VFW POST 8586, APPELLEE, v. OHIO LIQUOR CONTROL COMMISSION, APPELLANT.
Nos. 97-1383 and 97-1384
SUPREME COURT OF OHIO
Decided August 19, 1998.
83 Ohio St.3d 79 | 1998-Ohio-181
COOK, J.
Submitted June 10, 1998. CERTIFIED by and APPEAL from the Court of Appeals for Ashland County, No. 96-COA-01167.
[Cite as VFW Post 8586 v. Ohio Liquor Control Comm., 1998-Ohio-181.]
Administrative law—Mere possession of a gambling device on a liquor permit premises does not constitute violation of
- Mere possession of a gambling device on a liquor permit premises does not constitute a violation of
Ohio Adm.Code 4301:1-1-53(B) . - To find a violation of
Ohio Adm.Code 4301:1-1-53(B) , the Liquor Control Commission must receive evidence tending to prove the same elements that are required to sustain a criminal conviction of one of the gambling offenses listed inR.C. 2915.01(G) .
{¶ 1} Upon commencing a warrantless administrative investigation of appellant VFW Post 8586’s class D-4 liquor permit premises, agents of the Department of Liquor Control immediately observed seven video poker machines. The agents deposited a quarter into each of four of the machines and a dollar into a fifth machine and played off the credits they had purchased. The agents then ordered the opening of all of the machines, and found that they contained a total of $319. Based on this investigation, the Ohio Department of Liquor Control cited VFW Post 8586 for violating
{¶ 3} The court of appeals certified that its decision was in conflict with the decisions of the Mercer County Court of Appeals in Loyal Order of Moose Lodge No. 1473 v. Liquor Control Comm. (1994), 95 Ohio App.3d 109, 641 N.E.2d 1182; the Ross County Court of Appeals in Am. Legion Post 0014 v. Liquor Control Comm. (July 25, 1989), Ross App. No. 1482, unreported, 1989 WL 86278; the Sandusky County Court of Appeals in Am. Legion Post 0046 Bellevue v. Liquor Control Comm. (1996), 111 Ohio App.3d 795, 677 N.E.2d 384, and the Franklin County Court of Appeals in Mills-Jennings of Ohio, Inc. v. Liquor Control Comm. (1984), 16 Ohio App.3d 290, 16 OBR 321, 475 N.E.2d 1321. This cause is now before this court upon our determination that a conflict exists and pursuant to our contemporaneous allowance of a discretionary appeal.
Fawley & Associates, Darrell E. Fawley, Jr. and Kurt O. Gearhiser, for appellee.
Betty D. Montgomery, Attorney General, and David A. Raber, Assistant Attorney General, for appellant.
COOK, J.
{¶ 4} The issue certified to this court is “[w]hether, mere possession of gambling devices [on liquor permit premises] violates
“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 gambling device as defined in division (F) of section 2915.01 of the Revised Code which is or has been used for gambling offenses as defined in division (G) of section 2915.01 of the Revised Code.” (Emphasis added.)
{¶ 5} Because a violation of
{¶ 6} We also accepted this case on discretionary appeal, and, in briefing and arguing the case, the parties have significantly diverged from the certified issue. The parties have framed much of their arguments in this appeal around the issue of whether the commission received sufficient evidence to find that VFW Post 8586 violated
{¶ 8} The quantum of evidence required to obtain a conviction on a criminal offense differs, however, from that required to find a regulatory violation. While a criminal conviction must be supported by proof beyond a reasonable doubt, a violation of
{¶ 9} In reviewing the commission’s order pursuant to an
“(A) No person shall do any of the following:
“ * * *
“(2) Establish, promote, or operate or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit.”
{¶ 11} As part of its argument, VFW Post 8586 notes that the commission did not receive direct evidence that anyone aside from the agents played the machines or that anyone was paid off in connection with playing the machines. There is no requirement, however, that a violation be proved by direct evidence. The commission is permitted to draw reasonable inferences based on the evidence before it.
{¶ 12} The stipulated evidence permits a reasonable inference that someone other than the officers in question had played the video poker machines: agents found video poker machines on the permit premises in a location accessible to club patrons, the poker machines were operational and could be played upon the deposit of money, and the agents recovered $319 from the machines after depositing less than $3. Accordingly, the commission could reasonably infer that club patrons had played the machines.
{¶ 13} Further, because the video machines in question played poker, the department was not required to come forward with evidence of payoff or any other evidence tending to show that the machines were played in the hope of gain. A violation of
{¶ 14} Because poker is per se a “game of chance” within the meaning of
{¶ 15} Our analysis is consistent with this court’s earlier holdings in Mills-Jennings, 70 Ohio St.2d 95, 24 O.O.3d 181, 435 N.E.2d 407, syllabus, and Garono v. State (1988), 37 Ohio St.3d 171, 175, 524 N.E.2d 496, 500, both of which classified draw poker machines as gambling devices per se. To be a gambling device under
{¶ 16} VFW Post 8586 also argues that the commission received no evidence that the machines were operated for profit—another element of an
{¶ 17} We think it important to confirm that our analysis concerning the quantum of evidence required to support a violation of
Judgment reversed.
MOYER, C.J., RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., concur.
DOUGLAS and F.E. SWEENEY, JJ., dissent.