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AGO Opinion 97004

Operation of Pickle Card Dispensing Devices With Video Display Capability Under the Nebraska Pickle Card Lottery Act, Neb. Rev. Stat. §§ 9-301 to 9-356(1991 and Cum. Supp. 1996).
Opinion 97004


DATE: January 9, 1997


SUBJECT: Operation of Pickle Card Dispensing Devices With Video Display Capability Under the Nebraska Pickle Card Lottery Act, Neb. Rev. Stat. §§ 9-301 to 9-356(1991 and Cum. Supp. 1996).




REQUESTED BY: M. Berri Balka, State Tax Commissioner




WRITTEN BY: Don Stenberg, Attorney General

L. Jay Bartel, Assistant Attorney General




You have requested our opinion as to whether the proposed

operation of a form of pickle card dispensing device is authorized

under the provisions of the Nebraska Pickle Card Lottery Act, Neb.

Rev. Stat. §§ 9-301 to 9-356 (1991 and Cum. Supp. 1996) [the

"Act"]. You indicate that the Department's Charitable Gaming

Division has been approached regarding a proposal to operate a

pickle card dispensing device capable of scanning a bar code on

pickle cards to display the contents of a dispensed card on a video

screen. Based on the Department's concerns that the video display

feature of the proposed pickle card dispensing device may not be

permitted under current statutes, you have asked us to address

whether the use of such devices would be consistent with the Act.




I. Proposed Operation of the Video Display Pickle Card Dispensing

Device.




While still conceptual in nature, the video display pickle

card dispensing device would dispense regularly manufactured pickle

cards. The appearance, security features, randomness, and method

of play would essentially be the same as for other pickle cards

currently being marketed in the state, with one major

distinguishing feature. That feature is a bar code placed on the

pickle card which the vending device would be capable of scanning

as the card is dispensed. The vending device would read the bar

code on the outside of each pickle card and, within seconds,

display on a video display screen incorporated into the device

whether or not the pickle card is a winner and the amount won,

prior to the tabs actually being removed by the player.




The operation of the device will have no effect on whether a

player wins or loses; that determination is ultimately made solely

by the pickle card itself. The device will not contain a random

number generator, nor will it otherwise generate a pickle card, but

will merely dispense pre-manufactured pickle cards upon the

insertion of cash into the machine by the player. The pickle card

is dropped into a tray for the player to retrieve and remove the

tabs contained on the card to reveal symbols which determine

whether the card is a winner. If the particular card is a winner,

it must be presented to a cashier or attendant for redemption. The

device will not be capable of tracking winnings or allowing replays

of amounts won. Nor will the device itself pay out on winning

pickle cards.




The potential manufacturer of the device has indicated that

the video display screen will operate as a visual aid and is not

necessarily needed to play the game. The device is intended to be

used with or without the video display at the player's option. For

example, once the player inserts cash into the bill validator, the

amount deposited will be displayed on the video monitor. Two

buttons, "dispense" or "dispense/view", will then flash. The -

player will choose to either dispense the pickle card only or

dispense the pickle card and use the video enhancement aid by

pressing the appropriate button. The potential manufacturer has

indicated that should the video display results not agree with the

pickle card regarding whether it is a winner, the pickle card

itself would control. The cashier/attendant will not have the

capability of scanning the pickle card thereby alleviating the need

to break it open. While the display screen is not necessarily

needed to play the game, the potential manufacturer has indicated

that the display would be a visual aid useful to those who are

visually impaired due to age or disability.




II. Issue Presented.




Neb. Rev. Stat. § 9-346(2) (Cum. Supp. 1996), which sets forth

requirements for the determination of winning pickle cards,

provides, in pertinent part, as follows:




The winning chances of any pickle card shall not be

determined or otherwise known until after its purchase

and only upon opening, pulling, detaching, breaking open,

or otherwise removing the tab or tabs to clearly reveal

or otherwise appropriately revealing the combination.

(emphasis added).




In addition, Neb. Rev. Stat. § 9-337 (1991), which sets forth

construction standards for pickle cards, provides, in part:




(1) Pickle cards shall be constructed so that it is

impossible to determine the covered or concealed number,

letter, symbol, configuration, or combination thereof on

the pickle card until it has been dispensed to and opened

by the player, by any method or device, including, but

not limited to, the use of marking, variance in size,

variance in paper fiber, or light.




(2) All pickle cards shall be constructed to ensure

that, when offered to the public, the pickle card is

virtually opaque and free of security defects so that

winning pickle cards cannot be determined, prior to being

opened, through the use of high-intensity lights or any

other method. (emphasis added).




You indicate that the physical pickle card ticket to be

dispensed by the device appears to comply with the restrictions and

limitations imposed under the Act, and that this "aspect of the

product is not of primary concern." Your question then is "whether

the use of the bar code feature and the display mechanism

incorporated into the device prevents it from being used to market

pickle cards under the above-referenced statutory provisions."




III. Discussion.




Resolution of the question presented requires us to attempt to

interpret the intent of the Legislature in enacting the provisions

outlining the conduct of pickle card lotteries. In doing so,

certain basic rules of statutory construction must be considered.




