SANTA FE - Slot machines may now be legal in your living room, but state regulators don't expect them to become the next home fashion fad.
The state Court of Appeals ruled this week that the Gaming Control Board lacked the authority to seize 10 slot machines from an Alamogordo home in 1999.
The reasoning: There was no illegal gambling going on. Under New Mexico law, it's not a "game'' if it's played in a private home and the only money is made through winnings - in other words, the machine owner isn't profiting from the operation of the slots.
If it's not a "game'' it's not a gaming machine, and therefore not required to be licensed, and therefore not subject to forfeiture for being an unlicensed machine, the court held.
While the ruling applies statewide, a spokeswoman for the state Gaming Control Board said it was likely to have little practical effect.
Peggy Hardwick, senior staff counsel to the board, said slot machines - in addition to being expensive - are difficult to come by. Licensed dealers don't sell them to individuals, she said.
And even if vendors wanted to, Hardwick said she wasn't sure of the legality of such sales - or whether the board might be able to enact rules prohibiting them.
"The court did go out of its way to say we could continue to seize machines outside of private residences,'' Hardwick said - from truck stops, for example, where illegal machines occasionally turn up.
The court further said that slot machines that are not in private residences are presumed to be gaming machines - and therefore subject to seizure by the state.
Hardwick said the Court of Appeals opinion, which upheld a ruling by a state district court in Otero County, was not a surprise.
"I thought that there were good arguments on both sides. ... The Court of Appeals has told us our interpretation is wrong, so now we'll adjust our regulatory model accordingly,'' the spokeswoman said.
The board had argued that any machine that could be used for gambling qualifies as a gaming machine and comes under its jurisdiction.
The lawyer for the machines' three owners, Richard Hawthorne of Ruidoso, called the seizure and forfeiture action a "power play'' by the board.
"The gaming board thinks they have ... control over anything that looks, smells or tastes like a game in New Mexico,'' he said.
The machines were returned to the owners a couple of years ago - while the appeal was pending - by order of the state district judge, the lawyer said.
Hardwick said the Gaming Control Board appealed the district court's ruling to the Court of Appeals in order to get a decision that would apply statewide.
The board could appeal Tuesday's ruling to the state Supreme Court but hasn't yet discussed whether to do so, she said.
The Alamogordo residents who bought the machines from a Nevada distributor in 1997 intended to become distributors in New Mexico, but decided not to. Both sides in the case agreed that the slots were being played only by the owners and their acquaintances.
Hardwick said it's the only time the board has filed a forfeiture action against slot machines in a private residence.