Oregon Racing, Inc. v. Oregon State Lottery

281

Submitted September 24, 2019, affirmed March 31, 2021

OREGON RACING, INC.,

Petitioner,

v.

OREGON STATE LOTTERY,

Respondent.

Oregon State Lottery Agency

A168343

485 P3d 912

Oregon Racing, Inc. (ORI), which operated a card room at the Portland

Meadows racetrack, sought a declaratory ruling from the Oregon State Lottery

as to whether two of ORI’s practices—(1) charging a door fee to all patrons in the

area used for poker playing and (2) exchanging players’ chips and holding their

money during poker games—disqualified ORI from the “social games” exception

to statutory prohibitions on unlawful gambling. The Lottery issued a declaratory

ruling in which it concluded that the door fee generated “house income” for ORI

and the chip exchange made ORI a “house bank,” meaning that ORI was not

operating a “social game” as defined in ORS 167.117(21), and, thus, in essence,

that ORI’s operations were unlawful gambling. ORI seeks judicial review of that

ruling. Held: The ordinary meaning of “house bank” includes a gambling estab-

lishment’s supply of chips for purchase and use by players in a poker game, and

nothing in the text, context, or history of the statute evidenced the legislature’s

intent to restrict the term to a dealer against whom bets are placed or the sum of

money used by the house; accordingly, the Lottery correctly concluded that ORI’s

practice of exchanging players’ money for chips and holding and safeguarding

players’ money during gameplay meant that ORI was acting as a “house bank” for

purposes of ORS 167.117(21). The phrase “house income from the operation of the

social game” most plausibly referred to any benefit that the “house” derived not

from the mere presence of the social game (such as increased food and beverage

sales or attendance) but from the operation of the game itself—including fees

for accessing the games; thus, the Lottery correctly concluded that the door fees

charged by ORI to enter the area for playing poker were “house income” under

ORS 167.117(21).

Affirmed.

William L. Rasmussen and Miller Nash Graham & Dunn

LLP filed the briefs for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Carson L. Whitehead, Assistant

Attorney General, filed the brief for respondent.

Craig J. Dorsay, Lea Ann Easton, and Dorsay & Easton

LLP filed the brief amicus curiae for The Confederated

Tribes of Siletz Indians.

282 Oregon Racing, Inc. v. Oregon State Lottery

Before Lagesen, Presiding Judge, and DeVore, Judge, and

Powers, Judge.

LAGESEN, P. J.

Affirmed.

Cite as 310 Or App 281 (2021) 283

LAGESEN, P. J.

This case involves a dispute between Oregon

Racing, Inc. (ORI) and the Oregon State Lottery over the

correct interpretation of state gambling laws. ORI, which

operated a card room at the Portland Meadows racetrack,1

sought a declaratory ruling from the Lottery as to whether

two of ORI’s practices—(1) charging a door fee to all patrons

in the area used for poker playing and (2) exchanging play-

ers’ chips and holding their money during poker games—

disqualified ORI from the “social games” exception to statu-

tory prohibitions on unlawful gambling (and, consequently,

from obtaining a video-lottery retailer contract). See ORS

183.410 (describing the process for obtaining a declaratory

ruling from an agency with respect to applicability of stat-

utes or rules the agency enforces). The Lottery then issued

a declaratory ruling in which it concluded that the door fee

generated “house income” for ORI and the chip exchange

made ORI a “house bank,” meaning that ORI was not oper-

ating a “social game” as defined in ORS 167.117(21), and,

thus, in essence, that ORI’s operations were unlawful gam-

bling. ORI now seeks judicial review of that ruling. See ORS

183.410 (providing for review of declaratory rulings in the

same manner as an order in a contested case). Reviewing

the Lottery’s construction of the terms “house income” and

“house bank” for errors of law, Rhine v. Racing Comm., 40

Or App 651, 656, 596 P2d 576 (1979), we affirm.

