US Laws, Codes, Statutes & Cases

Chapter 167 — Offenses Against Public Health, Decency and Animals

 

2005 EDITION

 

 

PUBLIC HEALTH AND DECENCY OFFENSES

 

CRIMES AND PUNISHMENTS

 

PROSTITUTION AND RELATED OFFENSES

 

167.002     Definitions for ORS 167.002 to 167.027

 

167.007     Prostitution

 

167.012     Promoting prostitution

 

167.017     Compelling prostitution

 

167.027     Evidence required to show place of prostitution

 

OBSCENITY AND RELATED OFFENSES

 

167.060     Definitions for ORS 167.060 to 167.095

 

167.062     Sadomasochistic abuse or sexual conduct in live show

 

167.065     Furnishing obscene materials to minors

 

167.070     Sending obscene materials to minors

 

167.075     Exhibiting an obscene performance to a minor

 

167.080     Displaying obscene materials to minors

 

167.085     Defenses in prosecutions under ORS 167.065 to 167.080

 

167.087     Disseminating obscene material

 

167.089     Exemption from prosecution under ORS 167.087

 

167.090     Publicly displaying nudity or sex for advertising purposes

 

167.095     Defenses in prosecutions under ORS 167.090

 

167.100     Application of ORS 167.060 to 167.100

 

GAMBLING OFFENSES

 

167.108     Definitions for ORS 167.109 and 167.112

 

167.109     Internet gambling

 

167.112     Liability of certain entities engaged in certain financial transactions

 

167.114     Application of ORS 167.109 and 167.112 to Oregon Racing Commission

 

167.116     Rulemaking

 

167.117     Definitions for ORS 167.108 to 167.164 and 464.270 to 464.530

 

167.118     Bingo, lotto or raffle games or Monte Carlo events conducted by charitable, fraternal or religious organizations; rules

 

167.121     Local regulation of social games

 

167.122     Unlawful gambling in the second degree

 

167.127     Unlawful gambling in the first degree

 

167.132     Possession of gambling records in the second degree

 

167.137     Possession of gambling records in the first degree

 

167.142     Defense to possession of gambling records

 

167.147     Possession of a gambling device; defense

 

167.153     Proving occurrence of sporting event in prosecutions of gambling offenses

 

167.158     Lottery prizes forfeited to county; exception; action by county to recover

 

167.162     Gambling device as public nuisance; defense; seizure and destruction

 

167.164     Possession of gray machine; penalty; defense

 

167.166     Removal of unauthorized video lottery game terminal

 

167.167     Cheating

 

OFFENSES INVOLVING CONTROLLED SUBSTANCES

 

167.203     Definitions for ORS 167.212 to 167.252

 

167.212     Tampering with drug records

 

167.222     Frequenting a place where controlled substances are used

 

167.238     Prima facie evidence permitted in prosecutions of drug offenses

 

167.243     Exemption contained in drug laws as defense to drug offenses

 

167.248     Search and seizure of conveyance in which drugs unlawfully transported or possessed

 

167.252     Acquittal or conviction under federal law as precluding state prosecution

 

167.262     Adult using minor in commission of controlled substance offense

 

OFFENSES AGAINST ANIMALS

 

167.310     Definitions for ORS 167.310 to 167.351

 

167.312     Research and animal interference

 

167.315     Animal abuse in the second degree

 

167.320     Animal abuse in the first degree

 

167.322     Aggravated animal abuse in the first degree

 

167.325     Animal neglect in the second degree

 

167.330     Animal neglect in the first degree

 

167.332     Prohibition against possession of domestic animal

 

167.333     Sexual assault of animal

 

167.334     Evaluation of person convicted of violating ORS 167.333

 

167.335     Exemption from ORS 167.315 to 167.333

 

167.337     Interfering with law enforcement animal

 

167.339     Assaulting law enforcement animal

 

167.340     Animal abandonment

 

167.345     Authority to enter premises; search warrant; notice of impoundment of animal; damage resulting from entry

 

167.347     Forfeiture of animal to animal care agency prior to disposition of criminal charge

 

167.348     Placement of forfeited animal; preference

 

167.350     Forfeiture of rights in mistreated animal; costs; disposition of animal

 

167.351     Trading in nonambulatory livestock

 

167.352     Interfering with assistance, search and rescue or therapy animal

 

167.355     Involvement in animal fighting

 

167.360     Definitions for ORS 167.360 to 167.375

 

167.365     Dogfighting

 

167.370     Participation in dogfighting

 

167.372     Possessing dogfighting paraphernalia

 

167.375     Seizure of fighting dogs; procedure

 

167.385     Unauthorized use of livestock animal

 

167.387     Definitions for ORS 167.387 and 167.388

 

167.388     Interference with livestock production

 

167.390     Commerce in fur of domestic cats and dogs prohibited; exception

 

OFFENSES INVOLVING TOBACCO

 

167.400     Tobacco possession by minors prohibited

 

167.401     Tobacco purchase by minors prohibited; exceptions

 

167.402     Locating tobacco vending machines where minors have access prohibited

 

167.404     Limitation on right of city or county to regulate tobacco vending machines

 

167.407     Locating tobacco products where customers can access without store employee prohibited

 

OFFENSES INVOLVING FIGHTING BIRDS

 

