Nlt!rit: 11. lvli CLERK S(ipRLf;,jf:, lauusdt i~ CJFf1Cl IN THE SUPREME COURT OF OHIO FRATERNAL ORDER OF EAGLES AERIE 2171

Transcription

1 IN THE SUPREME COURT OF OHIO FRATERNAL ORDER OF EAGLES AERIE 2171 MEIGS, INC., ET. AL. APPELLANTS, V STATE OF OHIO DEPARTMENT OF PUBLIC SAFETY APPELLEE ON APPEAL FROM THE MEIGS COUNTY COURT OF APPEALS, FOURTH APPELLATE DISTRICT COURT OF APPEALS CASE NO. 05 CA 18 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS FRATERNAL ORDER OF EAGLES 2171 MEIGS, INC., ET AL. Mark Foley ( ) Portman, Foley and Flint, LLP 471 East Broad Street, Suite 1820 Columbus, Ohio (614) Fax No. (614) COUNSEL FOR APPELLANTS FRATERNAL ORDER OF EAGLES 2171 MEIGS, INC., ET. AL. Jim Petro Ohio Attorney General Matthew J. Lampke ( ) Deputy Attorney General 30 East Broad Street, 26th Floor Columbus, Ohio (614) Fax No. (614) COUNSEL FOR APPELLEE STATE OF OHIO DEPARTMENT OF PUBLIC SAFETY Nlt!rit: 11. lvli CLERK S(ipRLf;,jf:, lauusdt i~ CJFf1Cl

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS A 1 CASE OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF THE CASE AND FACTS 2 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I: The Meigs County Common Pleas Court has subject matter jurisdiction of a declaratory judgment and injtmction action brought against the Deparlment of Public Safety since R C only deprives the trial court of jurisdiction over the enforcement agents of the Department of Public Safety CONCLUSION PROOF OF SERVICE APPENDIX Decision and Judgment Entry of the Meigs County Court of Appeals (September 28, 2006) 1 11 Appx Page 1 State v. Owens, 2000 Ohio App. Lexis i

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST This case involves the Fraternal Order of Eagles Aerie 2171 (hereafter FOE 2171) a 501(c)(10) non profit organization and two for profit corporations. FOE 2171 is located in Meigs County, Ohio and operates a D4 liquor permit issued by the State of Ohio, Department of Commerce, Division of Liquor Control (hereafter Division). FOE 2171 is one of approximately 24,0001iquor permits issued by the Division to Ohio entities. The Department of Public Safety (hereafter Department) is the agency responsible for investigating all liquor permit holders in Ohio for violations of R C 4301, 4303 and Liquor Control Comniission Regulations. The Department can issue citations for alleged violations of R C 4301, 4303 and the Commission Regulations. Any citation issued by the Department affects not only 24,000 permit holders but hundreds of thousands of employees in the hospitality industry. The two other appellants are for profit businesses involved in the amusement machine industry. There are more than 100 coin machine operators in Ohio which employ over 2,000 persons (statistics from the Ohio Coin Machine Association), delivering, servicing and operating in tens of thousands of locations in every corner of the state. The decisions issued by the two lower courts (Meigs County Common Pleas and the Fourth District Court of Appeals) can and will affect thousands of businesses and their employees. Plaintiffs-Appellants believe that a declaratory judgment complaint may be filed against the a Department in the Meigs County Common Pleas Court and that the court properly issued a preliminary injunction. The decision of the Fourth District Court of Appeals could allow the Department to seize what has already been determined to be legal skill based amusement machines and effectively directs all courts except the Franklin County Court of Common Pleas in actions against the Deparhnent even though the legislature did not include the Department in R C

4 machines. This action by the Department has had a chilling effect on the lawful sale and use of a lawful machine. The plaintiffs-appellants had no available adequate and timely administrative review. Plaintiffs had no adequate remedy at law. Plaintiffs-Appellants on June 14, 2005 also filed a motion for preliminary injunction supported by memorandum and affidavit. The Court set a hearing on the Motion for July 25, 2005 which was rescheduled at the request of counsel for defendant-appellee to August 1, Defendant-Appellee did not file an answer, but filed a Motion to Dismiss for Lack of Jurisdiction on June 29, 255 asserting that R C and the failure to exhaust an administration remedy deprived the trial court of jurisdiction and that dismissal was required by Civ. R. 12(B)(1). On August 1, 2005 at the hearing on the motion for preliminary injunction, plaintiffs-appellants presented witnesses providing evidence that the Department continued to seize machines and other property, that these seizures interfered with the lawful use of such machines and that the Department refased to return the confiscated property. Plaintiffs-Appellants provided evidence that the seizure of property by the Department had a chilling effect on the lawful sale and use of these machines. No witnesses countered the testimony concerning the chilling effect on business. Defendant-Appellant presented witnesses who testified that the machines were illegal. Following the PreliminaryInjunction Hearing on August 1, 2005 the trial court on November 2, 2005 issued its Finding of Fact and Conclusions of Law. ^On that date the trial court issued its Preliminary Injunction and also filed its Entry Denying Defendant's Motion to Dismiss. The Findings of Fact were as follows: 1) The Tic Tac Fruit machine involves a task or game in which the player actively participates. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 2) Each game played requires skill to complete the task. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 3) A player with the requisite skill can win each game and a player without such skill can lose each game. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 3

