ALBANY, NY -- The New York appeals court's Third Division here ruled on April 1 that Pace-O-Matic's Moxie Mania Empire Edition is an illegal gambling device because it contains strong elements of chance in its prize award phase. The ruling overturned last year's finding by a state Supreme Court justice that Moxie Mania was "a game of skill and not of chance" and therefore legal.
After that March, 2009, decision in favor of the game by acting Albany County Supreme Court Justice Roger McDonaugh, the State Liquor Authority filed an appeal, which was supported by the state Racing and Gaming Commission and resulted in this month's ruling against the machine.
Pace-O-Matic is waiting for further developments, said vice-president of sales and marketing Ron Carrara. If the SLA orders locations with liquor licenses to remove the machines as expected, "then they will be pulled in an orderly fashion," Carrara said.
Carrara ventured to say that Pace-O-Matic is unlikely to appeal the decision, having already invested considerable resources in the 18-month-long legal battle. "We have other irons in the fire we want to devote our resources to," Carrara said.
Moxie Mania Empire Edition was designed by Pace-O-Matic president Michael Pace. Players could insert banknotes of up to $100 to play a lightning-round of a tic tac toe style game. About a half dozen operators have installed an estimated 500 Moxie Manias, mostly in taverns upstate, Carrara said. The Empire State version was designed specifically to conform to New York laws regarding games of chance.
If New York operators are forced to remove Moxie Manias from taverns, Carrara reported, then Pace-O-Matic will assist in converting their games into versions that may be legally operated in Ohio, Michigan and South Carolina, among other states. If operators chose to sell the games instead, he added, Pace would assist in that endeavor, too. "We will support our operators whatever happens and whatever they decide," he said.
Installing Moxie Mania Empire Edition in such non-liquor licensed New York locations as convenience stores is probably not a viable option. Carrara explained that the state's lottery could be expected to forbid the placement of such games in venues where lottery tickets are sold.
The legal reasoning behind the April 1 verdict against Pace-O-Matic was clearly set forth in the judges' opinion. The appeals court said Moxie Mania Empire Edition is an illegal gambling device despite any skillful elements of gameplay because the amount of any cash prize won by a successful player depends on random action, or chance, which is illegal under New York statues.
Writing for the court, Associate Justice William McCarthy said in the final memorandum and order: "The prize is selected at random by the machine, is not revealed until after the Moxie (skillful gameplay) phase and may be more or less than a player might receive in the Moxie phase. Two players could receive different awards for solving the same number of puzzles in the same amount of time, based entirely on the randomly selected prize amounts. The prize amount could also be different for two players winning the perfect play phase, or even for one player winning that phase at different times."
Moxie Mania Empire Edition initially received approvals from the New York State Alcohol Beverage Control Division in 2008 and from local law enforcement in Buffalo. The game includes a patented feature called Zero Chance Technology, "which means if the player does what he is supposed to do, there is a winner every time," Carrara said when the game made its public debut in 2009.
As a condition of purchase, operators were required to sign an agreement with the games exclusive representative, Betson Enterprises, that stipulated the game would be installed in taverns only, not in malls or fraternal clubs, and out of proximity to schools. See story here.