2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 12 - Offenses Against Public Health and Morals
Article 2 - Gambling and Related Offenses
Part 1 - Gambling
§ 16-12-22. Commercial Gambling

1. A person commits the offense of commercial gambling when he intentionally does any of the following acts:
   1. Operates or participates in the earnings of a gambling place;
   2. Receives, records, or forwards a bet or offer to bet;
   3. For gain, becomes a custodian of anything of value bet or offered to be bet;
   4. Contracts to have or give himself or another the option to buy or sell or contracts to buy or sell at a future time any gain or other commodity whatsoever or any stock or security of any company, when it is at the time of making such contract intended by both parties thereto that the contract to buy or sell, the option whenever exercised or the contract resulting therefrom, shall be settled not by the receipt or delivery of such property but by the payment only of differences in prices thereof;
   5. Sells chances upon the partial or final result of or upon the margin of victory in any game or contest or upon the performance of any participant in any game or contest or upon the result of any political nomination, appointment, or election or upon the degree of success of any nominee, appointee, or candidate;
   6. Sets up or promotes any lottery, sells or offers to sell, or knowingly possesses for transfer or transfers any card, stub, ticket, check, or other device designed to serve as evidence of participation in any lottery; or
   7. Conducts, advertises, operates, sets up, or promotes a bingo game without having a valid license to operate a bingo game as provided by law.
2. A person who commits the offense of commercial gambling shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years or by a fine not to exceed $20,000.00, or both.

(Code 1933, § 26-2703, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1970, p. 236, § 6; Ga. L. 1977, p. 747, § 1; Ga. L. 1978, p. 851, § 1.)

- For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B.J. 124 (1970). For comment on Boyd v. Piggly Wiggly S., Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967), see 2 Ga. L. Rev. 132 (1967).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Penal Code 1895, §§ 406 and 408, former Penal Code 1910, §§ 397 and 398, and former Code 1933, §§ 26-6501 and 26-6502, as they read prior to revision of the title by Ga. L. 1968, p. 1249, all of which sections dealt with operation of lotteries are included in the annotations for this Code section.

Purpose of former provisions was to suppress lotteries by making it an offense to maintain or carry on one, or to do any of the several acts entering into conduct of such business; and the section was framed, doubtless, with a view to reaching all persons who might carry on, or participate in carrying on, the forbidden enterprise. Morrow v. State, 62 Ga. App. 718, 9 S.E.2d 699 (1940) (decided under former Code 1933, §§ 26-6501, 26-6502); Goodrum v. State, 69 Ga. App. 373, 25 S.E.2d 585 (1943) (decided under former Code 1933, §§ 26-6501, 26-6502); Walker v. State, 69 Ga. App. 375, 25 S.E.2d 587 (1943) (decided under former Code 1933, §§ 26-6501, 26-6502); Britton v. State, 69 Ga. App. 868, 27 S.E.2d 100 (1943) (decided under former Code 1933, §§ 26-6501, 26-6502); Jackson v. State, 71 Ga. App. 138, 30 S.E.2d 354 (1944) (decided under former Code 1933, §§ 26-6501, 26-6502); Fountain v. State, 71 Ga. App. 191, 30 S.E.2d 359 (1944) (decided under former Code 1933, §§ 26-6501, 26-6502); Callahan v. State, 71 Ga. App. 302, 30 S.E.2d 782 (1944) (decided under former Code 1933, §§ 26-6501, 26-6502); Davis v. State, 72 Ga. App. 428, 33 S.E.2d 747 (1945) (decided under former Code 1933, §§ 26-6501, 26-6502); Anderson v. State, 72 Ga. App. 510, 34 S.E.2d 458 (1945) (decided under former Code 1933, §§ 26-6501, 26-6502); Huff v. State, 81 Ga. App. 461, 59 S.E.2d 43 (1950) (decided under former Code 1933, §§ 26-6501, 26-6502).

