1. Definition

New Hampshire defines a game of chance as any game involving gambling as defined by N.H. Rev. Stat. Ann. § 647:2. N.H. Rev. Stat. Ann. § 287-D:1(II) (1999 & Supp. 2005). That statute states “Gambling means to risk something of value upon a future contingent event not under one’s control or influence, upon an agreement or understanding that something of value will be received in the event of a certain outcome.” N.H. Rev. Stat. Ann. § 647:2(IId) (1996 & Supp. 2005).

However, this game of chance definition does not include the use of a slot machine or any other device in the nature of a slot machine, any 50/50 raffles, or Ice-out contests, which are events in which people guess what day and time a marker will fall through the ice. N.H. Rev. Stat. Ann. § 287-D:1(II) (1999 & Supp. 2005).

New Hampshire also defines lotteries as games of chance. It bans lotteries, punishing those that conduct lotteries or disposes or offers to dispose of property in any way whereby the payment for such property is, in whole or in part, induced by the hope of gain by luck or chance. N.H. Rev. Stat. Ann. § 647:1(I) (1996). This may seem to indicate the “any chance” test, as evidenced by the “in part” language.

The property element in the language of the lottery statute refers to the lottery prize money, not the tickets themselves. State v. Powell, 567 A.2d 568, 571-72 (N.H. 1989). Therefore, simply buying lottery tickets for another without profiting from it does not violate the lottery statute. Id.

While there is limited case law dealing with what is a game of chance in New Hampshire, the case of State v. Pinardville Athletic Club, 594 A.2d 1284 (N.H. 1991), may be helpful. In that case, video poker machines were being analyzed. Id. The court stated that even though a skilled player would be able to win more points than a novice because they could better control the amount of points bet, the deal of the cards was not under the player’s control. Id. at 1286-87. Therefore, it seems that in New Hampshire the predominant test is used, because the court felt in this case that the chance element (the deal of the cards) outweighed the skill element (controlling the bet size). Id.

While not directly on point, Opinion of the Justices, 339 A.2d 721, 721 (N.H. 1975), considered a proposed amendment about a supposed “game of skill.” This proposed amendment would allow the sweepstakes commission to operate a game where the purchaser of a weekly sporting list would try to pick the winners of these events. Id. Since picking winners of a sporting event involves some element of chance (injuries, off-nights, possible weather conditions, home-field advantage) it would seem to proclaim that New Hampshire does not use the “any chance” test and instead uses the “predominant test.”

1a. Free entry

Gambling under New Hampshire law includes risking “something of value.” N.H. Rev. Stat. Ann. § 647:2 (IId) (1996 & Supp. 2005). For a scheme or game to avoid this classification, it may offer free entry. However, State v. Eames, 183 A. 590, 592 (N.H. 1936), states that the scheme must be free to all, and giving away a few free chances will not help it avoid the lottery classification. In this case, a theatre owner would give out a cash prize to someone who had earlier signed a register at the theatre. Id. at 590-91. This required no ticket purchase, just merely going to theatre and signing the register was enough for entry. Id. Some cases in this jurisdiction have held that indirect benefits, here free advertising and goodwill for the theatre, should constitute “pay” under the meaning of an old statute ("No person shall make or put up a lottery, or pretended lottery, or shall dispose of, or offer or pretend to dispose of, any money or property, real or personal, by lottery, or in any such way that a hope or expectation of gain by luck or chance is made an inducement to pay for such property, or for any share or chance therein"). Id. at 592. However, this court said in this case that “pay” must include each individual participant purchasing a ticket for admission. Id. Because buying a ticket was not prerequisite to entering the contest, it was held not to be a lottery. Id.

New Hampshire has no express statutory definition of bookmaking. But under N.H. Rev. Stat. Ann. § 647:2 (I-Ia) (1996 & Supp. 2005) a person is guilty of a misdemeanor if such person knowingly and unlawfully permits gambling in any place under that person’s control. Because gambling means risking something upon a future contingent event (ex. horse races, sporting events) not under one’s control or influence, upon an agreement or understanding that something of value will be received in the event of a certain outcome, it seems that bookmaking understood in its popular sense would still be illegal and punishable.

Under the now repealed N.H. Rev. Stat. Ann. § 577:6, there used to be a provision on bookmaking. In State v. Tracey, 125 A.2d 774 (N.H. 1956), the individual was charged with bookmaking because he “registered bets on the results of horse races in such a way that a hope or expectation of gain by luck or chance was made.”