5 An individual's responsibility for the consequences of his own actions is a dominate principle in this nation's system of jurisprudence. FOE 2171 filed the complaint so it could determine the legality of a certain skill based amusement machine, to protect itself from administrative citations and even criminal charges and to protect its employees and patrons from similar charges. Since no state licensing agency governs the operation of skill based amusement machines it is imperative that FOE 2171 have the right to have a court determine the legality of such skill based amusement machines. As a Meigs County entity, FOE 2171 should have a local court decide its fate. To assert that the Franklin County Common Pleas Court has exclusive jurisdiction over a complaint filed against the Department effectively eviscerates the right to have the issue adjudicated locally. For the reasons stated above plaintiffs-appellants believe that this case involves a question of public or great general interest and respectfully request that the Court accept this case as a discretionary appeal. STATEMENT OF THE CASE AND FACTS On June 14, 2006 plaintiffs-appellants filed their Complaint for declaratory judgment against the Department seeking a declaration that the Tic Tac Fruit Machine (hereafter machine) is a skill based amusement machine and that its use is not in violation of R C 2915 et. seq. The Complaint also sought injunctive relief to prevent interference with the sale and use of the machines and for an order that the seized machines and money be returned. a The Department is the state agency with the duty to enforce laws and regulations related to the operation of liquor permits. The Department seized the subject machines and money although they were legal skill based amusement machines. The machines had previously been found by the Meigs County Court of Common Pleas to be skill based machines. Following such determination, the Department continued to interfere with the lawful use of such machines and refused to return the improperly seized 2

6 4) Profit can be made from skill based amusement machines. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 5) The vendor or distributor chooses the prize the player has an opportunity to win. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 6) Prizes can be anything of value. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 7) Money can be awarded as a prize. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 8) Each player who completes the same task (i.e. completing three plums in a row) wins the same prize. (Defendant's expert witness, Bill Reidthaler, August 1, 2005) 9) Plaintiff C & J Skill Games has suffered and is sustaining economic harm as a result of the continued seizure of machines, money and property by the Department of Public Safety. The seizure has a chilling effect on business which is substantial yet is difficult to determine an exact amount. The exact amount cannot be accurately measured. (Testimony of Chuck Anasis, member of C & J Skill Games, August 1, 2005) 10) Plaintiff Ohio Skill Games has suffered and is sustaining economic harm as a result of the continued seizure of machines, money and property by the Department of Public Safety. The seizure has a chilling effect on business which is substantial yet is difficult to determine an exact amount. (Testimony of Ohio Skill Games President Jay Young, August 1, 2005) 11) Administrative citations have been issued by the Department of Public Safety against liquor permit holders including Plaintiff FOE 2171 from whom machines have been seized. (Testimony of Kurt O. Gearhiser, August 1, 2005) 12) The Liquor Control Commission has continued all four cases involving the Tic Tac Fruit machines, the latest on July 14, (Testimony of Kurt O. Gearhiser, August 1, 2005) 13) The Liquor Control Commission has indicated that the Commission would like guidance from courts on the definition of games of chance and games of skill and will continue all the cases involving Tic Tac Fruit games until the courts have decided these issues. (Plaintiffs Exhibits A and B - Transcripts of hearings before the Liquor Control Commission on May 19, 2005 and July 14, 2005). 14) A Petition for Forfeiture was filed on December 17, 2004 by the Department requesting forfeiture of property seized from FOE (Testimony of Kurt O. Gearhiser, August 1,2005) 15) On February 17, 2005 the Attorney General requested that the Petition for Forfeiture be stayed until the Liquor Control Comm'rssidn has heard the administrative cases. (Testimony of Kurt O. Gearhiser, August 1, 2005) 16) The Department of Public Safety has continued to seize Tic Tac Fruit machines even after actual notice of the decision of this court on May 6, (Testimony of Kurt O. Gearhiser, August 1, 2005) 17) The Tic Tac Fruit machine has been determined to be a skill based amusement machine pursuant to the decision of the Meigs County Common Pleas Court on May 6, After issuance of the preliminary injunction, two agents of the Department seized a machine in Ashtabula County from the Sons of Italy Lodge 1169 and refused to return it. Therefore plaintiffs- 4

7 appellants on November 28, 2005 moved for a Show Cause Order in Contempt. The trial court on November 28, 2005 issued its Show Cause Order in Contempt. Therein the Court ordered the Department to return the seized property by 1:00 p.m., December 5, 2005 and have proof of the return filed in Court by 4:00 the same day or to appear in Court on the I2`h day of December, 2005 or show cause why they should not be held in contempt. Because the property was not returned by December 5, 2005 the Department appeared in Court on December 12, At that time the Department agreed to return the seized property. No order was ever entered concerning the December 12, 2005 hearing and no transcript was ordered or filed in this appeal. Additionally, the Department did not appeal the Show Cause Order or the conduct of hearing. The Department appealed to the Fourth District Court of Appeals from the November 2, 2005 preliminary injunction. The Fourth District Court of Appeals on January 25, 2006 found that the trial court's entry granting a preliminary injunction was a final appealable order under R C (B)(4). Briefs were filed and oral argument held. On September 28, 2006 the Fourth District Court of Appeals reversed the trial court's judgment, finding that the trial court lacked subject matter jurisdiction and should have granted the motion to dismiss. (Appendix A) Plaintiffs-Appellants timely appealed to this court. 4 5