- When the defendant allegedly provided account numbers to a sports book agent and attempted to collect the agent's gambling debt, the defendant's motion for judgment of acquittal was granted as to a Travel Act, 18 U.S.C. § 1952, count because the government failed to demonstrate an underlying unlawful activity under O.C.G.A. § 16-12-22 since there was no indication that the agent intended or attempted to share in the defendant's or the sports book's earnings. United States v. Corrar, 512 F. Supp. 2d 1280 (N.D. Ga. 2007).

Anyone participating in design and execution of a lottery is a criminal. Goodrum v. State, 69 Ga. App. 373, 25 S.E.2d 585 (1943) (decided under former Code 1933, §§ 26-6501, 26-6502); Britton v. State, 69 Ga. App. 868, 27 S.E.2d 100 (1943) (decided under former Code 1933, §§ 26-6501, 26-6502); Fountain v. State, 71 Ga. App. 191, 30 S.E.2d 359 (1944) (decided under former Code 1933, §§ 26-6501, 26-6502); West v. State, 74 Ga. App. 453, 40 S.E.2d 156 (1946) (decided under former Code 1933, §§ 26-6501, 26-6502).

Purchasers of lottery tickets are not punished. Roney v. Crawford, 135 Ga. 1, 68 S.E. 701 (1910) (decided under former Penal Code 1895, §§ 406, 408).

Test of a lottery is in the lottery's working rather than in the lottery's wording. Boyd v. Piggly Wiggly S., Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967), commented on in 2 Ga. L. Rev. 132 (1967) (decided under former Code 1933, §§ 26-6501, 26-6502).

- Although arising from same transaction, offenses of possession of gambling devices and equipment, and commercial gambling by operating a gambling place, are separate and distinct. Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578, cert. denied, 423 U.S. 895, 96 S. Ct. 194, 46 L. Ed. 2d 127 (1975).

Georgia need not recognize and enforce another state's laws deemed obnoxious to the state's public policy. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).

- Gambling transactions contravene public policy of Georgia and constitute obligations unenforceable in the state's courts. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).

Merely observing cash and parlay cards in defendant's bedroom in multiple-occupancy building was not sufficient to establish that the goods were found in defendant's possession, especially when the lone witness indicated no knowledge of where the evidence was found. Bing v. State, 178 Ga. App. 288, 342 S.E.2d 762 (1986).

- Consideration as an ingredient of a prohibited lottery or gift enterprise is shown when there is present, in actual working of sales promotion scheme, a class of persons who, in addition to receiving or being entitled to chances on prizes, supply consideration for all chances in bulk by purchasing whatever promoter is selling, whether purchasers were required to do so or not under wording of the promoter's rules. Boyd v. Piggly Wiggly S., Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967), commented on in 2 Ga. L. Rev. 132 (1967) (decided under former Code 1933, §§ 26-6501, 26-6502).

- Amusement and entertainment (consisting of a displayed horoscope or fortune) is usually and generally recognized as a thing of value within meaning of former Penal Code 1910, §§ 397, 398. Jenner v. State, 173 Ga. 86, 159 S.E. 564 (1931) (decided under former Penal Code 1910, §§ 397, 398).

Fact that skill or proficiency might enter into operation of machine makes no difference. Any scheme or device operated by a person by which one participating therein might either lose money invested or get more than one's money's worth, the operator retaining the money so lost, is a scheme or device for hazarding of money. Sparks v. State, 48 Ga. App. 498, 173 S.E. 216 (1934) (decided under former Code 1933, §§ 26-6501, 26-6502); Lewis v. State, 55 Ga. App. 159, 189 S.E. 566 (1937) (decided under former Code 1933, §§ 26-6501, 26-6502).

- It is well settled in this state that a "closed participation" gift enterprise scheme - that is, one which is open only to patrons purchasing goods, services or whatever promoter is trying to push by scheme - is illegal and contrary to public policy. Boyd v. Piggly Wiggly S., Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967), commented on in 2 Ga. L. Rev. 132 (1967) (decided under former Code 1933, §§ 26-6501, 26-6502).