167.426     Definitions for ORS 167.426 to 167.439

 

167.428     Cockfighting

 

167.431     Participation in cockfighting

 

167.433     Seizure of fighting birds; procedure

 

167.435     Forfeiture of rights in fighting birds or property

 

167.437     Constructive possession of fighting birds; procedure

 

167.439     Forcible recovery of fighting bird

 

OFFENSES INVOLVING UNUSED PROPERTY MARKETS

 

167.500     Definitions for ORS 167.502, 167.506 and 167.508

 

167.502     Sale of certain items at unused property market prohibited; exceptions

 

167.506     Recordkeeping requirements

 

167.508     Exemptions from ORS 167.502 and 167.506

 

MISCELLANEOUS

 

167.808     Unlawful possession of inhalants

 

167.810     Creating a hazard

 

167.820     Concealing the birth of an infant

 

167.822     Improper repair of vehicle inflatable restraint system

 

167.824     Unlawful possession of undeployed air bags or air bag canisters

 

167.830     Employment of minors in place of public entertainment

 

167.840     Application of ORS 167.830 limited

 

PROSTITUTION AND RELATED OFFENSES

 

      167.002 Definitions for ORS 167.002 to 167.027. As used in ORS 167.002 to 167.027, unless the context requires otherwise:

      (1) “Place of prostitution” means any place where prostitution is practiced.

      (2) “Prostitute” means a male or female person who engages in sexual conduct or sexual contact for a fee.

      (3) “Prostitution enterprise” means an arrangement whereby two or more prostitutes are organized to conduct prostitution activities.

      (4) “Sexual conduct” means sexual intercourse or deviate sexual intercourse.

      (5) “Sexual contact” means any touching of the sexual organs or other intimate parts of a person not married to the actor for the purpose of arousing or gratifying the sexual desire of either party. [1971 c.743 §249; 1973 c.699 §5]

 

      167.005 [Repealed by 1971 c.743 §432]

 

      167.007 Prostitution. (1) A person commits the crime of prostitution if:

      (a) The person engages in or offers or agrees to engage in sexual conduct or sexual contact in return for a fee; or

      (b) The person pays or offers or agrees to pay a fee to engage in sexual conduct or sexual contact.

      (2) Prostitution is a Class A misdemeanor. [1971 c.743 §250; 1973 c.52 §1; 1973 c.699 §6]

      167.010 [Repealed by 1971 c.743 §432]

 

      167.012 Promoting prostitution. (1) A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person knowingly:

      (a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise; or

      (b) Induces or causes a person to engage in prostitution or to remain in a place of prostitution; or

      (c) Receives or agrees to receive money or other property, other than as a prostitute being compensated for personally rendered prostitution services, pursuant to an agreement or understanding that the money or other property is derived from a prostitution activity; or

      (d) Engages in any conduct that institutes, aids or facilitates an act or enterprise of prostitution.

      (2) Promoting prostitution is a Class C felony. [1971 c.743 §251]

 

      167.015 [Repealed by 1971 c.743 §432]

 

      167.017 Compelling prostitution. (1) A person commits the crime of compelling prostitution if the person knowingly:

      (a) Uses force or intimidation to compel another to engage in prostitution; or

      (b) Induces or causes a person under 18 years of age to engage in prostitution; or

      (c) Induces or causes the spouse, child or stepchild of the person to engage in prostitution.

      (2) Compelling prostitution is a Class B felony. [1971 c.743 §252]

 

      167.020 [Repealed by 1971 c.743 §432]

 

      167.022 [1971 c.743 §253; repealed by 1979 c.248 §1]

 

      167.025 [Repealed by 1971 c.743 §432]

 

      167.027 Evidence required to show place of prostitution. (1) On the issue of whether a place is a place of prostitution as defined in ORS 167.002, its general repute and repute of persons who reside in or frequent the place shall be competent evidence.

      (2) Notwithstanding ORS 136.655, in any prosecution under ORS 167.012 and 167.017, spouses are competent and compellable witnesses for or against either party. [1971 c.743 §254]

 

      167.030 [Repealed by 1971 c.743 §432]

 

      167.035 [Repealed by 1971 c.743 §432]

 

      167.040 [Repealed by 1971 c.743 §432]

 

      167.045 [1953 c.641 §§1, 7; 1955 c.636 §6; repealed by 1971 c.743 §432]

 

      167.050 [1953 c.641 §7; 1955 c.636 §7; 1963 c.353 §1; repealed by 1971 c.743 §432]

 

      167.055 [1955 c.636 §9; 1963 c.513 §1; repealed by 1971 c.743 §432]

 

OBSCENITY AND RELATED OFFENSES

 

      167.060 Definitions for ORS 167.060 to 167.095. As used in ORS 167.060 to 167.095, unless the context requires otherwise:

      (1) “Advertising purposes” means purposes of propagandizing in connection with the commercial sale of a product or type of product, the commercial offering of a service, or the commercial exhibition of an entertainment.

      (2) “Displays publicly” means the exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a public thoroughfare, depot or vehicle.

      (3) “Furnishes” means to sell, give, rent, loan or otherwise provide.

      (4) “Minor” means an unmarried person under 18 years of age.

      (5) “Nudity” means uncovered, or less than opaquely covered, post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered human male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple only or the nipple and areola only are covered.