8 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW PROPOSITON OF LAW NO.1 THE MEIGS COUNTY COMMON PLEAS COURT HAS SUBJECT MATTER JURISDICTION OF A DECLARATORY JUDGMENT AND INJUNCTION ACTION BROUGHT AGAINST THE DEPARTMENT OF PUBLIC SAFETY SINCE R C ONLY DEPRIVES THE TRIAL COURT OF JURISDICTION OVER THE ENFORCEMENT AGENTS OF THE DEPARTMENT OF PUBLIC SAFETY. The Ohio Supreme Court in the case of BCL Enterprises, Inc. v. Ohio Department ofliguor Control (1997) 77 Ohio St. 3d 476 considered the same jurisdictional issues raised by the Department in this case, and the case law therefore has established that the Court of Common Pleas of Meigs County has jurisdiction of a case seeking declaratory injunction relief against the Ohio Department of Public Safety. The Supreme Court noted: page 469. "The sole question we must answer in this appeal is whether the Court of Common Pleas of Franklin County is vested with subject-matter jurisdiction over the claims asserted by BCL. "Subject-matter jurisdiction of a court connotes the power to hear and decide a case upon its merits ***." Morrison v. Steinver (1972), 32 Ohio St.2d 86, 61 0.O.2d 335, 290 N.E.2d 841, paragraph one of the syllabus. Section 4(B), Article IV of the Ohio Constitution, states that "[t]he courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters * * * as may be provided by law." It is well settled that "[t]he court of common pleas is a court of general jurisdiction. It embraces all matters at law and in equity that are not denied to it." Schucker v. Metcalf(1986), 22 Ohio St.3d 33, 343, 22 OBR 27, 28, 488 N.E.2d 210, 212 (quoting Saxtdn v. Seiberling (1891), 48 Ohio St. 554, , 29 N.E. 179, 1809; Dumas v. Estate ofdumas (1994), 68 Ohio St.3d 405, 408, 627 N.E. 2d 978, 980). The Supreme Court then found that all Ohio Courts of Common Pleas have jurisdiction of declaratory judgment actions, and requests for injunctive relief. The Court held: "Pursuant to the Declaratory Judgment Act, courts of common pleas may `declare rights, status, and other legal relations whether or not further 6

9 page 469. relief is or could be claimed,' R.C Am. Life & Acc. Ins. Co. of' Kentucky v. Jones (1949), 152 Ohio St. 287, 40 O.O. 326, 89 N.E.2d 301; Herrick V. Kosydar (1975), 44 Ohio St.2d 128, 130, d 442, 443, 339 N.E.2d 626, 628. See, also, Jones v. Chagrin Falls (1997), 77 Ohio St.3d 456, 674 N.E.2d 1388, decided today. Pursuant to R.C et seq., court of common pleas have jurisdiction to grant injunctive relief.". The Supreme Court also acknowledged the right to sue state agencies such as the Department. The Supreme Court stated: 470. "Historically, declaratory judgment actions were permitted against state agencies, and courts have been deemed to possess jurisdiction to issue injunctive relief. See, e.g. Racing Guild of Ohio, Local 304 v. State Racing Comm (1986), 28 Ohio St.3d 317, 320, 28 OBR 386, 388, 503 N.E.2d 1025, 1028, citing Am. Life & Acc. Ins. Co. See, also, Hoffman Candy & Ice Cream Co. v, Dept. ofliquor Control (1950), 154 Ohio St. 357, 43 O.O. 250, 96 N.E. 2d 203 (approving assertion of trial court's jurisdiction over the merits, but nevertheless finding the issuance of specific-performance relief affecting the Department of Liquor Control improper), Accordingly, underlying R.C is an unstated assumption that jurisdiction to enter injunctive relief would exist in any common pleas court throughout the state but for the express language of the statute limiting jurisdiction to the Court of Common Pleas of Franklin County." The Supreme Court in the BCL Enterprise case specifically found that the legislature had abrogated the jurisdiction of other common pleas courts except Franklin County as to cases involving the Department of Liquor Control when it enacted R C and expre'ssly rejected the contention that the statute established jurisdiction. The Court stated in BCL Enterprises supra: "We reject the contention that R.C establishes subject-matter jurisdiction in the Court of Common Pleas of Franklin County to restrain or compel departmental action. It provided that `no court, other than the court of common pleas of Franklin [C]ounty has jurisdiction' to restrain or compel the department's conduct, R.C operates not to confer jurisdiction on the Franklin County Court of Common Pleas, but rather to abrogate subject matter jurisdiction of all other courts of the state. 7

10 page 470. Therefore, relevant to the instant case, the General Assembly has "abrogated the jurisdiction" of the Meigs County Court of Common Pleas only as to the specifically delineated persons and deparhnents in the statute. Significantly, the Department was not included, although its enforcement agents were. The persons and entities as to whom jurisdiction was "abrogated" are set forth in R C and include only the Liquor Control Commission, enforcement agents of the Department of Public Safety, the Superintendent of Liquor Control and the Division of Liquor Control. Glaringly absent from the statute is the Defendant-Appellee in this case, the Department of Public Safety. R C states as follows: "Except as provided in section of the Revised Code, no court, other than the court of common pleas of Franklin County, has jurisdiction of any action against the liquor control commission, enforcement agents of the department of public safety, the superintendent of liquor control, or the division of liquor control., to restrain the exercise of any power or to compel the performance of any duty under Chapters and of the Revised Code. Neither the division, the members of the commission, the enforcement agents, or the superintendent is personally liable in any action at law for damages sustained by any person because of any acts done by the division, the commission, the enforcement agents, or the superintendent, or any employee of the division, in the performance of official duties and the administration of those chapters." As the Supreme Court noted in the case ofbcl Enterprises, supra: page 471 "In general, when the General Assembly has intended to abrogate the subject-matter jurisdiction of Ohio courts, in particular types of actions it has done so expressly." The General Assembly has not abrogated the jurisdiction as to the Department, instead it specifically included only the "enforcement agents of the Department of Public Safety". Therefore it is clear that the trial court had subject matter jurisdiction of this case seeking declaratory and injunctive relief against the Department. Reading R C in its entirety lends support to the position that the 8

