COMMONWEALTH OF KENTUCKY; CHRIS GORMAN, as Attorney General of Kentucky; PAUL F. ISAACS, as Secretary of the Justice Cabinet; DIVISION OF CHARITABLE GAMING OF THE KENTUCKY JUSTICE CABINET; CHRIS JOHNSON, as Director of the Division of Charitable Gaming; and NICHOLAS N. KING, as Commonwealth Attorney for the 30th Judicial District V. LOUISVILLE ATLANTIS COMMUNITY/ADAPT, INC.; USO OF KENTUCKY, INC.; DAUGHTERS OF JERUSALEM, INC.; WILLA MAE COUNCIL HOUSING CORPORATION; SPIRIT OF PEACE MISSIONARY BAPTIST CHURCH, INC.; REVEREND R. Z. MILLER; and FOSTER V. JONES, JR.; DUPONT MANUAL HIGH SCHOOL ALUMNI ASSOCIATION, INC.; DUPONT MANUAL HIGH SCHOOL ALUMNI ATHLETIC AUXILIARY; JONATHAN CREEK ROD & GUN CLUB, INC.; THE JONATHAN CREEK ROD & GUN CLUB SCHOLARSHIP AUXILIARY
Annotate this Case
Download PDF
RENDERED:
September 19, 1997; 2:00 p.m.
TO BE PUBLISHED
95-CA-2787-MR
COMMONWEALTH OF KENTUCKY;
CHRIS GORMAN, as
Attorney General of Kentucky;
PAUL F. ISAACS, as Secretary
of the Justice Cabinet;
DIVISION OF CHARITABLE GAMING
OF THE KENTUCKY JUSTICE CABINET;
CHRIS JOHNSON, as Director of
the Division of Charitable Gaming;
and NICHOLAS N. KING, as Commonwealth
Attorney for the 30th Judicial District
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 94-CI-4803
LOUISVILLE ATLANTIS COMMUNITY/ADAPT, INC.;
USO OF KENTUCKY, INC.;
DAUGHTERS OF JERUSALEM, INC.;
WILLA MAE COUNCIL HOUSING CORPORATION;
SPIRIT OF PEACE MISSIONARY
BAPTIST CHURCH, INC.;
REVEREND R. Z. MILLER; and
FOSTER V. JONES, JR.;
DUPONT MANUAL HIGH SCHOOL
ALUMNI ASSOCIATION, INC.;
DUPONT MANUAL HIGH SCHOOL
ALUMNI ATHLETIC AUXILIARY;
JONATHAN CREEK ROD & GUN CLUB, INC.;
THE JONATHAN CREEK ROD & GUN
CLUB SCHOLARSHIP AUXILIARY
AND
APPELLANT
95-CA-3087-MR
APPELLEE
FOSTER V. JONES, JR.;
DUPONT MANUAL HIGH SCHOOL
ALUMNI ASSOCIATION, INC.;
DUPONT MANUAL HIGH SCHOOL
ALUMNI ATHLETIC AUXILIARY;
JONATHAN CREEK ROD & GUN CLUB, INC.;
THE JONATHAN CREEK ROD & GUN
CLUB SCHOLARSHIP AUXILIARY;
USO OF KENTUCKY, INC.;
DAUGHTERS OF JERUSALEM, INC.; and
WILLA MAE COUNCIL HOUSING CORPORATION
v.
CROSSAPPELLANTS
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HON. GEOFFREY P. MORRIS, JUDGE
94-CI-4803
COMMONWEALTH OF KENTUCKY,
CHRIS GORMAN, as
Attorney General of Kentucky;
PAUL F. ISAACS; as Secretary
of the Justice Cabinet;
KENTUCKY JUSTICE CABINET;
DIVISION OF CHARITABLE GAMING
OF THE JUSTICE CABINET;
CHRIS JOHNSON, as Director of
the Division of Charitable GAMING;
and NICHOLAS KING, as Commonwealth
Attorney for the 30th Judicial District
CROSS/
APPELLEES
OPINION
AFFIRMING IN PART;
REVERSING IN PART
* * * * * * * * * * * * * * * * * * * *
BEFORE:
BUCKINGHAM, HUDDLESTON, and KNOPF, Judges.
BUCKINGHAM, JUDGE.
Various charitable organizations filed
declaratory judgment actions, which were consolidated, in the
-2-
Jefferson Circuit Court to determine the constitutionality of
various portions of the Charitable Gaming Act
(KRS 238.500 -.995).1
The trial court found parts of the Act
constitutional and other parts unconstitutional.
Having
considered the arguments of counsel and the applicable
authorities, we affirm in part and reverse in part.