      (6) “Obscene performance” means a play, motion picture, dance, show or other presentation, whether pictured, animated or live, performed before an audience and which in whole or in part depicts or reveals nudity, sexual conduct, sexual excitement or sadomasochistic abuse, or which includes obscenities or explicit verbal descriptions or narrative accounts of sexual conduct.

      (7) “Obscenities” means those slang words currently generally rejected for regular use in mixed society, that are used to refer to genitals, female breasts, sexual conduct or excretory functions or products, either that have no other meaning or that in context are clearly used for their bodily, sexual or excretory meaning.

      (8) “Public thoroughfare, depot or vehicle” means any street, highway, park, depot or transportation platform, or other place, whether indoors or out, or any vehicle for public transportation, owned or operated by government, either directly or through a public corporation or authority, or owned or operated by any agency of public transportation that is designed for the use, enjoyment or transportation of the general public.

      (9) “Sadomasochistic abuse” means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

      (10) “Sexual conduct” means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

      (11) “Sexual excitement” means the condition of human male or female genitals or the breasts of the female when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity. [1971 c.743 §255]

 

      167.062 Sadomasochistic abuse or sexual conduct in live show. (1) It is unlawful for any person to knowingly engage in sadomasochistic abuse or sexual conduct in a live public show.

      (2) Violation of subsection (1) of this section is a Class A misdemeanor.

      (3) It is unlawful for any person to knowingly direct, manage, finance or present a live public show in which the participants engage in sadomasochistic abuse or sexual conduct.

      (4) Violation of subsection (3) of this section is a Class C felony.

      (5) As used in ORS 167.002, 167.007, 167.087 and this section unless the context requires otherwise:

      (a) “Live public show” means a public show in which human beings, animals, or both appear bodily before spectators or customers.

      (b) “Public show” means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, whether or not an admission or other charge is levied or collected and whether or not minors are admitted or excluded. [1973 c.699 §§2,3]

 

      167.065 Furnishing obscene materials to minors. (1) A person commits the crime of furnishing obscene materials to minors if, knowing or having good reason to know the character of the material furnished, the person furnishes to a minor:

      (a) Any picture, photograph, drawing, sculpture, motion picture, film or other visual representation or image of a person or portion of the human body that depicts nudity, sadomasochistic abuse, sexual conduct or sexual excitement; or

      (b) Any book, magazine, paperback, pamphlet or other written or printed matter, however reproduced, or any sound recording which contains matter of the nature described in paragraph (a) of this subsection, or obscenities, or explicit verbal descriptions or narrative accounts of sexual conduct, sexual excitement or sadomasochistic abuse.

      (2) Furnishing obscene materials to minors is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000. [1971 c.743 §256]

 

      167.070 Sending obscene materials to minors. (1) A person commits the crime of sending obscene materials to minors if, within this state, the person knowingly arranges for or dispatches for delivery to a minor, whether the delivery is to be made within or outside this state, by mail, delivery service or any other means, any of the materials enumerated in ORS 167.065.

      (2) Unless the defendant knows or has good reason to know that the person to whom the materials are sent is a minor, it is a defense to a prosecution under this section that the defendant caused to be printed on the outer package, wrapper or cover of the materials to be delivered, in words or substance, “This package (wrapper) (publication) contains material that, by Oregon law, cannot be furnished to a minor.”

      (3) Sending obscene materials to minors is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000. [1971 c.743 §257]

 

      167.075 Exhibiting an obscene performance to a minor.(1) A person commits the crime of exhibiting an obscene performance to a minor if the minor is unaccompanied by the parent or lawful guardian of the minor, and for a monetary consideration or other valuable commodity or service, the person knowingly or recklessly:

      (a) Exhibits an obscene performance to the minor; or

      (b) Sells an admission ticket or other means to gain entrance to an obscene performance to the minor; or

      (c) Permits the admission of the minor to premises whereon there is exhibited an obscene performance.

      (2) No employee is liable to prosecution under this section or under any city or home-rule county ordinance for exhibiting or possessing with intent to exhibit any obscene motion picture provided the employee is acting within the scope of regular employment at a showing open to the public.

      (3) As used in this section, “employee” means any person regularly employed by the owner or operator of a motion picture theater if the person has no financial interest other than salary or wages in the ownership or operation of the motion picture theater, no financial interest in or control over the selection of the motion pictures shown in the theater, and is working within the motion picture theater where the person is regularly employed, but does not include a manager of the motion picture theater.

      (4) Exhibiting an obscene performance to a minor is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000. [1971 c.743 §258]

 

      167.080 Displaying obscene materials to minors. (1) A person commits the crime of displaying obscene materials to minors if, being the owner, operator or manager of a business or acting in a managerial capacity, the person knowingly or recklessly permits a minor who is not accompanied by the parent or lawful guardian of the minor to enter or remain on the premises, if in that part of the premises where the minor is so permitted to be, there is visibly displayed:

      (a) Any picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse; or

      (b) Any book, magazine, paperback, pamphlet or other written or printed matter, however reproduced, that reveals a person or portion of the human body that depicts nudity, sexual conduct, sexual excitement or sadomasochistic abuse.

