This section contains the nature of the case and procedural background.

For twenty-two years P has been running a concession business in various states throughout the country. D became aware that P intended to run a concession booth at the Brockton Fair where he would award a live goldfish (in a clear plastic bag containing water) as a prize to any person who succeeded in tossing a ping pong ball into one of a number of goldfish bowls aligned in P's booth. Some of the bowls were to contain live goldfish. D notified P that his offering of goldfish as prizes in connection with a game of skill or chance would violate G. L. c. 272, § 80F. 'No person shall offer or give away any live animal as a prize or an award in a game, contest, or tournament involving skill or chance.' P brought this action, obtained injunctive relief, and did give away live goldfish as prizes at the Brockton Fair on July 3, 4, and 5, 1980. D appealed.

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