Garono v. State, No. 87-732

• Court: Ohio Supreme Court
• Writing for the Court: PETER M. HANDWORK; MOYER; PETER M. HANDWORK, J., of the Sixth Appellate District, sitting for DOUGLAS; WRIGHT; LOCHER
• Citation: 524 N.E.2d 496,37 Ohio St.3d 171
• Parties: GARONO, d.b.a. Garono Vending Company, Appellee, v. The STATE of Ohio et al., Appellants.
• Docket Number: No. 87-732
• Decision Date: 15 June 1988

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37 Ohio St.3d 171 524 N.E.2d 496 GARONO, d.b.a. Garono Vending Company, Appellee,
v.
The STATE of Ohio et al., Appellants. No. 87-732. Supreme Court of Ohio. Submitted Feb. 9, 1988.
Decided June 15, 1988. Syllabus by the Court

1. The General Assembly appropriately determined poker to be a game of chance under R.C. 2915.01(D).

2. In order for possession of a gambling device to be illegal, it must be acquired, possessed, controlled, or operated with the purpose to "[e]stablish, promote, or operate, or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit." R.C. 2915.02(A)(2) and (5).

The present appeal involves the issuance of a permanent injunction on April 3, 1985 by the Court of Common Pleas of Mahoning County enjoining defendants (state of Ohio; Mahoning County, Ohio; city of Youngstown, Ohio; city of Struthers, Ohio; city of Campbell, Ohio; Austintown Township, Ohio; and Beaver Township, Ohio), their officers, agents, servants, employees, and attorneys, as follows:

"1 From seizing, impounding, or confiscating, poker machines owned, leased or operated by Plaintiff Lawrence Garono, dbd [sic ] Garono Vending Company.

"2 From making any public statement to the effect that the poker machine is a 'gambling device' or an 'illegal gambling device,' or which suggests or implies that Plaintiff Garono, by owning, leasing or operating such machines, is engaged in an unlawful activity."

Appellants (state of Ohio and city of Youngstown), together with defendants (Mahoning County, city of Struthers, Beaver Township and Austintown Township), appealed to the court of appeals claiming that the injunction interfered with the ability of the police to carry out their duties to

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enforce the law and that the prohibition against public statements violated appellants' First Amendment rights of free speech. The court of appeals held that because the machines were not illegal or gambling devices under the reasoning of State v. Gavlek (Dec. 27, 1983), Mahoning App. No. 83 C.A. 25, unreported, the police could be restrained from seizing the machines. The city of Struthers was excepted from this injunction, however, since there was no evidence that any of its officers or officials was involved with the seizure of the machines. The court of appeals refused to uphold the second part of the injunction regarding the prohibition of public statements, finding that this constituted a prior restraint and therefore violated appellants' rights of free speech.

The factual record consists solely of a Stipulation of Facts submitted to the common pleas court which reads in pertinent part as follows:

"1. That Plaintiff Lawrence Garono, a sole proprietor, dba Garono Vending Company, is presently engaged in the business of leasing video poker machines in Mahoning County, Ohio.

"2. That during the past year, State law enforcement agents, and law enforcement agents of the City of Youngstown and Austintown Township, have seized approximately 60 video poker machines from business locations inside Mahoning County, Ohio.

"3. That none of said machines has been returned, and said machines are still in the custody of the law enforcement agencies enumerated in Stipulation No. 2 hereinabove.

"4. That when interviewed by WKBN and WKTV on or about January 26, 1985, Detective Jack Palma of the Youngstown Police Department made statements to the effect that any person who seeks to obtain [524 N.E.2d 498] the return of a poker machine 'will be read his constitutional rights,' and that if any poker machines are found by the police in Youngstown, they will be seized 'under the gaming laws.'

"5. That during the past year, law enforcement agents of the City of Youngstown have disseminated statements via the news media, characterizing poker machines as 'gambling devices,' 'illegal gambling devices,' and 'illegal' bet devices.

"6. That no poker machine has ever been introduced into evidence in the trial of any case in Mahoning County, Ohio, involving alleged gambling in connection with a poker machine. In lieu thereof, photographic evidence and/or expert testimony from a police officer concerning the character of said machine has been introduced.

"7. That none of the machines seized by the City of Youngstown, as set forth in Stipulation No. 2 hereinabove, belongs to Plaintiff Garono.

"8. That four (4) poker machines owned and leased to a third party by Plaintiff Garono, were seized by the Beaver Township Police within the past two months.

"9. That none of the poker machines owned and leased by Plaintiff Garono has yet been seized by the police departments of Youngstown, Struthers, or Campbell.

"10. That Plaintiff presently does not lease or operate any poker machines inside the City of Youngstown or Austintown Township."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

John A. Connor II, Columbus, for appellee.

Gary L. Van Brocklin, Pros. Atty., and Mary Jane Stephens, Youngstown, for appellant State of Ohio.

Edwin Romero, Director of Law,

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and William J. Higgins, Youngstown, for appellant City of Youngstown.

PETER M. HANDWORK, Judge, Court of Appeals.

Appellants challenge the court of appeals' decision below only insofar as it affirmed the granting of the first part of the injunction. Appellants assert that this portion of the injunction should have also been denied because: (1) it interferes with the ability of the executive branch to enforce the law, (2) it violates appellants' rights of local self-government, and (3) draw poker machines are gambling devices per se.

We will address only appellants' first and third propositions of law inasmuch as the issue of whether the injunction interferes with appellants' right of local self-government was not raised below. It is well-settled in the law that " * * * questions not raised or passed upon by the lower courts will not be ruled upon by the Supreme Court." Mills-Jennings, Inc. v. Dept. of Liquor Control (1982), 70 Ohio St.2d 95, 99, 24 O.O.3d 181, 183, 435 N.E.2d 407, 409.

For the reasons which follow, we affirm the granting of the injunction only insofar as it relates to the further impoundment by the Beaver Township police of the four poker machines owned by appellee, but reverse the granting of the injunction as it relates to the permanent prohibition against enforcement of the law by the defendants herein.

An injunction is an extraordinary remedy in equity where there is no adequate remedy available at law. It is not available as a right but may be granted by a court if it is necessary to prevent a future wrong that the law cannot. Sternberg v. Bd. of Trustees (1974), 37 Ohio St.2d 115, 118, 66 O.O.2d 257, 258-259, 308 N.E.2d 457, 460; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 153, 40 O.O.2d 141, 149, 228 N.E.2d 631, 642; Perkins v. Quaker City (1956), 165 Ohio St. 120, 125, 59 O.O. 151, 153, 133 N.E.2d 595, 598; and Salem Iron Co. v. Hyland (1906), 74 Ohio St. 160, 167, 77 N.E. 751, 752. The grant or denial of an injunction is solely within the trial court's discretion and, therefore, a reviewing court should not disturb the judgment of the trial court absent a showing of a clear abuse of discretion. Perkins v. Quaker City, supra, 165 Ohio St. at 125, 59 O.O. at 153, 133 N.E.2d at 598.

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