11 legislature did not want the agents to be sued personally over their actions in multiple jurisdictions. Such is not the case with the original complaint filed in the Meigs County Common Pleas Court. The complaint did not name the Commission, the Division, the Superintendent of the Division nor any individual agents of the Department. The complaint was for declaratory judgment and injunctive relief against the Department and requested a decision by the Meigs County Common Pleas Court as to the legality of the machines in question. This complaint was not filed against the agents personally but only against the Department. The basis for the Court of Appeals fmding was because the only way to enjoin the Department of Public Safety was by restraining the enforcement agents. It held: " In the context of the case at bar, appellants can only act through its enforcement agents in seizing the machines. As appellant asserts: `[T]he only way to enjoin DPS itself is to restrain the actions of the enforcement agents who issue the administrative citations to liquor permit holders.' Then, we conclude the trial court lacked subject matter jurisdiction in this matter and the court should have granted appellant's motion to dismiss." The legislature could have included the Department in R C but chose not to. Therefore the statutory construction principal of expressio unius est exclusion alterius applies and dictates that the expression of one or more items in a statute explicitly implies that those not identifed are excluded. See Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353; Maggiore v. Kovack (2004), 101 Ohio App. 3d 184, 187; State v. Droste, 830 Ohio App. 3d 36, 39. In Myers v. Toledo, supra, the court states: "The. a cannon expressio unius est exclusion alterius tells us that the express inclusion of one thing in the language of the statute implies the exclusion of another". When the legislature specifically included some entities it therefore expressly excluded others such as the Department. Therefore a complaint for declaratory judgment can be filed against the Department in the Meigs County Common Pleas Court. As previously noted the Department filed the administrative charges and seized the Machines at issue in this case and therefore is a proper party defendant. The Fourth District Court of Appeals in the 9

12 State of Ohio v. Owens, 2000 Ohio App. Lexis 1383 (Appendix B) held that the Department was a proper party to an action for return of property. "The Department argues that it is not a`proper party' to the motion for return of the seized property because it was not a party to the underlying criniinal proceeding. We cannot, however, agree with the Department's argument. The Department was properly subject to the municipal court's order to return the property because it is an agency of the state of Ohio, i.e. a party in the underlying criminal action. The state acts through its various agencies (or heads thereof) and is therefore the real party of interest in actions brought by or against those agencies. See State v. Williams (1996), 76 Ohio St. 3d 290, 295, 667 N.E. 2d 9321 State ex. Rel. Wilson v. Preston(1962), 173 Ohio St. 203, 181 N.E. 2d 31, paragraph seven of the syllabus. Thus, the state of Ohio is the real party in interest connected with the criminal prosecution and the order to return the property. For all intents and purposes, the municipal court ordered the state to return the defendant's property; its specification of the Department simply recognized the practical realty that it was the specific state agency that possessed the illegally-seized property. Insofar as the Department was an agent of the real party in interest, viz. the State of Ohio, the court's order for return was proper. ' There are a number of cases which have held that R C abrogates subject matter jurisdiction with complaints against the Division and the Commission. None of the cases involved the Department of Public Safety. Between 1995 and 2005 the statute was amended twice and yet not once did the legislature see fit to add the Department to the list of governmental agencies. The complaint was therefore properly filed in Meigs County because FOE 2171 is located in Meigs County and because the Department seized machines from FOE 2171.t The Fourth District Court of Appeals erred when it employed rules of statutory interpretation to stretch R C to include the Department. R C is clear and not ambiguous. The language of does not mention the Department, only its agents. The cornerstone of statutory construction 3 ' Interestingly the Department of Public Safety filed suit against FOE 2171 in a Petition for Forfeiture when the machines were seized in December, The petition was filed by the Department of Public Safety itself and not by the agents. Therefore the argument that the Department acts only through its agents seems moot. The Department cannot file lawsuits in its name and then request protection arguing the Department acts only through its agents. 10

13 and interpretation is legislative intent. In order to determine legislative intent it is a cardinal rule that a court must first look to the language of the statute itself. It is the duty of the court to give effect to all of the words used and not delete words used or insert words not used. A statute may be interpreted only when the words in the statute are ambiguous. Plaintiffs-Appellants do not believe R C is ambiguous. Ambiguity exists if the language is susceptible to more than one reasonable interpretation. No court has supported the position of the court below and therefore plaintiffs-appellants believe R C provides for subject matter jurisdiction over the Department in the Meigs County Common Pleas Court. CONCLUSION FOE 2171 et. al. respectfully believes that this case is a case of public and great general interest and requests that this court accept this case as a discretionary appeal. Respectfully submitted, Mark Foley ( ) Portman, Foley and Flint, LLP Attorney for Appellant PROOF OF SERVICE I hereby certify that a copy of the foregoing Memorandum in Support of Jurisdiction was sent by 4 regular U.S. mail on the 13 day of November, 2006 to Matthew Lampke, Assistant Attorney General, 30 East Broad Street, 26'h Floor, Columbus, Ohio, Mark ^Foley ( ) Portman, Foley and Flint, LLP Attorney for Appellant 11

14 FRb1TERNAL ORDER OF EAGLES, AERIE 2171 MEIGS, INC., ET Al., APPENDIX A IN THE COL'RT OF APPEAS+S OF OHIO FOURTFi APPELLATE DISTRICT P9EIGS.COUNTY C^L''ii! C, ^IP L r1ls 2G9e S2'? 28 Pi` E'ILt'I j Plaintiffs-Appellees, vs.. Case No. 05CA18 CLERK DF CGllRYS r9e1c5 CCtI?11 K 7f i+n STATE OF OHIO, DEPARTMEUt'I' OF PUBLIC SAFETY, DECISION AND.TIIDGMENT ENTRY De.fendant-Appelilemt. APPEARANCES: COIINSEL FOR APPELLANT; Jim Petro, Ohio Attorney General, aad Matthew J. Lampke, Deputy Attorney General, 30 East Broad Street, 26" Floor, Columbus, Ohio COUNSEL FOR APPELLEES: Mark Foley, Portman, Foley & Flint, LLP, 471 East Broad Street, Suite 1820, Columbus, Ohio CIVIL APPEAL 'FROM COM940N DATE JOIIRNALIZED: PLEAS COURT PER CORIAM. This is an appeal from a Meigs County Common Pleas Court judgtnent enjoining the Ohio De;partnient of Public Safety (DPS), dependant below and appellant herein, from pursuing administrative or criminal proseccifioii against Fraternal Order of Eagles Aerie 2171 Meigs, Inc., Ohio Skill Games, Inc., and C&J Ski1r{9ames, LLC, plaintiffs below and appellees herein, arising out of the use of an electronic video machine called "Tic-Tac-Fruip." Appellant raises the following.assignments of error: FIRST ASSIGNMENT OF ERROR: "THE LOWE&: COURT LACKED SUBJECT MATTER JURTSDICT3ON OVER THE OHIO DEPARTMENT OF PGTALIC SAFETY AM ITS ENFORCEMENT AGENTS SEP 2 8 2MB': Appx 1