BACKGROUND

For purposes of the declaratory ruling, the par-

ties stipulated to the relevant background facts, which we

draw from the Lottery’s ruling. ORI operated the Portland

Meadows racetrack (before it was torn down) and had a

retailer contract with the Lottery for video lottery termi-

nals. ORI and other public establishments in Portland with

those contracts (collectively, “retailers”) also provided space

1

It came to our attention that Portland Meadows racetrack has since closed

and the buildings have been razed. The parties have represented ORI is still

operating a card room and that the issues decided by the Lottery still present

a live controversy. Based on the representations of the parties, we agree and

proceed to the merits of their arguments. We state the facts about the Portland

Meadows premises and card room in the past tense in recognition of the reality

that the track at this point is Portland history.

284 Oregon Racing, Inc. v. Oregon State Lottery

and coordination for poker games on the premises, among

other entertainment and services. The poker games were

exclusively among players with no affiliation to the retail-

ers, and the retailers had no stake in and earned no direct

income from the play of the games (for example, there was

no commission for operating the game, no tournament entry

fees, and no per-hand rake from the games). The poker

games operated according to rules published by national

poker organizations, and the retailers did not set gaming

odds.

At ORI’s premises, poker games were held in a lim-

ited part of the Portland Meadows campus referred to as the

Gaming Room. The Gaming Room had poker tables, large-

screen monitors that provided information about the poker

games, a dedicated bar, dedicated food service, large-screen

TVs with an upgraded sports package, and other diversions,

including ping pong, video golf, E-games, chess, cribbage,

and fantasy sports. ORI charged a $15 door fee to each

patron who entered the Gaming Room, and that fee was the

same regardless of whether or not a patron played a poker

game in the Gaming Room. ORI did not typically charge a

door fee for access to other parts of the Portland Meadows

campus.2

To facilitate the poker games, ORI provided chips

to the players. The players exchanged money for the number

of chips that they would like to have available for play. ORI

secured that money during gameplay and then returned

all money to players at the end of each gaming session.

The amount of money returned to an individual player

depended on the type of game that the player was playing.

For some games, one or more of the players who won the

most chips received monetary prizes based on the amount

of chips that they won, while other players did not receive

any money back. For other games, each player received

money in proportion to the number of chips that the player

won or lost during play. ORI did not earn income or other-

wise profit from safeguarding the players’ money during

gameplay.

2

The exceptions were the Third Floor Turf Club during events and special

events that involved a door charge to enter the Portland Meadows building.

Cite as 310 Or App 281 (2021) 285

ORI and other retailers conducting poker games

on their premises had social game licenses from the City

of Portland, which had deemed them in compliance with

state and local social gaming laws, which are exceptions

to Oregon’s prohibitions on “unlawful gambling.” See ORS

167.117(7) (defining “gambling” and listing exceptions, includ-

ing “(c) social games”); ORS 167.117(24) (defining “unlaw-

ful” to mean “not specifically authorized by law”); see also

ORS 167.122 (defining the crime of second-degree unlawful

gambling); ORS 167.127 (defining the crime of first-degree

unlawful gambling). A “social game” is defined as

“(a) A game, other than a lottery, between players in a

private home where no house player, house bank or house

odds exist and there is no house income from the operation

of the social game; and

“(b) If authorized pursuant to ORS 167.121 [allowing

local governments to authorize and regulate social games

in businesses, clubs, and public accommodations], a game,

other than a lottery, between players in a private business,

private club or place of public accommodation where no

house player, house bank or house odds exist and there is no

house income from the operation of the social game.”

ORS 167.117(21) (emphasis added).