      (2) Displaying obscene materials to minors is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000. [1971 c.743 §259]

 

      167.085 Defenses in prosecutions under ORS 167.065 to 167.080. In any prosecution under ORS 167.065 to 167.080, it is an affirmative defense for the defendant to prove:

      (1) That the defendant was in a parental or guardianship relationship with the minor;

      (2) That the defendant was a bona fide school, museum or public library, or was acting in the course of employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization;

      (3) That the defendant was charged with furnishing, showing, exhibiting or displaying an item, those portions of which might otherwise be contraband forming merely an incidental part of an otherwise nonoffending whole, and serving some purpose therein other than titillation; or

      (4) That the defendant had reasonable cause to believe that the person involved was not a minor. [1971 c.743 §260; 1993 c.18 §27; 2001 c.607 §1]

 

      167.087 Disseminating obscene material. (1) A person commits the crime of disseminating obscene material if the persons knowingly makes, exhibits, sells, delivers or provides, or offers or agrees to make, exhibit, sell, deliver or provide, or has in possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, films, slides, drawings or other visual reproduction.

      (2) As used in subsection (1) of this section, matter is obscene if:

      (a) It depicts or describes in a patently offensive manner sadomasochistic abuse or sexual conduct;

      (b) The average person applying contemporary state standards would find the work, taken as a whole, appeals to the prurient interest in sex; and

      (c) Taken as a whole, it lacks serious literary, artistic, political or scientific value.

      (3) In any prosecution for a violation of this section, it shall be relevant on the issue of knowledge to prove the advertising, publicity, promotion, method of handling or labeling of the matter, including any statement on the cover or back of any book or magazine.

      (4) No employee is liable to prosecution under this section or under any city or home-rule county ordinance for exhibiting or possessing with intent to exhibit any obscene motion picture provided the employee is acting within the scope of regular employment at a showing open to the public.

      (5) As used in this section, “employee” means an employee as defined in ORS 167.075 (3).

      (6) Disseminating obscene material is a Class A misdemeanor. [1973 c.699 §4]

 

      167.089 Exemption from prosecution under ORS 167.087.No employee of a bona fide school, museum or public library, acting within the scope of regular employment, is liable to prosecution for violation of ORS 167.087 or any city or home-rule county ordinance for disseminating writings, films, slides, drawings, or other visual reproductions which are claimed to be obscene. [1975 c.272 §2]

 

      167.090 Publicly displaying nudity or sex for advertising purposes. (1) A person commits the crime of publicly displaying nudity or sex for advertising purposes if, for advertising purposes, the person knowingly:

      (a) Displays publicly or causes to be displayed publicly a picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts nudity, sadomasochistic abuse, sexual conduct or sexual excitement, or any page, poster or other written or printed matter bearing such representation or a verbal description or narrative account of such items or activities, or any obscenities; or

      (b) Permits any display described in this section on premises owned, rented or operated by the person.

      (2) Publicly displaying nudity or sex for advertising purposes is a Class A misdemeanor. [1971 c.743 §261]

 

      167.095 Defenses in prosecutions under ORS 167.090. In any prosecution for violation of ORS 167.090, it shall be an affirmative defense for the defendant to prove:

      (1) That the public display, even though in connection with a commercial venture, was primarily for artistic purposes or as a public service; or

      (2) That the public display was of nudity, exhibited by a bona fide art, antique or similar gallery or exhibition, and visible in a normal display setting. [1971 c.743 §262]

 

      167.100 Application of ORS 167.060 to 167.100. ORS 167.060 to 167.100 shall be applicable and uniform throughout the state and all political subdivisions and municipalities therein, and no local authority shall enact any ordinances, rules or regulations in conflict with the provisions thereof. [1971 c.743 §262a]

 

      167.105 [Repealed by 1971 c.743 §432]

 

GAMBLING OFFENSES

 

      167.108 Definitions for ORS 167.109 and 167.112. As used in ORS 167.109 and 167.112:

      (1) “Credit” and “credit card” have the meaning given those terms under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15 U.S.C. 1601).

      (2) “Electronic funds transfer” has the meaning given that term in ORS 293.525.

      (3) “Financial institution” has the meaning given that term in ORS 706.008.

      (4) “Money transmission” has the meaning given that term in ORS 717.200. [2001 c.502 §4]

 

      167.109 Internet gambling. (1) A person engaged in an Internet gambling business may not knowingly accept, in connection with the participation of another person in unlawful gambling using the Internet:

      (a) Credit, or the proceeds of credit, extended to or on behalf of such other person, including credit extended through the use of a credit card;

      (b) An electronic funds transfer or funds transmitted by or through a money transmission business, or the proceeds of an electronic funds transfer or money transmission service, from or on behalf of the other person;

      (c) Any check, draft or similar instrument that is drawn by or on behalf of the other person and is drawn on or payable at or through any financial institution; or

      (d) The proceeds of any other form of financial transaction that involves a financial institution as a payor or financial intermediary on behalf of or for the benefit of the other person.

