Preview
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An Association
of Independent
Attorneys and
Counselors at Law
The Durkin Building
362 South Main Street
Akron, OH
44311-1014
(330) 253-3444
Fax (330) 253-6431
DANIEL M. HORRIGAN
7010 SUL 14 -PHI2: 35
IE COURT OF COMMON PLEAS
sumair COON
CLERK OF COURTSUMMIT COUNTY, OHTO
F & C MARKETING, LLC, et al. CASE NO: 2010-06-4165 25
Plaintiffs,
vs. JUDGE: PARKER
SPRINGFIELD TOWNSHIP POLICE
DEPARTMENT, et al. BRIEF REGARDING
CONSTITUTIONALITY OF STATUTE
FILED ON BEHALF OF
E IARKETING, LLC.
Defendant.
Pursuant to this Court's prior orders, the Plaintiff, F & C Marketing, LLC, by and
through its counsel, Edmund M. Sawan, herein proffers the attached Brief in Support of
the Unconstitutionality of the Statute under examination.
Based on the arguments contained therein, this Plaintiff respectfully requests
that this Court hold said statute unconstitutional and, accordingly, deem same void.
362 South Main Street
Akron, OH 44311-1014
(330) 253-3444COPY
SAWAN* FARRIS
An Association
of Independent
Attorneys and
Counselors at Law
The Durkin Building
362 South Main Street
Akron, OH
44311-1014
(330) 253-3444
Fax (330) 253-6431
BRIEF ESTABLISHING UNCONSTITUTINALITY
OF STATUTE
The Plaintiff, F & C Marketing, LLC, is a duly organized Ohio Corporation doing
business as Massillon Road Internet Connection. Plaintiff sells access to the internet
and the public is allowed to participate in a free sweepstakes promotion (similar to the
McDonald’s Monopoly sweepstakes).
A potential customer of the Plaintiff would enter the establishment, purchase
internet time and receive “points” for each dollar expended purchasing the internet
time. As with the McDonald's Monopoly sweepstakes promotion, a potential customer
can enter the sweepstakes without purchasing the network time.
As has been previously orally argued to this Court, the customer of Plaintiff who has
now purchased internet time is able to do that which he or she chooses with said
purchase. In other words, word processing programs can be accessed as well as
spread sheet programs, email can be browsed, any of the standard internet portals can
be visited, streaming video can be accessed, bills can be paid; in short, a customer may
access the internet as one would at home or at work. However, the amount of network
access time is, obviously, reduced by the various minutes that the customer is on the
internet.
Aside from any other internet activity, the customer, having purchased the access
time to the internet, is given free sweepstake points and the customer may determine
whether he or she has won a prize simply by playing a sweepstakes game at one of the
computers.COPY
An Association
of Independent
Attorneys and
Counselors at Law
The Durkin Building
362 South Main Street
Akron, OH
44311-1014
(330) 253-3444
Fax (330) 253-6431
For example, the customer may select any “game” and, regardless of the game
chosen, there is absolutely no effect on the pre-determined sweepstakes prizes. There
is absolutely no risk as the prizes are pre-determined (again, similar to McDonald's).
The State of Ohio presently has no laws regulating sweepstakes and, as has been
suggested, many major corporations operate sweepstakes within the State of Ohio.
Besides McDonald's, the various major soft drink companies market sweepstakes as
well as others.
It is the contention of this Plaintiff that these types of sweepstakes games are
absolutely outside of the gaming laws of the State of Ohio. In a remarkably similar
case (State vs. Dadish, # CRB 08 25138, attached hereto), the trial court concluded
that as there is no consideration and/or risk, there can be no gambling in sweepstakes
games. Although a Toledo, Ohio municipal court case is certainly not binding on this
Court, the analysis and reasoning of Judge Gorman seems entirely appropriate here.
In an attempt to regulate “entertainment device arcades”, the Summit County,
Council enacted, on May 11, 2010, Chapter 755 of the Codified Ordinances. This
Plaintiff believes that Chapter 755 of the Codified Ordinances is unconstitutional and an
unenforceable.
As has been orally articulated to this Court, Chapter 755 attempts to regulate all
games of skill, sweepstake machines, internet café terminals, etc. The requirements of
this ordinance seem overly burdensome. For instance, a “authorized independent
testing” laboratory needs to make certain legal conclusions about the particular
“entertainment device”. As this Court is aware, only a judicial authority can make “legalCOPY
An Association
of Independent
Attorneys and
Counselors at Law
The Durkin Building
362 South Main Street
Akron, OH
44311-1014
(330) 253-3444
Fax (330) 253-6431
conclusions”. Further, this Court has been advised that this type of “legal conclusion” is
simply not possible, factually, to do. Furthermore, any individual receiving anything of
value must provide photo identification and meticulous records must be maintained.
These records require the name, home address, description of thing given, value of
thing given, date and time of thing given, serial number or other identifying description
of the device giving the item, are all to be kept regardless of the value of the thing
given. A licensing fee of $1,000.00 yearly is imposed as well as a semi annual fee of
$200.00 per entertainment device. Additionally, there must be 50 square feet per
entertainment device and minors are not allowed to be in the arcade. If the transaction
involves a sale of internet time or computer time (as aforementioned), the details of the
daily amount sold, daily time used or consumed for each preceding calendar month
must be reported. These types of meticulous details accounting are over burdensome
(and, frankly, unnecessary).
It is the belief of this Plaintiff that the legislation cannot pass constitutional
muster, as it does not bear a real and substantial relation to the public health, safety,
morals, or general welfare of the public. Arbino vs. Johnson & Johnson (2007), 116
Ohio St. 3 468. There must be a legitimate government purpose.
In the case of Richmond Heights vs. LoConti (1969), 19 Ohio App. 2"? 100, the
Court held that for a licensing fee to be constitutionally valid, it must be a reasonable
sum related to the expense that the community incurs from the licensed occupation. In
other words, costs of inspection, regulatory measures costs, etc. are acceptable,
constitutionally. In this case, the ordinance imposes a $1,000.00 licensing fee perCOPY
An Association
of Independent
Attorneys and
Counselors at Law
The Durkin Building
362 South Main Street
Akron, OH
44311-1014
(330) 253-3444
Fax (330) 253-6431
SAWANS FARRIS
arcade and a semi-annual fee for each entertainment device of $200.00 (or $400.00 per
device per year). Thus, an individual with 30 machines would pay a total of $13,000.00
per year. There is absolutely no basis in the history of the aforementioned legislation to
determine how Summit County Council arrived at these amounts. To the knowledge of
Plaintiff, there were no studies presented at any of the hearings in support of this
legislation to compel such exorbitant fees. Further, there is no indication as to how the
money collected would be used in relation to the expense that the community incurs.
