Pickaway Cty. Skilled Gaming v. Cordray

Decision Date16 July 2009
Docket NumberNo. 08AP-1032.,08AP-1032.
PartiesPICKAWAY COUNTY SKILLED GAMING, L.L.C., et al., Appellants, v. Richard CORDRAY, Atty. Gen., et al., Appellees.
CourtOhio Court of Appeals

Butler, Cincione & DiCuccio, Gail M. Zalimeni, N. Gerald DiCuccio, and Alphonse P. Cincione, Columbus; and Melissa R. Lipchak, Columbus, for appellants.

Richard Cordray, Attorney General, Randall W. Knutti, Brian M. Kneafsey Jr., and Christopher P. Conomy, for appellees.

SADLER, Judge.

{¶ 1} Plaintiffs-appellants, Pickaway County Skilled Gaming, L.L.C., d.b.a. Spinners Skill Stop Game ("Spinners"), and Stephen S. Cline (collectively "appellants"), appeal from the judgment of the Franklin County Court of Common Pleas, in which that court denied appellants' motion for summary judgment and granted the motion for summary judgment of defendants-appellees, Richard Cordray, Ohio Attorney General; Henry Guzman, Director, Ohio Department of Public Safety; Dwight E. Radcliff, Pickaway County Sheriff; and Judy Wolford, Pickaway County Prosecuting Attorney, as to appellants' claims for declaratory judgment.

{¶ 2} The following undisputed facts are found in the record. Cline owns and operates Spinners. Spinners is an amusement game arcade located in Circleville, Ohio. Spinners is a members-only organization that requires members to pay an annual fee in exchange for membership rights and privileges. The arcade contains 150 game machines for use by its members, including "Queen Bee," "Fruit Bonus 2004," "Mystery J & B 2003," "Crazy Bugs," "New Cherry," "Monkey Land," "Rosen' Jack 2003," and "Triple Jack 2003."

{¶ 3} Chapter 2915 of the Ohio Revised Code concerns gambling crimes. R.C. 2915.02(A)(2) provides, "No person shall * * * [e]stablish, promote, or operate or knowingly engage in conduct that facilitates any game of chance conducted for profit or any scheme of chance." Pursuant to R.C. 2915.01(C), "scheme of chance" does not include a "skill-based amusement machine." Formerly, a "skill-based amusement machine" was defined as:

[A] skill-based amusement device, such as a mechanical, electronic, video, or digital device, or machine, whether or not the skill-based amusement machine requires payment for use through a coin or bill validator or other payment of consideration or value to participate in the machine's offering or to activate the machine, provided that all of the following apply:

(a) The machine involves a task, game, play, contest, competition, or tournament in which the player actively participates in the task, game, play, contest, competition, or tournament.

(b) The outcome of an individual's play and participation is not determined largely or wholly by chance.

(c) The outcome of play during a game is not controlled by a person not actively participating in the game.

Am.Sub.S.B. No. 146, 150 Ohio Laws, Part V, 7787, 7812-7813.

{¶ 4} On August 22, 2007, Ohio Governor Ted Strickland issued Executive Order 2007-28S, in which he stated, "In order for the State to enhance and strengthen its efforts to eliminate illegal gambling machines in our communities, changes to the Ohio Administrative Code regarding these machines, and requiring businesses who manufacture, distribute, and operate these machines to adhere to existing consumer protection laws, must be enacted immediately."

{¶ 5} The governor went on to declare an emergency justifying the suspension of the normal rulemaking process under R.C. Chapter 119 and, at the request of then Ohio Attorney General Marc Dann, determined that "the failure to implement immediate administrative rule changes to better and more clearly define the term `skill-based amusement machine' to help eliminate illegal gambling machines in Ohio will negatively impact Ohio citizens." Id. at ¶ 9. Accordingly, the governor authorized Dann to immediately implement Ohio Adm.Code 109:4-3-31 regarding skill-based amusement machines. Id. at ¶ 10.

{¶ 6} Pursuant to the governor's executive order, Dann immediately promulgated the new administrative rule, which, among other things, made it a violation of Ohio consumer-protection law to represent that a skill-based amusement machine is legal when it is not. Most notably, the new rule significantly changed the definition of "skill-based amusement machine." Also on August 22, 2007, Dann sent appellants an order to cease and desist from the operation of skill-based amusement machines at Spinners, charging that their operation constituted a violation of the Consumer Sales Practices Act, R.C. Chapter 1345, under the new administrative rule.

{¶ 7} In response, on September 5, 2007, appellants filed a complaint for declaratory and injunctive relief in the Franklin County Court of Common Pleas. Appellants alleged that Governor Strickland had violated the constitutional doctrine of separation of powers and appellants' right to due process of law, and that Dann promulgated the new administrative rule in violation of the rulemaking authority delegated to him by the General Assembly. The court granted appellants' request for a temporary restraining order.