- Regarding the phrase "participate in the earnings of a gambling place" in O.C.G.A. § 16-12-22(a)(1), participating in earnings could require that the participant actually receive the earnings of the business, and earnings are things, not acts or processes, and thus the best reading of "participates" is not "to take part in something" but to "partake," which can mean "share in" or "receive a portion"; the intent of the phrase is to foreclose a defense by a mischievous investor who bankrolls a commercial gambling operation but then claims, when faced with prosecution, that the investor did not "operate" the enterprise. United States v. Corrar, 512 F. Supp. 2d 1280 (N.D. Ga. 2007).

- As between members of a baseball team, they may be engaged in a contest of skill, but as to spectators who wager upon outcome of particular batting results, it is, a game of chance. Grant v. State, 75 Ga. App. 784, 44 S.E.2d 513 (1947) (decided under former Code 1933, §§ 26-6501, 26-6502).

- A "gift enterprise" is a sporting artifice by which, for example a merchant or tradesman sells wares for their market value, but, by way of inducement, gives to each purchaser a ticket which entitles the purchaser to a chance to win certain prizes, to be determined after manner of a lottery. Barker v. State, 56 Ga. App. 705, 193 S.E. 605 (1937) (decided under former Code 1933, §§ 26-6501, 26-6502).

Acting as a pick-up man is an act entering into conduct of lottery business. Anderson v. State, 72 Ga. App. 510, 34 S.E.2d 458 (1945) (decided under former Code 1933, §§ 26-6501, 26-6502).

Picking up lottery tickets as an integral part of organization engaged in lottery. Ransom v. State, 55 Ga. App. 292, 189 S.E. 924 (1937) (decided under former Code 1933, §§ 26-6501, 26-6502).

- That defendant was ignorant of fact that defendant was violating the law does not relieve defendant of criminal intent if defendant intended to do the prohibited act of carrying on a "clearinghouse" for hazarding of money. Wilson v. State, 57 Ga. App. 839, 197 S.E. 48 (1938) (decided under former Code 1933, §§ 26-6501, 26-6502).

Where defendant's lottery operation covers several counties, each county has jurisdiction over defendant for trial, regardless of defendant's activities in other counties. Lunsford v. State, 60 Ga. App. 537, 4 S.E.2d 112 (1939) (decided under former Code 1933, §§ 26-6501, 26-6502).

- When terms used in Code are generic, as is the word "lottery" (there being an unlimited variety of games of chance which fall under this general head) it is not sufficient that in indictment charge offense in same generic terms as in definition, but it must state particular offense intended to be charged, and an indictment which fails to name the kind of lottery or manner of operation of scheme or device charged to be a lottery is defective in that the indictment does not sufficiently apprise the defendant of offense charged. President v. State, 83 Ga. App. 731, 64 S.E.2d 596 (1951) (decided under former Code 1933, §§ 26-6501, 26-6502).

- When lottery paraphernalia was found in the home of the defendant, presumption was that the defendant owned the paraphernalia. Stovall v. State, 68 Ga. App. 27, 21 S.E.2d 914 (1942) (decided under former Code 1933, §§ 26-6501, 26-6502); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Code 1933, §§ 26-6501, 26-6502).

Presumption of ownership is rebuttable. Stovall v. State, 68 Ga. App. 27, 21 S.E.2d 914 (1942) (decided under former Code 1933, §§ 26-6501, 26-6502).

- First burden which must be borne by a litigant seeking to enforce rights allegedly acquired in a sales promotion scheme whereby prizes are awarded by chance is that of showing that scheme is not illegal and contrary to public policy, for courts will not lend their aid in settling of disputes grounded in prohibited lotteries or gift enterprises. Boyd v. Piggly Wiggly S., Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967), commented on in 2 Ga. L. Rev. 132 (1967) (decided under former Code 1933, §§ 26-6501, 26-6502).