      (2) Violation of subsection (1) of this section is a Class C felony. [2001 c.502 §2]

 

      167.110 [Repealed by 1971 c.743 §432]

 

      167.112 Liability of certain entities engaged in certain financial transactions. Notwithstanding any other provision of law, a creditor, credit card issuer, financial institution, operator of a terminal at which an electronic funds transfer may be initiated, money transmission business or any national, regional or local network utilized to effect a credit transaction, electronic funds transfer or money transmission service that is not liable under ORS 167.109:

      (1) May collect on any debt arising out of activities that are illegal under ORS 167.109;

      (2) Shall not be deemed to be participating in any activities that are illegal under ORS 167.109 by reason of their processing transactions arising out of such activities or collecting debts arising out of such activities; and

      (3) Shall not be liable under any provision of ORS 166.715 to 166.735 or 646.605 to 646.652 by reason of their processing transactions arising out of activities that are illegal under ORS 167.109 or collecting debts arising out of such activities. [2001 c.502 §3]

 

      167.114 Application of ORS 167.109 and 167.112 to Oregon Racing Commission. ORS 167.109 and 167.112 do not apply to activities licensed and regulated by the Oregon Racing Commission under ORS chapter 462. [2001 c.502 §5]

 

      Note: Section 8, chapter 502, Oregon Laws 2001, provides:

      Sec. 8. Sections 2 to 5 of this 2001 Act [167.108 to 167.114] apply to debts first occurring on or after the effective date of this 2001 Act [June 21, 2001] and to debts occurring prior to the effective date of this 2001 Act that have not been determined by a court to be uncollectible, unlawful or illegal. [2001 c.502 §8]

 

      167.115 [Repealed by 1971 c.743 §432]

 

      167.116 Rulemaking. (1) The Oregon State Lottery Commission shall adopt rules to carry out the provisions of ORS 167.117 (9)(c)(E) and (20)(b).

      (2) Devices authorized by the Oregon State Lottery Commission for the purposes described in ORS 167.117 (9)(c)(E) and (20)(b) are exempted from the provisions of 15 U.S.C. 1172. [1999 c.193 §2; 2001 c.502 §6]

 

      Note: 167.116 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      167.117 Definitions for ORS 167.108 to 167.164 and 464.270 to 464.530. As used in ORS 167.108 to 167.164 and 464.270 to 464.530, unless the context requires otherwise:

      (1) “Bingo or lotto” means a game, played with cards bearing lines of numbers, in which a player covers or uncovers a number selected from a container, and which is won by a player who is present during the game and who first covers or uncovers the selected numbers in a designated combination, sequence or pattern.

      (2) “Bookmaker” means a person who unlawfully accepts a bet from a member of the public upon the outcome of a future contingent event and who charges or accepts a percentage, fee or vigorish on the wager.

      (3) “Bookmaking” means promoting gambling by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion, upon the outcomes of future contingent events.

      (4) “Casino game” means any of the traditional gambling-based games commonly known as dice, faro, monte, roulette, fan-tan, twenty-one, blackjack, Texas hold-’em, seven-and-a-half, big injun, klondike, craps, poker, chuck-a-luck, Chinese chuck-a-luck (dai shu), wheel of fortune, chemin de fer, baccarat, pai gow, beat the banker, panquinqui, red dog, acey-deucey, or any other gambling-based game similar in form or content.

      (5)(a) “Charitable, fraternal or religious organization” means any person that is:

      (A) Organized and existing for charitable, benevolent, eleemosynary, humane, patriotic, religious, philanthropic, recreational, social, educational, civic, fraternal or other nonprofit purposes; and

      (B) Exempt from payment of federal income taxes because of its charitable, fraternal or religious purposes.

      (b) The fact that contributions to an organization profiting from a contest of chance do not qualify for a charitable deduction for tax purposes or that the organization is not otherwise exempt from payment of federal income taxes pursuant to the Internal Revenue Code of 1986, as amended, constitutes prima facie evidence that the organization is not a bona fide charitable, fraternal or religious organization.

      (6) “Contest of chance” means any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.

      (7) “Gambling” means that a person stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under the control or influence of the person, upon an agreement or understanding that the person or someone else will receive something of value in the event of a certain outcome. “Gambling” does not include:

      (a) Bona fide business transactions valid under the law of contracts for the purchase or sale at a future date of securities or commodities, and agreements to compensate for loss caused by the happening of chance, including but not limited to contracts of indemnity or guaranty and life, health or accident insurance.

      (b) Engaging in contests of chance under the following conditions:

      (A) The contest is played for some token other than money;

      (B) An individual contestant may not purchase more than $100 worth of tokens for use in the contest during any 24-hour period;

      (C) The tokens may be exchanged only for property other than money;

      (D) Except when the tokens are exchanged for a beverage or merchandise to be consumed on the premises, the tokens are not redeemable on the premises where the contest is conducted or within 50 miles thereof; and

      (E) Except for charitable, fraternal or religious organizations, no person who conducts the contest as owner, agent or employee profits in any manner from operation of the contest.

      (c) Social games.

      (d) Bingo, lotto or raffle games or Monte Carlo events operated in compliance with ORS 167.118, by a charitable, fraternal or religious organization licensed pursuant to ORS 167.118, 464.250 to 464.380 and 464.420 to 464.530 to operate such games.

      (8) “Gambling device” means any device, machine, paraphernalia or equipment that is used or usable in the playing phases of unlawful gambling, whether it consists of gambling between persons or gambling by a person involving the playing of a machine. Lottery tickets, policy slips and other items used in the playing phases of lottery and policy schemes are not gambling devices within this definition. Amusement devices other than gray machines, that do not return to the operator or player thereof anything but free additional games or plays, shall not be considered to be gambling devices.