Thus, it is the position of this Plaintiff that the “licensing fees” bear no relation to the
expense that the community incurs in licensing this business and, accordingly, the
licensing fees are arbitrary and unreasonable.
As aforestated, every person to whom anything of value is given in the
“entertainment device arcade” must provide photo identification to the owner/operator
of the arcade. That individual's name, home address, and other details are to be
maintained and all of this information is to be given by the second Tuesday of each
month to the Summit County Office of Consumer Affairs. It is submitted herein that in
no other regulated business is such detailed and over burdensome information required.
No recognizable government interest is served by requiring such meticulous record
keeping of prizes of such trivial value. For example, the Ohio State Lottery requires
photo identification for any winnings over $599.00. See Ohio Administrative Code
3770:1-8-04. Prizes under $599.00 do not require the recording of any identifying
information. The Ohio Lottery Commission mandates these records for tax purposes.COPY
An Association
of Independent
Attorneys and
Counselors at Law
The Durkin Building
362 South Main Street
Akron, OH
44311-1014
(330) 253-3444
Fax (330) 253-6431
In theory, if one were to win a free game of pinball being played in an
“entertainment device arcade”, the operator of said arcade would be required to record
the name, home address, description of thing given, value of thing given, date, time of
thing given, serial number or other identifying description of device, every time a free
game is won. There is absolutely no real or substantial relation between this
requirement which would serve any purpose to the public health, morals, safety or
general welfare of the community.
In a similar manner, there appears to be no justification for requiring each
“entertainment device arcade” to have 50 square feet per device. As this Court is
aware, these are computer monitors. The total square foot necessary would not
exceed 4 to 6 feet. It is the position of this Plaintiff that the square footage
requirement is designed to simply impose greater space requirements (for no justifiable
reason) on this Plaintiff.
The inspection of “entertainment devices” by an Authorized Independent Testing
Laboratory requires the laboratory to make a “legal conclusion”. Obviously, this is the
function of the judicial authority. If these computers are required to be ‘independently
tested”, ought not all computers including those found at the local library branches,
colleges, schools, etc. be so regulated?
Minors are excluded from the entertainment device arcades. In theory, this would
include any bowling alley, pool hall, Chuck E. Cheese facility, Amazone facility, or any
other store or business having more than four entertainment devices. There is
absolutely no justification as to why minors are restricted from Plaintiff’s store yet not aCOPY
i
An Association
of Independent
Attorneys and
Counselors at Law
The Durkin Building
$62 South Main Street
Akron, OH
44311-1014
(330) 253-3444
Fax (330) 253-6431
simple bowling alley or other entertainment venue. All persons subject to legislation
must be treated alike if an ordinance is held to be constitutional. State ex rel.
Doersam vs. Industrial Commission of Ohio (1989), 45 Ohio St. 3 115.
that this Court so hold.
Ross,
Atto!
thisCOPY
IN THE TOLEDO MUNICIPAL COURT, LUCAS COUNTY, OHIO
State of Ohio, * Case No. CRB-08-25138
Plaintiff, *
. VS. * OPINION
Rovert Dabish, * =
Defendant. * Judge Francis X. Gorman 3
= F 92
Defendant is charged with two violations of Ohio law, Operating a
Gambling House, a violation of Section 2915.03(A)(1) of the Ohio Revised Code
and Gambling, a violation of Section 2915.02(A)(2) of the Ohio Revised Code.
The Defendant, a resident of Warren, Michigan, operates a business
known as the Players Club Café at 218 Main Street in Toledo, Ohio. It is this
business that is the subject of these criminal charges: however, and it is relevant
to this case, the Defendant also maintains a grocery store next to the Players
Club Café. On December 8, 2008, Detective Kenneth DeWitt of the Toledo Police
Department's Vice and Narcotics Unit was dispatched to the Defendant's Players
Club Café to investigate allegations that it was a gambling operation. He entered
the premises and purchased a $50.00 card. His picture was taken and other _
information, along with the picture, was affixed to the card. During the trial, the
Detective referred to this card as a“game card.” Detective DeWitt then took
the card to one of the seventy or so computers on which, after swiping his card,
he was able to play any number of computer-generated games. AlthoughSs ean gta Ht eth eR NR
Detective DeWitt testified that he won $4.00 as a result, in actuality he won
$54.00 for which he was paid at the window where he purchased the card,
following his exhaustion of game entries. Based on this activity, the Detective
then filed the instant criminal charges.
The server which serviced all of the computers was seized by the Toledo
Police Department and has been held up to the date of the trial. It is important
to note that since the day of the filing of the charges, the premises remained
intact.
During the course of the trial to the Court, the Court, the Prosecutor, the
Detective, the Defendant, the Defense Lawyer, and court staff, including the
Court Reporter, toured the Players Club Café and had the opportunity to observe
the premises, as well as a demonstration by the Defendant of the operation of
the Players Club Café. The Defendant operated a computer-generated game for
the benefit of the Court.
Defendant's premises consists of one large room with seventy or so
computers, along with certain soft drink facilities. Upon entering the premises, 2
customer proceeds to a back window at which a large sign is present. As the
Detective indicated, upon purchase of a “card” the customer can then, should he
wish, proceed to a computer and play the computer-generated games.
However, to conclude that this is all that occurs at the Players Club Café is both
simplistic and misleading.
The evidence indicated, both visually and with the testimony of the
Defendant, that what really occurs upon entering the premises is that a customer
2COPY
proceeds to the back window to purchase a card. This large sign, a photograph
of which was admitted into evidence, indicates that the person is purchasing a ~
$5.00, $10.00, $15.00, $20.00 or $50.00 telephone card, ‘Upon cross-
examination, the police officer, when examining his “game card,” became aware
that on the back of the card it was indicated that it was a phone card which
allowed him to use it for an unlimited period of time, but that once he began its
use the card would expire within three months. Moreover, this sign in the
Defendant's premises indicated to the customer that the games were a
sweepstakes and that customers could, every twenty-four hours, play the
sweapstakes games for free without purchase. The sign also indicated that if a
customer did not wish to play the computer-generated games, he could ask the
attendant to “swipe” his card at that point and that the swiping of the card would
indicate whether or not the customer had won any prize in the sweepstakes.
The Defendant testified, and his sign clearly indicated, that the outcome
of the sweepstakes winners was predetermined by the operation of the
computer. Detective DeWitt could have asked the operator to swipe his card
and, at that point, Detective DeWitt would have learned that he had won the
$54.00.