15 MEIGS, OSCA18 2 REGARDING AN ADMINISTRATIVE CITATION ISSIIED TO A LIQUOR PERMIT HOLDER." SECOND AS;3IGNMENT OF ERROR: THE LOFTE]i COURT ERRED IN ISSUING A PRELIMINARY INJLJNCTION FINDING THE OHIO LIQIIOR COWTROL COMMISSION IS NOT AN ADEQUATE ADMINISTP.ATIVE REIKEDY FOR THE ISSLTMCE OF A LIQUOR CITATION WHICH APPELLEE MUST EXHAIIST BEFORE PRI]CEEDING WITH-AN ACTION FOR DECLARATOiRY RELIEF." After DPS enforcement agents cited appellees for opezating an electronic video'gambling device, appellees filed a complaint and requested the court: (1) to declare that the Tic Tac Fruit machine is a skill-based amusement machine; (2) to declare that offering the use of the Tic Tac Fruit machine is not a violation of R.C et seq.; and (3) to issue a preliminary and permaaent injuncticn to enjoin DPS from seizing, impounding, or confiscating the Tic Tac Fruit machine. Appellant filed a mation to dismiss and asse:rted that under R.C the trial court lacked subject matter jurisdiction and that appellees failed to exhaust their administrative remedies, The trial court issued a preliminary injunction and denied DPS's motiorx to-dismiss. The court rejected the claim that appellees failed to exhaust their iqldministrative remedies: `(T]he evidence adduced at the preliminary injunction hearing estab7.ished that on the date of the complaint, June 14, 2005[,] no adminietrative hearing had been held. The Cou.rt further finds that the Liquor Control Commission has indicated through its actions of continuing other cases that no hearing on the merits will occur, eiren though a hearing may be scheduled. The Liquor Control Commission has indicated that it will not be conducting hearings until courts of Ohio - have ruled upon the machines at issue." Appx 2

16 MEIGS. 05C'A18 3 The court found that R.C did not deprive it of jurisdiction because appellees did not file their complaint against individual agents of DPS,. but rather, the Department of Public Safety. Thie, appeal followed. I in its first assignment of error, appellant asserts that the trial court lacked jurisdiction to issue the preliminasy injunction. In particular, appellant contends that only the Franklin County Common Pleas Court has jurisdiction to restrain or compel actions of enforcement agents of DPS in the performance of their duties undi3r Chapters 4301 and 4303 of the Revised Code. " when ruling on a Civ_R. 12(s)(1) motion to dismiss for lack of subject-matter jurisdiction, trial courts must determine whether a claim raises any action cognizable in that court. See State ex rel- Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80, 537 N.E.2d 641; Roll v. Edwards, 156 Ohio App.3d 227, 2004-Ohi.o-767, 805 N.E.2d 162, at 15. Appellate courts review trial court judgments regardisag motions to dismiss for lack of subject-matter jurisdiction as a m!atter of law and without deference to the trial court's decision. Spurlock; Roll; Milboan v. E. Local 5 hool Dist. Sd. of Edn 157 Ohio App.3d 716, 2004-Ohio-3243, 813 N.E.2d 692. In the case scib judice, appellant asserts that R.C deprives the Meigs County Common Pleas of jurisdiction. Appellees contend that because they did not file their complaint against any enforcement agents of the department of public Appx 3

17 MF3IGS, OSCA'L8 4 saf ety, the statute does net deprive the trial court of jurisdiction. R.C provides: Except as provided in section of the Revised Code, no court, other than the court of common pleas of Franklin county, has jurisdictiori of any action against the liquor control commission, enforcement agents of the department of public safety, the superintendent of liquor control, or the division of liquor control', to restrain the exercise of any.power or to compel the performance of any duty under Chapters and of the Revised Code. ** + To determine the jurisdictional issue, we must decide whether the statute intends to exclude the department of public safety but to include its enforcement agents. Thus, we must employ rules of statutory construction. The goal of statutory construction is to give effect to the legislature's intention. Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.;.d 93, 97, 573 N.E.2d 77, citing Carter v. Youncrstown (1946), 3.46 Ohio St. 203, 65 N.E.2d 63, at paragraph one of the syllabus. Courts should construe words in common use in their ordinary significance and with the meaning commonly attributed to them. Eastm2a v. State (1936), 131 Ohio St. 1, 1 N.E.2d 140, paragraph five of the s^rllabus. Under R.C. 1.42, courts read words and phrases in context and construe them according to the rules of grammar and common usage. The accepted rules of statutory construction also require that statutes be construed in accordance with common sense and reason and not result in absurdity. State ex re_7 Webb v Board of EduC (1984), 10 Ohio St.3d 27, 460 N.E.2d 1121, citing Prosen V. Duffy Appx 4

