Attorney General's Opinion
Attorney General, Richard Blumenthal
January 24, 1992
Demetrios Louziotis, Sr.
Executive Director
Division of Special Revenue
555 Russell Road
Newington, CT 06111
Dear Mr. Louziotis:
This is in response to your recent request1 for an opinion on whether there exists legislative authority for the Division of Special Revenue to institute a "cash" lotto in addition to the other lottery games currently conducted by, or under the authority of, the Division. For the following reasons, we believe that such a lottery design is authorized.
Our analysis begins with the recognition of the principle that administrative agencies are purely creatures of statute without inherent or common law powers and that only those powers conferred upon these agencies by such statutes, either expressly or by necessary implication, are granted. See Wilson v. West Haven, 142 Conn. 646, 653, 116 A.2d 420 (1955); 83 Conn.Op.Atty.Gen. (12/2/83) (Letter to A.W. Oppenheimer) at pp. 4-5. Additionally, it has been noted that the statutes allowing state operations of a lottery are an exception to the general criminal proscription against gambling and thus must be strictly construed. 85 Conn.Op.Atty.Gen. 126, 128 (1985); 83 Conn.Op.Atty.Gen. (12/2/83) supra at 2 [Construing Conn.Gen.Stat. § 53-278a(2) ].
As we have opined in the past, the term "lottery" is nowhere defined in the General Statutes, but the Executive Director, with the advice and consent of the Gaming Policy Board, is authorized to develop, design and implement lottery games. Conn.Gen.Stat. § 12-568(a).2 In light of this lack of legislative definition, this office has consistently observed, in prior opinions dealing with the subject, and relying upon clearly established judicial precedent, that the term "lottery" must be accorded its common and ordinary meaning. See Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979); Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). We have thus premised our prior holdings upon a firm understanding that the term lottery, as used in the Connecticut General Statutes, is employed strictly in its traditional sense:
However, judicial pronouncements are virtually unanimous, and hence there appears to be little dispute, that certain basic elements must be present in order to conform to the traditional notion of the term "lottery." Those basic elements are: prize, consideration and chance. State v. Bull Investment Group, Inc., 32 Conn.Supp. 279, 351 A.2d 879 (1974); National Football League v. Governor of Delaware, 435 F.Supp. 1372, 195 U.S.P.Q. 803 (1977). A lottery, in the traditional sense, implies an almost total absence of a participant's "skill" as having any determining influence upon the ultimate chance of that participant's success.
83 Conn.Op.Atty.Gen. (09/21/83) at 6 (Letter to Executive Director A.W. Oppenheimer). See also, 86 Conn.Op.Atty.Gen. 24 (1986); 83 Conn.Op.Atty.Gen. (12/02/83), supra.
Equally consistent has been our off-stated view that, as contemplated by Connecticut statutes, a "lottery" is a game in which participants purchase "tickets" which give them an opportunity to win a prize based solely upon random chance, 83 Conn.Op.Atty.Gen. (12/02/83) supra (citations omitted), and that licensed lottery sales agent intervention is essential. 85 Conn.Op.Atty.Gen. 126, supra; 83 Conn.Op.Atty.Gen. (12/2/83), supra.
Hence, all of our previous rulings have pointed to the conclusion that a reasonable discretion, tempered by the restrictions discussed above, has been conferred upon the Division by Conn.Gen.Stat. § 12-568(a) to design, implement and operate different lottery games. 83 Conn.Op.Atty.Gen. (9/21/83) supra at 9.
With these principles in mind, and incorporating by reference the rationale of these previous opinions, we discuss the newly designed cash lotto.