A fundamental principle of statutory construction is to

attempt to ascertain legislative intent and to give effect to that

intent. County of Lancaster v. Maser, 224 Neb. 566, 400 N.W.2d 238

(1987). In construing a statute, the language used by the

Legislature should be considered to determine its intent. Sorenson

v Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985). In the absence of

anything indicating to the contrary, statutory language is to be

given its plain and ordinary meaning; when the words of a statute

are plain, direct, and unambiguous, no interpretation is necessary

or will be indulged to ascertain their meaning. Hickenbottom v,

Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991).




It is generally recognized that statutes which allow gambling

activity are subject to strict construction. Aicardi v. Alabama,

86 U.S. (19 Wall.) 635 (1873); see West Indies, Inc. v. First

Nat'l Bank of Nevada, 67 Nev. 13, 214 P.2d 144 (1950). (gambling

statute, granting special privileges, must be strictly construed).

The Nebraska Supreme Court, construing the constitutional provision

authorizing the Legislature to permit lotteries for charitable or

community betterment purposes, has stated:




Traditionally in Nebraska lotteries have been

forbidden. The Constitution of Nebraska still forbids

any lottery except a lottery specifically authorized by

the Legislature within the limitations of Article III,

section 24. Under the 1968 amendment, the Legislature

cannot authorize any lottery beyond the specific scope of

the constitutional permission. The Legislature may

refuse to authorize any lottery, or it may impose limits

or restrictions, or qualifications upon the operation of

a lottery it authorizes. . . .In Nebraska,. . ., unless

a lottery is conducted and operated within the specific

limits and terms of a statutory authorization, it is

illegal.




State v. City Betterment Corp., 197 Neb. 575, 580-81, 250 N.W.2d

601, 604 (1977) (emphasis added).




Applying these principles to the issue presented, it is our

opinion that the incorporation into and use of the bar code feature

and video display mechanism as part of the proposed pickle card

dispensing device is inconsistent with current provisions of the

Act. We reach this conclusion for several reasons.




First, § 9-346(2) provides that "[t]he winning chances of any

pickle card shall not be determined or otherwise known until after

its purchase and only upon opening, pulling, detaching, breaking

open, or otherwise removing the tab or tabs to clearly reveal or

otherwise appropriately revealing the combination." The video

display feature of the proposed device appears to be inconsistent

with this provision, in that it would reveal the contents of the

pickle card prior to the actual physical removal of the tab or tabs

on the card.




Second, § 9-337(2) provides that pickle cards must "be

constructed so that it is impossible to determine the covered or

concealed number, letter, symbol, configuration, or combination

thereof on the pickle card until it has been dispensed to and

opened by the player, by any method or device, including, but not

limited to, the use of marking, variance in size, variance in paper

fiber, or light." (emphasis added). This provision appears to

preclude use of the "bar code" feature on the pickle card to the

extent that it permits scanning and display of the contents of the

card, thus allowing determination of the card's contents prior to

the card being opened by the player.




Third, § 9-337(2) requires that pickle cards be constructed in

such a manner that "winning pickle cards cannot be determined,

prior to being opened, through the use of high-intensity lights or

by any other method. (emphasis added). Again, the requirement that

winning pickle cards not be capable of determination prior to

opening, appears inconsistent with the use of the "bar code"

feature, as it would allow display of the contents of the card and

determination of the card's contents prior to the card being opened

by the player.




Finally, you note that the Department has previously "advised

other manufacturers of similar types of pickle card dispensing

devices (with video display capabilities) that because these type

of products appeared to incorporate a technological concept (video

enhancement) that was not contemplated in the Nebraska Pickle Card

Lottery Act and the Department's administrative regulations on

pickle cards, [the Department] has been reluctant to authorize the

use of such devices without clear legislative or judicial direction

relative to the legality of this type of product." The

interpretation of statutes by an administrative agency charged with

their enforcement, while not controlling, is entitled to weight.

Vulcraft v. Karnes, 229 Neb. 676, 428 N.W.2d 505 (1988). We concur

with the Department's view that use of the proposed device does not

appear consistent with existing provisions of the Nebraska Pickle

Card Lottery Act.




IV. Conclusion.




For the reasons stated above, it is our opinion that the

incorporation into and use of the bar code feature and video

display mechanism as part of the proposed pickle card dispensing

device is inconsistent with current provisions of the Nebraska

Pickle Card Lottery Act. We do not doubt that increased

competition from other forms of gambling has adversely impacted

charitable organizations which utilize pickle card revenues to fund

their activities. We believe, however, that the proposed pickle

card dispensing device is not authorized due to limitations

presently established by the Legislature on the conduct of pickle

card lotteries. In view of the strict construction to be applied

to statutes authorizing gambling activity, we conclude that

legislative action is required before pickle card dispensing

devices of this nature may legally be used in Nebraska.




Very truly yours,




DON STENBERG

Attorney General








L. Jay Bartel

Assistant Attorney General




7-239-7.3




APPROVED BY:








________________________________

DON STENBERG, Attorney General