SOUTH CAROLINE

I. Definition of Gambling

1. Definition

Although the Supreme Court has never squarely addressed the issue, they would be likely to adopt the Dominant Factor test. Op. Att’y Gen., 2006 WL 422570 (February 2, 2006) (quoting the dissent in Johnson v. Collins Entertainment Co., Inc., 508 S.E.2d 575 (S.C. 1998)).

A golf tournament is not a lottery because skill is so prevalent; but a hole-in-one contest would be a lottery because chance predominates. Op. Att’y Gen., 2006 WL 422570 (February 2, 2006).

Lottery is a term of art; it is the same as originally envisioned by the framers. It involves tickets and a drawing for prizes. Johnson v. Collins Entertainment Co., Inc., 508 S.E.2d 575, 579 (S.C. 1998) (holding that video poker is not a lottery; the plain meaning of the term lottery did not encompass video poker).

2. Exemptions

II. Definition of Bookmaking

III. Specific Gaming Device Definitions

SC Code 1976 § 12-21-2710 makes certain devices illegal. Those devices are "any vending or slot machine, or any video game machine with a free play feature operated by a slot in which is deposited a coin or thing of value, or other device operated by a slot in which is deposited a coin or thing of value for the play of poker, blackjack, keno, lotto, bingo, or craps, or any machine or device licensed pursuant to Section 12-21-2720 and used for gambling or any punch board, pull board, or other device pertaining to games of chance of whatever name or kind, including those machines, boards, or other devices that display different pictures, words, or symbols, at different plays or different numbers, whether in words or figures or, which deposit tokens or coins at regular intervals or in varying numbers to the player or in the machine, but the provisions of this section do not extend to coin-operated nonpayout pin tables, in-line pin games, or to automatic weighing, measuring, musical, and vending machines which are constructed as to give a certain uniform and fair return in value for each coin deposited and in which there is no element of chance."

Possessing illegal devices remains illegal even if the machines are non-operational. State v. 192 Coin-Operated Video Game Machines, 525 S.E.2d 872 (S.C. 2000).

Vending machines dispensing pre-paid phone cards with game piece were illegal gambling devices. Sun Light Prepaid Phonecard Co., Inc. v. State, 600 S.E.2d 61 (S.C. 2004). The court compared the machine to traditional vending machines and found that the traditional vending features were lacking.

The state's Video Game Machines Act (§§ 12-21-2770 to 12-21-2809) was repealed in 2000. Video poker machines are now illegal in the state.

IV. Bucket Shop Laws

Contracts for future deliveries are regulated by SC Code 1976 § 32-1-210 et seq.

When delivery is not actually intended in a contract for commodities, and the transaction is not to be carried out on a board of exchange, the contract is void. SC Code 1976 § 32-1-220. When conducted on a board of exchange, with intent to deliver, and when federal and other requirements are met, a contract for future deliveries is valid. SC Code 1976 § 32-1-240.

A buyer must prove both his intention to receive, and the seller’s intention to deliver for a contract to be valid. Maybank & Co. v. Rogers, 82 S.E. 422 (S.C. 1914).

Maintenance of a bucket shop is prohibited. SC Code 1976 § 32-1-280.

Entering or assisting in an illegal contract under this chapter, or maintaining a bucket shop, is a crime. SC Code 1976 § 32-1-290.

Misdemeanor: imprisonment in the penitentiary not exceeding two years.

V. Prohibition of Games of Skill

1. Poker/Card Games
SC Code 1976 § 16-19-40 makes it illegal to gamble on any game with cards or dice.

2. Dice
SC Code 1976 § 16-19-40 makes it illegal to gamble on any game with cards or dice.

3. Billiards
Code 1976 § 52-11-100 et seq used to regulate billiards. The sections have now been repealed.

4. Bowling
5. Darts

VI. Express Exemptions

Carnivals: no carnival shall have gambling devices or games of chance; but games of chance involving skill are permitted if there are no cash prizes. SC Code 1976 § 52-1-20.

1. Social
2. Charity
SC Code 1976 § 12-21-3910 begins the Bingo Tax Act. SC Code 1976 § 12-21-3930 lays out specific requirements that must be met for a bingo game not to be considered a lottery. The state constitution allows charitable bingo. Fraternal Order of Police v. South Carolina Dept. of Revenue, 574 S.E.2d 717 (S.C. 2002).

SC Code 1976 § 12-21-3940 has requirements for obtaining a bingo license. SC Code 1976 § 12-21-3950 has requirements for a promoter's license.

