Illegal Gambling – Frequently Asked Questions
Over the past six years since records have been kept, the Kansas Racing and Gaming Commission (KRGC) has received an average of more than 200 phone calls and email inquiries annually. Below are answers to some of the questions most frequently asked.
Legal Gambling: Under Article 15, Section 3 of the Kansas Constitution, lotteries and the sale of lottery tickets “are forever prohibited” unless allowed under Sections 3a, 3b and 3c and under a new amendment passed by voters on November 4, 2014. These exceptions make the following forms of lotteries constitutionally legal, with one caveat:
In addition, gambling at tribal casinos (casinos lawfully operated by Indian tribes) is legal in Kansas. Every other type of gambling is illegal in Kansas.
Illegal Gambling: There are several gambling-related crimes that are classified as “crimes against the public morals” in Kansas. Some of these crimes are misdemeanors and some are felonies. There are other gambling-related crimes as detailed below. Find links to the actual statutes by clicking here.
The following are public morals crimes under Kansas law:
Kansas also has nuisance statutes that make certain gambling activities illegal, including:
Gambling-related activities designated as common nuisances are:
There are also gambling-related crimes under the Kansas Expanded Lottery Act (KELA) and the Kansas Pari-mutuel Racing Act. These include:
What is the KRGC'S role in illegal gambling?
The KRGC is the state's coordinating agency for most questions and complaints regarding illegal gambling. That role requires the KRGC to employ educational, administrative and law enforcement methods to maintain the integrity of gaming in Kansas and to help curtail illegal gaming.
From its educational perspective, the KRGC provides information to the public about illegal gaming issues. Several of the more frequently asked illegal gaming questions and responses are detailed below.
From its administrative perspective, the KRGC works with the Kansas Lottery, the Department of Revenue, other state agencies, and local law enforcement in seeking compliance from individuals and businesses on illegal gaming issues.
From its law enforcement perspective, the KRGC supports local law enforcement efforts to curtail illegal gambling. In certain instances, the KRGC directs its own limited resources to the state's most vulnerable areas and to those gambling investigations that are of state-wide concern.
Illegal gambling is pervasive throughout the state. Kansas needs the help of its citizens to identify those individuals or organizations that are engaged in illegal gambling activities. If you believe someone in your community is conducting an illegal gambling operation, you should notify your local police department or county sheriff. If you are aware of any illegal gambling device being operated, stored or sold in the State of Kansas, you should notify your local police department or county sheriff and the Kansas Racing and Gaming Commission.
Unsanctioned gambling in Kansas is illegal. “Gambling” is making a bet. “Gambling” is also entering a gambling place with intent to make a bet, with intent to participate in a lottery, or with intent to play a gambling device. The crime of gambling applies to the gambler. Unsanctioned gambling in Kansas is a class B nonperson misdemeanor, which upon conviction can result in a sentence of up to six months in jail, a fine of up to $1,000.00, or both. See K.S.A. 21-6404.
See K.S.A. 21-6403 for definitions of “bet,” and “gambling place.” See below for explanations of “lottery,” and “gambling device.”
“Commercial gambling” in Kansas is illegal. It is a crime that applies to the promoter of the gambling activity and to the proprietor of a gambling place. There are nine (9) types of activities that any individual or organization can engage in, and three activities that a property owner or property tenant can engage in, that constitute “commercial gambling.” Anyone can commit the crime of “commercial gambling” by knowingly doing any of the following:
The above-listed activities are all severity level 8, nonperson felonies which, upon conviction, can result in a sentence of seven to twenty-three months in jail, a fine of up to $100,000, or both. See K.S.A. 21-6406(a)(1) and (b).
“Commercial gambling” also includes activities that can cause a property owner or tenant to be guilty of commercial gambling. These activities are knowingly:
These three activities are all class B nonperson misdemeanors which, upon conviction, can result in a sentence of up to six months in jail, a fine of up to $1,000.00, or both. See K.S.A. 21-6406(a)(2) and (b). Examples of this type of commercial gambling activity include:
Certain bingo operations are legal in Kansas. Bingo conducted at state licensed and regulated, non-profit bingo parlors is legal. Illegal bingo operation is:
Illegal bingo operation is a crime – a class A nonperson misdemeanor – which upon conviction can result in a sentence of up to one year in jail, a fine of up to $2,500.00, or both. See K.S.A. 21-6405.