Despite ORI’s social game license from the city,

the Lottery in 2017 issued an order to ORI terminating its

video-lottery retailer contract after determining that poker

games occurring on the premises did not qualify as “social

games” and therefore constituted unlawful gambling. The

parties subsequently entered into an agreement whereby the

Lottery withdrew that termination order so that the two key

compliance issues underlying the order could be addressed

through the declaratory ruling process. The petition for a

declaratory ruling framed those two issues as follows:

“1. If ORI charges a door fee for all patrons to enter the

‘Gaming Room’ of the Portland Meadows campus, does such

income constitute ‘house income’ under ORS 167.117(21),

which disqualifies the on-site poker games from the ‘social

game’ exception to state gambling laws * * *?

“2. Does the practice of exchanging players’ money for

chips and holding and safeguarding players’ money during

286 Oregon Racing, Inc. v. Oregon State Lottery

gameplay mean that ORI is acting as ‘house bank’ under

ORS 167.117(21), which disqualifies the on-site poker games

from the ‘social game’ exception to state gambling laws

* * *?”

ORI argued that both questions should be answered

in the negative. It contended that, viewed in its proper his-

torical context, the social game exception was intended to

prohibit two categories of betting: “banked” games in which

the gambling establishment (or “house”) participates in the

game through a house player, under odds set by the house,

and the wins and losses are paid out of or into the house

bank; and commission or percentage games, in which the

players wager against one another instead of the house, and

the house earns income by taking a scaled commission from

each pot, known as the “rake” or “rake-off.” Viewed in that

historical context, ORI argued, the term “house bank” was

never intended to include the practice of simply exchang-

ing chips and safeguarding the money during gameplay;

moreover, ORI argued, the phrase “house income from the

operation of the social game” should be understood to refer

to direct income from commission or percentage games, not

indirect income from door fees like those ORI was charging.

The Lottery did not view the social game exception

the same way, and issued a declaratory ruling answering

both questions in the affirmative. As for the first question, it

concluded that “the phrase ‘operation of the social game’ is

broad enough to include not only the playing phases of the

game, but other activities necessary to ensure that the game

is carried out—including securing premises for the game

and soliciting players.” Thus, “house income from the oper-

ation of the social game” includes a door fee where “games

operated in the Gaming Room are an incentive to pay the

door fee and enter the room.” As for the second question, the

Lottery concluded that the term “bank” has several ordi-

nary meanings in the context of gambling, but “house bank”

is a phrase that “at the very least encompasses a supply of

chips, or other similar tokens, that the house keeps, sells,

and redeems.” The Lottery ruled that ORI, which kept, sold,

and redeemed the chips for poker games in the Gaming

Room, therefore acted as a house bank, taking its games out

of the social game exception.

Cite as 310 Or App 281 (2021) 287

ORI seeks judicial review of the declaratory ruling,

arguing that the Lottery’s broad construction of the terms

“house income” and “house bank” ignores the history and

context of those terms, has resulted in contradictory direc-

tives for Portland retailers, given the choices Portland has

made in regulating card games, and has undermined the

city’s regulation of social gaming.

DISCUSSION

Our task on judicial review is to determine what

the legislature intended by using the phrases “house bank”

and “house income from the operation of the social game”

in ORS 167.117(21)(b). To that end, we consider the text,

context, and any relevant legislative history of that statute,

resorting, if necessary, to maxims of construction. State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

Although the text and context of ORS 167.117(21)

in particular remain our primary concern, a brief history of

Oregon’s “social game” exception to the gambling laws pro-

vides helpful context for our analysis.

In 1971, Oregon revamped its criminal code, includ-

ing laws concerning gambling. The drafters explained

that “[t]he sections on gambling focus on the professional,

exploitative kind of conduct and do not prohibit the ‘friendly

social game.’ ” Criminal Law Revision Commission Proposed

Oregon Criminal Code, Final Draft and Report, Forward,

XXII (July 1970).