      (9)(a) “Gray machine” means any electrical or electromechanical device, whether or not it is in working order or some act of manipulation, repair, adjustment or modification is required to render it operational, that:

      (A) Awards credits or contains or is readily adaptable to contain, a circuit, meter or switch capable of removing or recording the removal of credits earned by a player, other than removal during the course of continuous play; or

      (B) Plays, emulates or simulates a casino game, bingo or keno.

      (b) A device is no less a gray machine because, apart from its use or adaptability as such, it may also sell or deliver something of value on the basis other than chance.

      (c) “Gray machine” does not include:

      (A) Any device commonly known as a personal computer, including any device designed and marketed solely for home entertainment, when used privately and not for a fee and not used to facilitate any form of gambling;

      (B) Any device operated under the authority of the Oregon State Lottery;

      (C) Any device manufactured or serviced but not operated in Oregon by a manufacturer who has been approved under rules adopted by the Oregon State Lottery Commission;

      (D) A slot machine;

      (E) Any device authorized by the Oregon State Lottery Commission for:

      (i) Display and demonstration purposes only at trade shows; or

      (ii) Training and testing purposes by the Department of State Police; or

      (F) Any device used to operate bingo in compliance with ORS 167.118 by a charitable, fraternal or religious organization licensed to operate bingo pursuant to ORS 167.118, 464.250 to 464.380 and 464.420 to 464.530.

      (10) “Handle” means the total amount of money and other things of value bet on the bingo, lotto or raffle games, the value of raffle chances sold or the total amount collected from the sale of imitation money during Monte Carlo events.

      (11) “Internet” means an interactive computer service or system or an information service, system or access software provider that provides or enables computer access by multiple users to a computer server and includes, but is not limited to, an information service, system or access software provider that provides access to a network system commonly known as the Internet, or any comparable system or service and also includes, but is not limited to a World Wide Web page, newsgroup, message board, mailing list or chat area on any interactive computer service or system or other online service.

      (12) “Lottery” or “policy” means an unlawful gambling scheme in which:

      (a) The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated the winning ones;

      (b) The winning chances are to be determined by a drawing or by some other method; and

      (c) The holders of the winning chances are to receive something of value.

      (13) “Monte Carlo event” means a gambling event at which wagers are placed with imitation money upon contests of chance in which players compete against other players or against the house. As used in this subsection, “imitation money” includes imitation currency, chips or tokens.

      (14) “Numbers scheme or enterprise” means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome of a future contingent event otherwise unrelated to the particular scheme.

      (15) “Operating expenses” means those expenses incurred in the operation of a bingo, lotto or raffle game, including only the following:

      (a) Salaries, employee benefits, workers’ compensation coverage and state and federal employee taxes;

      (b) Security services;

      (c) Legal and accounting services;

      (d) Supplies and inventory;

      (e) Rent, repairs, utilities, water, sewer and garbage;

      (f) Insurance;

      (g) Equipment;

      (h) Printing and promotions;

      (i) Postage and shipping;

      (j) Janitorial services and supplies; and

      (k) Leasehold improvements.

      (16) “Player” means a person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity. A person who gambles at a social game of chance on equal terms with the other participants therein is a person who does not otherwise render material assistance to the establishment, conduct or operation thereof by performing, without fee or remuneration, acts directed toward the arrangement or facilitation of the game, such as inviting persons to play, permitting the use of premises therefor and supplying cards or other equipment used therein. A person who engages in bookmaking is not a player.

      (17) “Profits from unlawful gambling” means that a person, acting other than solely as a player, accepts or receives money or other property pursuant to an agreement or understanding with another person whereby the person participates or is to participate in the proceeds of unlawful gambling.

      (18) “Promotes unlawful gambling” means that a person, acting other than solely as a player, engages in conduct that materially aids any form of unlawful gambling. Conduct of this nature includes, but is not limited to, conduct directed toward the creation or establishment of the particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases or toward any other phase of its operation. A person promotes unlawful gambling if, having control or right of control over premises being used with the knowledge of the person for purposes of unlawful gambling, the person permits the unlawful gambling to occur or continue or makes no effort to prevent its occurrence or continuation.

      (19) “Raffle” means a lottery operated by a charitable, fraternal or religious organization wherein the players pay something of value for chances, represented by numbers or combinations thereof or by some other medium, one or more of which chances are to be designated the winning ones or determined by a drawing and the player holding the winning chance is to receive something of value.

      (20)(a) “Slot machine” means a gambling device that as a result of the insertion of a coin or other object operates, either completely automatically, or with the aid of some physical act by the player, in such a manner that, depending upon elements of chance, it may eject something of value or otherwise entitle the player to something of value. A device so constructed or readily adaptable or convertible to such use is no less a slot machine because it is not in working order or because some mechanical act of manipulation or repair is required to accomplish its adaptation, conversion or workability. Nor is it any less a slot machine because apart from its use or adaptability as such it may also sell or deliver something of value on the basis other than chance.

      (b) “Slot machine” does not include any device authorized by the Oregon State Lottery Commission for:

      (A) Display and demonstration purposes only at trade shows; or

      (B) Training and testing purposes by the Department of State Police.

