Empire State Restaurant & Tavern Association: Newsletter

The State Association has been contacted by the manufacturers and distributors of a new game called Moxie Mania. Some members have already installed this game in their establishments. Many members have requested information from the Association about the game. Is this a gambling device? Is it legal for me to put one of these machines in a licensed premises?

Moxie Mania is a computer generated touch screen video amusement game produced by Pace-O-Matic, Inc. of Norcross, Georgia. The game was specifically designed and produced with the goal of being a “legal” gaming device under the terms of the New York State Penal Code. The creators of the game obtained a very precise definition of what was illegal under the New York State Penal Code and attempted to design and produce a game that would not fall within the definition of gambling.

Moxie Mania, like any other touch screen video amusement game is available pursuant to a License or Lease Agreement that provides for the sharing of revenues collected by the machine. Unlike other amusement devices, a prize (cash) is paid to the player if they beat the machine.

The theory of Moxie Mania is that it was designed so that a skillful player who concentrates on the games will win, while an unskilled player or a player who does not concentrate on the game will lose. Chance does not play a part in the game and, therefore, the game is legal because it is not a game of chance.

While I have not personally seen one of the games, I have seen literature depicting the games and I must admit that it could be confused with some of the gambling devices I have seen in casinos. In spite of its looks, it was not intended to be a game of chance and the designers have apparently convinced some people that this game has succeeded in staying within the confines of legal, as that term is defined in New York State law.

To their credit, the manufacturers have obtained a letter from the counsel’s office of the Division of Alcoholic Beverage Control, State Liquor Authority signed by the SLA’s attorney. This letter gives the unqualified opinion that the device “would be considered a contest of skill, rather than chance, and therefore not be considered gambling under Section 105(22) and 106(6) of the Alcohol Beverage Control Law or a gaming device under 9 NYCRR 53.1(t), the regulation prohibiting gambling devices in licensed premises.” In brief, the SLA’s attorneys have said that these devices are OK to have in a licensed establishment.

What about the local sheriff or district attorney’s office? Are they bound by the opinions of the State Liquor Authority? The answer to that is NO. Counsel for the State Liquor Authority speaks for the State Liquor Authority and does not speak on behalf of, or with authority over, local or state police or other law enforcement officials, including the prosecutors in the county district attorney’s office.

What is my exposure if I put one of these machines in my premises? Clearly, you have no exposure for prosecution by the State Liquor Authority, as they have spoken. Therefore, the only question is what is your exposure to be criminally prosecuted? Possession of gambling devices and promoting gambling are crimes that require that the participant have the intent to commit the crime. Section 225.05 of the Penal Law states that a person is guilty of promoting gambling when he “knowingly advances or profits from unlawful gambling activity”. Section 225.30 of the Penal Law states that a person is guilty of possession of a gambling device when “with knowledge of the character thereof he manufactures, sells, transports, places or possesses”…various gambling devices. If you are working with a good faith basis that the device in question is not an illegal gambling device, I do not believe you are in violation of the Penal Law if you possess, utilize or profit from the device. However, I must note that I have disagreed with several district attorneys throughout the State of New York regarding what is and is not legal in the past 30 years. My opinion, like the opinion of the State Liquor Authority’s counsel, does not control the actions of the local law enforcements officials.

I must, therefore, caution anyone that the risk of placing one of these devices in your establishment may well be the cost of defending yourself if an over zealous local sheriff or district attorney chooses to prosecute you for promoting gambling, in spite of the opinions of the State Liquor Authority’s counsel and others.

What is my best advice? I would suggest that if you choose to get a Moxie Mania device installed in your establishment that you keep a folder behind the bar containing the opinion of the counsel for the State Liquor Authority, the opinion of the attorneys for Pace-O-Matic, Inc., the manufacturer of the device, and any other literature, including expert opinions regarding the legality of the device. In this way, if you are confronted by a local law enforcement official, you can demonstrate that you believe the device is legal and that there are certain authorities that agree with your opinion. In addition, you may wish to talk to the distributor to see if you can receive a written warranty or indemnification agreement that agrees that they will pay for any expenses you incur in defending yourself if someone does bring a criminal charge against you for having the device.

Update: The association has received a letter for Robert P. Fine, New York State counsel to Pace-O-Matic (POM) confirming their support for business owners that install and operate Moxie Mania. According to Mr. Fine “POM clearly has an interest in defending the game from claims that it is an illegal gaming device under New York State law. Therefore, POM will provide defense counsel and appropriate experts to defend the legality of the game. POM will also offer to provide defense counsel to represent any New York location owner or their employees on charges related to the possession or operation of the Moxie Mania game in the manner authorized by POM and presented and operated appropriately. Any defense undertaken by POM in the State of New York would be facilitated through our office and may include additional legal counsel and experts chosen by POM in consultation with our office. In that regard, we should be notified immediately if any of your members or their employees are charged with any offense related to the possession or operation of the Moxie Mania game.”