Another sweepstakes charge dismissed
Charges against a sweepstakes store manager for operating illegal machines were dropped in court this week.
Despite a Supreme Court ruling in December 2012 that made sweepstakes illegal once again, many sweepstakes distributors have come out with software they claim is in compliance with the law. Rather than a game of chance, the new games require players to use “skill and dexterity” to play, which is a loophole in the statute.
Tami Nicholson, manager of Winner’s Circle on South Main Street, was charged for operating illegal sweepstakes machines following an undercover operation in February, though she claimed her games required skill and dexterity to play.
Angela Nicholson, a clerk at the Winner’s Circle, was charged with the same crime. But District Court Judge Monica Leslie dropped that charge in August, saying the state failed to prove beyond a reasonable doubt that the machines did not require skill and dexterity to play.
District Attorney Mike Bonfoey said the case was dismissed because the two cases used the same evidence and officer testimony.
“It was the exact same evidence. It was a different judge, but if this particular judge found this particular defendant guilty, it would have been inconsistent verdicts, and I didn’t think that would be fair or just,” he said.
The case, he stressed, does not hold any bearing on future cases.
“It has no precedential value whatsoever,” he said. “We are going to evaluate every case on a case-by-case basis and if the evidence is good enough to go forward, we will.”
As far as Nicholson is concerned, the dismissal is proof of her claim all along — that the games she ran at Winner’s Circle on South Main Street in Waynesville were legal. When she was charged, she immediately hired a lawyer to help her fight back.
“I had no animosity toward the Waynesville Police Department. Their job is to enforce the law and that’s what they did. It was never about me being against the town of Waynesville. It was about trying to get what I knew to be legal in front of a judge,” Nicholson said.
Her frustration is not with the local authorities, but with the lack of consistency in the enforcement of the law.
“There is no unification across the state,” she said. “There are people in other counties that are even running Pots of Gold, which are not legal.”
When the ruling came down from the Supreme Court that sweepstakes machines were illegal, she removed all of her games. She then replaced them with new games that fell under the skill and dexterity exception.
Because legislators did not include a definition for the words “skill” and “dexterity,” and the N.C. attorney general did not offer any opinion about what types of video sweepstakes, if any, are legal. It has been left to local authorities to decide how to enforce the ban.
In Haywood County, officers have decided to consider all sweepstakes machines illegal and leave the statutory interpretations up to a judge.
Nicholson’s attorney, George Hyler, has been victorious in each of the three sweepstakes cases he has defended. In an interview following a not guilty verdict in a Macon County sweepstakes case in April, Hyler said decisions from judge to judge can differ.
“When you have a district court judge in a district make a finding, that’s not binding on every other district court judge. Each particular case would have to be viewed by a different judge on its merits and determined by its particular set of facts,” Hyler said
Now that her charges have been dropped, Nicholson hopes she can move forward with her business.
“I’m done with court battles. I did what I needed to do and I proved my case,” she said.
For months after Winner’s Circle closed down, Nicholson continued to pay for the monthly lease on the building. But uncertain of how long the court case would drag on, she let the lease go at the end of July.
Now that she is free and clear of any charges, she intends to reopen at least two Winner’s Circles — one in the Jonathan Creek area and one in Waynesville.
She’s also received several calls from other businesses across the county and beyond who have asked her to place her machines in their stores.
“I respect the police for what they did and now I hope they can respect me as a legal business owner,” she said.
Nicholson said she recognizes that sweepstakes machines are illegal, but said the recent ruling in her case proves that the games in her store are legal under the skill and dexterity exception to the law.
“I believe we have proven that our machines are legal,” she said.
So far, Nicholson’s is the only winning case in Haywood County. James Locker, who owned a sweepstakes business on South Main Street known to many as The Rock House, was found guilty of running illegal sweepstakes machines in May. William Lankford, who owns Lankford’s Grocery in Canton, is due in court for a similar charge in October.
Nicholson hopes that this is the end of her battles with the law.
“We feel like we’ve come to a peaceful ending to this,” she said.
Waynesville Police Chief Bill Hollingsed said he and other law enforcement in the county have met and discussed the issue and intend to continue enforcement of the ban.
“Until a superior court or another judge forbids the enforcement of video sweepstakes then it is still a violation of the law in North Carolina,” said Hollingsed.
He compared sweepstakes violations to any other criminal charge. For example, if a district court judge dismisses a person’s driving while impaired case, that does not mean that driving while impaired is legal.
“That doesn’t make the DWI for the entire state now invalid. Driving while impaired is still illegal. Just because you have a not guilty verdict it does not invalidate the overall statute,” he said.