Also, in State v. Enderson, 804 A. 2d 448, 450-51 (N.H. 2002), the individual was charged under New Hampshire’s broad definition of “gambling.” He was charged with accepting bets on different sporting events through a highly sophisticated gambling operation run out of his house. Id. This definitely seems to fit under the popular definition of bookmaking.

Under N.H. Rev. Stat. Ann. §647:2 (Ic) (1996 & Supp. 2005) one is guilty of a misdemeanor if they possess a gambling machine. Gambling machine means a device or equipment which is capable of being used to discharge money or anything that may be exchanged for money, or to display any symbol entitling a person to receive money. N.H. Rev. Stat. Ann. § 647:2 (IIe) (1996 & Supp. 2005). This statute also says that all gambling implements, equipment, and apparatus used in violation of this shall be forfeited. N.H. Rev. Stat. Ann. § 647:2 (III) (1996 & Supp. 2005).

In State v. Mint Vending Machine, 154 A. 224 (N.H. 1931), while the machine in question was not held to be a gambling machine, the court alluded to the fact that most slot machines will be considered a gambling machine. Bolstering this, in State v. Fitanides, 552 A.2d 1379 (N.H.1988), defendant’s slot machine was held to be a gambling device.

One of those machines was the issue in State v. Pinardville Athletic Club, 594 A. 2d 1284 (N.H. 1991). An athletic club had a video machine that ran electronic poker games. Players would deposit money and play these games, accumulating points as they went along. Id. at 1285. When they were finished playing, they would tell the bartender who would keep record of the points that player had won. Id. at 1285-86. The next day players could come and collect their prize money from the bartender. Id. The court felt that this game contained the elements of prize, chance, and consideration and the club was charged with two counts of permitting gambling on its premises. Id. at 1288.

In State v. LeBlanc, 191 A.2d 537, 540 (N.H. 1963), punch boards capable of discharging tokens in form of slips of paper, bearing symbols, words, or numbers, were subject to seizure and forfeiture as gambling devices. Devices such as roulette wheel, bird cage and electric dice machines, not capable of being used to discharge money or tokens, were not automatically subject to seizure and forfeiture. Id. For this to happen, it required proof of their actual use to display or reveal symbol entitling person to receive money. Id However, it is entirely possible that these things could have been subject to forfeiture as the definition of gambling implements, equipment, and apparatus under N.H. Rev. Stat. Ann. § 647:2 (III) (1996 & Supp. 2005) seems broad enough to incorporate these things.

However, a teletypewriter used for reporting results of horse races was held not to be a gambling implement as meant by the statute. State v. Teletypewriter Mach., 86 A.2d 333 (N.H. 1952). This case goes on to list examples of gambling implements, which include slot machines, pinball machines, punch boards, and dice.

N.H. Rev. Stat. Ann. § 294-B:1 (1999) states,

“No person or corporation shall keep, or cause to be kept, an office, store, or other place in which is conducted or permitted the pretended buying or selling of stocks, or bonds of a corporation, or petroleum, cotton, grain, provisions, pork, or other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold, or in which is conducted or permitted the pretended buying or selling of such property on margins, or when the party buying, or offering to buy, such property, does not intend actually to receive the same if purchased, or to deliver it if sold.”

If a person violates this section, they are guilty of a misdemeanor. N.H. Rev. Stat. Ann. § 294-B:4 (1999). For any other person, violation of this section is considered a felony. N.H. Rev. Stat. Ann. § 294-B:4 (1999).

1. Poker

While Poker is not specifically mentioned in any New Hampshire statute, it seems that Poker would be illegal under New Hampshire law, as the gambling statute prohibits betting on future contingent events, not under one’s control or influence. N.H. Rev. Stat. Ann. § 647:2 (IId) (1996 & Supp. 2005). While there is a considerable degree of skill, control, and influence in poker (bet size, knowing when to fold or proceed, etc.), the deal of the cards is not under one’s control or influence and greatly influences the course of the game.

In Pinardville Athletic Club, 594 A.2d at 1284, video machines running poker games was involved. The court held that even though skill did play a part in this poker game, and skilled players would probably be more successful than a novice or beginner because they could better control their bet size, that the chance element of the deal of the cards makes this game one out of the player’s control. Id. at 1286-87. Because this same chance element is present in real poker games, it seems that Poker is illegal in New Hampshire.