18 MEI6S. 05CA18 (1949), 152 Ohio St. 139, 87 N.E.2d 342 and Crowl v. DeLuca (1972), 29 Ohio St.2d 53, 278 N.E.2d 352. When the statutory language is "plain and unambiguous and conveys a clear and definite meaning," a court need not apply rules of statutory interpretation. Meeks v. PaDadopuloe ( 1980), 62 Ohio St.2d 187, 190, 404 N.E.2d 159, citing Sears v. Weimer ( 1944), 143 Ohio St. 312, 55 N.E.2d 413, paragraph five of the syllabus. We believe that.,the plain meaning of R.C is to provide the Franklsn County Common Pleas Court with exclusive jurisdiction over claims that seek to 'restrain the exercise of any power or to compel the performance of any duty under [R.C.] Chapters and 4303." In the context of the case at bar, appellantl can only txct through its enforcement agents in seizing the machines. As appellant asserts: "[T]he only way to enjoin DPS itself is to restrain the actions of the enforcement agents who issue the administrative citations to liquor permit holders." Thus, we conclude that the trial court lacked subject matter jurisdictiori in this matter and the court should have granted appellant's motion to dismiss. Accordingly, based upon the foregoing reasons we sustain appellant's first assignment of error and reverse the trial courtla judgment. Ciur disposition of appellant's first assignment of error renders its second assignment of error moot. 1 Case law reveals that no court other than the Franklin County Common Pleas Court has jurisdiction over any action against the departme.nt of liquor control. See BcL Ente risqs v. pept_ of Liquor Cont:rol ( 1997), 77 Ohio St.3d 467, 470; Blackwell, inc. v. r)ent. of Liguor Control ( Dec. 26, 1996), C'uyahoga App. No Appx 5

19 MEIGS. 05CA18 6 See App.R. 12 (A) (1:) (c). JQDGMEN=.C REvERSED. Appx 6

20 MLIGS 05CAlB 7 SUDGMENT ENTRY It is ordered that the judgment be reversed and that appellant recover of appellees the costs herein taxed. The Court finds 1--here were reasonable grounds for this appeal. It is ordered thaat a apeciai marndate issue out of this Court directing the Me.igs County Common Plea"s Court to carry this judgment into execution. A certified copy of this entiy shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Harsha; P.J., Abele, J., and Kline, J.: Concur in Judgment and Opinion. Por the Court SY: G., Roger,. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry arid the time period for further appeal commences from the date of filing with the clerk. Appx 7

21 FOCUS - 1 of 1 DOCUMENT STATE OF OIIIO, Plaintiff-Appellant, vs. DAVID OWENS, Defendant- Appellee, Case No. 99CA34 COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRIC'T, ATHENSCOUNTY 2000 Ohio App. LEXIS 1383 March 28,2000, Filed DISPOSITION: [*1] AFFIRMED IN PART AND REVERSED IN PART. COUNSEL: Betty D. Montgomery, Attomey General, and Chester T. Lyman, Jr., Assistant Attorney General, Columbus, Ohio, for Appellant. Hernmn A. Carson, Sowash, Carson & Ferrier, Athens, Ohio, for Appellee. JUDGES: Harsha, J. Abele, J. & Evans, J.: Concur in Judgment and Opinion. OPTNIONBY: William H. Harsha OPINION: DECISION AND JUDGMENT ENTRY Harsha, J. Liquor control officers from the Ohio Department of Public Safety ("Department") seized several iten s of personal property when they arrested appellee David Owens and three others. After dismissing the case, the Athens County Municipal Court ordered the Department to return the illegally-seized items to the appellee or pay the appellee $ 317, which represented the value of the property. The Department appeals the municipal court's order and raises five assignments of error: FIRST ASSIGNMENT OF ERROR: The trial court erred in taking jurisdiction ovetdandant, David Owens', original motion for return of the property or for money damages when that subject niatter did not exist in that Court. SECOND ASSIGNMENT OF ERROR: The trial court improperly exceeded its statutory jurisdiction by proceeding [*2] to hear the merits of the claim for money damages, when the party bringing the motion lacked standing, and because the matter, if justiciable, should have been brought in a separate civil proceeding. THIRD ASSIGNMENT OF ERROR: The trial court lacked personal jurisdiction over the defendant, the Director of Public Safety, Maureen O'Connor, as the underlying matter is a criniinal matter for which the Public Safety Director is not a necessary party, and because she was not properly brought into the action as a party. Appx 8

22 FOURTH ASSIGN14fENT OF ERROR: The trial court abused its discretion in ignoring previous contrary detenninations of the same branch of that court, upon which the State of Ohio new-party defendant had the right to rely, with respect to disposition of the property at issue. FIFTII ASSIGAIMF.NT OF ERROR: The trial court erred in allowing testimony regarding the value of the property that was the subject of the motion, when the value, and the ownership of the property, were not properly established. We hold that the trial court properly exercised jurisdiction to entertain a motion for return of the seized property. We also hold, however, that the court exceeded [*3] its authority when it ordered the Department to pay a monetary sum in lieu of retiuming the property to the appellee. Accordingly, we affum in part and reverse in part. 1. On Halloween night, 1998, agents from the Department's liquor control division made a warrantless entry into a "keg party" at a house shared by Owens and three housemates. The agents arrested all four residents for allegedly providing alcohol to persons under twenty-one years of age, in violation of R. C (B). The agents seized fourteen kegs, two keg taps, a "beer bong," and a cooler. All fourteen kegs and one of the keg taps were rented from a local distributor; the remaining property belonged to the arrestees. Following the arrests and seizure, one of the agents filed a municipal court complaint alleging violations ofr.c (B). Owens and the otherdefendants filed a motion to suppress all evidence seized by the Department. The trial court granted the morion upon fmding that the Department's agents conducted an illegal entry into the defendants' home. The court subsequently dismissed the charges against the four men after the prosecution decided [*4] not to proceed to trial. On the same day it journalized the dismissal entry, the court entered an order submitted by the Department stating: "Upon fmal adjudication of the aforementioned proceedings, it is hereby ordered that the evidence in this case be forfeited to the Ohio Department of Public Safety for disposal." This order was presented to the court without a motion, notice, or any opportunity for a hearing. Four days after the court disnussed the case, Owens and two other defendants filed a motion requesting retum of the illegally-seized evidence. The court granted the motion and ordered the Department to return the illegally-seized property to the defendants' residence in Athens. nl After the Department failed to return the property, Owens filed a motion requesting an order of contempt against Maureen O'Connor, as the Department's director, for failure to comply with the court's order for return. The court declined to rule on Owens request for contempt, but ordered the Department to "either return to David Owens *** the property previously described or *** pay to David Owens the sum of $ " The cotut's order called for the Department to comply in either manner within [*5] thirty days of the entry. The Department filed a timely nofice of appeal. 4 nl Specifically, the court ordered the Department to retutn fourteen beer kegs, two beer taps, a large blue tub, and a beer bong. U. In its first assigmnent of error, the Department argues that the municipal court lacked subject-matter jurisdiction to decide a motion for return of the seized property. Subject matter jurisdiction refers to a court's power to hear and decide a particular case on its merits. BCL Enterprises, Inc. v. Ohio Dept. of Liquor Control(1997), 77 Ohio St. 3d 467, 469, 675 N.E.2d 1; Morrison v. Steiner (1972), 32 Ohio St. 2d 86, 290 N.E.2d 841, paragraph one of the syllabus. A judgment rendered by a court lacking subject-matter jurisdiction is void ab initio. Patton v. Diemer (1988), 35 Ohio St. 3d 68, 518 N.E.2d 941, paragraph three of the syllabus. In arguing that the municipal court lacked jurisdiction to entertain the motion for return of the seized Appx 9