SC Code 1976 §§ 12-21-3990 and 12-21-4000 detail the requirements of actual game play. There must be more than one player; cards cannot be given as prizes; other game play requirements are also covered.

Remaining provisions regulate electronic dabber specifications, prohibition on machines, entrance fees, personnel restrictions, residency requirements, handling of funds, record keeping, reporting, penalties, bonding, manufacturer's licenses, background investigations, and related matters.

3. Chucky Cheese
SC Code 1976 § 12-21-2720 licenses and taxes coin-operated devices. If used for gambling, such devices remain illegal under SC Code 1976 § 12-21-2710. Issuance of a license does not make a game legal. SC Code 1976 § 12-21-2736. The only games specifically mentioned are "kiddy rides," crane games, and pinball-type machines. Licenses for machines must be displayed on the front of them. SC Code 1976 § 12-21-2726. An operator's license is also required. SC Code 1976 § 12-21-2728.

" Every person owning or operating a billiard or pocket billiard table, footsball [sic] table, bowling lane table, or skeeball table for profit shall apply for and procure from the department a license for the privilege of operating the table and pay for the license a biennial tax of fifty dollars for each table owned or operated." SC Code 1976 § 12-21-2730.

4. Commercial
5. Lottery
"Only the State may conduct lotteries . . . . Lottery revenues must be credited to a separate fund in the state treasury styled the ‘Education Lottery Account’, and the earnings on this account must be credited to it." S.C. CONST Art. XVII, § 7. "The game of bingo, when conducted by charitable, religious, or fraternal organizations exempt from federal income taxation or when conducted at recognized annual state and county fairs, is not considered a lottery prohibited by this section"

Video poker is not an unconstitutional lottery. Johnson v. Collins Entertainment Co., Inc., 508 S.E.2d 575, 579-80 (S.C. 1998). (“video gaming devices do not come within the plain and ordinary meaning of lottery because they do not involve a drawing and tickets;” “Use of the word ‘tickets’ indicates the framers’ narrow conception of a lottery as commonly understood, i.e., gambling involves ‘tickets’ and a drawing by lot”).

South Carolina Code 1976 § 59-150-10 begins the South Carolina Education Lottery Act. A lottery includes, but is not limited to, “the lottery game categories of instant tickets, on-line lottery games and drawing numbers but excluding keno, pari- mutuel betting, and casino gambling . . . . The operation of the lottery games excludes machines and lottery games, including video poker lottery games, prohibited by Sections 12-21-2710, 16-19-40, and 16-19- 50.” SC Code 1976 § 59-150-20.

The lottery is run by the South Carolina Lottery Commission. SC Code 1976 § 59-150-30.

The Act regulates audits, board duties, board procedures and requirements, commission powers, multi-state authorization, personnel requirements, bonding, retailer and vendor requirements, background checks, proceeds, prizes, forgery, age restrictions, spending powers, and many other related issues.

6. Horseracing & Other Pari-mutuel
Pari-mutuel betting (or any other betting) on a horse race is an unconstitutional lottery. 86 Op. Att'y Gen. 119, p 349 (1986).

VII. Specific Internet Prohibition
VIII. Gaming Crimes & Penalties for Unlawful Gaming

"It shall be unlawful for any person holding an office of honor, trust or profit to engage in gambling or betting on games of chance." Violation results in disqualification from the office. S.C. CONST Art. XVII, § 8.

It is unlawful to keep or operate "any vending or slot machine, or any video game machine with a free play feature operated by a slot in which is deposited a coin or thing of value, or other device operated by a slot in which is deposited a coin or thing of value for the play of poker, blackjack, keno, lotto, bingo, or craps, or any machine or device licensed pursuant to Section 12-21-2720 and used for gambling or any punch board, pull board, or other device pertaining to games of chance of whatever name or kind, including those machines, boards, or other devices that display different pictures, words, or symbols, at different plays or different numbers, whether in words or figures or, which deposit tokens or coins at regular intervals or in varying numbers to the player or in the machine, but the provisions of this section do not extend to coin-operated nonpayout pin tables, in-line pin games, or to automatic weighing, measuring, musical, and vending machines which are constructed as to give a certain uniform and fair return in value for each coin deposited and in which there is no element of chance." SC Code 1976 § 12-21-2710. Such devices are subject to being seized and destroyed. SC Code 1976 § 12-21-2712.Misdemeanor: not more than five hundred dollars or imprisoned for a period of not more than one year, or both.
An attempt was recently made to create an exception for antique machines. 2005 SC S.B. 208 (NS) (Jan 12, 2005).

