Which Ohio Commission Should Regulate Gambling Within the State?

“Roulette table gambling”by Best Free Bets is licensed under CC BY 2.0

Theron Anderson, Associate Member, University of Cincinnati Law Review

This is the second article in a two-part analysis on sports betting. Click here to read an in-depth discussion of Murphy v. NCAA.

Introduction

After being granted the discretion to authorize sports betting within its jurisdiction, Ohio has undertaken the burden to exercise that discretion. After one orbit around the Sun, Ohio seemed to be in agreement that sports betting was the rational move for the state. But the decision to delve deeper into the matter developed an impasse that has not ceased to let up. The issue has become whether sports betting legislation could fit within the current statutory framework without amendments and which existing state commission is best fit to regulate the activity. 

First, this article will present a background of the landmark Murphy v. NCAA case which brought Ohio to this point.[1] Second, it will consider whether the current statutory framework of the state prohibits sports betting, therefore requiring an amendment. Next, this article will outline the bills currently on the state legislature’s to-do list, and the hurdles it faces in accomplishing its legislative goals. Finally, this post interprets the sports betting statutes and analyzes the validity of each argument supporting a particular commission.

Background

In the year following the landmark case of Murphy v. NCAA[2], states reacted to capitalize on their new discretionary authority to legalize sports betting, leading to the legalization of sports betting in eight states.[3] In Murphy, the Supreme Court ruled that the prohibitions imposed by the Professional and Amateur Sports Protection Act (“PASPA”), preventing States from authorizing sports gambling within their respective jurisdictions, violated the constitutional law doctrine of anticommandeering.[4] This doctrine protects the states from the encroachment of the Federal Government on their powers. The Court believed that the issue of gambling fell within the province of the states due to the issue of sports gambling being a controversial subject concerning citizens within their jurisdictions.[5] Therefore, Congress should not be able to exercise power regarding that issue.[6]

Legality of Sports Betting in Ohio

Similar to states throughout the country, Ohio identified Murphy as an opportunity to capitalize on potential revenue for the State.[7] The question of whether states can authorize sports betting was answered affirmatively in Murphy, but that presented a subsequent question of whether sports betting is prohibited by the current laws of the state. Those leading the push in the Ohio legislature have proceeded on the assumption that sports betting legislation can operate within the existing laws.[8]

Three arguments can be made as to why sports gambling is not prohibited under the current laws of the state. First, one could argue that sports betting falls within the definition of “casino gaming” found within the 2009 amendment to the Ohio Constitution.[9] One could also argue that sports betting falls within the lottery language as a “game of chance.”[10] Finally, sports betting can be analogized to horse racing.[11] In the early 20th century, horse betting was permitted even though it was not specifically authorized by the Constitution.[12] Legislatures argue that they possess the power to “simply set laws to regulate sports gambling as it wishes, as it did with horse racing.”[13]

With the creation of legislation regarding the legalization of sports betting, the proponents of legalized sports betting should be able to pass it through without statutory hurdles. If the legislature were to meet civil opposition after the legislation’s passing, the Ohio courts should have many avenues at their disposal to rule in favor of the legislation’s validity.[14]

Pending Legislation Halts over Regulators

Currently, two sports betting bills are working their way through the Ohio legislature.[15] These bills were introduced in March and April of this year.[16] One of the bills is House Bill 194 (“HB194”).[17] HB194 is led by Representatives Dave Greenspan and Brigid Kelly.[18] This bill is the “more robust of the two bills.”[19] The purpose of the bill is to “legalize, regulate and tax sports wagering businesses.”[20] The betting would be regulated by the Ohio Lottery Commission (“OLC”) and permitted at “neighborhood veterans and fraternal organization halls licensed by the lottery” as well as casinos.[21]

The other is Senate Bill 111 (“SB111”).[22] This bill is led by Senators John Eklund and Sean O’Brien.[23] Because SB111 assigns the regulation of sports betting to the Ohio Casino Control Commission (“CCC”), sports betting would only be permitted in the casinos and racinos of Ohio.[24]

The two major differences with the bills are the commission tasked with regulating the betting and where the betting will be allowed.