Lotteries and gift enterprises historically have been
forbidden in this Commonwealth.
However, the Kentucky
Constitution was amended in 1988 to allow the General Assembly to
establish a state lottery and was amended again in 1992 to allow
the General Assembly to permit charitable lotteries and
charitable gift enterprises.
Ky. Const., § 226.
In response to
the 1992 amendment, the General Assembly passed the Charitable
Gaming Act in 1994, which set forth a comprehensive scheme for
the conduct, oversight, and regulation of charitable gaming.
The
constitutionality of various portions of the Act are at issue
herein.
The first issue concerns the constitutionality of
KRS 238.570(1) which imposes a fee on charitable gaming in the
amount of one-half of one percent of the gross receipts derived
from all charitable gaming conducted by charitable organizations
required to be licensed in the Commonwealth.
Section 226(2)(d)
of the Kentucky Constitution states that
1
The charitable organizations are not asking that the
statute be declared unconstitutional in its entirety.
-3-
[t]he General Assembly may by general law
permit charitable lotteries and charitable
gift enterprises and, if it does so, it
shall:
. . . .
(d) Provide for means of accounting for the
amount of money raised by lotteries and gift
enterprises and for assuring its expenditure
only for charitable purposes[.]
The trial court reasoned that the fee uses money raised from
charitable gaming for regulatory purposes and not for charitable
purposes as required by § 226 and is, therefore, in violation
thereof.
We disagree.
Section 226(2)(f) of the Kentucky Constitution provides
that
[t]he General Assembly may by general law
permit charitable lotteries and charitable
gift enterprises and, if it does so, it
shall:
. . . .
(f) Pass whatever other general laws the
General Assembly deems necessary to assure
the proper functioning, honesty, and
integrity of charitable lotteries and
charitable gift enterprises, and the
charitable purposes for which the funds are
expended.
Under this section, the General Assembly has the authority to
pass laws that it deems necessary to assure the proper
functioning of charitable gaming, including the regulatory fee
set forth in KRS 238.570(1).
Furthermore, we interpret § 226(2)(d), which provides
that money raised by charitable gaming be expended only for
-4-
charitable purposes, as requiring only that net proceeds be
expended only for charitable purposes.
KRS 238.550(3) allows
charities engaged in gaming to spend funds on such things as
rent, utilities, insurance, advertising, and security services.
It would be illogical for the General Assembly to be
constitutionally permitted to designate that charities can spend
funds for those noncharitable purposes listed in KRS 238.550(3),
but could not constitutionally designate that the same charities
may spend a portion of the gross receipts for a regulatory fee.
The trial court also ruled that KRS 238.570(1) is in
violation of § 170 of the Kentucky Constitution.
That section
provides, in relevant part, that "[t]here shall be exempted from
taxation . . . institutions of purely public charity, . . . and
the income of such property as is used exclusively for their
maintenance . . . ."
The trial court reasoned that the fee was
actually an unconstitutional tax on charitable organizations.
Again, we disagree.
Quoting from other authorities, the Court in Gray v.
Methodist Episcopal Church, 272 Ky. 646, 114 S.W.2d 1141 (1938),
held as follows:
[S]ince a tax is a charge imposed for the
purpose of raising revenue, a charge
primarily imposed for the purpose of
regulation is not a tax, and is not subject
to the constitutional limitations upon the
power of taxation. . . . If the primary
purpose of the legislature in imposing such a
charge is to regulate the occupation or the
act, the charge is not a tax even if it
produces revenue for the public.
-5-
Id. at 652, 114 S.W.2d at 1144.
Further, "[a] tax is universally
defined as an enforced contribution to provide for the support of
government, whereas a fee is a charge for a particular service."
Long Run Baptist Ass'n v. Sewer Dist., Ky. App., 775 S.W.2d 520,
522 (1989).
The funds generated from the fee imposed pursuant to
KRS 238.570(1) are kept in a separate account and are expended by
the Charitable Gaming Division only in the administration and
enforcement of the provisions of the Charitable Gaming Act.
The
fee is a regulatory fee and not a tax.2
The charitable organizations also argue that the fee
imposed by KRS 238.570(1) violates § 171 of the Kentucky
Constitution.
In relevant part, that section provides that
"[t]axes shall be uniform upon all property of the same class
subject to taxation within the territorial limits of the
authority levying the tax . . . ."
However, since we have
determined that the fee is not a tax, this argument is without
merit.
The fee imposed by KRS 238.570(1) is constitutional,
and the ruling of the trial court to the contrary is reversed.
The next issue is whether the tipping of a volunteer
charitable gaming worker is lawful.
