Opinion No. ( 1986 )

The Honorable Will Feland Prosecuting Attorney 17th Judicial District-West P. O. Box 423 Lonoke, AR 72086

Dear Mr. Feland:

This official opinion is written in response to your request received by this office October 29, 1986 in which you ask the following question:

Is bingo played for a prize or some sort of payment always illegal in Arkansas?

Your question is asked partially in response to an opinion issued by this Office October 13, 1986, No. 86-545, to Mr. Sam Heuer, Prosecuting Attorney of the 16th Judicial District.

In that Opinion, we set out relevant Arkansas law, basically as follows:

1. Lotteries are prohibited by the Arkansas Constitution, Article 19, Section 14 and the Arkansas Criminal Code.

2. The Arkansas Supreme Court has held that a lottery is a species of gaming which may be defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize. Burks v. Harris, 91 Ark. 105, 120 S.W. 979 (1909).

3. Therefore, any time the three elements of consideration, chance, and a prize are present, one has a lottery which is prohibited by the Arkansas Constitution and the decisions interpreting that provision as rendered by the Arkansas Supreme Court.

Consideration is something of value given in exchange for a benefit. See generally, Black's Law Dictionary, 4th Ed., p. 379.

Additionally, consideration for purposes of a lottery is defined by some other states as a mutual bargain to obtain a chance at a game, State ex rel. Stafford v. Fox-Great Faus Theatre Corporation, 114 Mont. 52, 132 P.2d 689, 696 (1942); State ex rel. Regiz v. Blumes, 236 Wis. 129, 294 N.W. 491-492 (1940), and it must be of economic value to the participation. Cudd v. Aschenbrenner, 233 Or. 272, 377 P.2d 150, 153-156 (1962), State v. Nelson, 210 Kan. 439, 502 P.2d 841, 846 (1972).

Necessarily, therefore, in order to have one of the illegal elements of a lottery, something must be given by the participant in any given game for the privilege of playing the game in order to obtain the chance to win the prize.

Violations of the Arkansas Criminal Code must be prosecuted and enforced by local prosecuting attorneys. See, Ark. Stat. Ann. 41-3287 (Repl. 1977).

As clarification, then, of my earlier opinion to Mr. Heuer, it is lotteries that are prohibited by Arkansas law and not any one specific type of game, i.e. bingo, a raffle.

Whether the three prohibited elements are present in any given situation will turn on the facts of that situation. In other words, if a local prosecutor determines that "something is being given" in exchange for the right or privilege of playing a game of chance in which the object is to win a prize, then said game is obviously prohibited.

Therefore, it is my opinion that the answer to your question is that a lottery is always illegal in Arkansas. A lottery contains the elements of chance, consideration, and a prize. If, in a particular situation, one of those three elements is not present, then no lottery exists. For your information, I enclose a copy of the guidelines issued by the Pulaski County Prosecuting Attorney's Office which accurately reflect the current status of Arkansas law.

This official opinion, which I hereby approve, was prepared by R.B. Friedlander, Special Counsel to the Attorney General.