A stalemate has formed in the legislature due to disagreement over which commission is more fit to regulate sports betting within the State. Those in favor of the House’s bill raise the argument that the CCC cannot legally regulate sports betting.[25] Rep. Greenspan went as far as to say that the House proposal with the OLC in charge is “the only legal option.”[26] The argument against the CCC leans on two points. First, opponents of CCC regulation believe that “the CCC would not have the authority to oversee OH sports betting unless it were considered a casino game.”[27] Second, CCC authority is limited to Ohio casinos; therefore, sports betting would be limited to those casinos.[28]

Sen. Eklund, in support of CCC regulation, rebutted by pointing to the Ohio Constitution omittance of a clear prohibition of the CCC from regulating sports gambling.[29] Sen. Eklund also countered that there is no stipulation that the OLC should regulate sports betting either.[30] If one was to label sports betting as a game of skill rather than a game of chance, it would support the argument of Sen. Eklund that sports betting falls outside of the OLC’s purview.[31]

Sen. William Coley, President of the National Council of Legislators for Gaming States, continued the suspicion of CCC’s aptitude to regulate sports betting by questioning its availability of funds.[32] Sen. Coley supported his suspicion by highlighting the constitutional limitations placed on the CCC for raising funds.[33] Sen. Eklund’s response to this scrutiny was less than persuasive. He stated that “he spoke with the leadership of the CCC and they have every confidence that they have the resources to regulate Ohio sports betting.”

It may seem like this drama should be titled “Eklund vs. the World,” but in the early summer, his bill received encouragement from a major player. Governor Mike DeWine publicly expressed his support for the bill crowning the CCC as the regulator over Ohio sports betting.[34] The support of the governor displays a favorable signal to proponents of a general sports bill, but for those in support of an OLC regulator will have some convincing to do in the near future.[35]

Recently, the HB194 has picked up more traction than the Senate bill. Even though the House bill was delayed due to an unrelated budget discussion this past June, the bill has undergone three hearings in the Finance Committee, with the House expecting to resume discussion after its recess which was scheduled to end in early September.[36] Even considering the current stalemate, proponents of the both bills are expecting a passed bill in the summer of 2020.[37]

What Does the Law Say?

The CCC acquires its authority from Article XV, Section 6 of the Ohio Constitution.[38] The CCC “shall license and regulate casino operators . . . and all gaming authorized by section 6(C).”[39] Section 6(C) states “[c]asino gaming shall be authorized at four casino facilities.”[40] Casino gaming is defined as “any type of slot machine or table game wagering . . . authorized in any of the states of Indiana, Michigan, Pennsylvania, and West Virginia.”[41] Casino gaming is defined as games involving skill or chance.[42]

The OLC acquires its authority from Section 6 of the Ohio Constitution as well as Title 37, Section 3770.03 of the Ohio Revised Code.[43] Within Section 6, the legislature is given the discretionary authority to allow “an agency of the state to conduct lotteries . . . and to award prizes by chance to participants.”[44] The OLC is created by the legislature and given the authority to “promulgate rules under which a statewide lottery may be conducted.”[45]

So…Who Should Regulate?

Sports betting does not adequately fit within the purview of the CCC nor the OLC. For the CCC to be granted the expressed authority to regulate, sports betting must be a casino game. Casino games are defined as slot machines or table games. At first blush, one might attempt to place it within the category of table games, but the category is defined as “any game played with cards, dice, or any mechanical, electromechanical, or electronic device or machine.”[46] A creative argument could be made to fit sports games within that, but it is not convincing considering the fact that some sports betting does not require any “mechanical, electromechanical, or electronic device.”[47] Therefore, the CCC would not be the appropriate commission to regulate sports betting. 

