December 15, 1993
The Honorable Howard S. Boney District Attorney Seventh Prosecutorial District Post Office Box 8 Tarboro, North Carolina 27886-1590
Re: Advisory Opinion — Video Poker Machines; N.C.G.S. 14-306
Dear Mr. Boney:
You have asked whether the recent amendment to N.C.G.S. 14-306 exempts certain video poler game machines from the statutory definition of illegal slot machines. This advisory opinion responds to your inquiry.
You describe the machines that are the subject of your inquiry as ones which electronically "simulate the play of [five card draw] poker…upon inserting money" and "reward the successful player with free replays" or credits which "may be…exchanged for merchandise with a value not exceeding $10.00." You also describe the machines under consideration as being "used for amusement" and "involv[ing] the use of skill."
G.S. 14-306 condemns as illegal slot machines [a]ny machine, apparatus or device…that is adapted, or may be readily converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object, such machine or device is cause d to operate or may be operated in such a manner that the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, or which may be exchange for any money, credit, allowance or any thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine… N.C.G.S. 14-306 (1993). The video poker machines you describe withing this statutory definition illegal slot machines.
However, N.C.G.S. 14-306 exempts from this broad definition of illegal slot machines several categories of devices which otherwise would come within the scope and coverage of the general prohibition. Included within one statutory exemption are [coin] operated machines, video games, and devices used for amusement. Included within this exception are…video games…that involve the use of skill or dexterity to make varying scores or tallies and which, in actual operation, limit to eight the number of accumulated credits or replays that may be played at one time and which may award free replays or paper coupons that may be exchanged for prizes or merchandise with a value not exceeding ten dollars ($10.00), but may not be exchanged or converted to money. N.C.G.S., 14-306 (1993) (Emphasis added).
The video poker machines you describe meet three of the four statutory criteria required for exemption from the definition of illegal slot machines. You state they are "used for amusement", "involve the use of skill" and reward a successful player with credits which "may be used for replays and may be exchanged for merchandise with a value not exceeding $10.00." If the video poker machines also limit to eight the number of credits which may be played at one time, the comply fully with the exemption criteria and will not be considered illegal slot machines.
Whether a coin operated video game falls within the statutory definition of illegal slot machines or one of the exemptions must be determined on a case by case basis. This opinion responds to only the machines you describe in your inquiry including your conclusions that the described machines "are used for amusement" and that play of them " involves the use of skill." It is possible that the mechanical or operating features of some video poker machines, including the nature of the game played or the ability to artificially limit the percentage of winning hands, would compel the conclusion that a particular machine was not used for amusement or did not involve the use of skill. In that event, the machine would not fall within the statutory exemption.
Therefore, this opinion should not be interpreted as concluding that the recent amendment to
N.C.G.S. §14-306 works to exempt all video poker machines from the statutory definition of illegal slot machines or that no video poker machine can be per se an illegal slot machine.
John R. McArthur Chief Counsel
W. Dale Talbert Special Deputy Attorney General