2. Dice Games

Dice games would seemingly fall under New Hampshire’s gambling statute since the roll of a dice could easily be considered out of the player’s control or influence.

In State v. Harkeem, 92 A.2d 906 (N.H. 1952), two officers of a social club were charged with keeping a place resorted to for gambling. These individuals were running a babout game 2-3 times a week, a game which involves the use of dice.

3. Billiards

According to N.H. Rev. Stat. Ann. § 286:6 (1999), the mayor and aldermen of a city, or the selectmen of a town, may grant a license to any person to keep one or more billiard tables in connection with his place of business, to be used for the purpose of amusement merely, but not for the purpose of gaming for money or other property.

Although there is an older case that considers a billiard room with house rules that the loser would pay a schilling to the winner for the use of the table illegal, this was under an older statute which defined “gamblers” as those playing a game of chance or skill for money. State v. Leighton, 23 N.H 167, 170 (1851).

4. Bowling

N.H. Rev. Stat. Ann. § 286:6 (1999) also states that the mayor and aldermen of a city, or the selectmen of a town, may grant a license to any person to keep one a bowling alley in connection with his place of business, to be used for the purpose of amusement merely, but not for the purpose of gaming for money or other property.

5. Darts

N.H. Rev. Stat. Ann. §179:19 (2002 & Supp. 2005) states the use of darts shall be allowed in clearly defined areas in entertainment establishments, but nothing about gambling on darts is mentioned.

1. Social gambling

Under N.H. Rev. Stat. Ann. §647:2 (Vc) (1996 & Supp. 2005), the gambling provisions do not extend to cruise ships which are equipped with gambling machines whose primary purpose is touring. These ships can be stationed in New Hampshire territory for 48 hours, but during this time the gambling machines on board cannot be operational. N.H. Rev. Stat. Ann. §647:2 (Vc) (1996 & Supp. 2005).

Another social gambling exception is that bingo games can be conducted at an agricultural fair if a license is obtained. N.H. Rev. Stat. Ann. § 287-E:10 (1999) These bingo games can only be conducted on those days when there is an actual agricultural exhibition. N.H. Rev. Stat. Ann. § 287:E10 (I) (1999). Anyone over the age of 18 is allowed to participate and play these games. N.H. Rev. Stat. Ann. § 287-E:10 (IV) (1999).

Bingo games can also be conducted without a license by a senior citizens organization. N.H. Rev. Stat. Ann. § 287-E:11 (1999 & Supp. 2005). Several requirements are necessary to meet this exemption, including all players must be 60 or older, the price to be paid for each card shall not exceed twenty-five cents, and the winning prizes for one day cannot exceed 150 dollars. N.H. Rev. Stat. Ann. § 287-E:11 (I-III) (1996 & Supp. 2005).

Any private hotel or campground can also apply for a special bingo license, provided that they limit the price for each play to ten cents and they have no more than two bingo days a week. N.H. Rev. Stat. Ann. § 287-E1:2 (III-IV) 1999). These private hotels and campgrounds can conduct special bingo games for children provided that this is no charge for play, and only non-monetary prizes are awarded, not exceeding $2. N.H. Rev. Stat. Ann. § 287-E:13 (II & IV) (1999).

2. Charity Gambling

New Hampshire has plenty of charity gaming exceptions. Under N.H. Rev. Stat. Ann. § 287-A:2 (1999), a charitable organization may conduct a raffle to promote the purpose for which it is organized. The organization must first get a permit from the selectmen of the town, or the mayor and aldermen of the city where the drawing for prizes is to be held. N.H. Rev. Stat. Ann. § 287-A:7 (1999).

The pari-mutuel commission, with the assistance of the attorney general and the chief of police of any city or town where games of chance are held, is in charge of licensed games of chance. N.H. Rev. Stat. Ann. § 287-D:1a (1999). This commission’s responsibilities include the application procedure that charitable organizations must go through to obtain a license to run games of chance. N.H. Rev. Stat. Ann. § 287-D:2-a (I) (1999 & Supp. 2005). Charitable organizations can get a license to run games of chance, but it must be used to promote the purpose for which it is organized. N.H. Rev. Stat. Ann. § 287-D:2 (1999). This license will include the dates and times that these games can be run. N.H. Rev. Stat. Ann. § 287-D:2 (III) (1999). Wagers on these games are limited to two dollars per wager. N.H. Rev. Stat. Ann. § 287-D:3 (V) (1999).