OLC becoming the regulator would depend on one question: does sports gambling fall within the category of a lottery? From the language “promulgate rules under which a statewide lottery may be conducted,” lottery is narrower than Rep. Greenspan and his proponents are willing to admit.[48] The provision does not give much latitude allowing the OLC to dabble in other ventures, such as sports gambling, because it focuses on a single statewide lottery.

The elimination of the two commissions would lead to the sound alternative voiced by Matthew Kredell of the Legal Sports Report.[49] He considered “creating a third regulatory body to handle sports betting.”[50] This design would mirror the response of the Ohio legislature to the similar issue of horse race betting in the early 20thcentury.[51] In that situation, the legislature created the Ohio Racing Commission to regulate the bets on horses.[52]

The practicality of this alternative could be lacking due to how much activity the House’s bill is collecting and the potential issues with funds, but it remains a healthy alternative that should be considered if the legislative stalemate refuses to subside. 

Conclusion

Because this issue of who should regulate presents a moderate amount of ambiguity, the split within the legislature is not a surprise. The House bill has received the most attention, while the Senate bill has received support from the gatekeeper of bills, creating a mystery of what the future holds for sports betting in Ohio. The fierce stalemate should turn the government’s attention to a blueprint of the past, making a specialized commission for sports betting the legitimate course of action. 


[1]Murphy v. NCAA, 138 S. Ct. 1461 (2018).

[2]Id.

[3]Rich Exner, Ohio heads towards legalizing sports gambling: Q&A of how, when and issues in play, cleveland.com (May 9, 2019), https://expo.cleveland.com/news/g66l-2019/05/213161ac655032/ohio-heads-toward-legalizing-sports-gambling-qa-of-how-when-and-issues-in-play.html.

[4]Murphy, 138 S. Ct. 1461 at 1468, 1481.

[5]Id.at 1484.

[6]Id.

[7]Exner, supra note 3.

[8]Matthew Kredell, Argument Bubbles Over Who Should Regulate Ohio Sports Betting, Legal Sports Report (July 25, 2019), https://www.legalsportsreport.com/34594/ohio-sports-betting-casino-commission/.

[9]Exner, supra note 3.

[10]Id.

[11]Id. 

[12]Id.

[13]Id.

[14]Id.

[15]The Lines, Ohio Sports Betting, Ohio Sports Betting News and Information, https://www.thelines.com/ohio/.

[16]Id.

[17]Id.

[18]Exner, supra note 3.

[19]The Lines, supra note 15. 

[20]Id.

[21]Exner, supra note 3.

[22]The Lines, supra note 15. 

[23]Exner, supra note 3.

[24]The Lines, supra note 15. 

[25]Matthew Kredell, Opinion On Overseeing Ohio Sports Betting Offers Obstinate Obstacle, Legal Sports Report (July 5, 2019), https://www.legalsportsreport.com/34202/ohio-sports-betting-regulator-opinion/.

[26]Id.

[27]Id.

[28]Id.

[29]Kredell, supra note 7.

[30]Id.

[31]Kredell, supra note 24.

[32]Kredell, supra note 7.

[33]Id.

[34]Id.

[35]Id.

[36]Id.

[37]The Lines, supra note 15.

[38]Ohio Const. art. XV, § 6.

[39]Id. art. XV, § 6(C)(4).

[40]Id. art. XV, § 6(C)(1).

[41]Id. art. XV, § 6(C)(4).

[42]Id. art. XV, § 6(C)(9).

[43]Ohio Const. art. XV, § 6, Ohio Rev. Code Ann. §3770.03 (LexisNexis 2017).

[44]Ohio Const. art. XV, § 6.

[45]Ohio Rev. Code Ann. §3770.03(A) (LexisNexis 2017).

[46]Id. art. XV, § 6(C)(9).

[47]Id.

[48]Ohio Rev. Code Ann. §3770.03(A) (LexisNexis 2017).

[49]Kredell, supra note 24.

[50]Id.

[51]Exner, supra note 3.

[52]Id.