23 property, [*6] the Department refies on R.C , which states: *** no court, other than the court of common pleas of Franklin county, has jurisdiction of any action against the liquor control commission, liquor control investigators of the department of pubfic safety, the superintendent of liquor control, or the division of liquor control, to restrain the exercise of any power or to compel the performance of any duty under Chapters and of the Revised Code. The Department also argues that the municipal court's jurisdiction was limited by R. C , which sets forth the powers and duties of the Departmenfs division of liquor control. Specifically, R. C (B)(1) provides that the liquor control division may be sued "only in connection with the execution of leases of real estate and the purchases and contracts necessary for the operation of state liquor stores ***". In light of these limitations on when and where the Department's liquor control division may be sued, the Department argues that the municipal court was without subject-matter jurisdiction to entertain the appellee's motion [*7] for return of his property. We disagree. The Department operates on the faulty premise that Owens sued the Department in a civil action. He did not. Owens and two other defendants filed a Crim.R. 12(F) motion connected with the underlying criminal proceeding initiated by the state against them. n2 A municipal court has subject-matter jurisdiction over criminal cases concerning the alleged commission of any misdemeanor within its territorial limits. R.C (A). Because the state charged Owens and the other defendants with a misdemeanor, the Athens County municipal court was a proper court for the criminal complaint. n3 Further, when exercising jurisdiction under R.C , the municipal courts follow the practice and procedure set forth in the Criminal Rules. See R.C. 190L.21(A). Part of this procedure is Crim.R. 12(F), wlrich allows a defendant to request the return of the illegally-seized evidence after the court has granted a motion to suppress. Owens and the other defendants therefore filed a motion that is specifically contemplated in the Criminal Rules in connection with a criniinal proceeding [*8] that was within the municipal court's subject-matter jurisdiction. Consequently, the municipal court properly exercised jurisdiction over the Crim.R. 12(F) motion. There is no merit to the Depaitrnent's assertion that the municipal court lacked the jurisdiction to order the return of the illegally-seized evidence to Owens. n2 Crim.R. 12(F) states: "Where a motion to suppress tangible evidence is granted, the court upon request of the defendant shall order ihe property returned to the defendant if the defendant is entitled to possession of the property." n3 A violation of R.C (B), the only offense for which the various defendants were charged, is a misdemeanor. See R. C (I). In addition to granting the motion for return, the municipal court gave the Department an option regarding how it may comply with its order. The municipal court's order allowed the Department to pay Owens $ 317 in lieu of returning the seized property. Thus, the court [*9] ostensibly ordered the Department to pay $ 317 to Owens if it could not (or chose not to) return the property to him. While the court had jurisdiction to order a return of the property, we find no jurisdiction to order a payment of money. Crim.R. 12(F) expressly allows a defendant to request the return of property. '1'he rule is silent, however, conceming payment of a monetary sum in lieu of the property itself. The plain language of Crim.R. 12(F) nierely allows the court to order the seized property to be retumed to a defendant entitled to possession. In the absence of any authorization in the rule; tho rrumicipal court lacked jurisdiction to order the payment of $ 317 to a defendant in a criminal case. Cf. Woodmere v. Smith (1983), 11 Ohio App. 3d 195, 196, 463 NE.2d 1291 (following acquittal in crinrinal trial, municipal court lacked jurisdiction to make an additional finding that probable cause existed). The award by the court of the seized property's value amounts to an award for damages for the Department's purported conversion of the various items it illegally seized from Owens and his housemates. A Crim.R. 12(F) motion is not the proper procedural mechanism [* 10] for securing damages. n4 Accordingly, we reverse that portion of the trial court's entry that ordered the Department to pay $ 317 to Owens in lieu of returning the property. The Department's first assignment of error is sustained to this liniited effect. Appx 10