2
KRS 238.540(4), as adopted
Since we hold that the fee imposed under KRS 238.570(1)
is a regulatory fee and not a tax, then the issue of whether
§ 170 of the Kentucky Constitution applies only to ad valorem
taxes is moot. We note, however, that it was held in Gillis v.
Yount, Ky., 748 S.W.2d 357, 358 (1988), that §§ 170-175 of the
Kentucky Constitution deal only with the power to tax property,
or ad valorem taxes.
-6-
in 1994, states in part that "[n]o person engaged in the conduct
and administration of charitable gaming shall receive any
compensation for services related to the charitable gaming
activities[.]"
The position of the Commonwealth is that this
prohibition against compensating workers includes tipping.
The
issue has now been settled by the General Assembly's amending of
KRS 238.540(4) in 1996 to explicitly prohibit tipping.
The trial
court's ruling that tipping is legal is therefore reversed.
The remaining constitutional challenges to the
Charitable Gaming Act raised by the charitable organizations were
rejected by the trial court.
Each will be reviewed herein.
KRS 238.500 states in part as follows:
The General Assembly of the Commonwealth of
Kentucky hereby declares that charitable
gaming conducted by charitable organizations
is an important method of raising funds for
legitimate charitable purposes and is in the
public interest. . . . The intent of this
chapter is to prevent the commercialization
of charitable gaming, to prevent
participation in charitable gaming by
criminal and other undesirable elements, and
to prevent the diversion of funds from
legitimate charitable purposes.
Section 226 of the Kentucky Constitution gave the
General Assembly the authority to permit charitable gaming and to
pass general laws to assure its proper functioning, honesty, and
integrity.
The charitable organizations argue that KRS 238.500
(which states in part that one intent of the Act is to prevent
the commercialization of charitable gaming) is vague, arbitrarily
imposed, and overbroad.
In fact, it is none of these.
-7-
A statute is impermissibly vague when a person disposed
to obey the law could not determine with reasonable certainty
from the language used that a contemplated conduct would amount
to a violation.
(1990).
Commonwealth v. Foley, Ky., 798 S.W.2d 947, 951
Because KRS 238.500 does not itself prohibit any
conduct, the vagueness argument has no applicability.
Section 2 of the Kentucky Constitution prohibits the
arbitrary exercise of power by state government by stating that
"[a]bsolute and arbitrary power over the lives, liberty and
property of freemen exists nowhere in a republic, not even in the
largest majority."
In order to pass constitutional muster in
this regard, a statute must be rationally related to a legitimate
state objective.
Lost Mountain Mining v. Fields, Ky. App., 918
S.W.2d 232, 233 (1996).
Charitable gaming is an exception to the
constitutional prohibition against lotteries and gift
enterprises.
Since the state may prohibit gambling entirely, it
may clearly put limits on charitable gaming which may not be put
on other legitimate enterprises.
Keeping charitable gaming from
becoming commercial, preventing participation by criminals, and
preventing the diversion of funds from legitimate charitable
purposes are all legitimate state objectives.
The statute is not
an arbitrary exercise of state power.
Likewise, KRS 238.500 is not overbroad.
"A challenge
for overbreadth must fail unless the law prohibits a substantial
amount of constitutionally protected conduct."
Natural Resources
and Environmental Protection Cabinet v. Kentucky Harlan Coal Co.
-8-
(hereinafter "Kentucky Harlan Coal"), Ky. App., 870 S.W.2d 421,
424 (1994).
As charitable gaming is not constitutionally
protected conduct, the statute is not overbroad.
The charitable organizations next contend that
KRS 238.505 limits participants in various games to the use of
paper cards, paper tickets, or paper sheets.
They claim that
limiting the use to paper is vague, arbitrary, and overbroad.
They argue that the statute disallows the use of computers or
electronics in charitable gaming.
However, the statute in
question merely defines the terms to be used in the rest of the
Act and even provides that these definitions do not apply if "the
context requires otherwise."
The statute does not limit
participants in charitable gaming to the use of paper.3
KRS 238.530(3) states as follows:
No person who is licensed as a charitable
organization or a charitable gaming facility
shall be eligible for licensure as a
distributor or manufacturer. No person who
is a licensed wholesaler or distributor of
alcoholic beverages shall be licensed as a
distributor or manufacturer. No person who
is licensed as a distributor shall be
3
KRS 238.505 was amended in 1996, after the trial court's
order was entered. KRS 238.505(2) now states that "[c]haritable
gaming shall not include . . . electronic video gaming devices
. . . ." However, the Division of Charitable Gaming also
established a regulation in 1996 concerning Keno, a game
employing computers. Regardless, there is a rational basis
related to a legitimate state interest in that electronic gaming
devices create a higher risk of manipulation by players,
distributors, and manufacturers. See Affidavit of Director of
the Division of Charitable Gaming. Thus, requiring the use of
paper would not be unconstitutional.