Ohio’s Limits on Health Services in the Electronic Age

Author: Andrea Flaute, Associate Member, University of Cincinnati Law Review

Telemedicine is a key innovation in the health care industry. Sharing patient information and physician services across long distances bridges a gap for patients across the world. Telemedicine’s benefits include access to services that would otherwise be unavailable; streamlined and efficient communication between patients and physicians; and the ever-important reduction of health care costs. The recent launch of “mHealth,” Continue reading “Ohio’s Limits on Health Services in the Electronic Age”

Tattoo Rights Inked Into The Constitution: Why Tattoos Are Protected Speech Under the First Amendment

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

Tattoos often portray significant moments in a person’s life, mark rites of passage, show religious devotion, or express feelings towards others. Getting a tattoo allows someone to make “permanent that which is fleeting.”[1] Tattoos, which at one point were seen as a seedy tradition of bikers and rebels, have now firmly become a part of mainstream, modern society.[2] But despite the widespread popularity and acceptance of tattoos in modern society many courts reject the artistic merits of the art of tattooing and deny it protection under the First Amendment.[3] While the Supreme Court interprets the language of the First Amendment to protect artistic expression, lower courts do not include tattooing as a form of artistic expression.[4] Modern day tattoo artists “emphasize creativity and expression” in their work, and as a result, tattooing is now a leading art form.[5] In consideration of this modern understanding of tattooing, some courts have determined that the act of tattooing is protected under the First Amendment.[6] This is a much-needed change in First Amendment jurisprudence; tattooing should be considered artistic expression and protected under the First Amendment.

Zoning to Prohibit Tattoo Parlors

The case of Euclid v. Ambler Realty Co. is the foremost case surrounding zoning in the United States.[7] In Euclid, the United States Supreme Court found that there was a substantial governmental interest in regulating land uses; however, a municipality must show that there is a rational basis behind its zoning laws—i.e., the zoning ordinance must be related to either public health, safety, morals, or general welfare.[8]

In regard to tattoo parlors, courts have traditionally upheld zoning laws either banning or severely restricting tattoo parlors, stating that it is within the government’s purview to protect the “health, safety and general welfare” of its citizens.[9] These courts found that municipalities can regulate tattooing because it involves “puncturing the skin with a needle creating openings in the human skin through which diseases can pass.”[10] Therefore, any regulation around tattooing directly deals with the health and welfare of municipalities’ citizens and meets the Euclid test for reasonable zoning ordinances.[11]

The courts upholding these restrictive zoning ordinances distinguish the act of tattooing from the tattoo itself; while the tattoo itself is protected speech, the process of tattooing is not.[12] In Yurkew v. Sinclair, for example, the court found a tattoo artist’s “interest in engaging in conduct involving tattooing does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.”[13] Therefore, these courts have found that “the act of tattooing is one step removed from actual expressive conduct” because it is the client’s message that is being communicated, not the tattoo artist’s message.[14] Thus, the tattoo is considered pure speech and protected under the First Amendment, while the art of tattooing is not and subject to a city’s zoning bylaws.

Tattooing as Artistic Expression

In contrast to the majority, the United States Courts of Appeals for the Ninth and Eleventh Circuits do not distinguish the act of tattooing from the tattoo itself, holding instead that the process of tattooing is artistic expression protected under the First Amendment.[15] In Anderson v. City of Hermosa Beach, the Ninth Circuit held that tattooing was protected speech and that Hermosa Beach could not ban tattoo parlors from operating within the city.[16] Similarly, in Buehrle v. City of Key West, the Eleventh Circuit held that “the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression.”[17] The primary difference between a tattoo and a painting is that a tattoo is drawn on the skin, whereas a painting is drawn on a canvas. A form of speech should not lose its First Amendment protection simply because of the surface on which it appears.[18] Deeming tattooing as an artistic expression, these courts do not treat an artist whose chosen medium is the skin differently than an artist whose chosen medium is canvas or clay.