Charitable organizations can also conduct bingo games, provided that an application for this is approved by the pari-mutuel commission. N.H. Rev. Stat. Ann. § 287-E:5 (1999 & Supp. 2005). These organizations can also get a license from the pari-mutuel commission to sell Lucky 7 or similar tickets. N.H. Rev. Stat. Ann. § 287-E:20 (1999 & Supp. 2005). The commission has the ability to put restraints on where the tickets can be sold, and the price for which they can be sold for. N.H. Rev. Stat. Ann. § 287:E20 (I-II) (1999 & Supp. 2005). These Lucky 7 tickets are supplied by distributors and manufacturers that are licensed under the state to conduct this practice. N.H. Rev. Stat. Ann. § 287-E:3 (1999).

Also, charitable organizations are allowed to have dispenser devices approved by the sweepstakes commission are their regular meeting place or a facility owned, leased, or used by the charitable organization. N.H. Rev. Stat. Ann. § 647:2 (Va) (1999 & Supp. 2005).

3. Chucky E. Cheese Exemption

New Hampshire’s gambling provisions do not apply to family entertainment centers having redemption slot machines or redemption poker machines. N.H. Rev. Stat. Ann. § 647:D2 (Vb) (1999 & Supp. 2005). Redemption slot machines are defined as machines which give out free plays or points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages. N.H. Rev. Stat. Ann. § 647:D2 (IIf) (1999 & Supp. 2005). A family entertainment center means a place of business having at least 50 games or devices that are designed purely for amusement purposes, and no more than 15 percent of the games can be redemption slot or poker machines. N.H. Rev. Stat. Ann. § 647:D2 (IIc) (1999 & Supp. 2005).

4. Lottery

According to N.H. Rev. Stat. Ann. § 284:21-h (Ia) (1999 & Supp. 2005), New Hampshire has a state lottery commission that is authorized to conduct public pure lottery drawings, but cannot in any way be associated with a sporting event. However, at least one drawing each year shall be based on a sweepstakes horse or dog race or both held within the state. N.H. Rev. Stat. Ann. § 284:21-h (Ia) (1999 & Supp. 2005). These tickets can be sold by state liquor stores and the state liquor commission. N.H. Rev. Stat. Ann. § 284:21-h (IIa) (1999 & Supp. 2005).

According to N.H. Rev. Stat. Ann. § 287:F2 (1999). New Hampshire has entered into a Tri-state lottery compact with Maine and Vermont. Tri-state lotto tickets shall be sold in each of the party states and processed in a central area to be determined by the tri-state lotto commission. N.H. Rev. Stat. Ann. § 287:F3 (1999). Fifty percent of the gross sales from each state shall be aggregated in a common prize pool, and operating costs shall be charged proportionally to the party states. N.H. Rev. Stat. Ann. § 287:F3 (1999). The remaining revenues generated within each state shall remain in that particular state. N.H. Rev. Stat. Ann. § 287:F3 (1999).

5. Horseracing/Greyhound racing

New Hampshire has a state pari-mutuel commission that consists of 6 members. N.H. Rev. Stat. Ann. § 284:6-a (1999 & Supp. 2005). Three of the members represent the interests of greyhound racing, while the other three represent the interest of thoroughbred and harness horse racing. N.H. Rev. Stat. Ann. § 284:6-a (1999 & Supp. 2005). This commission is in charge of licensing these races at which pari-mutuel pools are sold. N.H. Rev. Stat. Ann. § 284-12a (1999). However, this commission does allow a New Hampshire certified agricultural fair association to one special 6 day racing license annually. N.H. Rev. Stat. Ann. § 284:15a (1999).

These licensees may not conduct any other sort of gambling except for the races licensed by the lottery or pari-mutuel commission. N.H. Rev. Stat. Ann. § 284:17-c (1999 & Supp. 2005).
The greyhound racing commission is also forbidden from licensing two greyhound racing facilities within a forty-mile radius from one another. N.H. Rev. Stat. Ann. § 284:16-c (1999).

A licensee may also sell pari-mutuel pools at appropriately licensed racetracks throughout the United States, provided that they obtain the other racetracks’ consent. N.H. Rev. Stat. Ann. § 284:22-a (1999 & Supp. 2005). However, this licensee also needs the commission and its town or city’s approval. N.H. Rev. Stat. Ann. § 284:22-a (1999 & Supp. 2005).

New Hampshire does not have any statutory authority, attorney general opinions, or case law regarding internet gaming prohibitions.