As initially enacted, the criminal code included a

social game exception that was embedded in the definition

of “player” in the gambling laws:

“(7) ‘Player’ means a person who engages in any

form of gambling solely as a contestant or bettor, without

receiving or becoming entitled to receive any profit there-

from other than personal gambling winnings, and without

otherwise rendering any material assistance to the estab-

lishment, conduct or operation of the particular gambling

activity. A person who gambles at a social game of chance

on equal terms with the other participants therein is a per-

son who does not otherwise render material assistance to

the establishment, conduct or operation thereof by perform-

ing, without fee or remuneration, acts directed toward the

288 Oregon Racing, Inc. v. Oregon State Lottery

arrangement or facilitation of the game, such as inviting

persons to play, permitting the use of premises therefor and

supplying cards or other equipment used therein. A person

who engages in bookmaking is not a player.”

ORS 167.117(7) (1971) (emphasis added).

The drafters explained:

“The underlying purpose of the sections is to get at the

professional who exploits the popular urge to gamble. The

individual citizen who places a bet is not criminal. This

approach to the gambling statutes eliminates the need for

a special immunity statute because the ‘player’ would not

violate the law. Neither are friendly social games criminal

under the draft and a person does not promote gambling if

he merely invites friends in for a game and provides cards

or other paraphernalia. This results from the definition of

‘player’ in § 263(7) which exempts one who ‘gambles at a

social game of chance on equal terms with other partici-

pants’ so long as he does nothing more than to provide with-

out fee or remuneration the use of premises or the necessary

equipment.

“The Michigan revisers neatly state the case for exclud-

ing the friendly social game:

“ ‘Private consensual games are generally accepted as

socially if not legally proper, and there is no point in pre-

serving the fiction that they are undesirable.’ (Michigan

Revised Criminal Code at 465).”

Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Code, Final Draft and Report

§ 265, 257 (July 1970) (emphasis altered).

In 1973, the legislature revisited and attempted to

clarify the scope of the social games exception. Or Laws 1973,

ch 788. The legislature retained the definition of “player”

(including with regard to social games), but it also expressly

excepted “social games” from the definition of gambling. Or

Laws 1973, ch 788, § 1. It then separately defined the term

“social game” to make explicit that such games could occur

not only in a “private home” but also in a “private business,

private club, or in a place of public accommodation,” and it

introduced the term “house”:

Cite as 310 Or App 281 (2021) 289

“(11) ‘Social game’ means a game, other than a lottery,

between players in a private home or private business,

private club or in a place of public accommodation where

no house player, house bank or house odds exist and the

gross income from the operation of the social game does not

exceed 25 percent of the gross income of the private busi-

ness, private club or public accommodation.”

Or Laws 1973, ch 788, § 1. At the same time, the legislature

authorized counties and cities to regulate or even prohibit

social games. Or Laws 1973, ch 788, § 3 (“Counties and cities

may, by ordinance, prohibit, regulate, limit or license the

playing or conducting of a social game.”).

Much of the parties’ dispute about the current ver-

sion of the statute traces to their disagreement over what

the legislature intended to accomplish in 1973 by adding the

phrase “house player, house bank or house odds exist and

the gross income from the operation of the social game does

not exceed 25 percent of the gross income of the private busi-

ness, private club or public accommodation.” Accordingly, we

turn to the text, context, and history of that 1973 change.

We start with the meaning of “house,” because

the word plays a role in both interpretive questions we are

called to answer: whether ORI operates a “house bank,” and

whether the door charge is “house income.” It is a word that

can have more than one meaning when talking about gam-

bling. See Eugene Water and Electric Board v. PERB, 365 Or

59, 69, 442 P3d 596 (2019) (when construing statutes, unde-

fined words are given their ordinary meaning unless there

is reason to believe that the word or phrase is a term of art

with a technical meaning, such as in a trade, field of activ-

ity, or area of the law). Webster’s defines the term “house,”

in relevant part, to mean “(1) : the operators of a gam-

bling game : the management of a gambling establishment

: < a percentage of each pot goes to the ~ > (2) : a gambling

establishment : casino.” Webster’s Third New Int’l Dictionary

at 1096 (unabridged ed 2002); see also Webster’s at 932

(defining a “gambling house” as “a place where gambling is

carried on or allowed as a business”). In other words, the

“house” can refer to the persons operating or managing the

gambling operation, the gambling establishment itself, or

both.