In her decision in Buehrle, Justice Pryor further emphasized the defect of separating tattooing from the tattoo itself by recognizing that the Supreme Court has frequently held that protected artistic expression encompasses different actions by a number of parties on the same piece of work. For example, in Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., the Court found that the First Amendment protected both the act of writing and the act of publishing.[19] Thus, as with writing, the act of tattooing is inextricably linked to the tattoo, and deserves First Amendment protection. Simon demonstrates that the Supreme Court does not distinguish between the process of creating art and the product of those artistic processes.[20]

Moreover, tattooing is now a leading art form in the United States; indeed, many tattoo artists are graduates of college art programs who are known for their custom designs.[21] Some tattoo artists even seek copyrights on their finished pieces.[22] Although tattoos may fall outside the traditional understanding of art due to their unique medium, to hold that the First Amendment protections do not apply to tattoo artists diminishes the value of their artwork and severely obstructs their ability to use artistic expression as a form of speech. While these protections should have always been in effect, courts cannot ignore the art form’s recent growth in acceptance.

Conclusion

Tattooing is now considered an art form (with the tattoo a product of this art form). As such, tattooing is a form of artistic expression that deserves protections under the First Amendment. Therefore, zoning ordinances that prohibit tattoo parlors are unconstitutional and should not be upheld.

[1] Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-American, in Written on the Body: The Tattoo in European and American History 234, 240 (Jane Caplan ed., Princeton Univ. Press 2000).

[2] See Michael Kimmelman, Tattoo Moves from Fringes to Fashion. But Is It Art?, N.Y. Times (Sept. 15, 1995), http://www.nytimes.com/1995/09/15/arts/art-review-tattoo-moves-from-fringes-to-fashion-but-is-it-art.html?pagewanted=all.

[3] See generally Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656 (N.D. Ill. 2008).; see generally State v. White, 348 S.C. 532 (S.C. 2002).; see generally Kennedy v. Hughes, 596 F. Supp. 1487 (D. Del. 1984).

[4] Ryan J. Walsh, Comment, Painting on a Canvas of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011).

[5] Id at 1090-91.

[6] Supra note 7.

[7] See generally Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[8] Id at 20.

[9] People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978).; see generally Hold Fast Tattoo, 580 F. Supp. 2d 656.; see generally Blue Horseshoe Tattoo, V. Ltd. v. City of Norfolk, 72 Va. Cir. 388 (Va. Cir. Ct. 2007).

[10] Carly Strocker, Comment, These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment, 31 Loy. L.A. Ent. L. Rev. 175, 179 (2011).

[11] See State ex rel. Crabtree v. Franklin Cnty. Bd. Of Health, 673 N.E.2d 1281 (Ohio 1997) (holding that by prohibiting legal tattooing in a community, it encourages black market or underground tattoo parlors, which pose larger risks than allowing lawfully regulated tattoo parlor).

[12] Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980).

[13] Id at 1254.

[14] Hold Fast Tattoo, 580 F. Supp. 2d at 660.

[15] Supra note 5.

[16] Anderson, 621 F.3d 1051, 1055 (9th Cir. 2010).

[17] Buehrle, 2015 U.S. App. LEXIS 22782 at *4 (11th Cir. 2015).

[18] Supra note 17 at 1062.

[19] 502 U.S. 105, 116-118 (1991).

[20] Supra note 15 at 1061.

[21] Supra note 9 at 187.

[22] Id.

Should States Preempt Local Governments from Passing Higher Minimum Wage Ordinances?

Author: Stephanie Scott, Associate Member, University of Cincinnati Law Review

 While the federal government sets a minimum wage that is the nationwide “floor,” many state legislatures have passed their own laws requiring a minimum wage above the federal minimum. Recently, individual cities and localities have further tried to account for inflation and higher-cost living expenses by passing local minimum wages above the state and federal minimums. Continue reading “Should States Preempt Local Governments from Passing Higher Minimum Wage Ordinances?”

