The Honorable Mary Estill Buchanan

Attorney General of Colorado — Opinion
November 12, 1975

RE: Authority of Secretary of State to audit records of bingo licensee

J.D. MacFARLANE, Attorney General

The Honorable Mary Estill Buchanan Secretary of State State Capitol Building Denver, Colorado 80203

Dear Ms. Buchanan

QUESTION PRESENTED AND CONCLUSION

This is in response to your letter of September 14 in which you ask whether the Secretary of State has the power to audit the books and records of organizations receiving funds from licensed bingo-raffle operators. The question arises in your enforcement of C.R.S. 1973, 12-9-107
which requires that:

The entire net proceeds of any game shall be devoted to a lawful use or uses; except that the licensee may retain no more than twenty-five percent of the net proceeds of any game of chance per occasion for bona fide purposes of the licensee.
I am unable to find any authority, express or implied, enabling the Secretary of State to audit donee organization’s books.

ANALYSIS

You state that it is difficult to determine whether the licensee has complied with the above requirements without being able to trace the use of the funds by the donee organization.

While I understand the difficulty, I am unable to find any authority, express or implied, enabling the Secretary of State to audit donee organization’s books. You are clearly authorized to audit the books and records of licensees under C.R.S. 12-9-109, which states that:

The licensing authority and its agents have power to examine or cause to be examined the books and records of any licensee to which any such license is issued insofar as they may relate to any transactions connected with the holding, operating and conducting of any game of chance.

There is, however, no such grant of authority to audit the books and records of donee organizations, and I must presume that had the legislature intended such a grant it would have expressly so stated.

I would note, however, the provisions of C.R.S. 1973, 12-9-103 dealing with the authority of the Secretary of State to hold public hearings on complaints. Specifically, subparagraph (c) authorizes the Secretary of State:

To hear and determine at public hearings all complaints against any licensee and to administer oaths and issue subpoenas to require the presence of persons and production of papers, books, and records necessary to the determination of any hearing so held;

Depending on the facts in a particular situation, it may be appropriate to subpoena the books and records of a donee organization pursuant to this authority.

SUMMARY

While the Secretary of State does have authority to audit the records of a bingo licensee, she does not have authority to audit the records of a donee organization, outside of the APA procedures employed in an administrative hearing.

Very truly yours,

J.D. MacFARLANE
Attorney General

SECRETARY OF STATE
CONTESTS
GAMBLING

C.R.S. 1973, 12-9-107 C.R.S. 1973, 12-9-103 C.R.S. 1973, 12-9-109

SECRETARY OF STATE, DEPT. Bingo Raffles, Div. of

While the Secretary of State does have authority to audit the records of a bingo licensee, she does not have authority to audit the records of a donee organization, outside of the APA procedures employed in an administrative hearing.