This is not to say that Detective DeWitt was being untruthful in his
testimony. In fact, the evidence in this case is not in dispute. Detective Dewitt,
to his credit, testified that when he entered the premises he was looking for a
gambling operation and perhaps did not spend the time reading this rather
involved sign. Detective DeWitt also indicated that when he played the games _.
3he did not realize or recognize that the same rules were printed on the computer
screen. .
And, while perhaps not crucial to the outcome of this trial, the Defendant
testified that in the course of the business he purchased the phone card time in
bulk from @ Canadian corporation. He also testified that, not surprisingly, many
of his customers did not use all of the time on the phone card after exiting the
premises so that the Defendant then could, at a later time, resell that unused
time which, of course, increased his profitability in the sale of the phone cards.
The defense pointed out, correctly, that while the purchase of a phone card
permitted the customer to either have his card swiped, play the games, or exit
without doing either, in any event, the customer retained the phone card
minutes purchased. Regardless of the outcome of playing the games, swiping of
the card, or neither, the customer got what he paid for — the phone card.
The Defendant testified during the course of the trial that his entire
operation was a marketing tool intended to draw customers into the
establishment to purchase a phone card to play games. He testified, and there is
no dispute to his testimony, that his entire profit came from the sale of the
phone cards.
It is also instructive to note that at the Defendant’s grocery store next
door, of which the entire inventory of the grocery store was supplied by Spartan
Stores of Michigan, Defendant had a kiosk of phone cards for sale. The
Defendant testified, and it is hardly surprising, that while these phone cards were
worth the approximate same value as the ones sold in the Players Club Café, the.
4COPY
sales at the Players Club Café far outweighed the sales of phone cards in his
grocery store.
In summary, the evidence in this case is not in dispute. The Court is not
called upon to resolve issues of fact. Rather, both the prosecution and the
defense lay out argumenis as to how these facts should be interpreted in light of
the existing Ohio law.
THE LAW
RC 2915.02(A)(2): Gambling.
No person shall do any of the following: Establish, promote, or operate or
knowingly engage in conduct that facilitates any game of chance
conducted for profit or any scheme of chance.
RC 2915.03(A)(1): Operating a gambling house.
No person, being the owner or lessee, or having custody, control, or
supervision of premises, shall: Use or occupy such premises for gambling
in violation of Section 2915.02 of the Revised Code.
RC 2915.01(E): Game of chance conducted for profit.
Means any game of chance designed to produce income for the person
who conducts or operates the game of chance, but does not include
bingo.
RC 2915.01(D): Game of chance.
Means poker, craps, roulette, or other game in which a player gives
anything of value in hope of gain, the outcome of which is determined
largely by chance, but does not include bingo.COPY
“RC 2915.04 (C): Scheme of chance.
Means a slot machine, lottery, numbers game, pool conducted for profit,
or other scheme in which a participant gives a valuable consideration for a ,
chance to win a prize, but does not include bingo, a skill-based
amusement machine, or a poo! not conducted for profit.
RC 2915.01(VV): Slot machine.
(1) Means either of the following: (a) Any mechanical, electronic, video,
or digital device that is capable of accepting anything of value, directly or
indirectly, from or on behalf of a player who gives the thing of value in the
hope of gain; (b) Any mechanical, electronic, video, or digital device that
is capable of accepting anything of value, directly or indirectly, from or on
behalf of a player to conduct or dispense bingo or @ scheme or game of
chance.
The State argues that the conclusion to be drawn from the evidence is that
the Defendant is promoting a scheme of chance and its argument is well
summed up in the State's post-hearing brief:
“A phone card sweepstakes such as the Defendant's is really
nothing more than ‘scheme of chance’ as defined in Revised Code
2915.01(C). Ohio courts have consistently looked to the
predominate purpose of the game, rather than its face, in
determining whether the game is a true sweepstakes or scheme of
chance. When presented with the argument that consumers are
giving consideration for only the phone card, courts have held that
it is obvious the consumers are interested in potential monetary
prizes and not the phone card. The phone card, in essence, is just
a sham to entice customers into the establishment.”fe eetetine ot eter teetne ns oe At nat nine
‘To bolster its argument, the State relies on a series of cases that all
originate with an initial decision in Katmandu, Inc. v. Liquor Control Commission
(2002) Franklin App. No. 01CVF10-10134, unreported, and affirmed by the Tenth
District Court of Appeals. Katmandu, Inc. v. Liquor Control Commission (2002),
2002-Ohio-6743. As the prosecution notes, the Court of Appeals found “We can
find no error in the common pleas court’s determination that the phone card
portion of the ticket was of slight value and that the predominate purpose of
operating the machine was to play a scheme or game of chance
In Katmandu, supra, the alleged gambling device was a “Lucky Shamrock
Emergency Phone Card Dispenser” which would accept money and dispense a
two-minute long-distance phone card with attached sweepstake game pieces.
Winning tickets were predetermined and the machine would recognize the
winning ticket and would light up and present an award if the customer was
deemed to be a winner. While obviously this case and the subsequent cases
relying on Katmandu are clearly relevant to this Court, unfortunately Katmandu
does not address the issue to be decided by this Court, for in Katmandu the ,
defendant stipulated to the admissibility of the Liquor Control Commission’s
investigating officer’s report. That report indicated that the machine was a
gambling device that allowed persons to play “schemes of chance ona video
screen.” Inasmuch as the defendant stipulated that the machine was a game of
chance, the trial court was not called upon to determine whether or not the
machine was a game of chance. The Court of Appeals correctly noted that it is
not the role of an appellate court to examine the evidence. In this case, theDefendant vehemently denies that his operation involves a scheme or game of
chance. His operation is, of course, different than Katmandu. The fact that it is
different than Katmandu does not necessarily lead the Court to conclude that it is”
not a game of chance. However, his denial does require the Court to make that
determination,
At this point, it should also be noted that Katmandu, 2s well as the cases
relying on it, was civil in nature as opposed to the instant case. Obviously, the
standard of proof is far different in the two scenarios.
These courts, moreover, have concluded that the proper test to be
utilized, the “predominate purpose of the machines,” is the legal test that this”
Court should utilize. Indeed in Flare Game Technology, Inc. and Mid-Ohio
Vanding v. the Ohio Department of Public Safety (2003), 10" App. Dist. No.