290 Oregon Racing, Inc. v. Oregon State Lottery

Contextually, the legislature’s use of that term

in 1973 (and thereafter) most plausibly encompasses all

three—operators, managers, and the gambling estab-

lishment. From its inception, one fundamental difference

between “social” games and other gambling is the involve-

ment of persons other than the players themselves in the

playing or outcome of the game itself. The statutes, as writ-

ten, give us little reason to think that the legislature meant

to exclude from the definition of “house” anyone who would

ordinarily be included in that definition, or that it intended

for it to be narrow.

But the parties’ dispute on this particular point is

not so much about the meaning of “house” as it is about the

other terms added to the mix. As for the issue of whether

ORI runs a “house bank,” as mentioned earlier, ORI under-

stands the legislature to have used the terms “house player,

house bank or house odds” in ORS 167.117(21) to refer to

a specific type of game in gambling parlance, known as a

“banked game.” According to ORI, it was widely recognized

in 1973 that professional gambling enterprises offer two cat-

egories of games: (1) “banked” games (sometimes referred to

as “banking” games) and (2) “commission” or “percentage”

games.

Banked games, ORI explains, are those games in

which the gambling enterprise (“house player”) plays against

the private individual according to odds set by the enter-

prise (“house odds”). The house has an inherent advantage

in setting odds and earns income in the form of winnings,

and the winnings and losses are paid into and out of a fund

of money (the “house bank”). In commission games or per-

centage games, by contrast, the house does not participate

but instead operates the game for the individual players to

wager with each other and earns its income by taking a per-

centage from each pot, known as the “rake” or “rake-off.”

According to ORI, the legislature’s 1973 changes

are fully explained by the distinction between “banked” and

commission or percentage games. It argues that the leg-

islature used terms describing the elements of a “banked

game” (“house player,” “house bank,” and “house odds”) and

then permitted establishments to operate commission or

Cite as 310 Or App 281 (2021) 291

percentage games by allowing them a rake—“gross income

from the operation of the social game [that] does not exceed

25 percent of the gross income of the private business, pri-

vate club or public accommodation.”

Although ORI’s construction of the statute is not

an implausible reading, the text, context, and history of

the 1973 amendments ultimately do not convince us that

the legislature was drawing the clean distinction between

“banked” and “percentage” games that ORI contends.

Although the term “banked game” may have been a well

understood concept, telling is the fact that the legislature

did not say “banking game” or “banked game”—terms that

it could have used if it had intended to prohibit only those

types of games. See Webster’s at 172 (defining “banking game”

as “a gambling game in which bets must be laid against a

gambling house, banker, or dealer”). Instead, the legislature

used the term “house bank,” which can include but is not

confined to arrangements involving “banked games.” When

we talk about gambling, the word “bank” typically refers to

“[1] b : gambling house * * * [2] b : a person or persons

conducting a gambling house or game; specif : dealer * * *

[3] a (2) : the sum of money in certain gambling games (as

chemin de fer) that is deposited or stated by the dealer as a

fund from which to pay his losses b (1) the whole supply of

chips available for purchase and use by players in a game

played with chips (as poker).”

Webster’s at 172. See also id. (defining the verb “bank” to

include “to act as banker for (as a gambling game)” and

the noun “banker” to include, in the gambling context, “the

player who keeps, sells, and redeems the supply of chips

used in a game,” the “person who agrees to cover the bets

of all players up to a certain limit established as the bank,”

and “the dealer (as in blackjack) or a gambling house or its

representative against whom all bets must be placed”).