- Trial court did not err in issuing interlocutory injunctions and continuing receiverships over store property seized pursuant to O.C.G.A. § 16-14-7 based on alleged video gambling activity in violation of O.C.G.A. § 16-12-22 and racketeering activity under former paragraphs (8) and (9) O.C.G.A. § 16-14-3. Remand was required, however, for consideration of whether the forfeitures were excessive fines in violation of U.S. Const., amend. VIII. Patel v. State, 289 Ga. 479, 713 S.E.2d 381 (2011).

- When cockfighting was staged on the defendant's property on which an arena and bleachers were erected, the defendant was collecting the admission fees, and gamecocks with spurs and other fighting equipment were found on the premises, the evidence was sufficient to show that the defendants were involved in the operation of organizing a cockfight and were guilty of both cruelty to animals and commercial gambling. Morgan v. State, 195 Ga. App. 52, 392 S.E.2d 715 (1990).

Evidence that the defendants operated a lottery based upon wagers and bets placed on a three-digit number selected from a closing figure of the New York Stock Exchange was sufficient to establish commercial gambling within the meaning of O.C.G.A. § 16-12-22, although the alleged activity did not include pool from which prizes were distributed. Sparkman v. State, 209 Ga. App. 763, 434 S.E.2d 564 (1993).

- See Whatley v. State, 189 Ga. App. 173, 375 S.E.2d 245, cert. denied, 189 Ga. App. 913, 375 S.E.2d 245 (1988).

Evidence was insufficient to support the defendant's convictions of commercial gambling, possession of a gambling device, and keeping a gambling place because the seized machines were coin operated amusement machines (COAMs), as there was no evidence that the defendant tampered with the COAMs or otherwise did anything to remove the element of player skill and the state's evidence at most showed that the COAMs malfunctioned in some way to allow the police officer to win without nudging the wheels. Bartlett v. State, 351 Ga. App. 476, 829 S.E.2d 187 (2019), cert. denied, No. S20C0008, 2020 Ga. LEXIS 254 (Ga. 2020).

Cited in Tierce v. State, 122 Ga. App. 845, 178 S.E.2d 913 (1970); Osbourne v. State, 128 Ga. App. 81, 195 S.E.2d 662 (1973); United States v. Crockett, 506 F.2d 759 (5th Cir. 1975); Rasmussen v. W.E. Hutton & Co., 68 F.R.D. 231 (N.D. Ga. 1975); Pendleton v. City of Atlanta, 236 Ga. 479, 224 S.E.2d 357 (1976); Dowdy v. State, 148 Ga. App. 498, 251 S.E.2d 571 (1978); Rasmussen v. Thomson & McKinnon Auchincloss Kohlmeyer, Inc., 608 F.2d 175 (5th Cir. 1979); Cox v. State, 160 Ga. App. 157, 286 S.E.2d 482 (1981); Evans v. State, 252 Ga. 312, 314 S.E.2d 421 (1984); Hardin v. NBC Universal, Inc., 283 Ga. 477, 660 S.E.2d 374 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 26-6403, 26-6501, 26-6502, 26-6507 and 26-6508, as they read prior to revision of the title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.

- Certain fund raising activities, often for charitable purposes and generally designated as "Las Vegas Night" or "Casino Night," constitute gambling or commercial gambling and the equipment used at these activities is gambling paraphernalia. 1983 Op. Att'y Gen. No. 83-48.

Operation of a sweepstakes where a player can determine if the player has the "winning number" by calling a "dial-it" number constitutes commercial gambling by setting up and promoting a lottery in violation of O.C.G.A. § 16-12-22. 1984 Op. Att'y Gen. No. 84-83.

Sale of puts and calls does not constitute establishment and promotion of lottery. 1971 Op. Att'y Gen. No. 71-115.

Any game or device for hazarding money or other thing of value is unlawful in Georgia. 1948-49 Op. Att'y Gen. p. 73 (decided under former Code 1933, §§ 26-6403, 26-6502).

Lottery, gift enterprises, or any similar schemes are completely and strictly forbidden and prohibited by the laws of Georgia and any person participating therein is guilty of an illegal and unlawful act. 1948-49 Op. Att'y Gen. p. 73 (decided under former Code 1933, §§ 26-6501, 26-6502).