02AP-748, the commission argued that the fact that a machine has an innocent
use in dispensing phone cards does not prevent a trial court from concluding that
the appellant's intention is to operate an illegal gambling device. This rather -
startling assertion may have some use in a civil case; however, this Court is
addressing an alleged violation of Ohio criminal law.
In conclusion, the State argues that the Defendant's operation at the
Players Club Café is a ruse; that the sales of the phone cards, as the Liquor
Commission noted in Katmandu, were of little value; that the real and overall
purpose of the operation was to entice people in to play games of chance and
that, therefore, the Defendant has violated the Ohio gambling laws.. However, in order to have this Court conclude beyond a reasonable doubt
that the Defendant violated the Ohio gambling laws, the State must overcome
serious obstacles to their own argument. First of all, while the Katmandu
decision says that the phone cards purchased in those cases were of little value,
the evidence in this case would indicate otherwise. The Defendant sells these
phone cards in the Players Club Café, but it is equally true that he sells the same
value cards in his grocery store adjacent to the Players Club Café. No evidence
was presented to suggest that the phone cards sold in Defendant’s grocery store
were of no value. Inasmuch as the cards were essentially identical, the Court
can conclude that the phone cards sold at the Players Club Café by the
Defendant were of equal value. And, while not evidence in this case, the Court
notes that it recently was at an Ohio turnpike plaza where all of the goods and
services available there are licensed by the Ohio Turnpike Commission, and the
Court notes that in the foyer was a telephone card machine which dispensed
cards similar in nature to the cards involved here. One would hope that the Ohio
Turnpike Commission would not license products to be sold of little or no value.
In short, the Court finds that the cards sold by the Defendant gave to the:
purchaser telephone cards that were available to the public by other retail sellers
and are of the same or similar value.
The Defendant argues that there are three elements to a charge involving
gambling, “Consideration — Risk - Reward.” As The Supreme Court noted in ~-
Federal Communications Commission v. American Broadcasting Co., 347 U.S.
284 (1954), "A prohibited lottery, or gambling, is the union of chance, prize and...COPY
consideration. Remove any of these elements and there is no gamble.” This is
the threshold test.
Consideration. While clearly the customer, upon entering the Players Club ©
Café, purchases a phone card for a predetermined amount of money, $5.00,
$10.00, $20.00, etc., it should be noted, however, and is clearly indicated on
Defendant's premises, that one can enter the sweepstakes without the purchase
of a phone card. The evidence clearly establishes that once the individual
purchases such a card he retains what he purchased whether or not he chooses
to enter the computer-generated games. Simply put, the value of the card is
never at risk
Risk. As evidenced in the above paragraph, there is no risk to the
purchaser of the phone card in losing the value of his purchase. He can play the
computer-generated games, have the card swiped to determine whether or not
he won a prize, that prize having already been predetermined by computer, or
he could simply leave the premises with the phone card.
Reward. Defendant concedes in his post-hearing brief that there is a
reward and the evidence would clearly indicate that there is a possibility of a
reward as evidenced by Detective DeWitt’s winning of $54.00 upon playing the
computer-generated game.
The Defendant testified at the trial that his entire profit from the operation
of the Players Club Café came from the sale of the aforementioned phone cards.-~
The State did not challenge that assertion; instead it argues that the Court
should look at the predominate purpose of the operation and the State argues...
10that the sale of the phone card was nothing more than a ruse to entice the
purchaser of a card to play the machine. Defendant counters that the computer-
generated game is a marketing tool intended to increase the sale of phone cards.
He testified that the sale of the phone cards at the Players Club Café drastically
exceeded the sale of the phone cards from the kiosk in his grocery store.
The Court is somewhat mystified at the “predominate purpose of the
machines” argument inasmuch as the State asserts that it is an essential element
of the crime. Even if it was, which it is not, the Defendant's argument is rather
persuasive that the predominate purpose of the machines is to encourage the
purchase of the phone cards, a clever and apparently profitable marketing tool.
And while not controlling in this state, the Massachusetts Supreme Court in Mobil
Oil Corporation v. Attorney General, 361 Mass. 401 at 407 (1972), observed “The
incidental increase in business attendant upon the use of promotional games...is
not the type of consideration necessary to make [such] games lotteries.” In
other words, the fact that this Defendant has developed a clever promotional
device to increase the sale of phone cards is not evidence of a gambling
operation. Again, gambling is the union of chance, prize and consideration.
Remove any of these elements and there is no gamble. Federal Communications
Commission v. American Broadcasting, supra. Clearly in this case, the element
of risk is not present. The element of consideration is present, but it is not
coupled with risk. In other words, once the card is purchased the customer
owns.the phone card, as does the customer of a phone card purchased at the
grocery kiosk or at the turnpike plaza. And, as the Defendant stipulated, the _..COPY
1
ve
It is that paragraph which this Court finds similar sympathies with the argument
of the State. The Defendant's conduct in the instant case simply does not fall
within the guidelines of the violations of the Ohio gambling laws and the State,
here, like the prosecution in Haddock, is suggesting that the Court look beyond
those elements. This the Court cannot do. The Defendant's operation: simply
does not violate the Ohio gambling laws.
Findings of Fact
1. The Defendant owns and operates the Players Club Café, in which
participants purchase phone cards and as a result of those purchases can play
computer-generated games at which there is a possibility that they could win a
predetermined prize.
2. If the purchaser does not wish to play a game, he can have the card
swiped at the purchase counter to determine whether or not he has won a
predetermined prize.
3, Or, the purchaser can merely leave with the phone card.
4. The phone card retains its value whether the purchaser plays a game
or does not play a game.
to mentee ence na Rd a AME tt
mtntaa ett. 5. Persons entering the Defendant's premises can play the computer-
generated games once every twenty-four hours without the purchase of
anything.
6. Defendant operates a grocery store next to the Players Club Café in
which phone cards, which have approximately the same value as the cards sold
in the café, are sold at a kiosk.
7. The games that are played on the computer are games in which the
winner of any such game has been predetermined by a computer-generated
system so that a purchaser could determine whether or not he was a winner
instantly.
8. The Defendant claims that his business is a sweepstakes operation
and, while the Court agrees that it hes all the appearances of such a
sweepstakes, the Court is not required to make that determination and the Court
daclines to do so.
Conclusions of Law
In order to find the Defendant guilty of a violation of Ohio gambling laws,
the Court must find that there is chance, prize and consideration.
1. The Court finds that the consideration is for the purchase of the phone
card only and that that consideration. is never in jeopardy.
2. That the element of risk is absent from this case inasmuch as the
purchaser of the phone card risks nothing. If the purchaser does not win a prize,prize or a reward in the playing of the game.