{¶ 8} Separately, a bill was then pending in the Ohio House of Representatives aimed at amending R.C. 3769.07, an anti-trust provision of the Ohio Revised Code.1 The bill, denominated as Am.Sub.H.B. No. 177, proposed to increase from one to two the number of Ohio horse-racing tracks that one person could own. It had been introduced on April 24, 2007, but no vote had yet been taken on it. On October 10, 2007, with the restraining order still in force and seven weeks after Governor Strickland issued his executive order, the Ohio House of Representatives voted to pass Am.Sub.H.B. No. 177 with amendments proposed that day by Representative Latta. The amendments, inter alia, added an emergency clause to the bill, enacted R.C. 2915.06 and 2915.061, and amended R.C. 2915.01(AAA) using language virtually identical to that used in the administrative rule that Dann had promulgated pursuant to the governor's executive order.

{¶ 9} Following passage by the Ohio Senate, Governor Strickland signed Am. Sub.H.B. No. 177 on October 25, 2007. Thereafter, the Franklin County Court of Common Pleas determined that passage of the bill rendered the issues in the declaratory judgment action moot, and the case was dismissed on February 20, 2008. Appellants closed Spinners to avoid being out of compliance with the law, then reopened after making alterations to the operation of the business. According to Cline, Spinners operates during the pendency of this action but with substantially fewer members and fewer member visits than it had prior to the enactment of Sub.H.B. No. 177.

{¶ 10} On October 31, 2007, appellants filed the present action seeking a judgment declaring that R.C. 2915.01(AAA) and 2915.06 are unconstitutional and may not be enforced. Specifically, appellants alleged that R.C. 2915.01(AAA) and 2915.06 violate the Due Process Clauses of the Ohio and United States Constitutions, that R.C. 2915.01(AAA)(1) violates the Equal Protection Clauses of those constitutions, and that Am.Sub.H.B. No. 177 violates Section 1c, Article II of the Ohio Constitution, in which the right of referendum is reserved to the people, and Section 15, Article II, known as the one-subject rule or single-subject rule.

{¶ 11} The parties filed cross-motions for summary judgment as to all claims. By judgment entry journalized October 30, 2008, the trial court granted appellees' motion for summary judgment and denied appellants' motion for summary judgment. Appellants timely appealed and advance the following assignments of error for our review:

The trial court erred in granting defendant-appellee's [sic] motion for summary judgment and denying plaintiff-appellants' motion for summary judgment by concluding, as a matter of law, that Ohio Revised Code § 2915.01(AAA) is not void for vagueness in violation of the Due Process Clause[s] of the federal and state constitutions.

The trial court erred in granting defendant-appellee's [sic] motion for summary judgment and denying plaintiff-appellants' motion for summary judgment by concluding, as a matter of law, that Ohio Revised Code § 2915.06 does not violate the Due Process Clause[s] of the federal and state constitutions.

The trial court erred in granting defendant-appellee's [sic] motion for summary judgment and denying plaintiff-appellants' motion for summary judgment by concluding, as a matter of law, that Ohio Revised Code § 2915.01(AAA)(1) does not violate the Equal Protection Clauses of the federal and state constitutions.

The trial court erred in granting defendant-appellee's [sic] motion for summary judgment and denying plaintiff-appellants' motion for summary judgment by concluding, as a matter of law, that Am. Sub.H.B. No. 177 does not violate Article II, § 15(D) of the Constitution of the State of Ohio.

The trial court erred in granting defendant-appellee's [sic] motion for summary judgment and denying plaintiff-appellants' motion for summary judgment by concluding, as a matter of law, that Am. Sub.H.B. No. 177 does not violate Article II, § 1D of the Constitution of the State of Ohio and does not violate the right reserved to the people for a referendum.

{¶ 12} The trial court disposed of this case by summary judgment. Summary judgment is proper only when the party moving for summary judgment demonstrates (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, when the evidence is construed in a light most favorable to the nonmoving party. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343. An appellate court's review of summary judgment is de novo. Koos v....

To continue reading

Request your trial
4 cases
  • Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray
    • United States
    • United States State Supreme Court of Ohio
    • 12. Oktober 2010
    ...in R.C. 2915.01(AAA)(1) violated the state and federal Equal Protection Clauses. Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 183 Ohio App.3d 390, 2009-Ohio-3483, 917 N.E.2d 305, ¶ 52. The court focused its analysis on the definition of gambling, noting that "Ohio courts have consistent......
  • City of Riverside v. State, Appellate Case No. 26024
    • United States
    • United States Court of Appeals (Ohio)
    • 9. Mai 2014
    ...... Toliver v. Montgomery Cty. Jobs & Family Servs. Div., 2d Dist. Montgomery No. 22979, ... Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 183 Ohio App.3d ......
  • Pickaway County Skilled Gaming v. Dewine
    • United States
    • United States Court of Appeals (Ohio)
    • 25. Januar 2011
    ......Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 183 Ohio App.3d 390, 2009-Ohio-3483, 917 N.E.2d 305, ¶ 50. We found moot appellants' argument, raised as part of ......
  • Pickaway County Skilled Gaming LLC v. Dewine, 08AP-1032
    • United States
    • United States Court of Appeals (Ohio)
    • 25. Januar 2011
    ......Pickaway Cty. Skilled Gaming, LLC v. Cordray, 183 Ohio App.3d 390, 2009-Ohio-3483, ¶50. We found moot appellants' argument, raised as part of their first ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT