Mills-Jennings of Ohio, Inc. v. Department of Liquor Control

• Decision Date: 26 May 1982
• Docket Number: No. 81-760,MILLS-JENNINGS,81-760
• Parties: , 24 O.O.3d 181 OF OHIO, INC., et al., Appellants, v. DEPARTMENT OF LIQUOR CONTROL et al., Appellees.
• Court: Ohio Supreme Court

Page 95

70 Ohio St.2d 95

435 N.E.2d 407, 24 O.O.3d 181

MILLS-JENNINGS OF OHIO, INC., et al., Appellants, v. DEPARTMENT OF LIQUOR CONTROL et al., Appellees.

No. 81-760.

Supreme Court of Ohio.

May 26, 1982.

Syllabus by the Court

The plain and ordinary meaning of the words found in R.C. 2915.01(D) and 2915.01(F)(3) makes Draw Poker machines gambling devices per se.

On October 16, 1979, appellant Mills-Jennings of Ohio, Inc., filed a complaint in the Court of Common Pleas of Franklin County seeking a declaratory judgment. The specific relief sought by appellant was a declaration by the court that certain devices, known as "Draw Poker" machines, were not gambling devices per se and that possession of the machines was not a violation of either the laws of Ohio or the regulations of the Liquor Control Commission. The complaint sought a permanent injunction enjoining the Department of Liquor Control, or any of its agents or employees, from seizing or confiscating Draw Poker machines owned by appellant and located in various liquor permit premises throughout Ohio. The complaint also sought to enjoin the Department of Liquor Control from interfering with the business of liquor permit premises based solely on possession of Draw Poker machines unless the machines were being operated in a way in which a monetary payoff or a payoff of any other tangible item of value was being made to the player. Appellant Walter Lazuka, owner of devices known as "TV Draw Poker" machines, was granted leave to intervene as a new party plaintiff and requested relief similar to that of appellant Mills-Jennings.

The Draw Poker machine in question is an electronic video-game controlled entirely by a computer called a microprocessor. The computer takes the place of a person who would otherwise serve as the dealer in a game of draw poker. In order to activate the machine for play, a player inserts from one to eight quarters into the machine. The player then pushes a button denoted as "draw" and by random selection, five cards appear on the screen. The player has the option of keeping all five cards or any one or more of them. When the player has decided which cards to keep, he then presses the "discard" button, eliminating from the screen the cards the player does not wish to keep. The cards discarded are then replaced with new and different cards and this ends the game. If the player chooses not to discard any cards and wishes to "stand" on the original five cards dealt by the machine, the player simply pushes the "stand" button and this also ends the game.

The purpose of the game is to get the best poker hand possible. When a winning hand appears the player is awarded a free replay or replays depending on the value of the hand. These replays are called "skill points" and the number of skill points awarded are multiplied by the number of quarters inserted. If a player's winning hand was a "straight" worth five skill points and the player had inserted eight quarters, the player would be awarded 40 skill points. Likewise a player can win up to 400 free replays on one play if the player obtains a "straight flush" after having inserted eight quarters. Once the game has begun the player cannot increase his bid by inserting more quarters.

After an extended trial, the Court of Common Pleas, on July 9, 1980, issued a permanent injunction granting the relief sought by appellants. Upon appeal, the Court of Appeals reversed the judgment of the trial court and "remanded to the trial court for further proceedings consistent with law and our opinion."

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

Ward, Kaps, Bainbridge, Maurer, Bloomfield & Melvin and Charles T. Kaps, Columbus, for appellant Mills-Jennings of Ohio, Inc.

A. Connor II, Co., L. P. A., John A. Connor, II, and Darrell E. Fawley, Jr., Columbus, for appellant Walter Lazuka.

William J. Brown, Atty. Gen., and Marc E. Myers, Asst. Atty. Gen., for appellees.

DOUGLAS, Justice.

I.

The issue presented for our determination is whether Draw Poker machines are gambling devices per se as defined in R.C. 2915.01(F). Appellants contend, and the trial court agreed, that the device is an amusement device and not a gambling device per se. The foundation of the trial court's decision was that the successful playing of the machines required some skill and the results obtained were not wholly dependent upon chance. Appellees contend, and the Court of Appeals held, that the intent of the General Assembly as set forth in the statute is clear and that the playing of poker is a game of chance and any apparatus designed for use in connection with a game of chance is a gambling device.

