475 N.E.2d 1321 | Ohio Ct. App. | 1984
These cases are consolidated for appeal from the Court of Common Pleas of Franklin County and present the common issue of whether the Liquor Control Commission (hereinafter "commission") possesses the authority to seize and destroy gambling devices found on permit premises.
The case of Mills-Jennings of Ohio, Inc. v. Liquor ControlComm. (hereinafter "Mills-Jennings") originated when plaintiff, an owner of draw poker machines and not a permit holder, sought a declaratory judgment in the court of common pleas that these machines were not gambling devices and were not subject to removal from liquor permit premises. The trial court granted the judgment requested, where upon appeal this court reversed. (SeeMills-Jennings of Ohio, Inc. v. Dept. of Liquor Control [Mar. 24, 1981], Franklin App. No. 80AP-687, unreported.) After the allowance of a motion to certify the record, the Ohio Supreme Court affirmed, stating that the draw poker machines involved were gambling devices per se. Mills-Jennings, Inc. v. Dept. ofLiquor Control (1982),
In Frederick L. Fletcher, d.b.a. Baggy Knees v. Liquor ControlComm. and Donna M. Cuiksa v. Liquor Control Comm. appeals were filed from the commission's orders denying appellees' motions for return of their draw poker machines after conclusion of the administrative hearing for liquor law violations.
In Maags Bar Restaurant, Inc. v. Liquor Control Comm.
(hereinafter "Maags"), the permit holder appealed from the commission's order suspending its permit and the order denying its motion to return the gambling devices. The gambling devices involved were an in-operable antique slot machine and two electronic slot machines. The suspension was imposed for violation of Ohio Adm. Code.
Finally, the plaintiff in Ohio Vending Operators Group v. Dept.of Liquor Control (hereinafter "Ohio Vending"), sought a declaratory judgment that devices known as Dwarfs Den, Roman Tallies, Castles, and Bust My Balloons were not gambling devicesper se and requested an injunction preventing the commission from seizing or destroying the machines found on permit premises and from citing the permit holders for possessing or using the devices.
The trial court decided in the foregoing cases that the commission was without authority to destroy the gambling devices and ordered the machines returned to their owners. In Maags, the lower court also reversed the suspension order, stating that Ohio Adm. Code
"I. The court of common pleas erred in holding that the Ohio Department of Liquor Control cannot destroy gambling devices perse but must return all such machines after the administrative process has been concluded.
"II. The court of common pleas erred in holding that Section
"III. The court of common pleas erred in ordering the Ohio Department of Liquor Control to return the gambling machines in question since they are all gambling devices per se regardless of their name or visual display."
The Liquor Control Commission, as part of an administrative agency, only has express or implied authority as conferred by the Ohio General Assembly. Burger Brewing Co. v. Thomas (1975),
"Exercise all other powers expressly or by necessary implication conferred upon the department by Chapters 4301. and 4303. of the Revised Code, * * *."
Finally, R.C.
"No person authorized to sell alcoholic beverages shall have, harbor, keep, exhibit, possess or employ or allow to be kept, exhibited or used in, upon or about the premises of the permit holder of [sic] any device, machine, apparatus, book, record, forms, tickets, papers or charts which may or can be used for gaming or wagering or the recording of wagers, pools, or chances on the result of any contest, or allow or conduct gaming or wagering on such premises on any game of skill or chance."
Considering the foregoing provisions together, the commission has demonstrated a need to seize the gambling devices found on permit premises for use as evidence to prove a violation of Ohio Adm. Code
The express authority of the commission to destroy property is found in R.C.
Appellant has also asserted R.C.
The first part of the test is not satisfied in Mills-Jennings
and Ohio Vending because the appellees are the owners of the devices and are not the permit holders who allegedly violated Ohio Adm. Code
The second part of the test requires the possession of the property to be unlawful, either from the nature of the *293
property or the circumstances of the person. Under Ohio Adm. Code
"No person shall:
"* * *
"(5) With purpose to violate division (A)(1), (2), (3), or (4) of this section, acquire, possess, control, or operate any gambling device."
Mere possession of these devices is not unlawful in and of itself and, therefore, the second requirement of R.C.
Appellant's first assignment of error is overruled.
The second assignment of error, challenging the trial court's finding that Ohio Adm. Code
Slot machines are gambling devices within the definition of R.C.
R.C.
Overbreadth may be raised only by a party affected by an overbroad application. Since Ohio Adm. Code
Ohio Adm. Code
Appellant's second assignment of error is overruled.
Appellant's third assignment of error is not well-taken because it relates only to the Ohio Vending case as to whether the machines involved therein are gambling devices per se. Inasmuch as the trial court did not decide this issue, this court should not address it for the first time on appeal and Ohio Vending will be remanded for consideration of whether the devices known as Dwarfs Den, Roman Tallies, Castles, and Bust *294 My Balloons are gambling devices per se.
Appellant's third assignment of error is overruled.
Accordingly, the judgments in the cases of Mills-Jennings ofOhio, Inc. v. Liquor Control Comm., Frederick L. Fletcher, d.b.a.Baggy Knees v. Liquor Control Comm., Donna M. Cuiksa v. LiquorControl Comm., and Maags Bar Restaurant, Inc. v. Liquor ControlComm. are affirmed. The judgment in Ohio Vending Operators Group v. Dept. of Liquor Control is reversed and the cause is remanded for determination of whether the devices known as Dwarfs Den, Roman Tallies, Castles, and Bust My Balloons are gambling devicesper se.
Judgments affirmed in case Nos. 84AP-197, 84AP-199, 84AP-200 and84AP-201; and judgment reversed and cause remanded in case No.84AP-203.
MOYER and VICTOR, JJ., concur.
VICTOR, J., retired, of the Ninth Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.