcome, thus throwing away his money, he is doing so in the hopes that the spin after the losing spin will be a winner. In the case of the uneducated player who does not use and/or understand the "Prize Viewer" function, he risks property for gain. On every spin, therefore, whether the player uses this function and fully understands the consequence of his wager, or whether the person is unaware, every "spin" risks property in the hopes of gain.

The second legal issue is whether the wager described above is placed on the happening of an event that is contingent in whole or in part upon chance where the player has no control. Here, there appear to be two events that must happen before a player can be successful. Initially, the player must first be presented with one of the possible outcomes that represent a "potential" winning spin. Next, he must nudge or swap correctly. As discussed above, the order and sequence of each of the game outcomes is pre-programmed. The critical event that determines whether a player will win a prize, is based upon a chance of that occurring when he placed a wager in a particular spin, which was predetermined to be a winner by the machine's programming. The happening of that event is contingent "in whole or in part upon chance" and the player "has no control." Although the player may have some control over the outcome part of the time (those spins that are programmed to produce potential winners), the rest of the time he is at the mercy of the predetermined losing outcome. This programming creates the statutorily prohibited element of chance.

Some argue that the games lack the element of chance, because a player has the ability to use the "Prize Viewer" function and he therefore does not have to place a wager. Considering this same argument in a recent Florida case, a court analyzed similar functioning games to determine whether a Blue Sky Games, LLC game known as "Version 67" was an illegal slot machine under state law. Gator Coin II, Inc. v. Fla. Dep't of Bus. & Prof'l Regulation, 2018 Fla. App. LEXIS 12283 (Fla. Dist. Ct. App. 1st Dist., Aug. 30, 2018). These "Version 67" games operated very much like the "Wyoming Skill Games" where:

• The game contained a preview feature displaying the outcome of the game prior to inserting money or the placing of a wager;
• That preview feature displayed the actual result 100% of the time;
• Players were not financially obligated to play;
• If a player did not like the previewed result he could cash out, he could play a different play level within the game theme, or he could play another game theme;
• The game had a predetermined win/loss ratio;
• The order in which each outcome was generated for the player was by a random number generator; and
• There was nothing that a player could do to change the randomly generated outcome.

In the Gator Coin case, the court considered whether the "Version 67" games involved "any element of chance or any other outcome unpredictable by the user" which would make them illegal under Florida law. Id. Analyzing similar games to determine whether they were based upon "chance" the court concluded:

We hold that the trial court was correct in determining that Version 67 is a slot machine because the element of chance is inherent in it given that it has a preset win/loss ratio, see Broward Vending, Inc., 696 So. 2d at 851-52, and that the game outcomes are determined by the machine by chance, via an RNG, and there is nothing the user can do to affect the outcomes. Furthermore, Version 67 is a slot machine for the additional and independent reason that also inherent in it is an outcome unpredictable by the user. While it is true that the user is advised of the outcome of the game at hand ahead of time through the preview feature, the user cannot predict that outcome until it is randomly generated and then displayed by the machine. Nor can the user predict the outcome of Game 2 while playing Game 1. As the trial court recognized, section 849.16's definition of slot machine is satisfied regardless of when the outcome is generated or when it is made known to the user, and nothing in the statute requires that each game be analyzed in isolation without considering its relationship to subsequent games.

Id. With the above analysis in mind, Wyoming Skill Games meet the statutory definition of gambling. Wyo. Stat. Ann. § 6-7-101(a)(iii). The players risk "property for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event . . . over which the person taking a risk has no control." Id.

Proponents of Wyoming Skill Games' legality claim that they are "games of skill" as a statutory exception to gambling. As set forth above, gambling does not include "[b]ona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries." Wyo. Stat. Ann. § 6-7-101(a)(iii)(A). I agree that this exception must be analyzed.

First, a "contest" is defined as "a struggle for superiority or victory: competition." Merriam-Webster's Collegiate Dictionary (11th ed. 2012). The common sense understanding, the dictionary definition, and the statute's pluralization of "entrants" all imply that a "contest" requires at least two or more people. Given a Wyoming Skill Games player is not pitting his nudging or swapping "skills" against those of another, there is no "contest."

Second, a "skill" is "generally considered more than a mere competence. It is a special competence that is not a part of the reasonable person's ordinary equipment, but that results from aptitude cultivated through special training and experience." Black's Law Dictionary (10th ed. 2014). Assuming the player overcomes the first random sequence obstacle and is one of the players able to nudge or swap for a prize, it is questionable whether skill is involved. It is also questionable that the Legislature considered this type of activity a skill. Certainly, identifying a winning pattern on slot-machine-like reels within 15 seconds is not a "special competence" resulting from "aptitude cultivated through special training and experience." Id. Although a player may be able to increase his ability to identify patterns by spending time playing either Wyoming Skill Games or even slot machines, it is far from a "special competency." Also, for the large majority of the spins that are predetermined losers, even the world's greatest Wyoming Skill Game player's "skill" cannot save his wager.

Third, the statutory exception requires that "awards are made only to entrants or the owners of entries." Wyo. Stat. Ann. § 6-7-101(a)(iii)(A). According to Banilla Games, all of their games, assuming optimum play, are set to pay out a certain maximum percentage. Even if a player exercises skill correctly 100% of the time, at best, a percentage of the "awards" are retained by the game. This payout scheme, as described, violates Wyoming law. Even if Banilla Games were games of skill, given that the other two elements are not met, the games cannot be saved by the statutory gambling exception.

Having reached the conclusion that playing Wyoming Skill Games constitutes gambling, the terminals are illegal gambling devices as they are "used or usable in the playing phases of any professional gambling activity . . . by a person involving the playing of a machine." Wyo. Stat. Ann. § 6-7-101(a)(iv). Further, any person "[a]iding or inducing another to engage in gambling, with the intent to derive a profit therefrom" engages in "professional gambling." Wyo. Stat. Ann. § 6-7-101(viii).

Conclusion

As noted by the Wyoming Supreme Court, "[t]he law is not required to be blind to, and ineffectual against, the ceaseless efforts and ingenuity of persons to circumvent the Gambling Device Act." 37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State, 694 P.2d 711, 717 (Wyo. 1985) (quoting People v. One Machine Known as "Circus Days," 163 N.E.2d 223, 228 (Ill. App. Ct. 1960)). Further, in examining an attempt to declare "Instant Racing," a terminal that looked like a slot machine and was used like a slot machine, to be a mere accoutrement of parimutuel wagering, the Court stated, "[a]lthough it may be a good try, we are not so easily beguiled." Wyo. Rodeo Events v. State, 2006 WY 55, ¶ 18, 134 P.3d 1223, 1230 (Wyo. 2006). As noted by the California Court of Appeals in analyzing a machine that "looks like a slot machine," "acts like a slot machine," and "sounds like a slot machine," "[i]f it looks like a duck, walks like a duck and quacks like a duck, it is a duck." People ex rel. Lockyer v. Pac. Gaming Techs., 98 Cal. Rptr. 2d 400, 401 (Cal. Ct. App. 2000).

The Wyoming Skill Games at issue are illegal gambling devices, playing them constitutes gambling, and those aiding or inducing others to play these games engage in professional gambling.

Sincerely,

Peter K. Michael
Attorney General

Misha Westby
Deputy Attorney General

Michael T. Johnson
Senior Assistant Attorney General