Request By:
Mr. Arnold L. Mitchell
Commissioner
Department of Fish
& Wildlife Resources
East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Rodney V. Tapp, Assistant Attorney General
In your recent correspondence to the Attorney General, you have requested an opinion about a proposed study to be conducted by the Department of Fish and Wildlife Resources, Division of Fisheries. In order to secure certain biological data about black bass fish, the Division of Fisheries proposes to tag black bass. The tage will be given a monetary value and any angler who turns a tag into the Division will receive a specified cash award. You have asked whether the proposed scheme would violate the gambling laws of the Commonwealth.
Gambling as defined in KRS 528.010 (3) "means staking or risking something of value upon the outcome of a contest, game, gaming scheme or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome."
KRS 528.010 (9) provides as follows:
(a) 'something of value' means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or any interest therein, or involving extension of a service, entertainment or a privilege of playing at a game or scheme without charge.
It is our opinion that your proposal would not involve participation by persons who would be risking or staking something of value upon the outcome of a game or contest. Certainly, anglers must pay a license fee for the privilege of fishing in most instances, but they would not be risking either the fee or privilege by participation in the proposed activity. Therefore, the Division of Fisheries would not be involved in gambling activity as defined in KRS 528.010 (3).
KRS 528.010 (5) provides as follows:
(5) "Lottery and gift enterprise" means:
(a) A gambling scheme in which:
1. The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one or more of which are to be designated the winning ones; and
2. The winning chances are to be determined by a drawing or by some other method based upon the element of chance; and
3. The holders of the winning chances are to receive something of value.
(b) A gift enterprise or referral sales plan which meets the elements of a lottery listed in subsection (5) (a) is to be considered a lottery under this chapter.
First, it is noted that a lottery involves the payment of something of value by the players, an element that is absent from the proposal of the Division of Fisheries as was previously noted. Also, the outlined proposal does not involve the distribution of anything resembling chances to participants in the program. It is our opinion that your data gathering scheme does not constitute an unlawful gambling scheme.
Lastly, the primary thrust of the proposal would seem to be the completion of a study which is being conducted to further the public interest in the regulation of fish. Notwithstanding this statement, this opinion does not attempt to deal with any questions about the propriety of the proposed expenditure of fish and game funds except for the gambling question.