3. The element of risk is missing. The element of consideration is, at
best, compromised.
4. The claim of the State that the Court must look at the “predominate
Purpose of the machines” is not a criminal element and need not be addressed
by this Court.
The Court finds the Defendant not guilty of gambling, a violation of
Section 2915.02(A)(2), and, -by necessity, not guilty of operating a gambling
house, a violation of Section 2915.03(A)(1).
J8 lowe 09 a Soe
Date | Ce Francis X/ Gdxndn
Me _ he séill retains the full purchase price of his phone card. There is the chance ofa
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COPY An Association of Independent Attorneys and Counselors at Law The Durkin Building 362 South Main Street Akron, OH 44311-1014 (330) 253-3444 Fax (330) 253-6431 DANIEL M. HORRIGAN 7010 SUL 14 -PHI2: 35 IE COURT OF COMMON PLEAS sumair COON CLERK OF COURTSUMMIT COUNTY, OHTO F & C MARKETING, LLC, et al. CASE NO: 2010-06-4165 25 Plaintiffs, vs. JUDGE: PARKER SPRINGFIELD TOWNSHIP POLICE DEPARTMENT, et al. BRIEF REGARDING CONSTITUTIONALITY OF STATUTE FILED ON BEHALF OF E IARKETING, LLC. Defendant. Pursuant to this Court's prior orders, the Plaintiff, F & C Marketing, LLC, by and through its counsel, Edmund M. Sawan, herein proffers the attached Brief in Support of the Unconstitutionality of the Statute under examination. Based on the arguments contained therein, this Plaintiff respectfully requests that this Court hold said statute unconstitutional and, accordingly, deem same void. 362 South Main Street Akron, OH 44311-1014 (330) 253-3444COPY SAWAN* FARRIS An Association of Independent Attorneys and Counselors at Law The Durkin Building 362 South Main Street Akron, OH 44311-1014 (330) 253-3444 Fax (330) 253-6431 BRIEF ESTABLISHING UNCONSTITUTINALITY OF STATUTE The Plaintiff, F & C Marketing, LLC, is a duly organized Ohio Corporation doing business as Massillon Road Internet Connection. Plaintiff sells access to the internet and the public is allowed to participate in a free sweepstakes promotion (similar to the McDonald’s Monopoly sweepstakes). A potential customer of the Plaintiff would enter the establishment, purchase internet time and receive “points” for each dollar expended purchasing the internet time. As with the McDonald's Monopoly sweepstakes promotion, a potential customer can enter the sweepstakes without purchasing the network time. As has been previously orally argued to this Court, the customer of Plaintiff who has now purchased internet time is able to do that which he or she chooses with said purchase. In other words, word processing programs can be accessed as well as spread sheet programs, email can be browsed, any of the standard internet portals can be visited, streaming video can be accessed, bills can be paid; in short, a customer may access the internet as one would at home or at work. However, the amount of network access time is, obviously, reduced by the various minutes that the customer is on the internet. Aside from any other internet activity, the customer, having purchased the access time to the internet, is given free sweepstake points and the customer may determine whether he or she has won a prize simply by playing a sweepstakes game at one of the computers.COPY An Association of Independent Attorneys and Counselors at Law The Durkin Building 362 South Main Street Akron, OH 44311-1014 (330) 253-3444 Fax (330) 253-6431 For example, the customer may select any “game” and, regardless of the game chosen, there is absolutely no effect on the pre-determined sweepstakes prizes. There is absolutely no risk as the prizes are pre-determined (again, similar to McDonald's). The State of Ohio presently has no laws regulating sweepstakes and, as has been suggested, many major corporations operate sweepstakes within the State of Ohio. Besides McDonald's, the various major soft drink companies market sweepstakes as well as others. It is the contention of this Plaintiff that these types of sweepstakes games are absolutely outside of the gaming laws of the State of Ohio. In a remarkably similar case (State vs. Dadish, # CRB 08 25138, attached hereto), the trial court concluded that as there is no consideration and/or risk, there can be no gambling in sweepstakes games. Although a Toledo, Ohio municipal court case is certainly not binding on this Court, the analysis and reasoning of Judge Gorman seems entirely appropriate here. In an attempt to regulate “entertainment device arcades”, the Summit County, Council enacted, on May 11, 2010, Chapter 755 of the Codified Ordinances. This Plaintiff believes that Chapter 755 of the Codified Ordinances is unconstitutional and an unenforceable. As has been orally articulated to this Court, Chapter 755 attempts to regulate all games of skill, sweepstake machines, internet café terminals, etc. The requirements of this ordinance seem overly burdensome. For instance, a “authorized independent testing” laboratory needs to make certain legal conclusions about the particular “entertainment device”. As this Court is aware, only a judicial authority can make “legalCOPY An Association of Independent Attorneys and Counselors at Law The Durkin Building 362 South Main Street Akron, OH 44311-1014 (330) 253-3444 Fax (330) 253-6431 conclusions”. Further, this Court has been advised that this type of “legal conclusion” is simply not possible, factually, to do. Furthermore, any individual receiving anything of value must provide photo identification and meticulous records must be maintained. These records require the name, home address, description of thing given, value of thing given, date and time of thing given, serial number or other identifying description of the device giving the item, are all to be kept regardless of the value of the thing given. A licensing fee of $1,000.00 yearly is imposed as well as a semi annual fee of $200.00 per entertainment device. Additionally, there must be 50 square feet per entertainment device and minors are not allowed to be in the arcade. If the transaction involves a sale of internet time or computer time (as aforementioned), the details of the daily amount sold, daily time used or consumed for each preceding calendar month must be reported. These types of meticulous details accounting are over burdensome (and, frankly, unnecessary). It is the belief of this Plaintiff that the legislation cannot pass constitutional muster, as it does not bear a real and substantial relation to the public health, safety, morals, or general welfare of the public. Arbino vs. Johnson & Johnson (2007), 116 Ohio St. 3 468. There must be a legitimate government purpose. In the case of Richmond Heights vs. LoConti (1969), 19 Ohio App. 2"? 100, the Court held that for a licensing fee to be constitutionally valid, it must be a reasonable sum related to the expense that the community incurs from the licensed occupation. In other words, costs of inspection, regulatory measures costs, etc. are acceptable, constitutionally. In this case, the ordinance imposes a $1,000.00 licensing fee perCOPY An Association of Independent Attorneys and Counselors at Law The Durkin Building 362 South Main Street Akron, OH 44311-1014 (330) 253-3444 Fax (330) 253-6431 SAWANS FARRIS arcade and a semi-annual fee for each entertainment device of $200.00 (or $400.00 per device per year). Thus, an individual with 30 machines would pay a total of $13,000.00 per year. There is absolutely no basis in the history of the aforementioned legislation to determine how Summit County Council arrived at these amounts. To the knowledge of Plaintiff, there were no studies presented at any of the hearings in support of this legislation to compel such exorbitant fees. Further, there is no indication as to how the money collected would be used in relation to the expense that the community incurs. Thus, it is the position of this Plaintiff that the “licensing fees” bear no relation