What distinguishes the playing of free poker with extra game pieces with a purchase, from that of getting a Monopoly game piece with a purchase at McDonald's?
The government has the ability to "chill" free expression in a unique way. A casino may kick you out of the building, or even ban you, or take your winnings. But the government has men who carry guns and badges who can deliver a much greater threat, including arrest and jail time. What defense do we have when the government brings a threat to our door, and does so without true legal merit?
I heard the story of a man who was running free bar poker tournaments. The Alcoholic Beverage Control (ABC) board apparently threatened the man with a police raid on the restaurant, arrests, and being charged with a felony. Needless to say the restaurants in question decided to no longer have free poker.
From what I heard, the heart of the disagreement involved the free poker venue bundling "bonus chips" with food purchases. Or put another way, an extra game piece with the purchase of a chicken sandwich, large fry, or super sized Coca-Cola.
So what distinguishes the playing of free poker with extra game pieces with a purchase, from that of getting a Monopoly game piece with a purchase at McDonald's?
Laws come in various types. I strongly suspect there is no legislative law on the books which codifies the legality of bonus chips in free poker games. Since all restaurateurs with any sense in their head run the other way when challenged, I strongly suspect there is no case law from a judge on this matter. What we end up with is a government official making a constructional argument on the legality of such things.
The truth be told, the ABC likely has no jurisdiction over gambling. What is the most likely case is that there is a law saying that alcohol may not be consumed in restaurants that have gambling, So the ABC does not bother with an arbitration of whether or not there is gambling, they just take the liquor license because of the a priori assumption of gambling.
Since bottling companies and fast food restaurants commonly have contests of chance by "giving away" a "free game piece" with purchase, why can't free poker do the same? Or better yet, is it legal or illegal in free poker?
To make an argument that Bonus Chips with food is legal, the obvious argument is that this arrangement is not gambling. This can be attacked in several ways. First, the argument can be made that poker is simply not gambling at all because of the skill element. See how far that gets you when the restaurant gets raided. Unfortunately the general consensus of the world, and Black's Law Dictionary, is that poker is a game of chance. Still, when faced with a court battle this is a good argument to use.
But for this specific type of poker, a good defense may lie in the "Valuable Consideration" prong of the gambling definition. Does paying $8.95 for a sandwich constitute valuable consideration?
What is being asked here is a game of chance permissible where it is incidental to a legitimate commercial transaction? In 1972 the Massachusetts supreme court ruled that a Mobil Oil gas station promotion lacked the element of consideration because game pieces could be obtained without the purchase of gasoline. Other jurisdictions rely on the "primary purpose" test in making the determination as to whether valuable consideration has been paid.
A finder of fact would look to see if the food purchase was made because the person was hungry, or to obtain the bonus chips. One way to determine this would be to observe if the food purchased was eaten or not. In cases where the bonus chips were obtained but the food was discarded, then the food with bonus chips transaction would fail the primary purpose test. Likewise if the food purchase was a buffet that either was not eaten by the purchasers, or was not stocked by the restaurant, then transaction would fail the primary purpose test.
A case was once presented where the purchase of a phone card with a game piece attached was made. Many of the phone cards were found in the trash after the game piece was removed. Many people discarded the phone cards once the winner of the prize was announced. Advertising on the phone card selling machine predominately promoted the chance to win a prize, not the use of the phone card. It was clear people were buying the chance to win, not the phone card.
In a common soft drink promotion, there is no evidence that consumers purchase the soft drink to look under the bottle cap then throw away the beverage. So the primary purpose is to purchase the soft drink.
Other factors to be considered would be is the food sold at the regular price, or is it inflated because of the bonus chip purchase? Is the price of the food consistent with the market price of food in that area? Is the food item in question regularly sold without the bonus chips? If a sandwich sells in the trading area for $8.95, but costs $50 with bonus chips then this purchase clearly will fail the primary purpose test.
It is possible that a court may find there is no indirect consideration if there is no premium paid for the food which would otherwise be purchased and consumed by the player.
A question becomes does the prize for the tournament come from the food purchases, or is the prize simply a part of the normal marketing budget for the restaurant? A $100 prize is certainly consistent with the normal marketing budget of a restaurant; perhaps a $10,000 nightly prize could be construed in other ways.
Some jurisdictions specifically allow for Promotional Advertising Schemes. This refers to the free promotional schemes used by soda manufacturers and fast food restaurants that distribute prizes to customers through random game pieces attached to the soda or fast food products.
Arkansas code states:
The method of business advertising conducted in this state by the giving away of prizes consisting of money or other thing of value where no payment of money or other thing of value is required of participants in the awards, whether the advertising plan is entitled "Bank Night", "Buck Night", or any other name whatsoever, is declared to be a legal form of advertising.
In an opinion from the Arkansas Attorney General, he states,
… this provision was enacted with the intent of allowing promotional advertising for products that are sold independent of a "promotional scheme" and that cost the same before, during, and after such a promotional advertising method. ... indirect consideration for a lottery or for gambling may be achieved through payment of inflated prices for goods or services as a cover for payment for a lottery ticket. A chance to win a promotional prize when purchasing a good or service that is priced the same with or without the promotional advertising scheme may well preclude any indirect consideration for the prize.
I can't say what a court or state agency might conclude, but I hope you enjoyed my ramblings.