The regulation, licensing and taxing of bingo falls under the jurisdiction of the Kansas Department of Revenue. Please see the KDOR’s Bingo Handbook, prepared by the Administrator of Charitable Gaming, and found at http://www.ksrevenue.org/pdf/BingoHandbook-Complete.pdf#xml=http://search.ksrevenue.org/texis/search/pdfhi.txt?query=bingo&pr=KSRevenue&prox=page&rorder=500&rprox=500&rdfreq=500&rwfreq=500&rlead=500&rdepth=0&sufs=0&order=r&cq=&id=4f5727c511 .
A lottery is “an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance.” See K.S.A. 21-6403(b). A lottery, therefore, is an activity that has the elements of consideration, chance, and prize. The most common lottery is a raffle. Lotteries conducted by the State of Kansas and by tribal gaming operators are legal. Licensed charitable raffles and bingo are legal as well. All other lotteries are illegal.
Many different games and activities that some people may not think of as being a lottery actually are. These activities include raffles conducted by for-profit organizations, individuals and unqualified non-profits, poker games, poker runs, duck races, Dime-O and Quartermania, just to name a few.
“Consideration” under the Kansas criminal statute is anything that is a “commercial or financial advantage to the promoter [sponsor] or a disadvantage to any participant.” K.S.A. 21-6403(c). In most cases, consideration is the money paid to play, but consideration can also be in the form of an indirect payment to a promoter or the increase in business that the promoter or sponsor of an event will experience through its sponsorship of the lottery. Some examples of consideration taken from Kansas court cases or that have facts similar to court cases include:
A raffle is the simplest form of a lottery. Sequentially numbered tickets are sold. A ticket with a corresponding number is placed into a container. A ticket is drawn out of the container and the person holding the winning number claims their prize. The money given for the ticket is “consideration.” The “chance” happens when a ticket is drawn at random out of the container and someone wins by chance or luck. The “prize” element is satisfied when the person holding the winning ticket claims whatever prize or money is awarded. Generally, the purpose of a raffle is to make money. This only happens if some tickets are sold. Giving tickets for free to some participants does not make a raffle legal if other tickets are sold that make the overall raffle an illegal lottery.
Remember, not all raffles are illegal. If a raffle is conducted by the State, a tribal Government, or a qualified non-profit organization, it is legal. However, all other raffles are illegal, including those conducted by a for-profit organization, an individual, or a non-qualified charitable organization.
In a drawing, the element of “consideration” is missing. For example, if you go to a restaurant for a meal and then, while paying for your dinner at the cash register, you drop your business card in a fish bowl with the hope of winning a free meal when a name is drawn out of the bowl, you have entered a drawing. If you go to a trade show and, for no additional payment, drop your business card in the bowl at each vendor’s booth with the hopes of winning one of their products, you have entered a drawing.
A “gambling device” is a machine that is “designed, manufactured or altered primarily for use in connection with gambling…(i) [w]hich when operated may deliver, as the result of chance, any money or property; or (ii) by the operation of which a person may become entitled to receive, as the result of chance, any money or property….” See K.S.A. 21-6403(e)(1)(B).
A “gambling device” is also defined as “a so-called slot machine” or “any other machine, mechanical device, electronic device or other contrivance an essential part of which is a drum or reel with insignia thereon, and: (i) which when operated may deliver, as the result of chance, any money or property; or (ii) by the operation of which a person may become entitled to receive, as the result of chance, any money or property.”
Certain subassemblies and parts used in connection with these machines are also considered gambling devices.
Further, “any token, chip, paper, receipt or other document which evidences, purports to evidence or is designed to evidence participation in a lottery or the making of a bet” is also considered to be a gambling device. This would include poker chips, raffle tickets, tokens used in lieu of chips or coins and other items.
So-called “sweepstakes machines” and “phone card machines” are illegal gambling devices. If an electronic machine purports to enter the player in a sweepstakes or to sell merchandise like a long-distance phone card in exchange for one dollar, but then also allows the person to play a game of chance that may deliver a prize, that machine is a gambling device if the people play to win credit for merchandise in the store, for drinks or food at the bar, for cash, or for tickets that can be redeemed for merchandise, drinks, food or cash.