to the expense that the community incurs in licensing this business and, accordingly, the licensing fees are arbitrary and unreasonable. As aforestated, every person to whom anything of value is given in the “entertainment device arcade” must provide photo identification to the owner/operator of the arcade. That individual's name, home address, and other details are to be maintained and all of this information is to be given by the second Tuesday of each month to the Summit County Office of Consumer Affairs. It is submitted herein that in no other regulated business is such detailed and over burdensome information required. No recognizable government interest is served by requiring such meticulous record keeping of prizes of such trivial value. For example, the Ohio State Lottery requires photo identification for any winnings over $599.00. See Ohio Administrative Code 3770:1-8-04. Prizes under $599.00 do not require the recording of any identifying information. The Ohio Lottery Commission mandates these records for tax purposes.COPY An Association of Independent Attorneys and Counselors at Law The Durkin Building 362 South Main Street Akron, OH 44311-1014 (330) 253-3444 Fax (330) 253-6431 In theory, if one were to win a free game of pinball being played in an “entertainment device arcade”, the operator of said arcade would be required to record the name, home address, description of thing given, value of thing given, date, time of thing given, serial number or other identifying description of device, every time a free game is won. There is absolutely no real or substantial relation between this requirement which would serve any purpose to the public health, morals, safety or general welfare of the community. In a similar manner, there appears to be no justification for requiring each “entertainment device arcade” to have 50 square feet per device. As this Court is aware, these are computer monitors. The total square foot necessary would not exceed 4 to 6 feet. It is the position of this Plaintiff that the square footage requirement is designed to simply impose greater space requirements (for no justifiable reason) on this Plaintiff. The inspection of “entertainment devices” by an Authorized Independent Testing Laboratory requires the laboratory to make a “legal conclusion”. Obviously, this is the function of the judicial authority. If these computers are required to be ‘independently tested”, ought not all computers including those found at the local library branches, colleges, schools, etc. be so regulated? Minors are excluded from the entertainment device arcades. In theory, this would include any bowling alley, pool hall, Chuck E. Cheese facility, Amazone facility, or any other store or business having more than four entertainment devices. There is absolutely no justification as to why minors are restricted from Plaintiff’s store yet not aCOPY i An Association of Independent Attorneys and Counselors at Law The Durkin Building $62 South Main Street Akron, OH 44311-1014 (330) 253-3444 Fax (330) 253-6431 simple bowling alley or other entertainment venue. All persons subject to legislation must be treated alike if an ordinance is held to be constitutional. State ex rel. Doersam vs. Industrial Commission of Ohio (1989), 45 Ohio St. 3 115. that this Court so hold. Ross, Atto! thisCOPY IN THE TOLEDO MUNICIPAL COURT, LUCAS COUNTY, OHIO State of Ohio, * Case No. CRB-08-25138 Plaintiff, * . VS. * OPINION Rovert Dabish, * = Defendant. * Judge Francis X. Gorman 3 = F 92 Defendant is charged with two violations of Ohio law, Operating a Gambling House, a violation of Section 2915.03(A)(1) of the Ohio Revised Code and Gambling, a violation of Section 2915.02(A)(2) of the Ohio Revised Code. The Defendant, a resident of Warren, Michigan, operates a business known as the Players Club Café at 218 Main Street in Toledo, Ohio. It is this business that is the subject of these criminal charges: however, and it is relevant to this case, the Defendant also maintains a grocery store next to the Players Club Café. On December 8, 2008, Detective Kenneth DeWitt of the Toledo Police Department's Vice and Narcotics Unit was dispatched to the Defendant's Players Club Café to investigate allegations that it was a gambling operation. He entered the premises and purchased a $50.00 card. His picture was taken and other _ information, along with the picture, was affixed to the card. During the trial, the Detective referred to this card as a“game card.” Detective DeWitt then took the card to one of the seventy or so computers on which, after swiping his card, he was able to play any number of computer-generated games. AlthoughSs ean gta Ht eth eR NR Detective DeWitt testified that he won $4.00 as a result, in actuality he won $54.00 for which he was paid at the window where he purchased the card, following his exhaustion of game entries. Based on this activity, the Detective then filed the instant criminal charges. The server which serviced all of the computers was seized by the Toledo Police Department and has been held up to the date of the trial. It is important to note that since the day of the filing of the charges, the premises remained intact. During the course of the trial to the Court, the Court, the Prosecutor, the Detective, the Defendant, the Defense Lawyer, and court staff, including the Court Reporter, toured the Players Club Café and had the opportunity to observe the premises, as well as a demonstration by the Defendant of the operation of the Players Club Café. The Defendant operated a computer-generated game for the benefit of the Court. Defendant's premises consists of one large room with seventy or so computers, along with certain soft drink facilities. Upon entering the premises, 2 customer proceeds to a back window at which a large sign is present. As the Detective indicated, upon purchase of a “card” the customer can then, should he wish, proceed to a computer and play the computer-generated games. However, to conclude that this is all that occurs at the Players Club Café is both simplistic and misleading. The evidence indicated, both visually and with the testimony of the Defendant, that what really occurs upon entering the premises is that a customer 2COPY proceeds to the back window to purchase a card. This large sign, a photograph of which was admitted into evidence, indicates that the person is purchasing a ~ $5.00, $10.00, $15.00, $20.00 or $50.00 telephone card, ‘Upon cross- examination, the police officer, when examining his “game card,” became aware that on the back of the card it was indicated that it was a phone card which allowed him to use it for an unlimited period of time, but that once he began its use the card would expire within three months. Moreover, this sign in the Defendant's premises indicated to the customer that the games were a sweepstakes and that customers could, every twenty-four hours, play the sweapstakes games for free without purchase. The sign also indicated that if a customer did not wish to play the computer-generated games, he could ask the attendant to “swipe” his card at that point and that the swiping of the card would indicate whether or not the customer had won any prize in the sweepstakes. The Defendant testified, and his sign clearly indicated, that the outcome of the sweepstakes winners was predetermined by the operation of the computer. Detective DeWitt could have asked the operator to swipe his card and, at that point, Detective DeWitt would have learned that he had won the $54.00. This is not to say that Detective DeWitt was being untruthful in his testimony. In fact, the evidence in this case is not in dispute. Detective Dewitt, to his credit, testified that when he entered the premises he was looking for a gambling operation and perhaps did not spend the time reading this rather involved sign. Detective DeWitt also indicated that when he played the games _. 