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Classic Oldsmobile v. State of Maine
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:1997 ME 214
Docket:Cum-97-170
Argued:October 7, 1997
Decided:November 4, 1997


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.




CLASSIC OLDSMOBILE-CADILLAC-GMC TRUCK, INC., et al. v. STATE OF MAINE, et al.



WATHEN, C.J.

	[¶1]  Plaintiffs, Classic Oldsmobile-Cadillac-GMC Truck, Inc., and five
other car dealerships appeal from a summary judgment entered in the
Superior Court (Cumberland County, Mills, J.) in favor of defendant State of
Maine.{1}  Plaintiffs contend that the Superior Court erred as a matter of law
in declaring that their proposed method of promoting car sales would
constitute an unlawful game of chance for which they must obtain a license
pursuant to 17 M.R.S.A. §§ 330-347 (1983 & Supp. 1996).  Finding no
error, we affirm.
	[¶2]  The terms of the promotional plan may be summarized as
follows: (1) any person who enters into a lease arrangement for a new
vehicle at one of the participating car dealerships during a specified four-
week period would automatically have twelve monthly lease payments paid
by plaintiffs, if the temperature equaled or exceeded ninety-six degrees
fahrenheit at the Portland International Jetport on a subsequent date, and
(2) any person, without purchasing or leasing any vehicle, could submit their
name for a drawing during the same four-week period and the winner of the
drawing would be eligible to receive the sum of $5,000 if the temperature
reached ninety-six degrees.
	[¶3]  In the past, we have held that promotional contests that do not
require a purchase are not illegal lotteries or games of chance because there
is no consideration.  State v. Bussiere, 155 Me. 331, 339, 154 A.2d 702, 706
(1959).  Initially, plaintiffs argue that this promotion does not require a
purchase to participate.  They rely on the fact that any person could submit
their name into a drawing and have a chance to win $5,000.  The Superior
Court, however, correctly rejected that argument and found that the plan
involves two promotions -- one for those who enter into a lease agreement
and one for those who do not.  Every lessee wins the lease payments if the
temperature is reached, but the other entrants participate in a drawing in
which only one will win.  The State contends and the Superior Court found
that the promotion requiring the lease agreement constitutes an unlawful
game of chance.
	[¶4]  Whether the promotional plan is illegal depends on the following
statutory definition of a "game of chance:"

	 [Any] game, contest, scheme or device in which:

	A.  A person stakes or risks something of value for the
opportunity to win something of value; 

	B.  The rules of operation or play require an event the
result of which is determined by chance, outside the control of
the contestant or participant; and

	C.  Chance enters as an element that influences the
outcome in a manner that can not be eliminated through the
application of skill.

17 M.R.S.A. § 330(2) (Supp. 1996).

	[¶5]  Statutory interpretation is a matter of law, Cook v. Lisbon School
Comm., 682 A.2d 672, 676 (Me. 1996), and we examine the plain meaning
of the statutory language in order to give effect to the legislative intent.
Nasberg v. City of Augusta, 662 A.2d 227, 229 (Me. 1995).  With reference to
subparagraphs B and C, it is undisputed that the promotional plan involves
an element of chance -- the temperature on a future date at a particular
location, outside the control of the participants, and incapable of being
eliminated through the application of skill. Both the customer's lease and
the twelve months of free lease payments constitute "something of value,"{2}
and, therefore, the sole question is under subparagraph A.  Does the
participant "stake or risk" any part of the lease consideration for the
opportunity to win?
	[¶6]  Risk and stake are not statutorily defined.  In common meaning,
"risk" conveys "the element of uncertainty in an undertaking."  Black's Law
Dictionary 1193 (5th ed. 1979).  "Stake" refers to "a deposit made to
answer an event, as on a wager."  Black's Law Dictionary 1259 (5th ed.
1979).  In Chenard v. Marcel Motors, 387 A.2d 596, 600 (Me. 1978), we
explored the difference between illegal gambling or lotteries and legal
competitions and adopted the following definition of "wager:"

[T]wo or more contracting parties, having mutual rights in
respect to the money or other thing wagered or, as sometimes
said, "staked," and each of the parties necessarily risks
something, and has a chance to make something upon the
happening or not happening of an uncertain event.  But a purse
or prize offered by a party, and to be awarded to the successful
competitor in a contest in which such party does not engage,
nor has any chance of gaining, but only, perhaps, of losing, is
without the element of a chance of gain or a risk of loss which
characterizes the wager agreement.