Swindling: "Inveigle or entice by any arts or devices any person to play at cards, dice or any other game or bear a share or part in the stakes, wagers or adventures or bet on the sides or hands of such as do or shall play as aforesaid . . . ." SC Code 1976 § 16-13-330.
Misdemeanor

Setting up lottery: Erect, set up, or expose to be played any lottery or by any undertaking whatsoever, in the nature of a lottery, by way of chances, either by dice, lots, cards, balls, numbers, figures, or tickets or who shall make, write, print or publish any scheme or proposal for any of the purposes aforesaid. SC Code 1976 § 16-19-10.
Misdemeanor: must be fined one thousand dollars and imprisoned for one year.

Adventuring in lotteries: "Whoever shall be adventurer in or shall pay any moneys or other consideration or shall in any way contribute unto or upon account of any sales or lotteries shall forfeit for every such offense the sum of one hundred dollars . . . ." SC Code 1976 § 16-19-20.

Selling lottery tickets: fine up to $10,000. SC Code 1976 § 16-19-30.

Unlawful games and betting: If any person shall play at (a) any game with cards or dice, (b) any gaming table, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, then they are guilty. SC Code 1976 § 16-19-40.
Class C Misdemeanor: Imprisonment for a period of not over thirty days or fined not over one hundred dollars.
Every person so keeping such place used as a place for gaming or such other house shall be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.

A video poker machine, which did not pay out money, but which accumulated credits and allowed for hand pays, did not violate this section. State v. Blackmon, 403 S.E.2d 660 (S.C. 1991). But see 93 Op. Att'y Gen. 19 (1993) (holding that a cash payoff from playing video poker is a lottery in violation of the state constitution).

The statute does not apply to activities conducted on ships that are beyond the state's three-mile territorial waters. Stardancer Casino, Inc. v. Stewart, 556 S.E.2d 357 (S.C. 2001).

Keeping unlawful gaming tables: Set up, keep, or use any (a) gaming table, (b) roley-poley table, (c) table to play at rouge et noir, (d) faro bank (e) any other gaming table or bank of the like kind or of any other kind for the purpose of gaming, or (f) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes except the games of billiards, bowls, chess, draughts, and backgammon. SC Code 1976 § 16-19-50.
Forfeit a sum not exceeding five hundred dollars and not less than two hundred dollars.

Gaming on the Sabbath: Keep or suffer to be kept any gaming table or permit any game or games to be played in his house on the Sabbath day. SC Code 1976 § 16-19-70.
Fine in the sum of fifty dollars.

Running a bingo game is not a work of necessity; it should therefore not be run on Sundays. 88 Op. Att’y Gen. 54, p 156 (1998).

Forfeiture: all money wagered is forfeited. SC Code 1976 § 16-19-80.

Forfeited money is not deductible for tax purposes. Hackworth v. C.I.R., 155 Fed.Appx. 627, 632 (4^th Cir. 2005) (unpublished).

Betting on elections: Misdemeanor: fined in a sum not exceeding five hundred dollars and be imprisoned not exceeding one month. SC Code 1976 § 16-19-90.
Any person liable for gambling crime fines and penalties shall, upon being permitted by the circuit solicitor to become evidence in behalf of the State, be freed and exonerated from the same. SC Code 1976 § 16-19-110.

Bookmaking etc: (1) bet at any race track, pool selling, or bookmaking; (2) keep or occupy a place with books, papers, apparatus or paraphernalia for the purpose of recording or registering bets or wagers or of selling pools; (3) record or register bets or wagers or sell pools or make books (skill and chance games); (4) receive/register/record/forward, in any manner whatsoever, any money or other consideration bet or wagered by or for any other person; (5) as the owner of any place, knowingly permit the place to be used or occupied for any of the above purposes, or keeps any device for the purpose of recording such bets; or (6) aid in the acts mentioned above in any manner. SC Code 1976 § 16-19-130.
Misdemeanor: fine not exceeding one thousand dollars or imprisonment not exceeding six months, or both fine and imprisonment, in the discretion of the court.

Receiving prizes for winning skill contests, such as a shooting contest, is prohibited where the participant must pay to play. 71-72 Op. Att'y Gen. 3397, p 262 (1971-72).

Violation of SC Code 1976 § 16-19-130 is a common nuisance. SC Code 1976 § 16-19-140. But an act illegal under SC Code 1976 § 16-19-40 shall be punished under that section and not § 16-19-130 or § 16-19-140. SC Code 1976 § 16-19-150.