The background information supplied by your staff reveals that cash lotto contains many of the same characteristics and playing features common to Connecticut's current Lotto game which, this office has previously ruled, is authorized by the Connecticut General Statutes. 83 Conn.Op.Atty.Gen. (9/21/83) supra. For instance, in cash lotto a player selects five numbers from a field of thirty five numbers, each ticket costs $1.00, and prizes are awarded based upon matching three to five of the winning numbers which are randomly selected in an independent drawing procedure. The game is designed to award prizes on a fixed-odds basis, reserving a right to alter such method to a pari-mutuel basis upon the occurrence of certain events.3
The major differences between the cash lotto game and current lotto game are: (1) the prizes awarded in cash lotto involve a lump sum award, rather than partial awards delivered periodically over time; and, (2) this new design does not provide for a prize roll-over feature if no wagerer successfully chooses the winning five number combination.4
These distinctions, however, are not of material importance in determining whether or not this game is a form of lottery since the design clearly meets the tests articulated in all of our previous opinions. For all the foregoing reasons, we conclude that cash lotto, based upon the descriptions provided, is a lottery which the Division is authorized to operate pursuant to Conn.Gen.Stat. § 12-568(a).
Very truly yours,
Richard Blumenthal
Attorney General
Richard M. Sheridan
Assistant Attorney General
Robert F. Vacchelli
Assistant Attorney General
RB/RMS/RFV/td
March 25, 1991
The Honorable Richard Blumenthal
Attorney General
State of Connecticut
30 Trinity Street
Hartford, Connecticut 06106
Re: Proposal for Additional Lottery Games(s)--Statutory Authority
Dear Attorney Blumenthal:
In view of the State's current fiscal situation, this Agency has stepped up its consideration of potential variations to the current product mix we offer lottery patrons. These variations under consideration entail the retention of the current twice-weekly Lotto game with the possible addition of either a "cash" lotto or a keno type lottery game. The cash lotto or keno type lottery game would have independent status with each game possessing its own prize structure and marketing/advertising campaign.
Our question to your Office is in light of all current pertinent legislation bearing on the issue, would specific new enabling legislation be a prerequisite before such a cash lotto or keno type of lottery game could be offered by us, with the approval of the Gaming Policy Board?
We would note that in an opinion letter from your Office to A.W. Oppenheimer dated September 21, 1983, at page 9, regarding a similar question relative to the introduction of Lotto, it was observed that "[t]he general language of Section 12-568a can only be viewed as conferring reasonable discretion upon the Division to design, develop, implement and operate different lottery games subject to the restrictive boundaries of the traditional concept of a 'lottery'...."
Since the introduction of a new lottery game as described above may have significant ramifications for improved State revenues, prudence dictates that this Agency insure that any such innovative game could not be attacked as being unauthorized under current legislation.
In view of the circumstances, we would appreciate a reply as soon as is conveniently possible. We would also note here that pursuant to Section 12-566(b), C.G.S., new lottery games and associated procedures are exempt from public disclosure until formally announced to the public. We would, therefore, request that your Office maintain the confidentiality of, to the extent practicable, the brief description of the new lottery games under consideration here.
If you require additional information, please do not hesitate to contact us. Thank you for your continued cooperation and consideration.
Very truly yours,
William V. Hickey
Executive Director
1 Your predecessor had requested an opinion dealing also with a "keno" type lottery. Your recently revised request seeks only an opinion regarding "cash" lotto and withdraws any question relating to keno.
2 Conn.Gen.Stat. § 12-568(a) reads, in pertinent part, as follows:
The executive director, with the advice and consent of the board, shall determine the number of times a lottery shall be held in each year, the form and price of tickets therefor and shall award prizes to winning participants, determined in a manner designated by the executive director.
3 The official game procedures, which shall be approved by the Gaming Policy Board, Conn.Gen.Stat. § 12-568; Administrative Regulations, Operation of a State Lottery, Reg. § 12-568-1(c), will establish the circumstances under which such a change may occur. The wagerer's right to receive the prize money, however, will be undisturbed by such a change.
4 In such an eventuality, however, such erstwhile prize money is later designated as another prize and eventually distributed.