-9-
licensed as a manufacturer, and no person
licensed as a manufacturer shall be licensed
as a distributor.
The charitable organizations contend that the statute is
unconstitutional as overbroad and in violation of § 2 of the
Kentucky Constitution.
As we noted previously herein, a statute
is not overbroad unless it prohibits a substantial amount of
constitutionally protected conduct.
at 424.
Kentucky Harlan Coal, supra,
As there is no constitutional right to engage in
charitable gaming, the charitable organizations have failed to
identify any kind of constitutionally protected conduct upon
which KRS 238.530 would infringe.
Therefore, their
constitutional challenge that the statute is overbroad must fail.
Furthermore, KRS 238.530(3) does not violate § 2 of the
Kentucky Constitution as an arbitrary exercise of state power.
As indicated in the affidavit of the Director of the Division of
Charitable Gaming, the rational basis behind this statute is to
avoid commingling of duties and to insure that charitable gaming
is not controlled by one type of licensee, resulting in more
separate source records for regulatory review and thus more
access to information.
Thus, KRS 238.530(3) is constitutional.
The charitable organizations also challenge the
constitutionality of portions of KRS 238.535.
Section 238.535(1) exempts from the licensing requirement any
charitable organization whose gross receipts do not exceed $5,000
a year but imposes strict limitations on other charitable
organizations with higher gross receipts.
-10-
The charitable
organizations argue that the statute violates § 2 of the Kentucky
Constitution as an arbitrary exercise of power.
However, "[t]he
constitutionality of a statute will be upheld if its
classification is not arbitrary, or if it is founded upon any
substantial distinction suggesting the necessity or propriety of
such regulation."
Kentucky Harlan Coal Co. v. Holmes
(hereinafter "Holmes"), Ky., 872 S.W.2d 446, 455 (1994).
This
portion of the statute is "founded upon a substantial
distinction" as the legislature has apparently determined that an
organization's charitable gaming does not present the more
substantial risks presented by larger charitable gaming
enterprises when the gross receipts are below the annual
threshold amount.
KRS 238.535(1) is constitutional.
KRS 238.535(8)(b) requires that a charitable
organization operate continuously within the Commonwealth for
charitable purposes for a period of three years prior to
application for licensure.
KRS 238.535(8)(c) states that a
charitable organization must have been actively engaged in
charitable activities during the three years immediately prior to
such application and be able to demonstrate reasonable progress
in accomplishing its charitable purposes during this period.
KRS 238.535(8)(d) states that a charitable organization must have
maintained an office or place of business or operation, other
than for the conduct of charitable gaming, for one year in the
county in which the charitable gaming is to be conducted in order
to qualify for licensure.
The charitable organizations maintain
-11-
that these are unconstitutional restrictions on the ability to
conduct charitable bingo.
The charitable organizations challenge the residency
requirement in KRS 238.535(8)(b) as being in violation of the
commerce clause of the U.S. Constitution.
However, since the
record indicates that all charitable organizations herein have
been established in Kentucky for more than three years prior to
filing their applications for licensure, they lack standing to do
so.
"Before one seeks to strike down a state statute he must
show that the alleged unconstitutional feature injures him."
Second Street Properties, Inc. v. Fiscal Court of Jefferson
County, Ky., 445 S.W.2d 709, 716 (1969).
Furthermore, "[t]he
assertion of one's own legal rights and interests must be
demonstrated and the claim to relief will not rest upon the legal
rights of third persons."
Associated Industries of Kentucky v.
Commonwealth, Ky., 912 S.W.2d 947, 951 (1995).
We find no merit to the charitable organizations'
constitutional challenge to KRS 238.535(8)(c).
The Commonwealth
has a legitimate interest in insuring that charitable gaming
receipts are benefitting only organizations which are actively
involved in charitable works.
This interest is rationally
related to the requirement that only organizations which have
been performing charitable works for three years may be licensed.
Fields, supra.
Furthermore, the three-year threshold is not
unreasonable.
-12-
There is likewise no merit to the charitable
organizations' constitutional challenge to KRS 238.535(8)(d).
The Commonwealth has a legitimate state objective in preventing
illegitimate, "fly-by-night" organizations from running
charitable gaming operations.