The definition of “gambling device” expressly excludes certain machines that are not designed and manufactured primarily for use in connection with gambling. These machines are commonly referred to as “amusement devices.” Examples under the statute include a coin-operated bowling alley, shuffleboard, marble machine, pinball machines, mechanical guns, claw devices, digger machines, crane machines and other similar games. All of these games are typically games that do not operate like slot machines, have some element of skill, and do not deliver prizes or they deliver prizes of inconsequential value (like a trinket or stuffed toy.)
A good rule of thumb is that if the machine operates like a slot machine or a video poker machine, you pay money to play, and you have the chance to win money or a ticket that you can cash in for merchandise, money, food or drinks, then it is probably an illegal gambling device. If you put your money in, you play the game, and all you get in return is fun playing the game, the chance to put your initials in the “high score” spot, or a cheap toy or trinket, it is probably an amusement device.
There are several State crimes related to gambling devices, including:
See K.S.A. 21-6403, et seq. for more information.
Are Quater Pushers legal?
Quarter pushers are illegal gambling devices under the Kansas criminal statutes. In fact, every state that has considered the legality of quarter pushers has concluded that quarter pushers are illegal gambling devices. U.S. v. Two (2) Quarter Fall Machines; 767 F.Supp. 153 (E.D. Tenn. 1991); Mississippi Gaming C'ssn v. Henson, 800 So. 2d 110 (Miss. 2001); see also State of Indiana v. Maillard, 695 N.E. 2d 637 (Ind. App. 1998). No cases have determined that the machines are legal.
Additionally, at least six Attorneys General have determined that quarter pushers are illegal gambling devices. Ark. A.G. Opinion No. 2007-247; Miss. Op. Atty. Gen. No. 2008-19; 2007 Oklahoma Inf. Op.; S.C. Op. Atty. Gen. No. 1978-201; S. Dakota Op. Atty. Gen No. 2008-04; 1978 Tex. Atty. Gen. Op. H-1153. To be clear, no Attorneys General have provided a formal opinion that these devices are legal.
Finally, the legal outcome in those cases and opinions match our experts' analysis of these illegal gambling devices. See Gaming Laboratories International August 18, 1998 letter to Missouri Highway Patrol. Of course, there are criminal ramifications to wagering on, possessing or dealing in illegal gambling devices. K.S.A. 21-6403 et seq. Further, illegal activity can jeopardize any administrative licenses that a business may hold.
As with other potential illegal gambling devices, a few rules show that these machines can generally be considered illegal gambling devices under the Kansas criminal statutes.
Under the criminal statutes, a "gambling device" includes machines that are "designed, manufactured or altered primarily for use in connection with gambling, and (i) which when operated may deliver, as the result of chance, any money or property, or (ii) by the operation of which a person may become entitled to receive, as the result of chance, any money or property." K.S.A. 21-6403(e)(1)(B). Devices that use tokens for wagers may fit into the gambling device definition. Id. at (e)(1)(D). And the fact that a prize is not automatically paid by the device does not change its gambling device status. Id.
Under Kansas law, there are potential criminal ramifications to wagering on, possessing or dealing in illegal gambling devices or conducting commercial gambling. K.S.A. 21-6404 and 21-6406 to 21-6409.
Of course, you should contact your own counsel for specific guidance with respect to a particular machine.
In 2015, the Kansas legislature excluded fantasy sports leagues from the definition of a "bet" if the league meets certain conditions. To determine if your fantasy sports league is excluded from the definition of a "bet", compare it to the definition of Fantasy Sports League found in K.S.A. 21-6403(d):
"Fantasy sports league" means any fantasy or simulation sports game or contest in which no fantasy or simulation sports team is based on the current membership of an actual team that is a member of an amateur or professional sports organization and that meets the following conditions:
(1) All prizes and awards offered to winning participants are established and made known to the participants in advance of the game or contest and their value is not determined by the number of participants or the amount of any fees paid by those participants;
(2) all winning outcomes reflect the relative knowledge and skill of the participants and are determined predominantly by accumulated statistical results of the performance of individual athletes in multiple real-world sporting events; and
(3) no winning outcome is based:
(A) on the score, point spread or any performance or performances of any single real-world team or any combination of such teams; or
(B) solely on any single performance of an individual athlete in any single real-world sporting event.