R.C. 2915.01(D) reads:

" 'Game of chance' means poker, craps, roulette, a slot machine, a punch board, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely or wholly by chance." (Emphasis added).

Thus the first question to be answered is whether the game being played on the machine in question is the game of "poker." An exhaustive review of the extensive record in this case shows that appellants' own witnesses testified at trial that the game played on a Draw Poker machine is the game of poker. Whether the game being played is on a video screen or a card table makes no real difference. In whatever way the game is played the object is the same and that is to win by obtaining the best hand possible. Therefore the game being played on the machine is a game of "poker" and as such falls within the purview of R.C. 2915.01(D).

Having so determined, we now turn our attention to R.C. 2915.01(F) which reads:

" 'Gambling device' means"

" * * *

"(3) A deck of cards, dice, gaming table, roulette wheel, slot machine, punch board, or other apparatus designed for use in connection with a game of chance." (Emphasis added.)

We have determined that the game being played on the machine is the game of poker and that "poker" is a game of chance. Applying these findings to R.C. 2915.01(F)(3), we further find that the machine in question is an "apparatus designed for use in connection with a game of chance" and therefore is a gambling device as set forth in R.C. 2915.01(F).

Appellants have cited this court to a number of cases concerning statutory construction. All the cases cited are clearly distinguishable on their facts. The proper principle of statutory construction is that words should be given their common, ordinary and accepted meaning unless the General Assembly has clearly expressed a contrary intention. State, ex rel. Brilliant Electric Sign Co., v. Indus. Comm. (1979), 57 Ohio St.2d 51, 54, 386 N.E.2d 1107; State v. Singer (1977), 50 Ohio St.2d 103, 108, 362 N.E.2d 1216. The plain and ordinary meaning of the words found in R.C. 2915.01(D) and 2915.01(F)(3) makes Draw Poker machines gambling devices per se.

II.

Appellants raised other issues in the trial court. Nevertheless, the trial court felt that in deciding the machine in question was not a gambling device per se, it had granted to appellants the ultimate relief sought and any further decision was unnecessary. We comment further in view of the important issues raised by appellants and also because the trial court, by journal entry dated April 22, 1981, granted a restraining order against the Department of Liquor Control (which order remains in effect) prohibiting the department " * * * from seizing, taking, confiscating or otherwise destroying any of the poker machines that were the subject of this controversy * * * " until the court conducts a hearing on the issue of confiscation. The trial court set forth that it would proceed with such a hearing after and if this court decided that the Draw Poker machine was a gambling device per se.

The other issues raised by appellants in the trial court were:

(1) That Ohio Adm.Code 4301:1-1-53(B), a regulation of the Liquor Control Commission, is overly broad and in conflict with the present public policy of Ohio;

(2) That summary seizure of property, owned by third parties, from liquor permit premises by Department of Liquor Control agents is a denial of due process; and

(3) That actions of the Department of Liquor Control in confiscating, seizing, refusing to return and/or threatening to destroy the machines in question are a violation of R.C. 2933.41 and exceed the authority granted the department by R.C. Chapters 4301 and 4303.

These issues were not ruled upon by the trial court, nor were they raised or directly ruled upon by the Court of Appeals. It is elementary that questions not raised or passed upon by the lower courts will not be ruled upon by the Supreme Court. In re Adoption of McDermitt (1980), 63 Ohio St.2d 301, 307, 408 N.E.2d 680. Thus we make no specific ruling on appellants' propositions of law Nos. 3, 4 and 5, but do feel constrained to comment as follows.

The effort to control gambling in this state is a never-ending fight. Historically in Ohio the gambling instinct was considered as an evil in and of itself. As early as the year 1790, by a law passed by the Governor and Judges of the Northwest Territory at Vincennes, it was provided that "any species of gaming, play or pastime whatsoever" whereby money may be won or lost was prohibited. Likewise the use of billiard tables "or other gaming tables, or any other machine" for gambling was prohibited. See 1 Chase, Statutes of Ohio 105. Effective October 1, 1795, it was provided that tavern keepers or inn holders were prohibited from permitting "cards, dice, billiards, or any instrument of gaming to be made use of" on the premises operated by them as such tavern or inn. Id., at page 199.

The first Constitution of Ohio, adopted in 1802, made no direct reference to lottery or gambling. In 1805, the General Assembly passed an Act making...