Thus, the ordinary meaning of “house bank” would

include the gambling establishment’s supply of chips for

purchase and use by players in a poker game. Even if the

legislature in 1973 was primarily concerned with banking

games, the text it enacted does not contains words of lim-

itation indicating that “house bank” is restricted to a dealer

292 Oregon Racing, Inc. v. Oregon State Lottery

against whom bets are placed or the sum of money used by

the house.

The legislative history supplied by the parties sur-

rounding the 1973 enactments provides little insight on this

particular question, and nothing that convinces us that the

legislature intended “house bank” to mean something nar-

rower than its ordinary meaning would suggest. Nor do any

of the later amendments to ORS 167.117(21) suggest that the

legislature’s continued use of the term “house bank” means

something narrower than its ordinary meaning in the gam-

bling context—that is, the person or persons conducting a

gambling house or game, including the dealer, against whom

bets are placed; the sum of money in certain gambling games

that is deposited or stated by the dealer as a fund from which

to pay his losses; or the supply of chips available for purchase

and use by players in a game played with chips.

For that reason, we agree with the Lottery’s con-

clusion that ORI’s practice of exchanging players’ money for

chips and holding and safeguarding players’ money during

gameplay meant that ORI was acting as a “house bank”

under the plain text of ORS 167.117(21). The public policy

considerations that ORI identifies—that it is safer for every-

one if ORI safeguards the players’ money and provides chips

for play—are not grounds for disregarding what the plain

text expresses, which is that a gambling establishment acts

as a “house bank” by exchanging chips for money regardless

of whether it takes a “rake.”

With that understanding, we proceed to the second

interpretive question posed in this case, which is what the

legislature intended by its restriction on “house income,”

which was added to the statute in 1974. The key change at

that time was to replace the phrase “the gross income from

the operation of the social game does not exceed 25 percent

of the gross income of the private business, private club or

public accommodation” with the phrase “no house income

from the operation of the social game.”3 Or Laws 1974, ch 7,

§ 1 (emphasis added).

3

The changes also broke up the definition:

“ ‘Social game’ means: [a game, other than a lottery, between players

in a private home or private business, private club or in a place of public

Cite as 310 Or App 281 (2021) 293

The Lottery looks to the ordinary meanings of

the terms used by the legislature to understand that pro-

vision. “Income” is defined as “a gain or recurrent benefit

that is usu. measured in money or for a given period of time,

derives from capital, labor, or a combination of both * * *

: commercial revenue or receipts of any kind except receipts

or returns of capital.” Webster’s at 1143. The term “opera-

tion” in this context typically means “the whole process of

planning and operating a business or other organized unit”

or “a phase of business or of business activity.” Webster’s at

1581 (providing, as examples of that usage, the “operation”

of a large household or steel mill).

That general meaning of “operation” is consistent

with how the term “operation” was used throughout other

parts of the gambling statutes in 1974. For example, a per-

son qualified as a “player” if the person did not “otherwise

render material assistance to the establishment, conduct or

operation thereof by performing, without fee or remuneration,

acts directed toward the arrangement or facilitation of the

game, such as inviting persons to play, permitting the use of

premises therefor and supplying cards or other equipment

used therein.” ORS 167.117(7) (1973) (emphasis added). By

implication, “acts directed toward the arrangement or facil-

itation of the game” were part of the operation of the game.

It was only if those activities were performed “without fee or

accommodation where no house player, house bank or house odds exist and the

gross income from the operation of the social game does not exceed 25 percent of

the gross income of the private business, private club or public accommodation.]

“(a) A game, other than a lottery, between players in a private

home where no house player, house bank or house odds exist and

there is no house income from the operation of the social game; and

“(b) If authorized pursuant to section 3 of this 1974 Act, a game,

other than a lottery, between players in a private business, private

club or place of public accommodation where no house player, house

bank or house odds exist and there is no house income from the oper-

ation of the social game.”

