Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION : No. 21-1101
:
of : May 12, 2022
:
ROB BONTA :
Attorney General :
:
MARC J. NOLAN :
Deputy Attorney General :
The HONORABLE SHARON QUIRK-SILVA, MEMBER OF THE
CALIFORNIA ASSEMBLY, has requested an opinion on a question relating to the
California State Lottery.
QUESTION PRESENTED AND CONCLUSION
May a person lawfully purchase California State Lottery tickets from an authorized
retailer on behalf of another person and charge a fee for doing so?
No, a person may not lawfully purchase California State Lottery tickets from an
authorized retailer on behalf of another person and charge a fee for doing so.
BACKGROUND
Historically, California has prohibited the conduct of lotteries. The state
Constitution provides that the “Legislature has no power to authorize lotteries and shall
prohibit the sale of lottery tickets in the State.” 1 In addition, Penal Code section 321—
enacted in 1872 and not amended since—provides:
Every person who sells, gives, or in any manner whatever, furnishes
or transfers to or for any other person any ticket, chance, share, or interest,
1
Cal. Const., art. IV, § 19, subd. (a).
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or any paper, certificate, or instrument purporting or understood to be or to
represent any ticket, chance, share, or interest in, or depending upon the
event of any lottery, is guilty of a misdemeanor.
Other sections of the Penal Code similarly prohibit various activities relating to lotteries,
such as aiding or assisting in the administration of a lottery, 2 keeping or operating a
lottery office, 3 or allowing the use of a building to conduct lottery operations. 4 And still
other Penal Code sections criminalize various forms of gambling and related activities. 5
For example, Penal Code section 337a prohibits bookmaking; 6 keeping or occupying a
place for recording wagers; 7 receiving, holding or forwarding bets on various games of
chance, including lotteries; 8 and similar activities. 9
The sole exception to California’s general prohibition of lotteries appears in the
California State Lottery Act, 10 which the voters approved as part of initiative measure
Proposition 37 on November 6, 1984. 11 Proposition 37 amended the state Constitution to
authorize the California State Lottery, as an exception to the general constitutional
proscription cited above, and also established the Lottery Act. 12 The Lottery Act in turn
created the California State Lottery Commission to administer specified lottery games
and allocate a portion of State Lottery revenues to supplement funding for public
education in California. 13 In order to allow the State Lottery to function, the Lottery Act
2
Pen. Code, § 322.
3
Id., § 323.
4
Id., § 326.
5
See id., §§ 330-337z.
6
Id., § 337a, subd. (a)(1).
7
Id., § 337a, subd. (a)(2).
8
See id., § 337a, subd. (a)(3) (prohibited bets include those made “upon the result, or
purported result, of any lot . . . .”). A commonly understood meaning of “lottery” is “the
drawing of lots in which prizes are distributed to the winners among persons buying a
chance.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2003) p. 736.)
9
Id., § 337a, subd. (a)(4)-(6).
10
Gov. Code, §§ 8880-8880.72.
11
California State Lottery, About Us, How We Began: The Lottery Act,
https://www.calottery.com/about-us (as of May 12, 2022).
12
Cal. Const., art. IV, § 19, subd. (d).
13
Gov. Code, §§ 8880.4, 8880.5.
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exempts it from the Penal Code provisions that generally prohibit lotteries, but makes
clear that this “exemption applies only to the operators of the Lottery and shall not be
construed to change existing law relating to lotteries operated by persons or entities other
than the Lottery.” 14
In 1999, we issued Opinion No. 98-1103, in which we concluded that a person,
company, or service may not lawfully purchase California State Lottery tickets from an
authorized retailer on behalf of another person and charge that other person for obtaining
the tickets on the person’s behalf. 15 In recent years, various proposals have been
advanced to allow commercial companies or services to purchase California State Lottery
tickets for customers for a fee, using electronic platforms that have developed or greatly
expanded since we issued our 1999 opinion. Against this backdrop, we have been asked
to revisit that earlier opinion to determine whether it represented—and continues to
represent—a correct statement of the law.