3he did not realize or recognize that the same rules were printed on the computer screen. . And, while perhaps not crucial to the outcome of this trial, the Defendant testified that in the course of the business he purchased the phone card time in bulk from @ Canadian corporation. He also testified that, not surprisingly, many of his customers did not use all of the time on the phone card after exiting the premises so that the Defendant then could, at a later time, resell that unused time which, of course, increased his profitability in the sale of the phone cards. The defense pointed out, correctly, that while the purchase of a phone card permitted the customer to either have his card swiped, play the games, or exit without doing either, in any event, the customer retained the phone card minutes purchased. Regardless of the outcome of playing the games, swiping of the card, or neither, the customer got what he paid for — the phone card. The Defendant testified during the course of the trial that his entire operation was a marketing tool intended to draw customers into the establishment to purchase a phone card to play games. He testified, and there is no dispute to his testimony, that his entire profit came from the sale of the phone cards. It is also instructive to note that at the Defendant’s grocery store next door, of which the entire inventory of the grocery store was supplied by Spartan Stores of Michigan, Defendant had a kiosk of phone cards for sale. The Defendant testified, and it is hardly surprising, that while these phone cards were worth the approximate same value as the ones sold in the Players Club Café, the. 4COPY sales at the Players Club Café far outweighed the sales of phone cards in his grocery store. In summary, the evidence in this case is not in dispute. The Court is not called upon to resolve issues of fact. Rather, both the prosecution and the defense lay out argumenis as to how these facts should be interpreted in light of the existing Ohio law. THE LAW RC 2915.02(A)(2): Gambling. No person shall do any of the following: Establish, promote, or operate or knowingly engage in conduct that facilitates any game of chance conducted for profit or any scheme of chance. RC 2915.03(A)(1): Operating a gambling house. No person, being the owner or lessee, or having custody, control, or supervision of premises, shall: Use or occupy such premises for gambling in violation of Section 2915.02 of the Revised Code. RC 2915.01(E): Game of chance conducted for profit. Means any game of chance designed to produce income for the person who conducts or operates the game of chance, but does not include bingo. RC 2915.01(D): Game of chance. Means poker, craps, roulette, or other game in which a player gives anything of value in hope of gain, the outcome of which is determined largely by chance, but does not include bingo.COPY “RC 2915.04 (C): Scheme of chance. Means a slot machine, lottery, numbers game, pool conducted for profit, or other scheme in which a participant gives a valuable consideration for a , chance to win a prize, but does not include bingo, a skill-based amusement machine, or a poo! not conducted for profit. RC 2915.01(VV): Slot machine. (1) Means either of the following: (a) Any mechanical, electronic, video, or digital device that is capable of accepting anything of value, directly or indirectly, from or on behalf of a player who gives the thing of value in the hope of gain; (b) Any mechanical, electronic, video, or digital device that is capable of accepting anything of value, directly or indirectly, from or on behalf of a player to conduct or dispense bingo or @ scheme or game of chance. The State argues that the conclusion to be drawn from the evidence is that the Defendant is promoting a scheme of chance and its argument is well summed up in the State's post-hearing brief: “A phone card sweepstakes such as the Defendant's is really nothing more than ‘scheme of chance’ as defined in Revised Code 2915.01(C). Ohio courts have consistently looked to the predominate purpose of the game, rather than its face, in determining whether the game is a true sweepstakes or scheme of chance. When presented with the argument that consumers are giving consideration for only the phone card, courts have held that it is obvious the consumers are interested in potential monetary prizes and not the phone card. The phone card, in essence, is just a sham to entice customers into the establishment.”fe eetetine ot eter teetne ns oe At nat nine ‘To bolster its argument, the State relies on a series of cases that all originate with an initial decision in Katmandu, Inc. v. Liquor Control Commission (2002) Franklin App. No. 01CVF10-10134, unreported, and affirmed by the Tenth District Court of Appeals. Katmandu, Inc. v. Liquor Control Commission (2002), 2002-Ohio-6743. As the prosecution notes, the Court of Appeals found “We can find no error in the common pleas court’s determination that the phone card portion of the ticket was of slight value and that the predominate purpose of operating the machine was to play a scheme or game of chance In Katmandu, supra, the alleged gambling device was a “Lucky Shamrock Emergency Phone Card Dispenser” which would accept money and dispense a two-minute long-distance phone card with attached sweepstake game pieces. Winning tickets were predetermined and the machine would recognize the winning ticket and would light up and present an award if the customer was deemed to be a winner. While obviously this case and the subsequent cases relying on Katmandu are clearly relevant to this Court, unfortunately Katmandu does not address the issue to be decided by this Court, for in Katmandu the , defendant stipulated to the admissibility of the Liquor Control Commission’s investigating officer’s report. That report indicated that the machine was a gambling device that allowed persons to play “schemes of chance ona video screen.” Inasmuch as the defendant stipulated that the machine was a game of chance, the trial court was not called upon to determine whether or not the machine was a game of chance. The Court of Appeals correctly noted that it is not the role of an appellate court to examine the evidence. In this case, theDefendant vehemently denies that his operation involves a scheme or game of chance. His operation is, of course, different than Katmandu. The fact that it is different than Katmandu does not necessarily lead the Court to conclude that it is” not a game of chance. However, his denial does require the Court to make that determination, At this point, it should also be noted that Katmandu, 2s well as the cases relying on it, was civil in nature as opposed to the instant case. Obviously, the standard of proof is far different in the two scenarios. These courts, moreover, have concluded that the proper test to be utilized, the “predominate purpose of the machines,” is the legal test that this” Court should utilize. Indeed in Flare Game Technology, Inc. and Mid-Ohio Vanding v. the Ohio Department of Public Safety (2003), 10" App. Dist. No. 02AP-748, the commission argued that the fact that a machine has an innocent use in dispensing phone cards does not prevent a trial court from concluding that the appellant's intention is to operate an illegal gambling device. This rather - startling assertion may have some use in a civil case; however, this Court is addressing an alleged violation of Ohio criminal law. In conclusion, the State argues that the Defendant's operation at the Players Club Café is a ruse; that the sales of the phone cards, as the Liquor Commission noted in Katmandu, were of little value; that the real and overall purpose of the operation was to entice people in to play games of chance and that, therefore, the Defendant has violated the Ohio gambling laws.. However, in order to have this Court conclude beyond a reasonable doubt that the Defendant violated