Request By:
Honorable Richard C. Roberts
Whitlow, Roberts, Houston & Russell
Old National Bank Building
300 Broadway, P.O. Box 995
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: John Gray, Assistant Attorney General
Thank you for your letter of February 3, 1981, in which you ask: Can a publisher or owner of a newspaper, magazine, etc., be convicted pursuant to KRS 436.420 for advertising "charitable gaming" that is also a "lottery" as defined in KRS 528.010(10)(a)?
As you mention in your letter, the 1980 General Assembly enacted KRS 528.010(10)(a) and (b) to exempt from prosecution under Chapter 528 "charitable gaming. " It is the opinion of this office that KRS 528.010(10) is void and unconstitutional insofar as it seeks to decriminalize bingo or other lotteries or gift enterprises operated by charitable or religious organizations or institutions. (See OAG 80-408, in which this office opined that Section 226 of the Kentucky Constitution and the cases interpreting that Section indicate that absent a constitutional amendment to Section 226, any attempt on the part of the General Assembly to legitimize or "decriminalize" lotteries or gift enterprises, whether that effort be made by exempting certain classes of lotteries from the criminal sanctions which would otherwise be applicable by providing that maintenance of a certain status shall constitute a defense to criminal prosecution, or by seeking actively to license the operation of certain forms of lotteries is unconstitutional and void. )
Since a lottery operated as "charitable gaming" under KRS 528.010(10) is not a lawful activity, this office feels that the publisher or owner of a newspaper or magazine certainly could be subject to prosecution under KRS 436.420 for advertising such activities.