Requiring that an organization
must have maintained an office or place of business or operation,
other than for the conduct of charitable gaming, for one year in
the county in which the charitable gaming is to be conducted in
order to qualify for licensure is rationally related to that
objective.
Fields, supra.
KRS 238.540(1) provides that "[c]haritable gaming shall
be conducted by a licensed charitable organization at one (1)
location which shall be stated on the license."
The charitable
organizations contend that this statute is unconstitutional as an
arbitrary and unreasonable restriction.
However, the statute
clearly is rationally related to the legitimate state interest in
monitoring charitable gaming operations and enforcing the
Charitable Gaming Act.
Limiting an organization's charitable
gaming to one location allows better monitoring and enforcement
of the laws.
It is a valid exercise of the state's police
power.4
4
Similar statutes imposing time and place restrictions on
charitable gaming have been held constitutional in other states.
See e.g., Joseph Bros. Co. v. Brown, 415 N.E.2d 987, 993 (Ohio
App. 1979) (upholding a statute providing that a bingo hall may
be used by only two organizations per week); Durham Council of
the Blind v. Edmisten, 339 S.W.2d 84, 87 (N.C. App. 1986)
(upholding a statute restricting charitable organizations from
conducting more than two bingo sessions per week).
-13-
KRS 238.540(4) requires that charitable gaming shall be
conducted and administered solely by officers, members, and bona
fide employees of the licensed charitable organization and that
no person engaged in the conduct and administration of charitable
gaming shall receive any compensation for services related to the
charitable gaming activities.5
This restriction is rationally
related to the Commonwealth's legitimate interest in insuring
that charitable gaming does not become a commercial enterprise
(resulting in profits to individuals), but remains purely a fundraising opportunity to further charitable works.6
As for the
argument of the charitable organizations that KRS 238.540(4) is
facially overbroad, they again fail to identify a
constitutionally protected right which is threatened by this
legislation.
Thus, the argument fails.
Kentucky Harlan Coal,
supra.
The charitable organizations also attack the
constitutionality of KRS 238.540(5) which provides that
5
KRS 238.540(4) was amended in 1996. It now allows the
use of volunteers but requires that they be readily identifiable
as volunteers. In addition, tipping is now explicitly
prohibited.
6
Other states have upheld laws prohibiting paid charitable
gaming employees, based on similar charitable gaming statutes
which allow gaming that is not to operate for any individual's
profit but for charity fund-raising. See State v. Johnson, 643
P.2d 666, 668 (Ore. App., 1982) (upholding conviction of
organization for paying members to conduct bingo games); Brown v.
Marine Club, Inc.. 365 N.E.2d 1277, 1282-83 (Ohio Ct. of Common
Pleas 1976) (holding that the defendants would no longer be able
to pay workers to conduct charitable game).
-14-
[n]o licensed charitable organization shall
contract with, or otherwise utilize the
services of, any management company or
consultant in managing or conducting
charitable gaming.
The organizations argue that their organizations are too small to
conduct charitable gaming efficiently without the aid of
consultants or management companies.
Nonetheless, this
restriction is clearly rationally related to the state's
legitimate interest in preventing the commercialization of
charitable gaming and in insuring that the funds raised in such
games are not diverted from legitimate charitable purposes.
Thus, the statute is not an unconstitutional arbitrary exercise
of power by state government.
The charitable organizations further argue that
subsections (4) and (5) of KRS 238.540 constitute "special
legislation" in violation of § 59 of the Kentucky Constitution.
They allege that these rules favor large charities such as
Catholic schools and churches whose bingo enterprises are so
well-established that management companies or consultants are not
necessary, and who have a ready supply of members and employees
to help out.
However, the fact that the legislature deals with a
special subject (such as charitable gaming) does not necessarily
make it special legislation.
"A general law applies to persons
or things as a class, while a special law relates to particular
persons or things of a class[.]"
Commonwealth, Revenue Cabinet
v. Smith, Ky., 875 S.W.2d 873, 877 (1994).
KRS 238.540 defines a
class of charitable organizations which may qualify for a
-15-
charitable gaming license.
The charitable organizations herein
and the Catholic charities are parts of the same class.
KRS 238.540(4) and (5) do not relate only to particular members
of the class, but apply equally to the whole class.
No member of
the class may hire employees to conduct charitable gaming or hire
a management company or consultant.
The charitable organizations also challenge the
constitutionality of KRS 238.540(6).7
They allege that the
statute unconstitutionally requires that gaming supplies be
purchased from Kentucky distributors.
The statute actually
states "[a] licensed charitable organization shall not purchase
charitable gaming supplies and equipment from any person not
licensed as a distributor in the Commonwealth of Kentucky."
