Request By:
Senator Eugene P. Stuart
36th District, Jefferson County
6403 Coventry Court
Prospect, Kentucky 40059
Opinion
Opinion By: Steven L. Beshear, Attorney General; Linda Carnes Wimberly, Assistant Attorney General
You have written to ask whether the possession of fully operational antique slot machines kept in the home with no intent by the owner to use the machines to promote or participate in gambling activities is a violation of KRS 528.010 et seq.
KRS Chapter 528 generally imposes sanctions against those persons who advance or promote gambling activity. KRS 528.010(1) defines a person who advances gambling activity as one who, when acting other than a player, engages in conduct that materially aids any form of gambling activity. Gambling is defined as "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 . . .". KRS 528.010(3)e. A "gambling device" includes slot machines under KRS 528.010(4)(a).
Specifically, KRS 528.080 prohibits the possession of a gambling device. KRS 528.080(1) states:
A person is guilty of possession of a gambling device when, with knowledge of the character thereof, he manufactures, sells, transports, places or possesses a gambling device or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of any gambling device, believing that it is to be used in the advancement of unlawful gambling activity.
Under this statute belief is an essential element of the offense. Brickey, Kentucky Criminal Law, § 25.05. Therefore, when an owner possesses such a device, but has no intent to use the machine or a belief that the machine will be used to promote unlawful gambling activity, possession of the machine does not constitute a violation of KRS 528.080. It also appears that the buying, selling or trading of such machines would not be violative of KRS 528.080 as long as the person has no intent to use the machine or a belief that the machine will be used to advance or promote unlawful gambling activity.