Last updated on 2015.02.12
Attorney General Marty Jackley's 2015 legislative package has hit the hopper in the form of Senate Bills 11 through 18. Of particular interest to readers of this blog will be Senate Bill 18, AG Jackley's effort to make really, truly illegal the kind of raffle scam perpetrated by Chad Haber and Annette Bosworth in 2012 and 2013 and uncovered by this blog in November 2013.
SB 18 sets these rules for raffles and lotteries:
No lottery may continue for longer than eighteen months after the date on which the first ticket is sold. If an organization determines that a drawing cannot be held within eighteen months, the organization shall within thirty days notify all purchasers that the lottery cannot be completed or prize awarded, and that each purchaser is entitled to a full refund of the ticket price upon the submission of a request for refund. If a purchaser fails to contact the organization and request a refund within one hundred eighty days after the notice was given, the organization shall within thirty days remit the unclaimed refund amount to the Office of State Treasurer as unclaimed property [Senate Bill 18, South Dakota Legislature, posted 2015.01.07].
But look out! Senate Bill 18 reveals a Channette Loophole in our consumer protection laws. SB 18 adds violations of the above new rules to the list of deceptive acts or practices. But check out the existing penalty clause of that statute:
Each act in violation of this section under one thousand dollars is a Class 1 misdemeanor. Each act in violation of this statute over one thousand dollars but under one hundred thousand dollars is a Class 6 felony. Each act in violation of this section over one hundred thousand dollars is a Class 5 felony [SDCL 37-24-6].
Chad and Annette sold raffle tickets for $1,000 a pop, then failed to draw for the prize or refund buyers (at least not until public scrutiny and the AG's pressure forced them to hand cash back to a few of their marks). Under the above statute, would that have been a Class 1 misdemeanor or a Class 6 felony?
Update 2015.02.12 17:36 CST: The omission of exactly one thousand dollars from the deceptive trade practices statute came from the Attorney General's office just one year ago in its 2014 Senate Bill 23. In testimony on this year's Bosworth-Haber raffle-scam bill, SB 18, Attorney General Jackley said the dollar figure is aggregate, not per ticket, so selling 18 bogus raffle tickets for $1,000 each in violation of SB 18 would constitute a Class 6 felony.
More proof for Mr. kurtz that young Dr. Bos was just a cog in the Massive Republican Conspiracy. It is brilliant how Mr. Jackley puts that loophole in there and it took Mr. H's sharper eyes to grab onto it.
The key word, I think, is "over."
A raffle ticket that cost $1,000.01 would be a felony. A ticket costing $1,000.00 would be a misdemeanor.
It someone wanted to avoid possibility of a felony, the ticket could be sold for $999.999.
I can't seem to imagine aaaanyone buying a 100,000 dollar chance. Could it be construed to be "aggregate 'total' of tickets sold? Lawyers anyone???
JeniW, if "over" is a key word, so is "under". As written, this statute does not appear to encompass a scam that charges exactly $1,000.00.
Jaka, that's a good point. When the law says "each act," I'm unclear as to whether an act is the selling of one $1,000 ticket or the act of holding the fake lottery.
Maybe they'll have the hearing on SB 18 the same day as Bosworth's trial in Pierre, and she can buzz over and testify in opposition to this bill before committee.
Jaka - Maybe those chances higher than $100,000 are what Joop Bollen's been selling to the Red Chinese, courtesy of the S.D. Board of Regents.
Who here thinks that Mr. Jackley didn't know exactly that loophole amount when he wrote these laws? He is setting up the law to make it look like it would pummel these thieving lottery bossturds but in reality he is making it so he would not have to arrest Dr. Bos, because she sold tickets for exactly $1,000.
So selling a circumspect lottery ticket for $1000, while unlawful, has no penalty clause. Nice bunt.
Reading the bill as a whole, Cory, the 'violations' would be failure to inform participants that they are due a refund, and failure to remit unclaimed refunds to the state. That seems to imply that the dollar amounts would be aggregates. I don't think the amount of the ticket has anything to do with it. It's the total amount one tries to 'steal' on a 'per lottery' basis. But I agree, the language could perhaps be made more clear in that regard.
Example: you could sell lottery tickets for $50 to 10,000 people with the promise of giving away a nice home in the Black Hills and raise $500,000. If the deal falls through and you can't hold the drawing, you have to notify everyone that they have a refund coming. If you failed to notify 19 of them and tried to keep that money, you would be in violation at the misdemeanor level. At 21, you would be in felony territory. Same goes for unclaimed refunds going to the state. That's my read anyway. And on up the ladder. The more money you try to keep, the bigger the crime, regardless of the lottery buy-in amount.
The 'loophole' would be that if a person could invest that $500k for a year and earn 10% interest, s/he could walk away with $50,000 after paying back all the money to the ticket buyers and/or the state. It's a license to steal! LOL
Regardless of whether or not the loophole exists, the new law would not impact prior bad actors. So, there is nothing about this that would protect the actions or inaction of Dr. Bos. It would only impact those who run a scam after it becomes law. One cannot make past actions criminal when they were not criminal at the time of the action.
I am sure that if this language does in fact turn out to be a "loophole" it will be fixed as an oversight from whenever the statutory language of 37-24-6 was codified.
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