ANALYSIS
In Opinion No. 98-1103, we were asked to consider a company’s proposal to buy
State Lottery tickets on behalf of customers who would place their ticket orders with the
company by telephone and pay for the tickets by credit card. 16 The company would then
purchase the tickets from an authorized retailer, deliver the tickets to the customer, and, if
a prize was won, assist the customer in redeeming it. 17 For its services, the company
would charge a fee based on the number of tickets purchased. 18
We concluded that such an arrangement was unlawful because it would violate
Penal Code section 337a, which provides that every person who, “receives, holds, or
forwards . . . any money, thing or consideration of value, . . . staked, pledged, bet or
wagered, . . . upon the result, or purported result, of any lot, chance, casualty, unknown or
contingent event whatsoever” thereby commits a criminally punishable offense. 19 In
14
Gov. Code, § 8880.6; see also Gov. Code § 8880.70; 77 Ops.Cal.Atty.Gen. 89, 92
(1994).
15
82 Ops.Cal.Atty.Gen. 87, 87-89 (1999).
16
Id. at. pp. 87-89.
17
Ibid.
18
Ibid.
19
Pen. Code, § 337a, subd. (a)(3); 82 Ops.Cal.Atty.Gen., supra, at pp. 88-89. The
punishment for a first offense of this type is currently “imprisonment in a county jail for a
period of not more than one year or in the state prison, or by a fine not to exceed five
thousand dollars ($5,000), or by both imprisonment and fine.” (Pen. Code, § 337a(a).)
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evaluating the proposed transaction, we observed that the company—which was not an
authorized retailer of State Lottery tickets within the meaning of the Lottery Act 20—
“would be receiving money from its customers to be wagered on the results of the State
Lottery by purchasing lottery tickets.” 21 On this basis, we concluded that the proposed
transaction would violate section 337a, which (as we explained) “prohibits a person from
acting as the agent of another in purchasing lottery tickets and charging for the services
rendered.” 22
We found additional support for our conclusion in the Court of Appeal’s decision
in Advanced Delivery Services, Inc. v. Gates. 23 Advanced Delivery involved a messenger
service that would accept betting instructions and money from individual bettors who did
not attend the horse races in person, purchase pari-mutuel tickets at the racetrack on the
bettors’ behalf, and then return the tickets to them. 24 The court noted that “[s]ection
337a, enacted in 1909, sets forth the general prohibitions against, inter alia, bookmaking,
holding or forwarding bets, and making or accepting bets.” 25 The later-enacted Horse
Racing Act did not repeal section 337a, but legalized wagering that it would otherwise
prohibit “under certain limited circumstances.” 26 At the time Advanced Delivery was
decided, the relevant sections of the Horse Racing Act “clearly limit[ed] the pari-mutuel
wagering exception carved out from section 337a to persons within the enclosure
contributing their own money to a pari-mutuel pool and betting on the result of a
horserace held at that meeting.” 27 Since the conduct of the proposed messenger service
20
See Gov. Code, §§ 8880.47-8880.55; see also Gov. Code, § 8880.13 (“Lottery Game
Retailer” means a person or organization with whom the Lottery Commission may
contract for the purpose of selling tickets or shares in Lottery Games to the public”).
21
82 Ops.Cal.Atty.Gen., supra, at p. 88.
22
Ibid.
Advanced Delivery Services, Inc. v. Gates (1986) 183 Cal.App.3d 967 (Advanced
23
Delivery).
24
Id. at p. 970. The term “pari-mutuel” refers to “a betting pool in which those who bet
on competitors finishing in the first three places share the total amount bet minus a
percentage for the management.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2003)
p. 901.)
25
Advanced Delivery, supra, 183 Cal.App.3d at p. 972.
26
Ibid., citing People v. Haughey (1941) 48 Cal.App.2d 506, 510; see also Bus. & Prof.
Code, § 19400 et seq. (currently known as the Horse Racing Law).
27
Id. at p. 973, italics in original. The Horse Racing Law has since been amended to
permit and regulate specified forms of wagering done outside the racing enclosure. (See
Bus. & Prof. Code, §§ 19590-19604 (Wagering), 19605-19608.8 (Satellite Wagering).)
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did not fall within that limited carve-out to section 337a, the Advanced Delivery court had
“no difficulty in concluding that the proposal would violate section 337a.” 28 We noted
that the Lottery Act’s provisions similarly created an exception to general Penal Code
prohibitions regarding lotteries and other forms of gambling, but we found nothing in the
Lottery Act (or any other law) “that would exempt the proposed activity from the
prohibition of Penal Code section 337a.” 29
Finally, Opinion No. 98-1103 noted that the proposed ticket-purchasing
arrangement did not constitute a lottery “pool”—a transaction made legal by a 1990
legislative amendment to the Lottery Act allowing multiple individuals to purchase State
Lottery tickets through a representative and share in any proceeds. 30 We concluded that
any changes to the current law to allow for the type of arrangement and conduct at issue
would similarly be a matter “‘best left to the Legislature with its fact finding capabilities
through hearings at which all interested parties may have input.’” 31
Upon revisiting Opinion No. 98-1103, there appears from the outset no reason to
deviate from its conclusion. Section 337a continues to prohibit persons from receiving,
holding, or forwarding money wagered “upon the result . . . of any lot, chance, casualty,
unknown or contingent event whatsoever[.]” 32 A person, company, or service receiving
money from customers to wager on the results of the State Lottery—i.e., by purchasing
State Lottery tickets—falls squarely within that prohibition. And while the technology
for purchasing tickets has evolved since 1999, and now includes the possibility of online
ordering via computer or mobile phone applications, the question of whether a person
may lawfully purchase lottery tickets for another person in exchange for a fee does not
depend on the particular technology or medium used. 33
28
82 Ops.CalAtty.Gen., supra, at p. 88.
29
Id. at p. 89.
30
Ibid.; Gov. Code, § 8880.33; see 77 Ops.Cal.Atty.Gen., supra, at pp. 90-93.
31
82 Ops.Cal.Atty.Gen., supra, at p. 89, quoting Advanced Delivery, supra, 183
Cal.App.3d at p. 977.
32
Pen. Code, § 337a, subd. (a)(3).
33
We note that Government Code section 8880.28(b) provides in part that “no changes in
the types of games or methods of delivery of these games that incorporate technologies or
mediums that did not exist, were not widely available, or were not commercially feasible
at the time of the enactment of this chapter in 1984 shall be made” unless the Lottery Act
is amended to “expressly authorize [such] changes.” (Italics added.)
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The opinion request suggests, however, that Opinion No. 98-1103 improperly
treated the Lottery Act as analogous to the Horse Racing Act, as construed in the
Advanced Delivery case mentioned above, because the Lottery Act does not contain the
same stringent restrictions on how and where a player must buy a ticket as the Horse
Racing Act. We disagree. As our prior opinion noted, the Lottery and Horse Racing
Acts are analogous in the sense that both create specific and limited exceptions to what
would otherwise be illegal gambling activities. We relied on Advanced Delivery to
conclude that the proposed lottery activity was unlawful because it was not authorized by
the Lottery Act, just as the proposed betting activity considered in Advanced Delivery
was not authorized by the Horse Racing Act. We stand by this reasoning and conclusion.
The opinion request also suggests that Advanced Delivery was questionable
precedent for us to rely on because it misconstrued the California Supreme Court’s
opinion in In re Walker. 34 Again, we disagree. Advanced Delivery is fully consistent
with Walker. Advanced Delivery correctly noted that Walker involved an amendment to
the Horse Racing Act that, before it was repealed in 1953, allowed an individual bettor to
place bets on horse races from outside the racing enclosure through an agent who would
physically purchase the tickets inside the racing enclosure. 35 While Walker observed that
this amendment must be read, by necessary implication, to also permit the agent to
purchase the tickets, it nonetheless held that, even under the terms of the amendment, the
commercial solicitation of bets remained illegal under section 337a. 36 Advanced
Delivery, in turn, cited Walker and cases reaching similar conclusions to support its view
that betting conducted by agents on a commercial basis had always been prohibited, 37 and
that the commercial scheme at issue in Advanced Delivery was likewise unlawful. 38 We
therefore continue to believe that Advanced Delivery is sound and applicable precedent. 39
34
In re Walker (1938) 11 Cal.2d 464 (Walker).
35
Advanced Delivery, supra, 183 Cal.App.3d at p. 974, citing Walker, supra, 11 Cal.2d at
pp. 468-469.
36
Walker, supra, 11 Cal.2d at pp. 466, 468-469.
37
Advanced Delivery, supra, 183 Cal.App.3d at pp. 973-975.
38
Id. at p. 977.