Or Laws 1974, ch 7, § 1 (deletions in brackets and italics; additions in bold). The

cross-referenced provision, section 3, essentially replaced the 1973 statute that

allowed cities and counties to prohibit or regulate social games; it provided that

“[c]ounties and cities may, by ordinance, authorize the playing or conducting of a

social game in a private business, private club or in a place of public accommoda-

tion. Such ordinances may provide for regulation or licensing of the social games

authorized.” Or Laws 1974, ch 7, § 3.

294 Oregon Racing, Inc. v. Oregon State Lottery

remuneration” that the person performing them would still

remain a “player” for purposes of ORS 167.117(7) (1973).

We agree with the Lottery that, in light of that text

and context, the phrase “house income from the operation

of the social game” most plausibly refers to any benefit that

the “house” derives not from the mere presence of the social

game (such as increased food and beverage sales or atten-

dance) but from the operation of the game itself—including

fees for accessing the games. The games operated in the

Portland Meadows Gaming Room were an incentive to pay

the door fee and enter the room, and those fees come within

the plain meaning of the phrase “house income from the

operation of the social game.”

In arguing for a contrary interpretation, ORI again

focuses on the distinction between “banked” and “percent-

age” games. It argues that the 1973 legislature intended to

preclude only the former and to allow gambling enterprises

to receive the latter—direct income in the form of a rake.

Through that lens, ORI views the 1974 change to “no house

income” to be a far more limited restriction on the house

taking a percentage from the operation of the game, not as

a restriction on the ability of card rooms to charge fees for

accessing the games.

ORI finds some support for its view in the 1974 leg-

islative history—including statements made during the floor

debates about “seat charges.” For example, Representative

Glen Otto asked Representative Norma Paulus, the carrier

of the bill (HB 3327), about a house “take” if he played a

friendly game of rummy at the Rialto. She answered:

“This—as the bill comes to you now, it excludes the 25%

of limitation on the house that was in before so that the

house could not get a part or skim off part of the game but

they could do under this bill is charge for the seat, but they

couldn’t get a percentage of the profits.”

Tape Recording, House Floor Debate, HB 3327, Feb 23, 1974,

Reel 6, Track II (statement of Rep Normal Paulus) (empha-

sis by ORI).

The difficulty for ORI’s argument, as the Lottery

points out, is that Representative Paulus thereafter made

Cite as 310 Or App 281 (2021) 295

a statement suggesting that indirect income from the oper-

ation of the game was prohibited. Immediately after the

remark about a seat charge, Representative Otto asked for

clarification on whether the house could charge “a fee for

using the equipment and tables,” to which Representative

Paulus answered “no.” Id. And statements by another rep-

resentative during the floor debate are ambiguous as to

whether “reasonable service charges” would include table or

seat charges:

“The 25 percent is unnecessary if the house is operating

the game to be a participating gamer, or if you will, a gam-

bler. There’s really no necessity for the house to do that. If

the house wants to provide a service for those who are partic-

ipating, the house can charge a reasonable service for what

is provided. If it’s a table for so long, if it’s a seat for so long,

that’s another matter. But there’s no real policy of law that’s

served by encouraging the house itself to become a party to

the gaming.”

Id. (statement of Rep Lewis Hampton) (emphasis added).

Ultimately, this is a case in which we cannot say

with any degree of confidence that particular comments

by individual legislators, even the carrier, represented the

views of the entire body as to the meaning of the phrase

“house income from the operation of the social game.” See

Vasquez v. Double Press Mfg., Inc., 364 Or 609, 632, 437 P3d

1107 (2019) (“As this court noted in Gaines, one of the pitfalls

that is ‘most fraught with the potential for misconstruction’

is reliance on the statement of a single legislator or witness

to misattribute that person’s understanding of a provision

to the legislative body as a whole.”). If anything, the com-

ments appear to reflect a range of perspectives on the vir-

tues and vices of the business side of social gaming. For that

reason, we rely on the text and context of ORS 167.117(21)

to conclude, as the Lottery did, that a “door fee” that is paid

to access poker games results in “house income” within the

meaning of the statute.

Affirmed.