Request By:
Senator Richie Sanders, Jr.
9th Senate District
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
Senator Richie Sanders, Jr., has requested an opinion regarding the following questions:
1. Under KRS 528.080(1), is it lawful to engage in the manufacture and sale of gambling devices which are fabricated and/or assembled within the Commonwealth of Kentucky so long as such devices are thereafter only distributed and transported to jurisdictions located outside of the Commonwealth, which permit the lawful use and operation of such gambling devices?
2. Further, would the lawful manufacture of gambling devices in the Commonwealth of Kentucky for subsequent sale, distribution, and transportation to lawful gaming jurisdictions located outside of the Commonwealth subject the manufacturer to criminal prosecution for possession of gambling devices within the Commonwealth under KRS 528.080(2), if the devices are held as inventory in Kentucky prior to their lawful sale, distribution, and transportation to such jurisdictions?
KRS 528.080 reads as follows:
(1) 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.
(2) Possession of a gambling device is a Class A misdemeanor.
In OAG 80-188 and OAG 82-85, this Office opined that "belief is an essential element of the offense" under KRS 528.080. In other words, possession of a gambling device only violates this statute if the possessor "believ[es] that it is to be used in the advancement of unlawful gambling activity." Since KRS 528.080 treats the manufacture of gambling devices no differently from their possession, the same reasoning would apply to the manufacture of such devices, so that there is no violation unless the manufacturer believes the devices are to be used to advance unlawful gambling.
Under the facts as described, there would appear to be no such belief on the part of the person(s) manufacturing the gambling devices and possessing them as inventory for shipment to jurisdictions where their use is lawful. Therefore, it would seem that the activities described in the request are lawful and would not subject the manufacturer to criminal prosecution under KRS 528.080.