39
We also reject the related suggestion that, under Walker, an exemption to section 337
may be implied so long as it does not contravene strong state policy. First, because
Walker interpreted the contours of an express (but later repealed) legislative exemption to
criminal liability under section 337, it cannot be read to support the view that such
exemptions may be generally implied. In any event, the strong state policy articulated in
both Walker and Advanced Delivery is one that disfavors the commercial taking and
forwarding of bets. (See Walker, supra, 11 Cal.2d at pp. 468-469; Advanced Delivery,
supra, 183 Cal.App.3d at pp. 976-977.)
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We find further support for our prior conclusion in the Lottery Act’s lottery pool
provision, which we discussed briefly in Opinion No. 98-1103 and examined in more
detail in a 1994 opinion (Opinion No. 94-102). 40 That provision, which allows a
representative to purchase tickets on behalf of a group of individuals, is “a limited
exception to the general language of Penal Code section 337a.” 41 The Legislature’s
enactment of the lottery pool provision in 1990 legalized a practice that Penal Code
section 337a otherwise would have prohibited, and a pool representative may now be
reimbursed for the “actual and necessary expenses incurred in managing a state lottery
pool” without violating Penal Code section 337a. 42 As we stated in our Opinion No. 94-
102, however, there is “nothing in the legislative history of [that provision] to suggest
that a representative would be authorized to operate a business in which the charges
would generate income for the representative in addition to reimbursement for actual and
necessary expenses.” 43 That is precisely the business activity contemplated here, and we
conclude that it is not authorized by the lottery pool exception or any other provision of
the Lottery Act.
Finally, we reject a commenter’s suggestion that State Lottery regulation number
5.4.2, which states in part that “a Winner need not have purchased the Ticket,” indicates
that third-party ticket purchasing is generally permissible. 44 That regulation also
provides that a “Winner is a Player who . . . legally acquires a winning Ticket and owns it
at the time it is determined to be a winning Ticket.” 45 In our view, the regulation is
designed to address scenarios where a ticket purchaser lawfully transfers a ticket (or a
share of a ticket) to another person. For example, a lawful ticket purchaser may give a
40
77 Ops.Cal.Atty.Gen., supra, at p.89.
41
77 Ops.Cal.Atty.Gen., supra, at p. 93; Gov. Code, § 8880.33.
42
77 Ops.Cal.Atty.Gen., supra, at p. 93. We observed that such expenses might include
“photostating each ticket purchased and providing copies to each member of the pool,
maintaining a safety deposit box for the tickets, keeping all requisite records for the
members, and completing the necessary forms to claim any prizes[.]” (Id. at p. 91.)
43
Id. at pp. 93-94, italics added.
44
The full text of Regulation 5.4.2 is as follows: “A Winner is a Player who is not a
Disqualified Person, who legally acquires a winning Ticket and owns it at the time it is
determined to be a winning Ticket either by a Draw or by scratching the play area.
Except as otherwise provided in these regulations, a Winner need not have purchased the
Ticket; however, the Winner must Claim the Prize. A 2nd Chance Winner is a person
whose eligible entry is drawn in a 2nd Chance Draw and who is identified on the Lottery
website as the Winner of that Draw.” (Cal. State Lottery Com., Cal. Lottery Regulations,
reg. 5.4.2 (approved May 27, 2021).)
45
Ibid.
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ticket to a relative or a friend as a gift, before or after it is determined to be a winning
ticket. In another example, a member of a lottery pool may own a winning ticket (or a
share of such a ticket) without having been the actual purchaser. Other scenarios that
distinguish between a purchaser and a winner and that do not conflict with the Act are
conceivable as well. The cited regulation provides no basis to depart from the conclusion
of our 1999 opinion.
In sum, we affirm our prior conclusion that a person may not lawfully purchase
California State Lottery tickets from an authorized retailer, on behalf of another person,
and charge a fee for the services rendered. Penal Code section 337a continues to prohibit
such conduct. The proposed activity does not fall within the Lottery Act’s limited
exception for lottery pools, or within any other exception established by the Lottery Act.
Any changes to current law so as to permit the contemplated practice would be for the
Legislature to make. 46
46
Section 5 of the initiative measure (Proposition 37) that created the California State
Lottery states: “No provision of [the Lottery] Act may be changed except to further its
purpose by a bill passed by a vote of two-thirds of the membership of both houses of the
Legislature and signed by the Governor.”
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