There is no requirement that the distributor must be located in
Kentucky; the statute only requires that distributors be licensed
in Kentucky.
In fact, the legislature specifically contemplated
that nonresidents may be licensed as distributors.
See KRS
238.530(4)(f), requiring nonresident distributors to furnish the
division of charitable gaming with the name, address, and phone
number of a registered agent within the Commonwealth.
In short, all challenged portions of KRS 238.540 are
constitutional.
7
This statute was formerly numbered as KRS 238.540(7) at
the time this case was pending before the trial court. It has
since been renumbered as KRS 238.540(6).
-16-
The charitable organizations challenge the
constitutionality of KRS 238.545 as unreasonable and arbitrary.
They particularly object to KRS 238.545(1) which limits
charitable gaming sessions to one gaming session per week8, and
KRS 238.545(2) which limits the amount of individual prizes.
They argue that these limits will not allow them to compete
effectively with the Kentucky Lottery or Indiana river boats.
Nonetheless, these limits are clearly a valid exercise
of the state's police power as there is a rational relation
between this legislation and the state's legitimate interest in
insuring that the games remain charitable, rather than
commercial, enterprises.
These restrictions are constitutional,
since they are reasonably necessary for accomplishing the
objectives identified in KRS 238.500 and are not unduly
oppressive upon the regulated entities.
Kentucky Cent. Life Ins.
Co. v. Stephens, Ky., 897 S.W.2d 583, 591 (1995).
The charitable organizations next challenge the
constitutionality of various provisions of KRS 238.550.
KRS 238.550(1) requires that gross receipts from charitable games
be handled only by bona fide officers or employees of the
organization.9
They argue that this restriction unfairly
discriminates against small charities.
This is economic
8
The statute was amended in 1996 to allow two five-hour
sessions per week, for a total of ten hours per week.
9
Under the 1996 amendment, volunteers may also handle
gross receipts.
-17-
regulation which is rationally related to the legitimate state
interest in insuring that funds raised by charitable gaming are
actually applied to charitable works, rather than being spent on
undue administrative costs.
Furthermore, limiting the number of
people who may handle funds insures accountability.
KRS 238.550(1) is constitutional.
The charitable organizations also attack the
constitutionality of KRS 238.550(4).10
This provision requires
that licensed charitable gaming organizations do not pay over
market rate for a number of listed expenses, including supplies
and equipment, rent, etc., as well as the catch-all definition of
"[a]ny other expenses the division may determine by
administrative regulations to be legitimate."
Their main
argument in this regard is that they should be allowed to hire
management companies and consultants and employees to work
charitable gaming events.
We have addressed this argument
previously, and it merits no additional discussion.
The organizations also contend that they are
discriminated against by KRS 238.550(4) because their rent is
subject to reasonable limitations, although there is no explicit
limit on the purchase price when buying a building for charitable
gaming purposes.
They contend that this favors larger charities
which are able to purchase buildings or use buildings already
owned for charitable gaming.
Reasonable rent restrictions on
10
KRS 238.550(4) in the pre-1996 version is now
KRS 238.550(3) in the current version.
-18-
charitable gaming enterprises have been upheld in other states
despite equal protection attacks such as this.
See Joseph Bros.
Co., supra, and Edmisten, supra, both holding that rent
restrictions are nondiscriminatory and are rationally related to
the state's interest in assuring that most charitable gaming
receipts actually benefit charitable works.
We likewise conclude
that the rent restrictions are nondiscriminatory and are
rationally related to the state's interest in assuring that most
charitable gaming receipts actually benefit charitable works.
Further, while the buying of a building is generally a one-time
expense (although financing payments are generally made over a
period of time), rent is an ongoing expense that may be raised
periodically.
Thus, there is a substantial distinction between
buying and renting which suggests the propriety of the statute.
Holmes, supra.
The charitable organizations argue that KRS 238.550(5)
is unconstitutionally overbroad.
That statute provides that
[a]ll net receipts resulting from the conduct
of charitable gaming shall be utilized
exclusively for purposes consistent with the
charitable, religious, educational, literary,
civic, fraternal, or patriotic functions and
objectives for which the licensed charitable
organization received and maintained federal
tax-exempt status. No net receipts shall
inure to the private benefit or financial
gain of any individual.11
11
This statute and its content were amended and replaced
in 1996 by KRS 238.550(4).
-19-
Without reiterating the authorities cited by the charitable
organizations herein, suffice it to say that their arguments are
that this restriction violates their rights under the First and
Fourteenth Amendments of the U. S. Constitution.
However,
charitable gaming enterprises do not constitute conduct protected
by the First Amendment.
See There to Care, Inc. v. Commissioner
of Indiana Dept. of Revenue, 19 F.3d 1165 (7th Cir. 1994), and
Allendale Leasing, Inc. v. Stone, 614 F.Supp. 1440 (D.C.R.I.
1985).
Since no constitutionally protected activity is infringed
upon by regulating charitable gaming enterprises, such regulation
is subject to "the lowest standard of scrutiny:
the rational
basis test" (rather than the heightened scrutiny involved in the
regulation of First Amendment activity).
1457.
Allendale, supra, at
This provision of the statute passes the rational basis
test because it is rationally related to the legitimate state
interest in insuring that receipts from charitable games are
actually furthering charitable activities, rather than providing
windfalls to individuals.
In short, the challenged portions of KRS 238.550 are
constitutional.
Finally, the charitable organizations challenge the
constitutionality of KRS 238.995, which provides criminal
penalties for violating portions of the Charitable Gaming Act.
They argue that subsections (2), (4), and (5) of KRS 238.995 "are
attempts to criminalize legitimate activities" and thus are
unconstitutional.
Subsection (2) provides that making false or
-20-
misleading statements in license applications or required reports
is a Class A misdemeanor.
Subsection (4) provides that anyone
who knowingly diverts charitable gaming funds to his or her
financial benefit from legitimate charitable purposes or lawful
expenses allowed under the Charitable Gaming Act has committed a
Class A misdemeanor.
Subsection (5) is an enhancement provision
making a second violation of subsection (1) or subsection (2) a
Class D felony.
Making false statements and diverting charitable
gaming funds are not legitimate activities but are inherently
criminal acts.
Thus, the state is within its police power to
affix penalties for these acts.
We affirm the ruling of the Jefferson Circuit Court in
part, reverse it in part, and determine that all portions of the
Charitable Gaming Act (KRS 238.500 -.995) which the charitable
organizations have standing to challenge are constitutional.
HUDDLESTON, JUDGE, CONCURS; KNOPF, JUDGE, CONCURS WITH
SEPARATE OPINION.
KNOPF, JUDGE, CONCURRING:
I concur with Judge Buckingham's well-
reasoned and well-written opinion, but choose to write
separately.
Section 226 of the Kentucky Constitution forbade the
establishment of lotteries until 1988.
This prohibition included
bingo, even if conducted for charitable purposes.
Kosofksy, Ky., 476 S.W.2d 626 (1972).
Otto v.
The General Assembly had
no authority to regulate bingo in any way other than to
completely ban it.
Id. at 630.
Despite the prohibition, bingo
continued to be popular both as a pastime and as a means for
-21-
charitable fund-raising.
Many law enforcement officers and
prosecutors simply refused to enforce the prohibition.
As a
result, bingo and other charitable gaming remained unregulated.
In order to correct this situation, the General
Assembly presented two (2) amendments to § 226 to the voters.
The 1988 amendment to § 226 permitted the establishment of a
state lottery and the 1992 amendment allowed the General Assembly
to permit charitable lotteries and charitable gift enterprises.
These amendments were both approved by the majority of Kentucky
voters.
In particular, paragraph (2) of § 226 allows the General
Assembly to enact laws regulating charitable lotteries and gift
enterprises.
It is clear that, since the General Assembly has
the authority to ban charitable gaming outright, or, under § 226
of the Kentucky Constitution, to regulate it, the charities have
no valid argument that Chapter 238 is unconstitutional under the
Kentucky Constitution.
Furthermore, the 1996 amendment to KRS
238.540(4) clarifies the question of whether volunteer workers
are prohibited from accepting tips.
However, the underlying issue of whether or not such a
prohibition violates the First Amendment protection for free
speech is a difficult question.
The United States Supreme Court
has held that solicitation of money by charities is protected
speech for purposes of the First Amendment to the United States
Constitution.
Schaumburg v. Citizens for a Better Environment,
444 U.S. 620, 63 L.Ed.2d 73, 100 S. Ct. 826 (1980).
In
Schaumburg, and its progeny, Maryland v. Joseph H. Munson, Co.,
467 U.S. 947, 81 L.Ed.2d 786, 104 S. Ct. 2839 (1984); and Riley
-22-
v. National Federation of the Blind of North Carolina, 487 U.S.
781, 101 L.Ed.2d 669, 108 S. Ct. 2667 (1988), the Supreme Court
held that the First Amendment places severe limits on states'
ability to regulate charitable fundraising.
Schaumburg explains:
Prior authorities, therefore, clearly
establish that charitable appeals for funds,
on the street or door to door, involve a
variety of speech interests-communication of
information, the dissemination and
propagation of views and ideas, and the
advocacy of causes-that are within the
protection of the First Amendment.
Soliciting financial support is undoubtedly
subject to reasonable regulation but the
latter must be undertaken with due regard for
the reality that solicitation is
characteristically intertwined with
informative and perhaps persuasive speech
seeking support for particular causes or for
particular views on economic, political, or
social issues, and for the reality that
without solicitation the flow of such
information would likely cease. Canvassers
in such context are necessarily more than
solicitors for money. Furthermore, because
charitable solicitation does more than inform
private economic decisions and is not
primarily concerned with providing
information about the characteristics and
costs of goods and services, it has not been
dealt with in our cases as a variety of
purely commercial speech.
Id. at 632, 63 L.Ed.2d at 84-85.
Thus, any restriction on charities limiting payment of
professional fundraisers must be narrowly tailored to accomplish
legitimate state objectives, to ensure that the statute will not
create an unnecessary risk of chilling free speech.
U.S. at 967-68, 81 L.Ed.2d at 802-03.
Munson, 467
In essence, the Supreme
Court has set forth a "strict scrutiny" test in judging the
constitutionality of limitations on charitable fundraising.
-23-
Riley, 487 U.S. at 786-87, 101 L.Ed.2d at 684.
The charities in
this case assert that, since their charitable gaming is merely
another form of fundraising, it is protected speech and cannot be
restricted without meeting the strict scrutiny standard.
I believe that the charities' comparison between direct
charitable solicitation and fundraising through charitable gaming
is flawed.
Solicitation is intertwined with informative and
perhaps persuasive speech seeking support for particular causes
or for particular views on economic, political or social issues.
On the other hand, bingo or other charitable gaming does not
implicate the same free speech interests.
activity, not speech.
Wagering is an
The state's authority to regulate or
proscribe gambling is unquestioned.
Consequently, I fail to see
how the use of gambling by charitable organizations to raise
funds implicates free speech.
I would also point out that the
charities' argument, if taken to its logical conclusion, could
completely exempt charitable organizations from compliance with
many laws of general application.
The First Amendment does not
entitle a charity "to stage a bullfight in the Hoosier Dome, if
in its view that contest would raise money for its endeavors and
be a good forum for the dissemination of its views."
There to
Care, Inc. v. Commissioner of Indiana Department of Revenue, 19
F.3d 1165, 1168 (7th Cir. 1994).
Such a result would not lead to
greater dissemination of ideas, but to chaos.
As pointed out so
well by the Seventh Circuit in There to Care, "Charities do not
have special privileges under the first amendment; by parallel
reasoning then, political and educational organizations, the
-24-
press, and speakers in general could engage in gambling and other
proscribed activities to raise funds".
Id.
Therefore, I agree with the majority that no First
Amendment rights are implicated by the Charitable Gaming Act.
The regulations set out in KRS Chapter 238 affect only the
charities' conduct of their games, not the message which they
seek to promulgate.
The restrictions are reasonable and are
rationally related to the legitimate State interests set forth in
§ 226 of the Kentucky Constitution and in KRS 238.500.
As a
result, I agree with the majority that they do not
unconstitutionally impinge upon the charities' First Amendment
rights.
In closing however, I would add that the ban on tipping
volunteer workers may go beyond what is necessary to prevent
fraud in all cases.
Unlike direct payment of volunteer workers
by the charity, tipping is initiated by the players themselves.
The involvement of the charity, if any, is minimal.
Thus, I
question whether the ban against tipping actually furthers the
goals set out in § 226 or in KRS 238.500.
However, it is not our
place to pass on the wisdom of the laws, only their application
and constitutionality.
Courts should exercise a liberal rather
than a restrictive attitude toward legislative acts enacted
pursuant to the police power inherent in the exercise of
governmental functions.
Legislative acts should not be set aside
lightly, but only when it is plainly violative of some
constitutional provision.
Whittaker v. Green River Coal Co., 276
Ky. 43, 122 S.W.2d 1012, 1016 (1938).
-25-
Therefore, since no
constitutional rights are affected by the Charitable Gaming Act,
the issue of tipping volunteer workers must be addressed to the
General Assembly by those interested or affected.
-26-
BRIEFS FOR APPELLANTS/
CROSS-APPELLEES:
BRIEFS FOR APPELLEES/
CROSS-APPELLANTS:
A. B. Chandler III
Attorney General
Foster V. Jones, Jr.
Pro Se
Louisville, KY
Robert V. Bullock
Assistant Attorney General
Frankfort, KY
Michael L. Allen
Louisville, KY
-27-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.