Tennessee § 39-17-505 - Possession of gambling device or record — Forfeiture.

§ 39-17-505. Possession of gambling device or record — Forfeiture.

A person commits an offense who knowingly owns, manufactures, possesses, buys, sells, rents, leases, stores, repairs, transports, prints, or makes any gambling device or record. It is not an offense for a person to own or possess in this state a lottery ticket originating from a state in which a lottery is lawful, if the ticket is not owned or possessed for the purpose of resale. It is not an offense for a person to knowingly own, manufacture, possess, buy, sell, rent, lease, store, repair, transport, print or make any gambling device or record if the device or record is owned, manufactured, possessed, bought, sold, rented, leased, stored, repaired, transported, printed or made pursuant to title 4, chapter 51, part 1 and part 6 of this chapter. It is not an offense for a person to knowingly own, manufacture, possess, buy, sell, rent, lease, store, repair, transport, print or make any gambling device or record if the device or record is for the purpose of conducting an annual event pursuant to title 3, chapter 17, and part 6 of this chapter. It shall not be an offense for a manufacturer of gambling devices to knowingly own, manufacture, assemble, design, possess, buy, sell, rent, lease, store, repair, transport, print or make any gambling device or record solely intended for gambling outside of this state and in compliance with the laws of the United States. The requirement that the manufacturing, selling or leasing of gambling devices be intended solely for gambling outside of the state shall not restrict uses of the gambling devices by the manufacturer that are ancillary or accessorial to the manufacturing, selling or leasing process or business, including, but not limited to, using the gambling devices for research and development, employee training, compliance program initiatives, testing and quality assurance processes, showroom display, leasing or purchasing or selling of gambling devices or parts or equipment, storage or warehousing of gambling devices or parts or equipment, maintenance or refurbishing of gambling devices or parts or equipment, and safekeeping of gambling devices or parts or equipment for future litigation. Also considered ancillary or accessorial to the manufacturing, selling or leasing process or business shall be the use or operation of computers, computer servers, and similar electronic devices, hardware and software, and all gambling records, data or information owned, maintained or stored thereupon, or produced, generated, created, printed, transported or transmitted therefrom, whether paper, electronic or otherwise, in conjunction with legal gambling and in compliance with the laws of the United States. Ancillary or accessorial uses shall not include use of the gambling devices or records that would allow persons physically present in this state to place gambling bets. This subdivision (a)(5) shall not apply unless the manufacturer meets or exceeds federal government requirements pursuant to 15 U.S.C. § 1171 et seq., and any regulations promulgated pursuant to 15 U.S.C. § 1171 et seq., and provides the secretary of state with a copy of the request for registration pursuant to 15 U.S.C. § 1173, together with copies of each gambling license or permit issued by any regulatory authority, including but not limited to any state, country, federally recognized tribe or United States territory, and pays a ten-thousand-dollar fee prior to January 1 of that year. Additionally, the manufacturer shall provide the secretary of state with proof of annual registration under 15 U.S.C. § 1173 with the office of the United States attorney general within thirty (30) days of the receipt thereof. The fee imposed by subdivision (a)(5)(A) shall not apply to nonprofit corporations licensed by the department of mental health and substance abuse services and certified by the department of human services to provide vocational rehabilitation job training programs that otherwise qualify for the exemption under subdivision (a)(5)(A). Any gambling device or record is contraband and shall be subject to seizure, confiscation and forfeiture in accordance with the forfeiture provisions, compiled in chapter 11, part 7 of this title. After a gambling device or record has been forfeited to the state pursuant to chapter 11, part 7 of this title, the court hearing the criminal charges resulting in the forfeiture shall order the destruction of the device or record. If the district attorney general or law enforcement agency does not believe that a gambling device or record should be destroyed in a particular case, the district attorney general shall petition the court for an alternate disposition of the record or device. If the court finds that the proposed alternate disposition reasonably ensures that the device will not be used in an unlawful manner in this state, the court may grant the petition and order the disposition of the device or record in accordance with the petition. Possession of a gambling device or record is a Class B misdemeanor. Acts 1989, ch. 591, § 1; 1993, ch. 265, § 1; 1994, ch. 856, § 1; 2003, ch. 297, § 5; 2004, ch. 476, § 4; 2009, ch. 267, § 2; 2011, ch. 459, § 1; 2012, ch. 575, § 1; 2012, ch. 840, § 1. Sentencing Commission Comments. This section combines the provisions of prior code §§ 39-6-602 and 39-6-615 . Prior code § 39-6-615 prohibited possession of a gambling device but did not include a culpable mental state. Former code § 39-6-602 (d) prohibited the other interests listed in gambling devices. Gambling records were not directly prohibited under prior law, although communication of the records was prohibited under former code §§ 39-6-602(c) and 39-6-603 . In 1994, subsection (a) was amended to exempt from prosecution a person who possesses or owns an out-of-state lottery ticket, if the person did not possess or own the ticket for the purpose of resale. Subsection (b) was amended in 1993 to allow the district attorney general to petition the court for disposition other than destruction of the record or device. The court may grant the petition if it finds the disposition reasonably ensures that the device will not be used illegally in this state. Compiler's Notes. Acts 2004, ch. 350, § 13 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Cross-References. Abatement of gaming devices as nuisances, § 29-3-101 . Alleging gambling, § 40-13-217 . Disposal of confiscated gambling devices, § 38-6-111 . Law enforcement efforts, § 39-15-413 . Lotteries, Tenn. Const., art. XI, § 5. Lotteries, chain letters and pyramid clubs, § 39-17-506 . Lottery not gambling, § 8-47-127 . Lottery sales, title 39, ch. 17, part 6. Penalty for Class B misdemeanor, § 40-35-111 . State lottery proceeds, title 49, ch. 4, part 9. Sufficiency of indictment, § 40-13-217 . Tennessee Education Lottery Implementation Law, title 4, ch. 51. Tennessee Lottery Funds for Education Projects Loan Act of 2003, title 4, ch. 31, part 10. Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gaming, Gambling and Gambling Contracts, §§ 3, 9-11; 18 Tenn. Juris., Lotteries, §§ 3, 4. Law Reviews. Criminal Law — Mint Vending Machines as Gambling Device, 17 Tenn. L. Rev. 401 (1943). Attorney General Opinions. Lottery ticket vending machines, manufacture and export, OAG 94-029 (3/10/94). Prohibitions on intranet gambling, OAG 98-0173 (8/28/98). “Gambling device” construed to include gambling software, OAG 98-0173 (8/28/98). A so-called “redemption machine,” which upon payment of a fee allows a person an opportunity to play to potentially win coupons redeemable on-premises for merchandise perceived as having a greater value than the cost to play the machine, is an illegal “lottery” prohibited by the Tennessee constitution and the gambling laws, OAG 02-054 (4/30/02).