                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                      DANIEL E. LUNGREN

                                        Attorney General


                          ______________________________________

                  OPINION            :
                                     :          No. 93-1005
                  of                 :
                                     :          May 13, 1994
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :
         CLAYTON P. ROCHE            :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________


              THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY, Ventura
County, has requested an opinion on the following question:

                May the card game 21 be played in California under conditions where each player
is charged a fixed fee for a designated amount of chips and the playing time is limited to a specified
number of hours?

                                          CONCLUSION

               The card game 21 may not be played in California under conditions where each
player is charged a fixed fee for a designated amount of chips and the playing time is limited to a
specified number of hours.

                                            ANALYSIS

                This opinion concerns the game called "Twenty One For Fun." The operator of the
game provides a dealer, a blackjack table, and equipment (decks of cards, a "shoe" for holding the
cards, and the chips) for the game. Each table accommodates seven players. For a $10 fee, a player
may play 21 (also known as "blackjack"), receiving chips totaling $2,000 in "value." The chips
come in $25, $100, and $500 denominations. A player may continue playing so long as he or she
has chips, not exceeding four hours of playing time. The chips are not convertible into money or
any type of tangible property. May this game be played in California? We conclude that it may not.

               Section 19 of article IV of the Constitution states:

               "(a) The Legislature has no power to authorize lotteries and shall prohibit the
       sale of lottery tickets in the State.



                                                  1.                                         93-1005

              "(b) The Legislature may provide for the regulation of horse races and horse
       race meetings and wagering on the results.

              "(c) Notwithstanding subdivision (a), the Legislature by statute may
       authorize cities and counties to provide for bingo games, but only for charitable
       purposes.

              "(d) Notwithstanding subdivision (a), there is authorized the establishment
       of a California State Lottery.

               "(e) The Legislature has no power to authorize, and shall prohibit casinos of
       the type currently operating in Nevada and New Jersey."

The Legislature has specifically implemented the constitutional prohibition against lotteries (Pen.
Code, §§ 319-329),1 it has authorized bingo games for charitable purposes (§ 326.5), and related to
the prohibition against "Nevada and New Jersey type" casinos, it has expressly banned various forms
of gambling (§§ 330-336).

                The playing of the card game 21 is prohibited under the conditions and terms
specified in section 330. (See In re Clark (1921) 54 Cal.App. 507, 508; United States v. Graham
(9th Cir. 1976) 534 F.2d 1357, 1358-1359.) Section 330 states:

               "Every person who deals, plays, or carries on, opens, or causes to be opened,
       or who conducts, either as owner or employee, whether for hire or not, any game of
       faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a-
       half, twenty-one, hokey-pokey, or any banking or percentage game played with
       cards, dice, or any device, for money, checks, credit, or other representative of value,
       and every person who plays or bets at or against any of those prohibited games, is
       guilty of a misdemeanor, and shall be punishable by a fine not less than one hundred
       dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment in
       the county jail not exceeding six months, or by both the fine and imprisonment."

               The key language of section 330 requiring our analysis is the phrase "for money,
checks, credit, or other representative of value." This element must be proved to establish a
violation of section 330. (People v. Carroll (1889) 80 Cal. 153, 155; Pittman v. Superior Court
(1967) 256 Cal.App.2d 795, 797; In re Clark, supra, 54 Cal.App. at 509; In re Lowrie (1919) 43
Cal.App. 564, 567.) If the players are playing for their own "amusement" without any stakes to be
won or lost, section 330 is not violated. (See People v. Ah Own (1890) 85 Cal. 580, 581-583;
People v. Carroll, supra, 80 Cal. at 155; People v. Sam Lung (1886) 70 Cal. 515, 516-517; Pittman
v. Superior Court, supra, 256 Cal.App.2d at 796-797; In re Clark, supra, 54 Cal.App. at 509; In re
Lowrie, supra, 43 Cal.App. at 567; 9 Ops.Cal.Atty.Gen. 108, 109 (1947).)

