Lead Opinion
The fundamental issue raised in this appeal is whether there is an unconstitutional conflict between Lorain Ordinance 719.03(a) and R. C. 2915.09(B)(5). The ordinance is entitled “Rules of Bingo Play” with paragraph (a) thereof indicating: “No more than twelve hundred dollars ($1,200.00) shall bе paid out in prizes at any bingo session, exclusive of door prizes.” R. C. 2915.09 deals with rules for conducting bingo, and reads, in pertinent рart: “(B) A charitable organization that conducts a bingo game shall not: * * * (5) Pay out more than three thousand five hundred dollars in рrizes during any bingo session that is conducted by the charitable organization; * * *.”
In the recent decision of Brown v. Concerned Citizens, Inc. (1978),
“Effective November 5, 1975, the voters of Ohio approved a constitutional amendment permitting the General Assembly to authorize and regulate the operation of bingo games conducted by charitаble organizations for charitable purposes. Section 6, Article XV of the Ohio Constitution. Pursuant to the above amendment, the General Assembly enacted E. C. 2915.07, effective May 26, 1976, authorizing charitable organizations which obtained a license frоm the attorney general to conduct bingo games.”
The amendment, which passed by a “yes” vote of 1,~ 388.606, now reads:
“Lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this State, except thаt the General Assembly may authorize an agency of the state to conduct lotteries, to sell rights to participate therein, and to award prizes by chance to participants, provided the eiitire net proceeds of any suсh lottery are paid into the general revenue fund of the state and the General Assembly may authorize- and regulate thе operation of bingo to be conducted by charitable organizations for charitable purposes.” (Emphasis added.)
Pursuant to thаt mandate of the people, the General Assembly enacted E. C. 2915.08 to establish a licensing procedure supervised by the Attorney General. In addition, the.new statutory scheme establishes various rules to be followed in the operation оf those games and a system of record-keeping. See E. C. 2915.09 and 2915.10.
Although the foregoing is situated in the Criminal Code, those provisiоns are essentially regulatory rather than penal in nature as contended by the appellee. , ;
As part of the regulatory scheme the General Assembly has indicated that once a charitable organization, is properly licensed, it has a right, pursuant to E. C. 2915.09 (B) (5), to pay out up to, but no more than, $.3,500 at any bingo session.
Section 3, Article XVIII of the Ohio Ousfifntion gives
'• In the ease at bar, the ordinance forbids the payment of prize money in exсess of $1,200 an'd is in direct conflict with a state statute which gives a charitable' organization the right to pay out up to a mаximum of $3,500. Thus we also disagree with appellee’s assertion that E. C. 2915.09 (B)(5) does not expressly or impliedly grant a licensed charitable organization a right to pay out '••up to the maximuni statutory amount.
To allow ordinances to be enacted throughout thе state reducing maximum pay outs in 'any amount'would destroy a: uniform application of the newly enacted statutory scheme and create a potential for totally' emasculating a duly licensed charitable organization’s ability to сonduct a lawful bingo operation.-Such a construction óf E. C. 2915.-09(B)(5) would render its language virtually meaningless and nullify its effect.
Accordingly, since we find an unconstitutional conflict between the ordinance of the city of Lorain and an Act of the Generаl Assembly, the judgment of the Court of Appeals' must be reversed.
Judgment reversed.
Dissenting Opinion
dissenting. This case presents a close question which has previously been .addressed by the Court of Appeals for Franklin County in thе case of American Meeting Halls, Inc., v. City of Whitehall (No. 76AP-942, March 22, 1977), unfeported. In that case involving an ordinance of the city of'Whitehall controlling the rentаl of premises for the conduct of bingo games, the court, upon which I served as a member, held that 'there was no “conflict” between the ordinance and the general laws.
In Whitehall, supra, thé court stated:
“R. C. 2915.09 does not affirmatively grant powers to charitable organizаtions to engage in bingo. Instead it provides a penalty if a charitable organization goes beyond any specifically enumerated limitations placed upon Its conduct of bingo games. It does not grant a power to non-charitаble organizations such as appellant to lease- premises for bingo games or protect them in respeсt to the lease of premises for such purposes. The Whitehall .c-.ity ordinance in question simply prohibits more than is' prohibited by state statute.”
I respectfully shall maintain my position as expressed in Whitehall. Here, the city of Lorain has enacted a law pursuant to its constitutional home rule powers tо prohibit the pay out of more than a certain amount by operators of bingo games. Neither the state law nor the Lorain ordinance affirmatively grants or licenses a bingo operator to pay out any money during a bingo session. Rаther, each law forbids the pay out of an amount greater than expressed in those sections. I- believe that aрplying the test of conflict as set forth in Struthers v. Sokol (1923),