People v. Lopez

466 N.W.2d 397, 187 Mich. App. 305
CourtMichigan Court of Appeals
DecidedFebruary 4, 1991
DocketDocket 119161, 119905
StatusPublished
Cited by5 cases

This text of 466 N.W.2d 397 (People v. Lopez) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lopez, 466 N.W.2d 397, 187 Mich. App. 305 (Mich. Ct. App. 1991).

Opinions

Hood, J.

Defendants John Lopez and Phillip Bradley White were bound over in separate cases to the Washtenaw Circuit Court on charges of: (1) keeping or maintaining a game of skill or chance for hire, gain, or reward, MCL 750.303; MSA 28.535 (count i); (2) permitting the use of a gambling apparatus on their premises, MCL 750.302; MSA 28.534 (count ii); and (3) permitting gambling at a bar, MCL 436.50; MSA 18.1021. Defendant White was also charged with maintaining a place with devices for registering debts and buying or selling betting pools, MCL 750.304; MSA 28.536. The circuit court ordered count i quashed and count ii dismissed in each case. The people appeal by leave granted the orders in both cases. Because the issues involved were the same, this Court consolidated the cases in its October 6, 1989, order. We reverse.1

Counts i and n involved the operation of video poker machines in defendants’ bars. When a player accumulated points on a machine, the bartender would pay the player in cash on the basis of the point total._

[308]*308I

With respect to count i, the people argue that the circuit court erred in granting defendants’ motions to quash. We agree.

In reviewing the decision of an examining magistrate to bind over a defendant, the circuit court should not substitute its decision for that of the magistrate and should overturn the magistrate’s decision only if it appears from the record that an abuse of discretion occurred. People v Talley, 410 Mich 378, 385; 301 NW2d 809 (1981). Our task in assessing the circuit court’s decision to quash charges is to determine whether the examining magistrate committed an abuse of discretion. People v Cowley, 174 Mich App 76, 79; 435 NW2d 458 (1989).

Defendants were charged under MCL 750.303(1); MSA 28.535(1) with keeping or maintaining a game of skill or chance for hire, gain, or reward. Specifically, this section provides:

A person who for hire, gain or reward, keeps or maintains a gaming room, a gaming table, game of skill or chance, or game partly of skill and partly of chance, used for gaming, or who permits a gaming room, or gaming table, or game to be kept, maintained, or played on premises occupied or controlled by the person, is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00.
A person who aids, assists, or abets in the keeping or maintaining of a gaming room, gaming table, or game, is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00.

However, MCL 750.303(2); MSA 28.535(2) provides an exemption from subsection (1) for certain desig[309]*309nated devices. The exemption at issue in this appeal states:

Subsection (1) does not apply to a mechanical amusement device which may through the application of an element of skill reward the player with the right to replay the mechanical device at no additional cost if the mechanical amusement device is not allowed to accumulate more than 15 replays at 1 time; the device'is designed so that accumulated free replays may only be discharged by reactivating the device for 1 additional play for each accumulated free replay; and the device makes no permanent record directly or indirectly of the free replays awarded.

We believe that the circuit court, in ruling that the district court abused its discretion, erroneously held that the video poker machines came within the exemption because they were limited to fifteen replays. The circuit court reached this faulty conclusion on the basis of our Supreme Court’s decision in Automatic Music & Vending Corp v Liquor Control Comm, 426 Mich 452; 396 NW2d 204 (1986), app dis 481 US 1009; 107 S Ct 1880; 95 L Ed 2d 488 (1987).

In Automatic Music, the Court, after ruling that a video poker machine was a gambling device within the context of MCL 750.303(1); MSA 28.535(1), went on to consider the relevance and constitutionality of the exemption of subsection (2). Id., pp 458-461. The Court first held that the exemption did not unconstitutionally deny equal protection because the fifteen-replay limitation was not arbitrary and was rationally related to a legislative goal of prohibiting the use of such machines for cash payoffs. Id., p 459. The Court concluded that the Legislature could reasonably have believed that a larger number of free replays [310]*310would create a greater incentive to make cash payoffs and that limiting the accumulation of replays to a small number (fifteen) would avoid the problem. Id., pp 459-460. The Court then found that the exemption was not unconstitutionally vague because the language of MCL 750.303(2); MSA 28.535(2) was "perfectly comprehensible.” Id., p 460.

However, the Automatic Music Court also concluded that the poker machine in that case did not qualify for the exemption because it allowed the accumulation of more than fifteen replays, there was a button on the machine which allowed the discharge of all free replays, and a permanent record of the number of replays awarded was kept in the machine. Id., pp 457-458.

We believe that, while the Court in Automatic Music found that the fifteen-replay limitation was constitutional, it was not pronouncing a blanket rule that a person who keeps or maintains a machine that meets the fifteen-replay requirement was exempt from prosecution under subsection (1) even if evidence illustrates that the machines were used for gambling. It is necessary to keep in focus the facts involved in the Automatic Music case. There was no suggestion in that case that a player of the poker machine involved could win cash. As a factual matter, the evidence demonstrated that the free replays had to be used as games on the machine. Thus, the Court in Automatic Music was not faced with a situation where money was exchanged.

Automatic Music stands solely for the proposition that the fifteen-replay limitation was a constitutionally sound means of classifying machines exempt from MCL 750.303(1); MSA 28.535(1). It does not hold that, simply because a machine is limited to fifteen replays, it is automatically ex[311]*311empt from being considered a gambling device. Such an assertion would seem contrary to our Legislature’s intent in enacting the statutory scheme governing gambling (MCL 750.301 et seq.; MSA 28.533 et seq.) to suppress an activity "injurious to the morals and welfare” of the citizenry. Michigan ex rel Comm’r of State Police v Nine Money Fall Games, 130 Mich App 414, 419; 343 NW2d 576 (1983). Therefore, the circuit court’s reliance on Automatic Music was misplaced.

However, we choose not to end our analysis here because defendant White contends that the exemption in subsection (2) of MCL 750.303; MSA 28.535 should be read in conjunction with the exemption in subsection (3), which provides in pertinent part:

Subsection (1) does not apply to a slot machine if the slot machine is 25 years old or older and is not used for gambling purposes.

Defendant White argues that the Legislature did not use the language "not used for gambling purposes” in subsection (2) as it did when subsection (3) was added in 1979.

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People v. Bartlett
585 N.W.2d 341 (Michigan Court of Appeals, 1998)
Primages International v. Liquor Control Commission
501 N.W.2d 268 (Michigan Court of Appeals, 1993)
People v. Fiedler
487 N.W.2d 831 (Michigan Court of Appeals, 1992)
People v. Brannon
486 N.W.2d 83 (Michigan Court of Appeals, 1992)
People v. Lopez
466 N.W.2d 397 (Michigan Court of Appeals, 1991)

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Bluebook (online)
466 N.W.2d 397, 187 Mich. App. 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lopez-michctapp-1991.