      (21) “Social game” means:

      (a) A game, other than a lottery, between players in a private home where no house player, house bank or house odds exist and there is no house income from the operation of the social game; and

      (b) If authorized pursuant to ORS 167.121, a game, other than a lottery, between players in a private business, private club or place of public accommodation where no house player, house bank or house odds exist and there is no house income from the operation of the social game.

      (22) “Something of value” means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein.

      (23) “Trade show” means an exhibit of products and services that is:

      (a) Not open to the public; and

      (b) Of limited duration.

      (24) “Unlawful” means not specifically authorized by law. [1971 c.669 §3a; 1971 c.743 §263; 1973 c.788 §1; 1974 c.7 §1; 1975 c.421 §1; 1977 c.850 §1; 1983 c.813 §1; 1987 c.914 §1; 1991 c.962 §7; 1995 c.577 §2; 1997 c.867 §1; 1999 c.193 §1; 2001 c.228 §1; 2001 c.502 §7; 2005 c.57 §1; 2005 c.355 §2]

 

      167.118 Bingo, lotto or raffle games or Monte Carlo events conducted by charitable, fraternal or religious organizations; rules. (1) When a charitable, fraternal or religious organization is licensed by the Department of Justice to conduct bingo, lotto or raffle games or Monte Carlo events, only the organization itself or an employee thereof authorized by the department shall receive money or property or otherwise directly profit from the operation of the games, except that:

      (a) The organization operating the games may present a prize of money or other property to any player not involved in the administration or management of the games.

      (b) An organization licensed to conduct Monte Carlo events may contract with a licensed supplier of Monte Carlo event equipment to operate the event, including the provision of equipment, supplies and personnel, provided that the licensed supplier is paid a fixed fee to conduct the event and the imitation money is sold to players by employees or volunteers of the licensed charitable, fraternal or religious organization.

      (c) A person may sell, rent or lease equipment, including electronic equipment, proprietary computer software and real property to a licensed charitable, fraternal or religious organization. Rent or lease payments must be made in compliance with the provisions of ORS 464.510.

      (d) An organization licensed by the department may act as an escrow agent to receive money or property to be awarded as prizes.

      (2) A charitable, fraternal or religious organization may not operate bingo, lotto or raffle games or Monte Carlo events except at such locations and upon such days and for such periods of time as the department authorizes pursuant to this section and ORS 464.250 to 464.380, 464.420 and 464.450 to 464.530.

      (3)(a) An organization licensed by the department to operate bingo or lotto games may not award a prize exceeding $2,500 in value in any one game. An organization licensed by the department to operate a Monte Carlo event may not present any prize of money, or a cash equivalent, to any player.

      (b) Notwithstanding any provision of this chapter to the contrary, a bingo licensee may operate two games per year with a prize not to exceed $10,000 per game and, if approved by the department, may also participate in a linked progressive game involving only Oregon licensees, without regard to the number of games or the size of the prize awarded.

      (4) Each charitable, fraternal or religious organization that maintains, conducts or operates any bingo, lotto or raffle game or Monte Carlo event under license of the department must operate such games in accordance with rules adopted by the department.

      (5) It is unlawful for a licensee to permit the operating expenses of the games to exceed 18 percent of the annual handle of its bingo, lotto and raffle operation.

      (6) It is unlawful for a charitable, fraternal or religious organization licensed by the department to operate bingo, lotto or raffle games if:

      (a) The handle of the games and events exceeds $250,000 in a year; and

      (b) The games and events do not generate for the organization’s purposes, after the cost of prizes and operating expenses are deducted from the handle, an amount that equals or exceeds five percent of the handle. [1987 c.914 §3; 1991 c.274 §2; 1995 c.331 §1; 1997 c.867 §2; 1999 c.218 §1; 2001 c.228 §2; 2003 c.417 §1]

 

      167.119 [1973 c.788 §3; repealed by 1974 c.7 §2]

 

      167.120 [Amended by 1955 c.514 §1; 1969 c.404 §1; repealed by 1971 c.743 §432]

 

      167.121 Local regulation of social games. Counties and cities may, by ordinance, authorize the playing or conducting of a social game in a private business, private club or in a place of public accommodation. Such ordinances may provide for regulation or licensing of the social games authorized. [1974 c.7 §3]

 

      Note: 167.121 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 167 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      167.122 Unlawful gambling in the second degree. (1) A person commits the crime of unlawful gambling in the second degree if the person knowingly:

      (a) Places a bet with a bookmaker; or

      (b) Participates or engages in unlawful gambling as a player.

      (2) Unlawful gambling in the second degree is a Class A misdemeanor. [1971 c.743 §264; 1997 c.867 §21]

 

      167.125 [Amended by 1969 c.404 §2; repealed by 1971 c.743 §432]

 

      167.127 Unlawful gambling in the first degree. (1) A person commits the crime of unlawful gambling in the first degree if the person knowingly promotes or profits from unlawful gambling.

      (2) Unlawful gambling in the first degree is a Class C felony. [1971 c.743 §265; 1997 c.867 §22]

 

      167.130 [Repealed by 1971 c.743 §432]

 

      167.132 Possession of gambling records in the second degree. (1) A person commits the crime of possession of gambling records in the second degree if, with knowledge of the contents thereof, the person possesses any writing, paper, instrument or article:

      (a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise; or

      (b) Of a kind commonly used in the operation, promotion or playing of a lottery or numbers scheme or enterprise.