Daily Fantasy Sports: Game Of Skill Or Game of Chance?

Author: Gabriel Fletcher, Associate Member, University of Cincinnati Law Review

Draftkings and FanDuel are online daily fantasy sports businesses (DFS).[1] In November of 2015, New York Attorney General (AG), Eric Schneiderman, declared that DFS is gambling, and thus unlawful.[2] The AG’s determination has reignited the discussion over DFS being a game of chance as opposed to a game of skill, which is a determining factor in whether or not DFS constitutes gambling. Continue reading “Daily Fantasy Sports: Game Of Skill Or Game of Chance?”

Cyberbullying: When a Students’ Right to Free Speech Goes Too Far

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

In October 2003, Ryan Halligan, a thirteen year-old from Vermont, hung himself after his personal and embarrassing secrets were disclosed by his “friend” on AOL Instant Messenger.[1] In October 2006, Megan Meier, a thirteen year-old from Missouri, hung herself because her neighbor, disguised as a potential suitor, sent her messages on MySpace telling her Continue reading “Cyberbullying: When a Students’ Right to Free Speech Goes Too Far”

The Gender Advancement in Pay Act: The GAP Act Leaves Some Holes

Author: Brynn Stylinski, Contributing Member, University of Cincinnati Law Review

On September 22, 2015, Republican Senator Kelly Ayotte submitted the Gender Advancement in Pay Act (GAP Act) to the Senate.[1]  The GAP Act proposes an amendment to the Fair Labor Standards Act (FLSA), as amended by the Equal Pay Act, in order to provide greater protections to women earning unequal pay to their male counterparts.[2] Continue reading “The Gender Advancement in Pay Act: The GAP Act Leaves Some Holes”

Criminalization of HIV in Ohio

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

According to the Centers for Disease Control and Prevention (CDC), 1.1 million Americans are living with Human Immunodeficiency Virus (HIV).[1] In Ohio alone, there are 19,352 people who have been diagnosed with HIV.[2] In response to the Acquired Immunodeficiency Syndrome (AIDS) Crisis of the 1980s, many states enacted HIV criminalization statutes as a public health precaution.[3] Proponents of criminalizing HIV non-disclosure argue that it deters transmission between those who know they are infected and any sexual or drug use partner, Continue reading “Criminalization of HIV in Ohio”

Ohio’s Marijuana Oligopoly Concerns

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

This November, Ohioans will have the opportunity to vote on Issue Three, a proposed state constitutional amendment legalizing the recreational use of marijuana. Ohio would only be the fifth state to legalize recreational marijuana and the first Midwestern state to do so. Potential marijuana producers, processors, and retail storeowners have the opportunity to mold this emerging market, but Issue Three limits the number of marijuana producers. Continue reading “Ohio’s Marijuana Oligopoly Concerns”

“Admitting Privileges” Requirements for Abortion Providers Possibly Up for Review by the Supreme Court

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Since the Supreme Court’s decision granting women the constitutionally protected right to seek and obtain abortions in Roe v. Wade,[1] various individuals, organizations, and government bodies have pushed back against the ruling through legislation and additional lawsuits. Although many of these attempts have been successful, a recent Fifth Circuit decision, Currier v. Jackson Women’s Health Organization, may signal an impending shift in the battle to maintain access to reproductive rights across the country.[2] Although the decision in this case is explicitly narrow, affirmance by the Supreme Court could establish a standard in which laws that totally eliminate all clinics within the borders of a state violate Roe by abdicating a state’s constitutional responsibilities to another, neighboring state.[3] By reinforcing constitutional rights that have been weakened over time, such a change could represent a tremendous leap forward for women’s rights across the country. The Court is expected to decide on the appellant’s petition for certiorari soon and should review and affirm the lower court decision, affirming once again that reproductive care is not merely a convenience but a constitutionally protected right. Continue reading ““Admitting Privileges” Requirements for Abortion Providers Possibly Up for Review by the Supreme Court”