24 n4 The trial court expressly chose not to proceed on Owens' motion for contempt. Had the court proceeded and found the state in contempt for failing to comply with its order to return the property, it could have ordered payment of a sum of money as a sanction or as a means of purging the contenipt. Moreover, there is nothing preventing Owens from re-filing his motion upon remand in an effort to force the appellant to comply with4he courps order or to face sanctions for noncompliance. In the second assignment of error, the Deparhnent asserts that Owens lacked standing to move the court for return of the illegally-seized property. The Department notes that Owens was not the "true owner of the kegs and that Owens failed to establish his ownership of the [*11] reniaining items, viz. a"beer bong," keg taps, and a cooler. If the court were to uphold the order of return, the Department contends that the controversy would remain "unresolved" because the true owners of the property in question were not parties to the proceedings. The Department's argument assumes that true ownership is a prerequisite to a criminal defendant's ability to recover property under Crim.R. 12(F). The text of the rule, however, allows for return of seized property following a sustained motion to suppress "if the defendant is entitled to possession of the property." (Emphasis added.) Moreover, R.C , Ohio's forfeiture statute, similarlypermits retum of confiscated evidence to persons deinonstrating a right to possession" rather than an ownership interest. See Eastlake v. Lorenzo (1992), 82 Ohio App. 3d 740, 743, 613 N.E.2d 247. Thus, the relevant question is not whether Owens owned the property illegally seized by the Deparhnent; rather, the question is whether Owens lawfiilly possessed the property. "Possession" refers to the control of property "for one's use and enj oyment, either as owner or as the proprietor [* 12] of a qualified right in it, either held personally or by another who exercises it in one's lace and name." Chagrin Falls v. Loveman (1986), 34 Ohio App. 3d 212, 216, 517 N.E.2d 1005; see, also, Black's Law Dictionary (7 Ed. 1999) The Department does not argue that Owens (or his housemates) lacked possessory rights in the illegally-seized property. Indeed, the record indicates that the property seized was either owned or rented by Owens and his housemates. The second assignment of error is overrrnded. n5 n5 The text of the second assignment of error appears to raise an additional issue concerning the municipal court ordering the Department to pay "money damages" in lieu of returning the property to Owens. The Department's brief, however, fails to separately argue this point as required by App.R. 16(A). We note, however, that our disposition of the first assignment of error addresses the propriety of the court's attempt to impose a damage award. IV.. 4 In the third assignment of error, [*13] the Department argues that the municipal court lacked the requisite personal jurisdiction over its director, Maureen O'Connor, that would allow the court to order the retum of the seized property to Owens. The Department argues that it was never a party to the underlying criuilnal proceeding and that the court therefore had no jurisdiction to exercise over it. The Department's attempt to question the municipal court's personal jurisdiction over it is misplaced in this case. A personal jurisdiction inquiry normally asks whether a court has properjurisdiction over a defendant in a civil action, so as to render a valid personal judgment. See Maryhew v. Yova (1984), 11 Ohio St. 3d 154, 156, 464 N.E.2d 538; see, generally, World-Wide Yolkrwagen Corp. v. Woadson (1980), 444 US. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490. This case, however, arises out of a crinunal acfion involving the state as a plaintiff prosecuting an alleged violation of underage drinking laws. Under this procedural scenario, there is simply no issue of personal jurisdiction. The state has invoked the jurisdiction of the court and cannot now argue that personal jurisdiction [*14] is lacking. Notwithstanding the misoharacterization of its argument as one of personal jurisdiction, we recognize Appx 11

25 the gravamen of the Department's contention. The Department argues that it is not a"proper party" to the motion for return of the seized property because it was not a party to the underlying criminal proceeding. We cannot, however, agree with the Department's argument. The Department was properly subject to the municipal court's order to retum the property because it is an agency of the state of Ohio, i.e. a party in the underlying criminal action. The state acts through its various agencies (or heads thereof) and is therefore the real party in interest in actions brought by or against those agencies. See State v. Williams (1996), 76 Ohio St. 3d 290, 295, 667 N.E.2d 932; State ex rel. Wilson v. Preston (1962), 173 Ohio St. 203, 181 N.E.2d 31, paragraph seven of the syllabus. Thus, the state of Ohio is the real party in interest connected with the crinvnal prosecution and the order to return the property. For all intents and purposes, the municipal court ordered the state to return the defendants' property; its specification of [*15] the Department simply recognized the practical reality that it was the specific state agency that possessed the illegally-seized property. Insofar as the Department was an agent of the real party in interest, viz. the State of Ohio, the court's order for return was proper. n6 n6 For these reasons, we have not captioned this case in the same manner as the parties. The parties have captioned the case designating the Department as a "new-party defendant." As an agency of the state, however, the Department is neither a "new party" not a "defendant." Accordingly, we have designated the state simply as the "appellant." The third assignment of error is overruled. V. In the fourth assignment of error, the Department challenges the propriety of the court's order for return of the property when it had already entered an order authorizing disposal. Because the trial court had already signed an order for disposal, the Department argues that the later order for return constituted an unwarranted reversal of the previous [*16] order." The Department's argument operates on the incorrect assumption that the trial court was powerless to reconsider its previous order concerning disposal of the seized property. To the contrary, a trial court has inherent power to vacate an order that was obtained without compliance with due process and procedural concems. See Logsdon v. Nichols (1995), 72 Ohio St. 3d 124, 127, 647 N.E.2d In this case, the disposal order was subject to being vacated because it was obtained without notice and an opporhuiity for a hearing and was contrary to statutory provisions governing forfeiture of property seized by law enforcement officials. Under R. C (C), Owens did not lose his right to possess the seized property unless: (1) the property was the subject, or was used in a conspiracy or attempt to commit, or in the conunission, of an offense other than a traffic offense, and the person is a conspirator, accomplice, or offender with respect to the offense. (2) A court deternvnes that the property should be Torfeited because, in light of the nature of the property or the circumstances of the person, it is unlawful for the [* 17] person to acquire or possess the property. Under this statute, a person may lose his right to recover property even without a conviction for an underlying criminal offense. State v. Blount, 1991 Ohio App. LEXIS 2903 (June 12, 1991), Sumtnit App. No , unreported. However, the court must first fmd by preponderance of the evidence that the property is contraband. Id. See, also, State v. Alt (1997), 119 OhioApp. 3d 766, 768, 696 N.E.2d 285 (in forfeiture proceeding, state bears burden of proving that seized property is contraband by preponderance of evidence). In this case, there was no such finding and therefore no basis for the court to order the disposal of the illegally-seized property. See State v. Burrell (1991), 71 Ohio App. 3d 507, 509, 594 N.E.2d 1059 (absent fmding that property was contraband, defendant entitled to have property returned when criminal charges disnrissed). We find no error in the municipal court's decision to grant the Crim.R. 12(F) motion and reverse a prior disposal order that would have effected a forfeihtre that was contrary to due process, criminal procedure, and statute. The fourth assignment of error is overruled. Appx 12