N.H. Rev. Stat. Ann. § 647:1 (1996) states that a person is guilty of misdemeanor if he knowingly and unlawfully conducts a lottery or sells tickets for a lottery. This seemingly only applies to the operators and does not mention those that purchase or buy the tickets.

Under N.H. Rev. Stat. Ann. § 647:2 (1996 & Supp. 2005),

I. A person is guilty of a misdemeanor if such person knowingly and unlawfully:

1. Permits gambling in any place under the person's control.
2. Gambles, or loans money or any thing of value for the purpose of aiding another to gamble.
3. Possesses a gambling machine.

This lengthy provision would seem to apply to both operators and players. In subsection b of that statute it says “gambles.” Because gambling means to risk or state something of value upon a future contingent event in the hopes of a return, this would seemingly apply to a “player.”

N.H. Rev. Stat. Ann. § 647:2 (1996 & Supp. 2005) also states that:

I-a. (a) A person is guilty of a misdemeanor if such person conducts, finances, manages, supervises, directs, or owns all or part of a business and such person knowingly and unlawfully permits gambling on the premises of the business.

(b) A person is guilty of a class B felony if such person conducts, finances, manages, supervises, directs, or owns all or part of a business and such person knowingly and unlawfully conducts, finances, manages, supervises, or directs any gambling activity on the business premises which does any of the following:

1. (1) Has had gross revenue of $2,000 in any single day.
2. (2) Has been or remains in substantially continuous operation for a period in excess of 10 days.
3. (3) Accepts wagers exceeding $5,000 during any 30 day period on future contingent events.Judging by the language used in this provision, this part of the statute only applies to operators, most likely those that run sophisticated operations.

Other specialized gambling crimes also exist in New Hampshire. For instance, those in charge of a race track shall not knowingly employ anyone that has been convicted of a gambling offense either under state or federal law. Those that do, if a natural person, are guilty of a misdemeanor, and any other person is guilty of a felony. N.H. Rev. Stat. Ann. § 284:19-a (1996).

Those same penalties extend to those that conduct a harness horse race or dog race at which pari-mutuel pools are sold without a license. N.H. Rev. Stat. Ann. § 284:21 (1996).

A natural person is guilty of a misdemeanor and any other person is guilty of a felony if they buy lottery tickets for another for a fee. N.H. Rev. Stat. Ann. § 284:21-o (1996 & Supp. 2005).
Also, there is a possible 5,000 dollar fine or one year prison sentence for those that knowingly conceal or fail to disclose information as required by N.H. Rev. Stat. Ann. § 284:15-b (1996) which requires disclosure of information to the attorney general about the operations of the race track. N.H. Rev. Stat. Ann. § 284:15-d (1996).

A person cannot enter their dog into a race without its proper name, or out of its proper class. N.H. Rev. Stat. Ann. § 284:35 (1996). If in violation, a person shall be guilty of a class B felony if a natural person, or guilty of a felony if any other person. N.H. Rev. Stat. Ann. § 284:35 (1996).

N.H. Rev. Stat. Ann. § 287-D:6 (1996) makes it a misdemeanor for a natural person, felony for another, to conduct games of chance, and every day on which it is run is a separate offense.

N.H. Rev. Stat. Ann. § 287-e:29 (1996) holds the same punishment for those that conduct a bingo game or lucky 7 game without a license and everyday played is a new offense.

According to N.H. Rev. Stat. Ann. § 338:1 (1995), “no title or interest in money or any other thing can be acquired, lost, or changed by gambling, or by the payment, delivery, or transfer, by any losing party.”

In State v. Del Bianca, 78 A.2d 519 (1951), the court stated that a bet or wager on a horse race is a gambling contract which is prohibited. The court stated that these are void and the loser of a bet may recovery it even though it is illegal and the stakeholder or bookmaker has already paid it over to the winner. Id. at 521.

This holding of this case seems to have spawned a statute, namely N.H. Rev. Stat. Ann. §338:2 (1995). This statute states, “All bets and wagers upon any question where the parties have no interest in the subject except that created by the wager are void; and either party may recover any property by him deposited, paid or delivered upon such wager or its loss, and repel any action brought for anything, the right or claim to which grows out of such bet or wager.” N.H. Rev. Stat. Ann. §338:2 (1995).

New Hampshire does not have any statutory authority, attorney general opinion, or case law granting authority for commercial casino gaming.