[1995/oagheade.htm]

OAG 95-23

June 7, 1995

Subject: Charitable Gaming - Wagering on Live Sporting Events - Videotapes of Prior Horse Races - Parimutuel Wagering

Written By: James M. Ringo

Requested By: Christopher W. Johnson

Syllabus: Raffles where the winner is determined by the outcome of a live sporting event rather than determined by a random drawing would not fall within the type of raffle authorized by the Charitable Gaming Act. KRS 237.505(18) specifically excludes "simulcast broadcasts of horse races" as well as wagering on live sporting events. Games of chance using videotapes of past horse races violate raffle requirements because each participant would not have equal chance of winning by random drawing. Straight or parimutuel wagering at charitable gaming facilities prohibited by KRS 230.361 et seq.

OAGs cited: OAG 82-4

Statutes construed: KRS 230.361; KRS 238.500; KRS 238.505(8); KRS 238.505(18); KRS 238.545(3)

OPINION OF THE ATTORNEY GENERAL

This is in response to a request from the Charitable Gaming Advisory Commission, for an opinion as to the effect of KRS 238.505(18), which excludes as charitable gaming "wagering on live sporting events," a common practice involving raffles occurring in the Commonwealth of Kentucky.

The request describes various raffles involved as follows:

Apparently, there are charitable organizations throughout the State which sponsor raffles or drawings linked to, tied into or otherwise dependent on the outcome of football and other such live sporting events. In some variations of the raffle, the point-spread is predicted by the players. In other variations, the game scores are predicted. Some versions of the raffle require only that the participant predict the winner. There are many, many permutations on this gaming concept, including the creation of "dream teams" (tied into a player's season performance in actual live games) or predictions of ultimate series or tournament winners. The live sporting events on which scores or results are predicted are not always professional, as this raffle scheme extends in many regions of the State to local non-professional (e.g. high school) events.

In a subsequent letter to this office, the Commission asked that we consider another common practice along with the ones set forth in the original letter. It describes this additional practice as follows:

There are charitable organizations which conduct games of chance (whether tied into a raffle or via straight wagering in the context of a "casino night") which are linked to, tied into or otherwise dependent on live horse races. Generally, videotapes of live horse races (run on a prior date) are used. We would direct your attention to KRS 238.505(18) wherein "wagering on live sporting events" is excluded from the games authorized under Kentucky's new charitable gaming laws. In responding to this inquiry, we would ask that you give consideration to whether such activities constitute parimutuel wagering governed by the state's racing authorities.

To begin, KRS 238.500, in pertinent part, provides:

The purpose of this chapter is to comply with constitutional requirements by establishing an effective and efficient mechanism for regulating charitable gaming which includes defining the scope of charitable gaming activities. . . ."

(Emphasis added.)

The language of these charitable gaming statutes is clear on its face and we need not resort to the rules of statutory construction in interpreting them. Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225, 229 (1989).

KRS 238.505(8) defines "raffle" as follows:

"Raffle" means a game of chance in which a participant is required to purchase a ticket for a chance to win a prize, with the winner to be determined by a random drawing . . . .

Those variations of the raffle set out in the request letter where the winner is to be determined by the outcome of the football game or other such live sporting events rather than determined by a random drawing would not fall within the type of raffle authorized by the Charitable Gaming Act. Such would be the case in those variations where the winner is determined by the raffle player that correctly predicts the point spread, the game score, or the winning team or participant, or predicts the ultimate winning team or player in a series or tournament rather than by a random drawing. KRS 238.545(3) requires that tickets for a raffle shall be sold separately and each ticket shall constitute a separate and equal chance to win. Such would not be the case where the winner is determined by the participant's prediction as opposed to a random drawing. Under this circumstance, each ticket would not have an equal chance of winning by a random drawing as required by KRS 238.545(3).

Moreover, to the extent the raffles involve predicting the outcome or winners of "live sporting events," the raffles would be in violation of the charitable gaming laws as such wagering is clearly excluded from the authorized games under KRS 238.505(18). That section provides:

"Special limited charitable game" means roulette, blackjack, poker, money wheel, baccarat, pusher-type games, any dice game where the player competes against the house, and any other game of chance as identified, defined, and approved by administrative regulation of the division, but shall not include slot machines, electronic video gaming devices, wagering on live sporting events, or simulcast broadcasts of horse races.

Of like effect would be games of chance conducted by charitable organizations which are linked to, tied into, or otherwise dependent on live horse races. KRS 238.505(18) specifically excludes "simulcast broadcasts of horse races" as well as wagering on live sporting events.

Although games of chance using videotapes of past horse races (run on days prior to the date of the raffle) or the straight wagering on these videotaped races at a "casino night" would not be "live," they would still violate the raffle requirements of KRS 238.505(8) and 238.545(3). Each ticket would not have an equal chance of winning by random drawing. In the videotaped horse race, as well as a live one, the winner is determined by the wager on a particular horse rather than determined by a random drawing. Moreover, the equal chance requirement would be frustrated if a participant had prior knowledge of the videotaped race's outcome.

In addition, straight wagering or parimutuel wagering at charitable gaming facilities on videotapes of live horse races run on a prior date would be in violation of the parimutuel wagering statutes, KRS 230.361 et seq. These statutes provide that parimutuel wagering shall be conducted only by a person authorized under KRS Chapter 230 to conduct a race meeting and only upon a licensed premises. KRS 230.361. See also OAG 82-4. Accordingly, such wagering at a charitable gaming facility would be in contravention of the parimutuel laws unless the facility was also licensed under KRS Chapter 230.

CHRIS GORMAN

ATTORNEY GENERAL

James M. Ringo

Assistant Attorney General