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We sued California’s Alcoholic Beverage Control (ABC) because they
said negative things about our business in 2003. California's
Appellate Court reversed the damages I was awarded, but did not
reverse the decision validating the legality of our products! The case
can be found on the court's website by clicking here and entering the
case number (YC046484) at the bottom of the page. Here is a
shortened version of the Judge's Statement of Decision:
said negative things about our business in 2003. California's
Appellate Court reversed the damages I was awarded, but did not
reverse the decision validating the legality of our products! The case
can be found on the court's website by clicking here and entering the
case number (YC046484) at the bottom of the page. Here is a
shortened version of the Judge's Statement of Decision:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
TOM McVEIGH, Plaintiff, No. YC046484
v.
CALIFORNIA DEPARTMENT
OF ALCOHOLIC BEVERAGE
CONTROL, Defendant.
STATEMENT OF DECISION
This case came on regularly for court trial before Lois Anderson Smaltz, judge presiding, in Department SW "M"
of the above-entitled court. Both sides waived jury.
The Department contends that, regardless of the machine's lack of "hazard or chance," the coupons in plaintiff’s
machines were illegal "punchboards" within the meaning of by Penal Code § 330c, which rendered the
machines an illegal gambling I device. A punchboard is defined in Penal Code § 330c as "any card. . . which
may be played or operated by pulling, pressing, punching out or otherwise removing any slip, tab, paper or other
substance there from to disclose any concealed number, name or symbol." The Department's argument is so
broad and simplistic that its application would criminalize virtually all of the commonly offered prizes
connected with many products.
Plaintiff’s expert, Robert Snyder, explained in considerable detail the identifying characteristics of a slot
machine or device. He also conceded that if the machine were used to vend proscribed punch board or pull-tab
tickets (which depend upon hazard or chance), then the machine itself could become a prohibited slot
machine; however, he offered comparisons of legal and illegal devices, explaining why plaintiffs coupons were
not prohibited. The court found Mr. Snyder's analysis instructive and persuasive, and adopts both his reasoning
and conclusions. The coupons vended in plaintiff’s machines, at the time of their seizure, were not punchboard,
pull-tab or other kind of illegal material.
The motive of the coupon purchaser is irrelevant to whether the coupon comes within the definition of an illegal
punchboard. Plaintiff s expert, Mr. Snider, compared the sweepstakes on plaintiff s coupons to the sweepstakes
offered by national food sellers such as Dr Pepper's sodas, McDonald's "Happy Meals" and Reese's candy bars.
The purchaser of the food must first pay for the product in order to open the wrapper to find the concealed
number, name or symbol. Just as the windows on plaintiff’s coupons must be opened, the food containers must
be opened to identify the winners. Whether the buyers thereafter consume the food - or send away for
merchandise - does not render the sweepstakes unlawful. In this case, as with the food, plaintiff’s coupons had an
inherent value greater than the $1.00 purchase price, if the purchasers used the coupon to obtain a discount on
merchandise. Whether they did so is irrelevant. This court declines to adopt the Department's overly broad
interpretation of Penal Code 330c which, if applied to candy sweepstakes, would criminalize as an illegal
punchboard a candy wrapper which must be opened to disclose a "concealed number, name or symbol."
DATED: August 2,2004.
Lois Anderson Smaltz
JUDGE OF THE SUPERIOR COURT
TOM McVEIGH, Plaintiff, No. YC046484
v.
CALIFORNIA DEPARTMENT
OF ALCOHOLIC BEVERAGE
CONTROL, Defendant.
STATEMENT OF DECISION
This case came on regularly for court trial before Lois Anderson Smaltz, judge presiding, in Department SW "M"
of the above-entitled court. Both sides waived jury.
The Department contends that, regardless of the machine's lack of "hazard or chance," the coupons in plaintiff’s
machines were illegal "punchboards" within the meaning of by Penal Code § 330c, which rendered the
machines an illegal gambling I device. A punchboard is defined in Penal Code § 330c as "any card. . . which
may be played or operated by pulling, pressing, punching out or otherwise removing any slip, tab, paper or other
substance there from to disclose any concealed number, name or symbol." The Department's argument is so
broad and simplistic that its application would criminalize virtually all of the commonly offered prizes
connected with many products.
Plaintiff’s expert, Robert Snyder, explained in considerable detail the identifying characteristics of a slot
machine or device. He also conceded that if the machine were used to vend proscribed punch board or pull-tab
tickets (which depend upon hazard or chance), then the machine itself could become a prohibited slot
machine; however, he offered comparisons of legal and illegal devices, explaining why plaintiffs coupons were
not prohibited. The court found Mr. Snyder's analysis instructive and persuasive, and adopts both his reasoning
and conclusions. The coupons vended in plaintiff’s machines, at the time of their seizure, were not punchboard,
pull-tab or other kind of illegal material.
The motive of the coupon purchaser is irrelevant to whether the coupon comes within the definition of an illegal
punchboard. Plaintiff s expert, Mr. Snider, compared the sweepstakes on plaintiff s coupons to the sweepstakes
offered by national food sellers such as Dr Pepper's sodas, McDonald's "Happy Meals" and Reese's candy bars.
The purchaser of the food must first pay for the product in order to open the wrapper to find the concealed
number, name or symbol. Just as the windows on plaintiff’s coupons must be opened, the food containers must
be opened to identify the winners. Whether the buyers thereafter consume the food - or send away for
merchandise - does not render the sweepstakes unlawful. In this case, as with the food, plaintiff’s coupons had an
inherent value greater than the $1.00 purchase price, if the purchasers used the coupon to obtain a discount on
merchandise. Whether they did so is irrelevant. This court declines to adopt the Department's overly broad
interpretation of Penal Code 330c which, if applied to candy sweepstakes, would criminalize as an illegal
punchboard a candy wrapper which must be opened to disclose a "concealed number, name or symbol."
DATED: August 2,2004.
Lois Anderson Smaltz
JUDGE OF THE SUPERIOR COURT
Legal Information
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