                Do the chips used by the players in the game "Twenty One For Fun" constitute
"other representative of value"? If the chips were convertible into money, they would clearly meet
the requisite test. (People v. Carroll, supra, 80 Cal. at 155.) The same would be true if the chips
were convertible into merchandise. In In re Lowrie, supra, 43 Cal.App. 564, the court concluded
with respect to chips that were redeemable in merchandise:



   1
    All references hereafter to the Penal Code are by section number only.

                                                 2.                                           93-1005

               ". . . they were representative of the value of the merchandise so received in
       exchange therefor. Had the chips been redeemable in money of the realm, . . . there
       would be no question as to the acts alleged constituting an offense. But the
       merchandise given in exchange for the chips must be deemed of value and the value
       of the goods which, in accordance with the scheme, were given in exchange for the
       chips won was represented by the chips . . . ." (Id., at p. 567.)

In In re Clark, supra, 54 Cal.App. 507, the court stated: "The purpose of the law is to prohibit
games of the kind mentioned and described at which money or property or the representative
thereof, is lost or won." (Id., at p. 509.)

                Here the chips cannot be converted into money or any type of tangible property.
However, they do allow each player to complete the four hours of possible playing time if they are
won. On the other hand, if they are lost, the playing time is terminated. Of course, at the end of the
four hours, the chips have no value. In these circumstances, do the chips constitute "representative
of value"?

              In the somewhat related context of obtaining additional playing time by scoring a
requisite number of points on a pinball machine, the courts have characterized the additional games
as "property" for purposes of the lottery statute, section 319. In People v. Settles (1938) 29
Cal.App.2d Supp. 781, 786-787, the court concluded:

               ". . . The duty of the operators of this game to permit the winner to play
       further games free is an obligation arising from contract, and the right of the player
       in the matter is personal property (Civ. Code, sec. 663), and a thing in action. It is,
       therefore, property within the meaning of section 319, Penal Code. [Citations.]"

In Gayer v. Whelan (1943) 59 Cal.App.2d 255, 257, the court stated:

               "It is conceded that where the machine returns tokens . . . that may be . . .
       used to replay the device, as a reward for the player making a high score . . . the
       machine is a gambling device coming within the provisions of the majority of the
       statutes. . . ."2

               On the other hand, in People v. Carroll, supra, 80 Cal. 153, interpreting section 330,
the court declared:
               "The information charges no offense under this section of the code, or any
       other. To constitute it an offense to conduct the game, it must be `played for money,
       checks, credit, or any other representative of value.' The information does not charge
       that the game was played for money, but that defendant conducted it for money. It
       may be that those who were engaged in the game were playing for amusement, and
       paid the defendant a fixed sum, in no way dependent upon the result of the game, for
       conducting it. This would be within the allegations of the information, but it would
       not be a public offense or within the statute." (Id., at p. 155.)

Or, as stated in In re Clark, 54 Cal.App. 507, supra:

   2
    Since 1950 California has expressly prohibited pinball and other slot machines that reward a
high score with an additional game. (§§ 330b, 330.1; Merandette v. City and County of San
Francisco (1979) 88 Cal.App.3d 105, 113-114.)

                                                  3.                                         93-1005

               ". . . It cannot be assumed that it is impossible that any of the games
       specifically mentioned may not be played for amusement only and without the
       incident of money or property being wagered or bet thereat." (Id., at p. 509.)

               We believe that the holdings of the above cited cases may be reconciled by focusing
on what the players received in exchange for their fees in each of the games. In the situation
presented here, the players will receive at most 80 chips, allowing them to participate in the games
while the chips remain. The chips are initially worth $10 and represent the value of continued
playing time. Only at the end of the four hours do they lose their value of continued playing time.
Since the playing time has value, the chips won or lost in each game would represent that value; it
is of monetary benefit to win each game. We believe that this situation may be likened to that in
Settles and Whelan described above.

                If, instead, the players here were to receive four hours of playing time for their $10
fees, no monetary benefit would result by winning each game. The players would continue playing
regardless of winning or losing. The chips would not represent anything of value during the four
hour period. Although it cannot be definitely determined, it appears that this type of situation may
be likened to that considered in Carroll and Clark described above.

               Accordingly, we believe that the precise circumstances here, taken as a whole,
demonstrate that "Twenty One For Fun" is not played for amusement only, but rather for chips that
are representative of the value of continued playing time within the meaning of section 330. In
answer to the question presented, therefore, we conclude that the card game 21 may not be played
in California under conditions where each player is charged a fixed fee for a designated amount of
chips and the playing time is limited to a specified number of hours.

                                              *****




                                                  4.                                         93-1005