the Ohio gambling laws, the State must overcome serious obstacles to their own argument. First of all, while the Katmandu decision says that the phone cards purchased in those cases were of little value, the evidence in this case would indicate otherwise. The Defendant sells these phone cards in the Players Club Café, but it is equally true that he sells the same value cards in his grocery store adjacent to the Players Club Café. No evidence was presented to suggest that the phone cards sold in Defendant’s grocery store were of no value. Inasmuch as the cards were essentially identical, the Court can conclude that the phone cards sold at the Players Club Café by the Defendant were of equal value. And, while not evidence in this case, the Court notes that it recently was at an Ohio turnpike plaza where all of the goods and services available there are licensed by the Ohio Turnpike Commission, and the Court notes that in the foyer was a telephone card machine which dispensed cards similar in nature to the cards involved here. One would hope that the Ohio Turnpike Commission would not license products to be sold of little or no value. In short, the Court finds that the cards sold by the Defendant gave to the: purchaser telephone cards that were available to the public by other retail sellers and are of the same or similar value. The Defendant argues that there are three elements to a charge involving gambling, “Consideration — Risk - Reward.” As The Supreme Court noted in ~- Federal Communications Commission v. American Broadcasting Co., 347 U.S. 284 (1954), "A prohibited lottery, or gambling, is the union of chance, prize and...COPY consideration. Remove any of these elements and there is no gamble.” This is the threshold test. Consideration. While clearly the customer, upon entering the Players Club © Café, purchases a phone card for a predetermined amount of money, $5.00, $10.00, $20.00, etc., it should be noted, however, and is clearly indicated on Defendant's premises, that one can enter the sweepstakes without the purchase of a phone card. The evidence clearly establishes that once the individual purchases such a card he retains what he purchased whether or not he chooses to enter the computer-generated games. Simply put, the value of the card is never at risk Risk. As evidenced in the above paragraph, there is no risk to the purchaser of the phone card in losing the value of his purchase. He can play the computer-generated games, have the card swiped to determine whether or not he won a prize, that prize having already been predetermined by computer, or he could simply leave the premises with the phone card. Reward. Defendant concedes in his post-hearing brief that there is a reward and the evidence would clearly indicate that there is a possibility of a reward as evidenced by Detective DeWitt’s winning of $54.00 upon playing the computer-generated game. The Defendant testified at the trial that his entire profit from the operation of the Players Club Café came from the sale of the aforementioned phone cards.-~ The State did not challenge that assertion; instead it argues that the Court should look at the predominate purpose of the operation and the State argues... 10that the sale of the phone card was nothing more than a ruse to entice the purchaser of a card to play the machine. Defendant counters that the computer- generated game is a marketing tool intended to increase the sale of phone cards. He testified that the sale of the phone cards at the Players Club Café drastically exceeded the sale of the phone cards from the kiosk in his grocery store. The Court is somewhat mystified at the “predominate purpose of the machines” argument inasmuch as the State asserts that it is an essential element of the crime. Even if it was, which it is not, the Defendant's argument is rather persuasive that the predominate purpose of the machines is to encourage the purchase of the phone cards, a clever and apparently profitable marketing tool. And while not controlling in this state, the Massachusetts Supreme Court in Mobil Oil Corporation v. Attorney General, 361 Mass. 401 at 407 (1972), observed “The incidental increase in business attendant upon the use of promotional games...is not the type of consideration necessary to make [such] games lotteries.” In other words, the fact that this Defendant has developed a clever promotional device to increase the sale of phone cards is not evidence of a gambling operation. Again, gambling is the union of chance, prize and consideration. Remove any of these elements and there is no gamble. Federal Communications Commission v. American Broadcasting, supra. Clearly in this case, the element of risk is not present. The element of consideration is present, but it is not coupled with risk. In other words, once the card is purchased the customer owns.the phone card, as does the customer of a phone card purchased at the grocery kiosk or at the turnpike plaza. And, as the Defendant stipulated, the _..COPY 1 ve It is that paragraph which this Court finds similar sympathies with the argument of the State. The Defendant's conduct in the instant case simply does not fall within the guidelines of the violations of the Ohio gambling laws and the State, here, like the prosecution in Haddock, is suggesting that the Court look beyond those elements. This the Court cannot do. The Defendant's operation: simply does not violate the Ohio gambling laws. Findings of Fact 1. The Defendant owns and operates the Players Club Café, in which participants purchase phone cards and as a result of those purchases can play computer-generated games at which there is a possibility that they could win a predetermined prize. 2. If the purchaser does not wish to play a game, he can have the card swiped at the purchase counter to determine whether or not he has won a predetermined prize. 3, Or, the purchaser can merely leave with the phone card. 4. The phone card retains its value whether the purchaser plays a game or does not play a game. to mentee ence na Rd a AME tt mtntaa ett. 5. Persons entering the Defendant's premises can play the computer- generated games once every twenty-four hours without the purchase of anything. 6. Defendant operates a grocery store next to the Players Club Café in which phone cards, which have approximately the same value as the cards sold in the café, are sold at a kiosk. 7. The games that are played on the computer are games in which the winner of any such game has been predetermined by a computer-generated system so that a purchaser could determine whether or not he was a winner instantly. 8. The Defendant claims that his business is a sweepstakes operation and, while the Court agrees that it hes all the appearances of such a sweepstakes, the Court is not required to make that determination and the Court daclines to do so. Conclusions of Law In order to find the Defendant guilty of a violation of Ohio gambling laws, the Court must find that there is chance, prize and consideration. 1. The Court finds that the consideration is for the purchase of the phone card only and that that consideration. is never in jeopardy. 2. That the element of risk is absent from this case inasmuch as the purchaser of the phone card risks nothing. If the purchaser does not win a prize,prize or a reward in the playing of the game. 3. The element of risk is missing. The element of consideration is, at best, compromised. 4. The claim of the State that the Court must look at the “predominate Purpose of the machines” is not a criminal element and need not be addressed by this Court. The Court finds the Defendant not guilty of gambling, a violation of Section 2915.02(A)(2), and, -by necessity, not guilty of operating a gambling house, a violation of Section 2915.03(A)(1). J8 lowe 09 a Soe Date | Ce Francis X/ Gdxndn Me _ he séill retains the full purchase price of his phone card. There is the chance ofa