      (2) Possession of gambling records in the second degree is a Class A misdemeanor. [1971 c.743 §266]

 

      167.135 [Repealed by 1971 c.743 §432]

 

      167.137 Possession of gambling records in the first degree. (1) A person commits the crime of possession of gambling records in the first degree if, with knowledge of the contents thereof, the person possesses any writing, paper, instrument or article:

      (a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise, and constituting, reflecting or representing more than five bets totaling more than $500; or

      (b) Of a kind commonly used in the operation, promotion or playing of a lottery or numbers scheme or enterprise, and constituting, reflecting or representing more than 500 plays or chances therein.

      (2) Possession of gambling records in the first degree is a Class C felony. [1971 c.743 §267]

 

      167.140 [Repealed by 1971 c.743 §432]

 

      167.142 Defense to possession of gambling records. In any prosecution under ORS 167.132 or 167.137 it is a defense if the writing, paper, instrument or article possessed by the defendant is neither used nor intended to be used in the operation or promotion of a bookmaking scheme or enterprise, or in the operation, promotion or playing of a lottery or numbers scheme or enterprise. [1971 c.743 §268]

 

      167.145 [Repealed by 1971 c.743 §432]

 

      167.147 Possession of a gambling device; defense. (1) A person commits the crime of possession of a gambling device if, with knowledge of the character thereof, the person manufactures, sells, transports, places or possesses, or conducts or negotiates a transaction affecting or designed to affect ownership, custody or use of:

      (a) A slot machine; or

      (b) Any other gambling device, believing that the device is to be used in promoting unlawful gambling activity.

      (2) Possession of a gambling device is a Class A misdemeanor.

      (3) It is a defense to a charge of possession of a gambling device if the slot machine or gambling device that caused the charge to be brought was manufactured:

      (a) Prior to 1900 and is not operated for purposes of unlawful gambling; or

      (b) More than 25 years before the date on which the charge was brought and:

      (A) Is located in a private residence;

      (B) Is not operated for the purposes of unlawful gambling; and

      (C) Has permanently affixed to it by the manufacturer, the manufacturer’s name and either the date of manufacture or the serial number. [1971 c.743 §269; 1977 c.264 §1; 1983 c.403 §1; 1993 c.781 §1; 1995 c.577 §1]

 

      167.150 [Repealed by 1961 c.579 §2]

 

      167.151 [1961 c.579 §1; 1963 c.480 §1; repealed by 1971 c.743 §432]

 

      167.152 [1955 c.494 §1; repealed by 1971 c.743 §432]

 

      167.153 Proving occurrence of sporting event in prosecutions of gambling offenses. In any prosecution under ORS 167.117 and 167.122 to 167.147 in which it is necessary to prove the occurrence of a sporting event, the following shall be admissible in evidence and shall be prima facie evidence of the occurrence of the event:

      (1) A published report of its occurrence in a daily newspaper, magazine or other periodically printed publication of general circulation; or

      (2) Evidence that a description of some aspect of the event was written, printed or otherwise noted at the place in which a violation of ORS 167.117 and 167.122 to 167.147 is alleged to have been committed. [1971 c.743 §270]

 

      167.155 [Repealed by 1961 c.503 §3]

 

      167.157 [1969 c.169 §1; repealed by 1971 c.743 §432]

 

      167.158 Lottery prizes forfeited to county; exception; action by county to recover. (1) Except for bingo or lotto operated by a charitable, fraternal or religious organization, all sums of money and every other valuable thing drawn as a prize in any lottery or pretended lottery, by any person within this state, are forfeited to the use of the county in which it is found, and may be sued for and recovered by a civil action.

      (2) Nothing contained in ORS 105.550 to 105.600 shall interfere with the duty of officers to take possession of property as provided by subsection (1) of this section. [1971 c.743 §271; 1977 c.850 §3; 1989 c.846 §14]

 

      167.160 [Repealed by 1961 c.503 §3]

 

      167.162 Gambling device as public nuisance; defense; seizure and destruction. (1) A gambling device is a public nuisance. Any peace officer shall summarily seize any such device that the peace officer finds and deliver it to the custody of the sheriff, who shall hold it subject to the order of the court having jurisdiction.

      (2) Whenever it appears to the court that the gambling device has been possessed in violation of ORS 167.147, the court shall adjudge forfeiture thereof and shall order the sheriff to destroy the device and to deliver any coins taken therefrom to the county treasurer, who shall deposit them to the general fund of the county. However, when the defense provided by ORS 167.147 (3) is raised by the defendant, the gambling device or slot machine shall not be forfeited or destroyed until after a final judicial determination that the defense is not applicable. If the defense is applicable, the gambling device or slot machine shall be returned to its owner.

      (3) The seizure of the gambling device or operating part thereof constitutes sufficient notice to the owner or person in possession thereof. The sheriff shall make return to the court showing that the sheriff has complied with the order.

      (4) Whenever, in any proceeding in court for the forfeiture of any gambling device except a slot machine seized for a violation of ORS 167.147, a judgment for forfeiture is entered, the court shall have exclusive jurisdiction to remit or mitigate the forfeiture.

      (5) In any such proceeding the court shall not allow the claim of any claimant for remission or mitigation unless and until the claimant proves that the c