Under Georgia law, "a promotional drawing" would be illegal. 1957 Op. Att'y Gen. p. 86 (decided under former Code 1933, § 26-6501).

- Operating of suit club whereby drawings are held and suits awarded to winner without payment of full purchase price constitutes a lottery. 1948-49 Op. Att'y Gen. p. 492 (decided under former Code 1933, § 26-6502).

"Beano," a card game of chance and scheme for hazarding of money is a lottery. 1957 Op. Att'y Gen. p. 84 (decided under former Code 1933, §§ 26-6501, 26-6502).

Offering of door prizes partakes of nature of a lottery and as such prohibited. 1948-49 Op. Att'y Gen. p. 76 (decided under former Code 1933, §§ 26-6501, 26-6502).

- Selling of tickets for a dance or any other purpose, and chance of winning an automobile or any other thing for a prize, upon purchase of ticket, would come within meaning of prohibited acts, and therefore be in violation of Georgia law as applied to lottery, gift enterprises and similar scheme. 1948-49 Op. Att'y Gen. p. 73 (decided under former Code 1933, §§ 26-6501, 26-6502).

Slot machines as purely gambling devices are illegal in Georgia. 1948-49 Op. Att'y Gen. p. 75 (decided under former Code 1933, § 26-6502).

- Keeping, maintaining or employing of slot machines is a misdemeanor, however, keeping, maintaining or employing of pinball machines is not illegal where they are operated for purpose of amusement and no gaming or gambling is connected with their operation. 1945-47 Op. Att'y Gen. p. 104 (decided under former Code 1933, § 26-6502).

- County commissioners are without authority to issue licenses to operate slot machines. 1957 Op. Att'y Gen. p. 35 (decided under former Code 1933, § 26-6502).

Issuance of such a license does not protect operator from prosecution for violating lottery laws. 1957 Op. Att'y Gen. p. 35 (decided under former Code 1933, § 26-6502).

It is illegal to transport gambling devices within this state in intrastate commerce; however, this state does not attempt to exercise jurisdiction over transportation of gambling devices in interstate commerce. 1960-61 Op. Att'y Gen. p. 113 (decided under former Code 1933, §§ 26-6502, 26-6507, 26-6508).

- Offenses arising from a violation of O.C.G.A. § 16-12-22 are not offenses for which fingerprinting is required. 2020 Op. Att'y Gen. No. 20-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 38 Am. Jur. 2d, Gambling, § 30 et seq.

- Each bet or play at gaming on a single occasion, as constituting a distinct offense, 35 A.L.R. 89.

Scheme by which award depends upon votes as a lottery, 41 A.L.R. 1484.

Constitutionality of statutes forbidding or regulating dissemination of betting odds or other gambling information, 47 A.L.R. 1135.

Scheme for advertising or stimulating legitimate business as a lottery, 103 A.L.R. 866; 109 A.L.R. 709; 113 A.L.R. 1121.

Constitutionality of statute prohibiting giving of premiums or trading stamps with purchases of commodities, 124 A.L.R. 341; 133 A.L.R. 1087.

Punchboard as a lottery, 163 A.L.R. 1279.

Bridge as within gambling laws, 97 A.L.R.2d 1420.

Promotion schemes of retail stores as criminal offense under antigambling law, 29 A.L.R.3d 888.

Construction and application of state or municipal enactments relating to policy or numbers games, 70 A.L.R.3d 897.

Criminal liability of member or agent of private club or association, or of owner or lessor of its premises, for violation of state or local liquor or gambling laws thereon, 98 A.L.R.3d 694.

Validity, construction, and application of statute or ordinance prohibiting or regulating use of messenger services to place wagers in pari-mutuel pool, 78 A.L.R.4th 483.

Validity, construction, and application of statute or ordinance prohibiting or regulating use or occupancy of premises for bookmaking or pool selling, 82 A.L.R.4th 356.

Construction and application of statute or ordinance prohibiting or regulating bookmaking or pool selling, 84 A.L.R.4th 740.