Request By:
Lt. R. L. Gardner, Detective
Elizabethtown Police Department
111 West Dixie Avenue
Elizabethtown, KY 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Kenneth A. Meng, Assistant Attorney General
This is in response to your request for an opinion from this office regarding the offense of permitting gambling. Your request sets forth the following facts:
"A local known gambler has taken a lease on a commercial building in the City of Elizabethtown. The building is kept locked at all times and used solely for the purpose of multi-player card games. The lease holder readily admits to the use of the building for gambling activities, but says that it is provided to his friends at no charge to have a place to play. He insists he does not profit from the games other than what he may win. Thus far we have not been successful at proving otherwise although we have got reason to believe that he is charging a percent of the winnings as people leave the game.
There is a lot of traffic when the building is in use and players stay for as long as 3 or 4 days at a time."
The offense of permitting gambling is set forth in KRS 528.070 which provides:
(1) A person is guilty of permitting gambling when, having possession or control of premises which he knows are being used to advance gambling activity, he fails to halt or abate or attempt to halt or abate such use within a reasonable period of time . . . .
See Hahn v. Commonwealth, Ky., 453 S.W.2d 736 (1970).
A distinction must be drawn between the person who possesses premises that he or she subsequently discovers are being used for gambling purposes and the person who provides or acquires premises for the establishment of gambling activity. Brickey, Kentucky Criminal Law, § 25.04. The person who knowingly provides premises for gambling purposes is promoting gambling. Since the activity which you have described seems to involve something more than the mere discovery of gambling activity on one's premises and a subsequent failure to halt or abate the activity in a timely manner, promoting gambling in the second degree, KRS 528.030, seems to be a more appropriate statute to cover the situation.
KRS 528.030 provides, "(1) A person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity." Advancing gambling activity, defined in KRS 528.010, is essentially engaging in conduct, other than as a player, that materially aids gambling activity. Such conduct includes, for example, the establishment of the particular game or activity, the acquisition or maintenance of the premises to be used therefor, the solicitation or inducement of persons to participate therein, and conduct toward the actual conduct of the playing phases of the game or toward any other phase of its operation. KRS 528.010(1).
KRS 528.010 also offers a limited exception to the definition of advancing gambling activity. A person whose conduct is limited to providing the premises and supplying the equipment for a social game of chance does not advance gambling activity if he or she receives no remuneration or fee and gambles on equal terms with other participants. In our opinion, this provision was intended only to give a player who merely wants to play the opportunity to arrange a game. The statute does not punish the arrangement of friendly social games. Brickey at § 25.02(1).
A person who is profiting from gambling activity, as defined in KRS 528.010, accepts, receives, or agrees to accept or receive money pursuant to an agreement or understanding that he or she will participate in the proceeds of the gambling activity. KRS 528.010(8). Actual receipt of earnings is not a requisite of this provision. All that is necessary is an agreement or understanding that the actor will be entitled to a share of the proceeds. Brickey at § 25.02(2).
Related to the foregoing discussion is the defense of being a "player. " KRS 528.010(7) provides that the status of "player" is a defense to any prosecution under Chapter 528. KRS 528.010(7) defines "player" as:
A person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profits therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct, or operation of the particular gambling activity . . . .
By definition, there are two qualifications to the "player" status defense. First, if the person receives or becomes entitled to receive any profit other than his or her personal gambling winnings, he or she cannot invoke the defense of being a player. Second, if a person, in addition to participating in a game as a bettor, otherwise renders any material assistance to the establishment, conduct, or operation of the game, he or she loses the "player" defense, even though he or she receives no remuneration other than his or her personal gambling winnings. See Brickey at § 25.01(1). Thus, the player defense is not available to a person who profits from gambling activity or renders material assistance to the establishment, conduct, or operation of gambling activity.
It is the opinion of this office that permitting gambling is rendering material assistance to the establishment, conduct, or operation of gambling activity. Consequently, a person who is guilty of the offense of permitting gambling cannot successfully avail himself or herself of the "player" defense. Furthermore, one who is guilty of promoting gambling, either by profiting from or advancing gambling activity, cannot protect himself or herself by claiming to be a player.
Of course, the determination of whether a person is permitting gambling, promoting gambling, or is a player is a question of fact that cannot be answered in an Attorney General's opinion. We hope, however, that this Opinion clarifies the offenses of permitting gambling and promoting gambling and the defense of being a player.