Automatic Music and Vending Corp. v. Liquor Control Com'n
| Decision Date | 22 May 1985 |
| Docket Number | Docket No. 71889 |
| Citation | 367 N.W.2d 413,141 Mich.App. 458 |
| Parties | AUTOMATIC MUSIC AND VENDING CORPORATION, an Ohio corporation and Fraternal Order of Eagles, Sanford Aerie 3677, Plaintiffs-Appellees, v. LIQUOR CONTROL COMMISSION, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Daniel S. Cooper, P.C. by Daniel S. Cooper, Lansing, for plaintiffs-appellees.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Frank J. Pipp and Larry F. Brya, Asst. Attys. Gen., for defendant-appellant.
Before HOLBROOK, P.J., and CYNAR and GILLESPIE, * JJ.
This appeal is from an order of superintending control in which the Circuit Court for Ingham County reversed an administrative order of the Michigan Liquor Control Commission which had found Aerie No. 3677, Fraternal Order of Eagles, in Sanford, Michigan, in violation of M.C.L. Sec. 750.303; M.S.A. Sec. 28.535 and 1980 AACS R 436.1013 concerning gaming.
The order of the circuit court is affirmed.
The Fraternal Order of Eagles, Aerie No. 3677, in Sanford, Michigan, is the holder of a club license issued by the Michigan Liquor Control Commission. This license was issued pursuant to M.C.L. Sec. 436.24(c); M.S.A. Sec. 18.995(c).
As a permit holder, it is subject to regulation under 1980 AACS R 436.1013, which provides:
The permit holder would also be bound under the applicable gaming statute which is M.C.L. Sec. 750.303; M.S.A. Sec. 28.535, and reads in part:
Early in 1982, officers of the Michigan Liquor Control Commission became aware that the Sanford Eagles Club had a "draw poker" video machine in the club. This machine has five windows. When twenty-five cents is inserted in the machine, a playing card appears in each window. Below each window is a button. If a player is dissatisfied with the card first appearing in a window, he may press the button under that card and the first card will disappear and be replaced by another card.
The machine has two counters on the inside, one which keeps track of the number of quarters placed into the machine and the other which keeps track of the number of free replays erased off the machine without playing them. The device also has a key mechanism which can erase free replays without the replays being played.
Once a satisfactory hand is established, the game is played as five-card draw poker. When certain hands are obtained, credits are given which entitle the player to free plays.
On March 30, 1982, the local inspector for the MLCC, Robert Basket, and his supervisor, Donald French, went to the Sanford Eagles Club and played the machine. Supervisor French won 54 free games on that date.
The officers asked the bartender, Lydia Oswald, if the games could be traded for cash. She informed them that the Eagles did not pay off in cash but only in free replays.
On May 25, 1982, the same Liquor Control Commission officers returned to the club and played the machines. After this the officers confiscated the machine as a gambling device and issued a complaint with the Michigan Liquor Control Commission against the Sanford Eagles Club. A hearing was held before Hearing Commissioner Andrew Metcalf, Jr., who rendered an opinion on December 1, 1982, finding the machine to be a game "partly of skill and partly of chance" and an unlawful gambling device under M.C.L. Sec. 750.303(1) and 1980 AACS, R 436.1013(2). Commissioner Metcalf also ruled that Automatic Music and Vending Corporation could not intervene in the hearing as it was not an involved party. The commissioner ordered a fine of $250 and costs. He did not confiscate the machine.
Commissioner Metcalf's decision was upheld by the commission on appeal in January, 1983.
Automatic Music then applied to the circuit court for Ingham County for an order of superintending control to review the actions of the commission. Judge Robert Holmes Bell, in a terse order, reversed the commission and found that free replays do not constitute a reward and are not gaming as defined by M.C.L. Sec. 750.303; M.S.A. Sec. 28.535.
The Commission appealed to this Court.
Four issues are raised:
I. Whether Automatic Music may petition the circuit court for an order of superintending control.
II. Whether a "draw poker" video game is a gaming device within the meaning of M.C.L. Sec. 750.303(1); M.S.A. Sec. 28.535(1).
III. Whether the statute unconstitutionally denies equal protection of the United States and Michigan Constitutions.
IV. Whether M.C.L. Sec. 750.303; M.S.A. Sec. 28.535 is unconstitutionally vague.
May Automatic Music petition the circuit court for superintending control?
We conclude that Automatic Music, while not directly a party to the dispute, was aggrieved by the action of the commission and should be allowed to intervene under GCR 1963, 711.2.
It is well settled that an order of superintending control does not supersede the use of normal appellate procedures. Detroit v. Recorder's Court Judge, 104 Mich.App. 214, 222, 304 N.W.2d 829 (1981); GCR 1963, 711. See also Beer v. Fraser Civil Service Comm., 127 Mich.App. 239, 242, 338 N.W.2d 197 (1983).
Automatic Music was not a party to the commission's administrative proceedings and did not have a right of appeal. However, it was that company's machine that was confiscated and, therefore, it was aggrieved in this action and superintending control should be available to it. Kassab v. Acho, 125 Mich.App. 442, 451, 336 N.W.2d 816 (1983). Further, the decision in this case will affect its total business with like machines. Superintending control is a proper remedy when general policies of an inferior tribunal are being reviewed. Detroit v. Recorder's Court Judge, supra.
We conclude that it was proper to allow Automatic Music to intervene.
Is a "draw poker" video game a gaming device?
M.C.L. Secs. 750.301-750-315; M.S.A. Secs. 28.533-28.547 is part of a statutory scheme governing gambling. The purpose of the statutory scheme is to suppress gambling, an activity determined to be "injurious to the morals and welfare of the people". Michigan ex rel. Comm'r of State Police v. Nine Money Fall Games, 130 Mich.App. 414, 419, 343 N.W.2d 576 (1983), citing Parkes v. Judge of Recorder's Court, 236 Mich. 460, 465-466, 210 N.W. 492 (1926). Under this particular section, it is not necessary to determine whether the game under consideration is one of skill or of chance because the statute makes no distinction as to either kind of game. Michigan ex rel. Comm'r of State Police v. One Helix Game, 122 Mich.App. 148, 156, 333 N.W.2d 24 (1982), citing Henry v. Kuney, 280 Mich. 188, 192, 273 N.W. 442 (1937). Gambling occurs whenever there is a chance for profit if the player of the game is skillful and lucky.
The question to be resolved in this case is whether free plays are "reward", "profit", or a "thing of value". The circuit judge decided that the right to free play is not a "reward". In so doing, he acknowledged: "The Court is not unmindful of a couple of antiquated Supreme Court decisions, dealing with different machines, under different circumstances, at a different time culturally in our nation".
M.C.L. Sec. 750.303(2); M.S.A. Sec. 28.535(2) was passed in 1975 and provides in part:
"(2) This section shall not apply to a mechanical amusement device which may through the application of an element of skill reward the player with the right to replay the mechanical device at no additional cost * * *."
This language clearly appears to be a response of the Legislature to Oatman v. Port Huron Chief of Police, 310 Mich. 57 16 N.W.2d 665 (1944), of which the Legislature is presumed to have been aware.
While both the commission and Automatic Music agree that the "draw poker" video game allows more than 15 replays as provided in that section, it is clear that the Legislature by the enactment of Sec. 303(2) intended to legalize machines which are games having an element of skill and where the "reward" is limited to free games and does not include pecuniary or merchandise rewards.
This was recognized by another panel of this Court in People v. Palazzolo, 62...
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