Request By:
Mr. Douglas G. Sharp
Pallo, White & Monsky
Suite 100
730 West Market Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: W. Patrick Stallard, Assistant Attorney General
This is in response to your request for an opinion from this office as to the legality of a contest proposed to be sponsored by a weekly publication vis-a-vis Chapter 528 of the Kentucky Revised Statutes, our criminal law prohibiting certain activities in connection with gambling, as well as Section 226 of the Constitution of Kentucky, forbidding lotteries and gift enterprises.
You described the promotion as follows:
"This firm represents a weekly publication. This publication desires to have a promotion or contest which would consist of their publishing in their publication an entry blank consisting of a rectangle enclosing 50 numbered squares. They would award a prize to any entrant who circles the number of squares closest to a predetermined 20 squares. As proposed, there would be no entrance fee, nor would entrance in the contest be restricted in any way to those who purchase the publication. The publication would allow any person to duplicate the diagram in his or her own handwriting and enter the contest. There would be one set sum awarded per week to the entrant, or divided among the entrants, whose entry blank (s) most closely approximated the predetermined one. That sum would be advertised and would be given each week regardless of the number of people entering the contest. "
The elements of a lottery are prize, consideration and chance. KRS 528.010(5). See also
Commonwealth v. Malco-Memphis Theatres, 293 Ky. 531, 169 S.W.2d 596 (1943). Your description of the contest in question appears to have eliminated the element of consideration in that participants do not pay or agree to pay something of value as a pre-condition to eligibility for the prize. The elimination of consideration also obviates any remaining questions as to forms of gambling other than lottery. KRS 528.010(3).
Your second question as to the legality under our laws prohibiting certain gambling related offenses of another less fully described contest is one that we must refer back to you because of the contradictory information contained in the literature describing the contest which you enclosed. That literature contained the following:
"If you buy or sell anything advertised in this issue of Bargain Mart give us a call and tell us.
* * *
It is not necessary to buy or sell anything through Bargain Mart. Contest is open to all. Simply write or call us to enter."
Assuming, as you do, the elements of chance and prize, we can only say that if the practical effect here is that participants are required to pay or agree to pay something of value in order to participate, you are promoting a lottery. KRS 528.020-.030. If consideration is not a pre-condition to eligibility, your contest is not a lottery.
We trust this satisfactorily answers the questions which you have raised. If we can be of any further assistance, please feel free to contact us.