PGT

MIRIAM A. VOGEL, J.

Pacific Gaming Technologies (PGT) places VendaTel vending machines in bus stations, truck stops, and other places where people are likely to buy prepaid telephone calling cards. Unlike ordinary vending machines, the VendaTel has a "sweepstakes" feature that pays out money. The VendaTel looks like a slot machine. It acts like a slot machine. It sounds like a slot machine. The trial court nevertheless said that it is not a slot machine. In our view, if it looks like a duck, walks like a duck, and sounds like a duck, it is a duck. [1] And so it is with this duck. We reverse.

PGT has marketed its telephone card vending machines in other parts of the country. In 1997, when it decided to market the VendaTel in California, PGT knew there might be a problem and voluntarily contacted the Attorney General (who represents the Division of Gambling Control of the Department of Justice). On August 26, 1998, representatives of the Attorney General's office inspected the VendaTel. On August 31, the Attorney General filed this action for declaratory and injunctive relief, asking for a determination that the VendaTel is an illegal gambling device and slot machine within the…

Pacific Gaming Technologies (PGT) places VendaTel vending machines in bus stations, truck stops, and other places where people are likely to buy prepaid telephone calling cards. Unlike ordinary vending machines, the VendaTel has a “sweepstakes” feature that pays out money. The VendaTel looks like a slot machine. It acts like a slot machine. It sounds like a slot machine. The trial court nevertheless said that *701 it is not a slot machine. In our view, if it looks like a duck, walks like a duck, and sounds like a duck, it is a duck. 1 And so it is with this duck. We reverse.

Facts

PGT has marketed its telephone card vending machines in other parts of the country. In 1997, when it decided to market the VendaTel in California, PGT knew there might be a problem and voluntarily contacted the Attorney General (who represents the Division of Gambling Control of the Department of Justice). On August 26, 1998, representatives of the Attorney General’s office inspected the VendaTel. On August 31, the Attorney General filed this action for declaratory and injunctive relief, asking for a determination that the VendaTel is an illegal gambling device and slot machine within the…

I dissent. In my view, the more specific exemption statute excludes the VendaTel from the prohibition of the more general anti-slot-machine legislation.

The legality of ordinary vending machines (those which dispense uniform merchandise for exact consideration and provide no element of chance) is beyond dispute. This case, however, concerns the legality of a machine *708 which possess the qualities of both a slot machine and an ordinary vending machine. Under Penal Code sections 330b and 330.1, 2 the VendaTel is an illegal slot machine because it provides an element of chance, regardless of whether it also dispenses telephone cards. Section 330.5, however, exempts from section 330.1 (and, by reasonable implication, section 330b) machines like the VendaTel which in every instance and for exact consideration provide “the customer . . . that which he purchases.” (§ 330.5.)

According to the majority, sections 330b and 330.1 should prevail over section 330.5 to render the VendaTel illegal. The majority essentially refuses to give legal effect to section 330.5 by limiting its protection to . ordinary vending machines that are indisputably legal regardless of any exemption.…