Id. at 600 (quoting Misner v. Knapp, 13 Or. 135, 139, 9 P. 65, 66 (1885)
(emphasis supplied).
	[¶7]  This present promotion is designed to increase the number of 
cars leased by offering lessees the chance to win twelve free monthly
payments.  Plaintiffs hope to derive profit from an increase in business,{3} and
customers hope to win the monthly payments.  The mutual element of gain
that characterizes a wager is therefore present.  Turning to the element of
risk, plaintiffs acknowledge their risk but argue that customers have nothing
of value at stake and no risk of loss.  They argue that even if the customers
do not win, they have the car that they have leased. 
	[¶8]  Plaintiffs ignore the obvious fact that if the prospect of winning
induces anyone to enter into a lease, it follows inexorably that the lease
consideration, in part, is provided for that chance.  See Lang v. Merwin, 99
Me. 486, 59 A. 1021 (1905) (for a nickel, machine gives at least one cigar
worth a nickel, and a chance to win additional cigars); State v. Googin, 117
Me. 102, 102 A. 970 (1918) (for a nickel, machine gives package of chewing
gum, plus chance to win trade checks); State v Baitler, 131 Me. 285, 161 A.
671 (1932) (for a nickel, machine gives  package of candy mints, plus
chance to win tokens); and Jolovitz v. Redington & Co., 148 Me. 23, 88 A.2d 
589 (1952) (for each five dollars worth of merchandise, store gave self-
defense stamps for chance to win prizes).  This is not a case in which the
chance to win is gratuitously conferred after the parties make their bargain. 
By the express terms of the promotion, the chance to win is offered as part
of the benefit of the bargain, even though the customer has the right to opt
out.  A customer responding to such an offer necessarily stakes some part of
the consideration on the chance to win.
	[¶9]  Relying on the plain meaning of the language of 17 M.R.S.A. §
330(2), we agree with the Superior Court that plaintiffs' proposed
promotional plan involves an illegal "game of chance."
	The entry is:
					Judgment affirmed.


Attorneys for plaintiffs: David M. Hirshon, Esq. Marshall J. Tinkle, Esq., (orally) Tompkins, Clough, Hirshon & Langer. P.A. P O Box 15060 Portland, ME 04112-5060 Attorneys for defendants: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Atty. Gen., (orally) William R. Stokes, Asst. Atty Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} Plaintiffs include Classic Buick-GMC Truck, Inc., Bill Dodge Oldsmobile-Buick- Pontiac-GMC Truck, Inc., Westbrook Saturn, Inc., Infiniti of Falmouth, Inc. and Bill Dodge Ford-Lincoln-Mercury, Inc. and will be referred to collectively as "plaintiffs" or "Classic Olds." Defendants include the Attorney General and the Chief of the Maine State Police and will be referred to collectively as "defendants" or the "State." {2} 17 M.R.S.A. § 330(8) (1983 & Supp. 1996) defines "something of value" in part as: "Any money or property. . . or. . . promise directly or indirectly contemplating transfer of money . . . ." {3} The case of Chenard v. Marcel, 387 A.2d 596 (Me. 1978) is readily distinguishable on this point alone. Chenard involved a golf tournament sponsored by a nonprofit organization. As part of the tournament, participants had a chance to win a new car if they made a hole-in- one. Marcel Motors agreed to donate the car. Therefore, Marcel Motors engaged in a legal competition because even though it could lose, it had no chance of gaining. Id. at 600-601.