Punchboards for gaming: "It shall be unlawful for any person to use or offer for use any punchboards or other kinds of boards with numbers concealed thereon for the purpose of gaming or chance in this State." SC Code 1976 § 16-19-160.
Misdemeanor: fine not less than ten dollars nor more than twenty-five dollars or imprisoned not less than five days nor more than thirty days, or both, at the discretion of the court; for the second or third offense hereunder the fine shall not be less than twenty-five dollars nor more than one hundred dollars or imprisonment on the public works of the county for a period not exceeding three months.

Interference with ward: It is unlawful for a person to cause, aid, encourage, or influence a child who is a ward of the Department of Juvenile Justice to enter or remain in a gambling place. SC Code 1976 § 20-7-8030.
Misdemeanor: fine not more than five hundred dollars or imprisoned for not more than six months, or both.

Prisoner Gambling: "No gambling shall be permitted at any prison, farm or camp where prisoners are kept or worked." SC Code 1976 § 24-3-940
An officer allowing such will be fired.

Carnivals: no carnival shall have gambling devices or games of chance; but games of chance involving skill are permitted if there are no cash prizes. SC Code 1976 § 52-1-20.

IX. Statute of Anne/ Recovery of Debts

Any person losing $50 or more playing at cards, dice table, or any other game whatsoever, and actually paying the winner, may bring suit within three months to recover the losses. SC Code 1976 § 32-1-10.

This section is not necessarily the only remedy available. If other statutes allow the loser to recover, he may do so despite having gone beyond the three-month time limit listed here. Johnson v. Collins Entertainment Co., Inc., 564 S.E.2d 653 (S.C. 2002).

The statute allows recovery whether or not the game was illegal. McCurry v. Keith, 439 S.E.2d 861 (S.C. App. 1994); Berkebile v. Outen, 426 S.E.2d 760 (S.C. 1993).

If a losing gambler does not sue within the three-month period, any other person may bring suit and recover triple the value of the amount lost. They get to keep half of it, and the other half goes to the local county. SC Code 1976 § 32-1-20. The time limit to bring such an action is one year. Ardis v. Ward, 467 S.E.2d 742, 744 (S.C. 1996).

All notes or other securities given when the consideration, in whole or in part, is (a) for any money won by cockfighting, horse racing or by gaming or playing at cards, dice tables, tennis, bowls, or other game whatsoever or (b) for the repaying any money knowingly lent for gambling shall be utterly void. SC Code 1976 § 32-1-40.

All mortgages and conveyances of land given to secure wagers are void. SC Code 1976 § 32-1-50.

The laws invalidating gambling debts and allowing for recovery of losses no longer apply to debts and losses associated with legal gambling. SC Code 1976 § 32-1-60.

Under the South Caroline Uniform Commercial Code, even a holder in due course of an instrument (check) is subject to the maker’s defense of illegality. SC Code 1976 § 36-3-305. Comment 6 to the section says that illegality is most often a matter of gambling.

X. Lawful Commercial Casino Gaming

The state legislature has delegated to municipalities and counties the power to declare gambling on "cruises to nowhere" illegal. These are cruises that leave from the state, sail into international waters, and return without ever having stopped at an intervening port. SC Code 1976 § 3-11-200; SC Code 1976 § 3-11-300. The statute is a delegation of the state's Johnson Act authority pursuant to 15 U.S.C. §§ 1171 through 1177.

The penalty that may be set is limited to one hundred dollars per passenger, with a total not to exceed fifty thousand dollars per ship in a twenty-four hour period. SC Code 1976 § 3-11-210. But when a prohibiting statute is enacted, cruises that were operating on January 1, 2005 are protected for 5 years by a 'grandfather clause.' SC Code 1976 § 3-11-400(D). The act became effective June 1, 2005.

If a county/municipality does not prohibit gambling ships, they may assess a surcharge of 10% of each ticket sold and a surcharge of 5% of the gross proceeds of each gambling vessel. SC Code 1976 § 3-11-400.

Video gambling machines in a floating casino in South Carolina waters violates the State constitutional and statutory prohibitions. 94 Op. Atty Gen. 21, p. 51 (1994).

The legislature attempted to allow the voter of the state, by referendum, to decide whether cash payout on video machines would be allowed to continue in the state. The court subsequently struck down the act as an unconstitutional delegation. Joytime Distributors and Amusement Co., Inc. v. State, 528 S.E.2d 647 (S.C. 1999). The statutes would have been located in §§ 12-22-10 et seq, but most of those sections were never enacted, and the rest are possibly implicitly repealed by the failure of the other sections to become law. As of July 1, 2000, the state’s multi-billion dollar video poker industry was shut down.