Could a Kentucky manufacturer build and store gambling devices only for sale where their use was lawful?

Plain-English summary

Kentucky's Attorney General concluded that a manufacturer could make gambling devices in Kentucky and hold them as inventory for shipment to jurisdictions where their use was lawful, on the facts the senator described. KRS 528.080 covered manufacture and possession, but required the person to believe the devices would be used “in the advancement of unlawful gambling activity.” The AG said the request described no such belief.

The opinion treated manufacture and possession the same way under this statute. It relied on earlier opinions saying “belief is an essential element of the offense” and concluded that the described export-only activity would not subject the manufacturer to prosecution under KRS 528.080. Its answer depended on the stated destination and the absence of belief in unlawful use.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did Kentucky's gambling-device statute prohibit making devices for legal use elsewhere? A: The AG said no on the described facts: the devices would be shipped to jurisdictions where their use was lawful, and the manufacturer was not described as believing they would advance unlawful gambling.

Q: Did storing the finished devices in Kentucky change the answer? A: No under the same facts. The opinion said KRS 528.080 treated possession and manufacture alike, including the required belief about unlawful use.

Q: What element mattered to the AG's answer? A: The statute required the person to believe the device would be used to advance unlawful gambling. The AG quoted earlier opinions calling that belief “an essential element of the offense.”

Background and statutory framework

Senator Richie Sanders, Jr., asked about devices manufactured and temporarily held in Kentucky before shipment to places where their use was lawful. KRS 528.080 listed manufacturing, selling, transporting, placing, possessing, and transactions affecting gambling devices, with knowledge of their character and belief in their use for unlawful gambling. The AG applied the belief requirement from OAG 80-188 and OAG 82-85 to both manufacturing and inventory possession.

Citations and references

• KRS 528.080: the gambling-device offense interpreted in the opinion.
• OAG 80-188 and OAG 82-85: earlier AG opinions cited for the belief element.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_813b6aa7-8987-4232-a32b-c2b99f3cb0d8/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_813b6aa7-8987-4232-a32b-c2b99f3cb0d8

Original opinion text

OAG 08-005

May 30, 2008

Subject: Application of KRS 528.080 to gambling devices man- ufactured for sale in other jurisdictions

Requested by: Senator Richie Sanders, Jr.
9th Senate District

Written by: James M. Herrick
Assistant Attorney General

Syllabus: The manufacture and possession of gambling devices in Kentucky, solely for the purpose of sale in other ju- risdictions where such devices are lawful, does not violate KRS 528.080.

Statute construed: KRS 528.080

OAG’s cited: OAG 80-188, OAG 82-85

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 manufac- ture 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 de- vices?
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2. Further, would the lawful manufacture of gambling devices in the Commonwealth of Kentucky for subsequent sale, distribu- tion, 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, distri- bution, 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 un- lawful gambling activity.” Since KRS 528.080 treats the manufacture of gambling devices no differently from their possession, the same rea- soning 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 de- scribed in the request are lawful and would not subject the manufac- turer to criminal prosecution under KRS 528.080.

Jack Conway
Attorney General
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James M. Herrick
Assistant Attorney General