The basic premise of the new Chapter 2915 of the Ohio Revised Code is to prohibit professional gambling and supporting services. This statute is intended at suppressing the business of gambling, and prohibits gambling for profit. It does not prohibit gambling (other than bookmaking) which is not conducted for profit." The statute's coverage is very broad. Schemes and games of chance conducted for profit, as well as bookmaking, are expressly forbidden. Public policy dictates that gambling in public is prohibited to avoid enforcement problems.

1. Definition

The state of Ohio defines gambling as a “game of chance” conducted for profit, which means any “game of chance” designed to produce income for the person who operates the game of chance, but this does not include bingo. Ohio Rev. Code Ann.§ 2915.01 (E) . Gambling is where two persons “stipulate for a price that the determination as to who shall gain or lose (i.e., get or not get the prize) shall depend upon the happening of an uncertain event in which such parties have no interest except that arising from the possibility of such gain or loss.” Westerhaus Co. v. City of Cincinnati, 135 N.E.2d 318, 327 (Ohio 1956).

The terms “gaming” and “gambling” are construed synonymously. State v. Lark, 3 Ohio N.P. 155, 4 Ohio Dec. 241, 1896 WL 1523 (Police Ct. 1896). The term “gambling” includes a lottery but is broader, and may encompass more than the term “lottery.” Westerhaus, 135 N.E.2d at 318.

For a game to constitute gambling, it must be one, which is played for gain of money or a thing of value as the prize or reward. Id. at 335. Since amusement has value, and added amusement has additional value, and added amusement has additional value, and since it is subject to be procured by chance without the payment of additional consideration therefore, there is involved in the game three elements of gambling, namely, chance, price and prize. Id. at 336.

2. Dominant factor

A person facilitates a “game of chance” conducted for profit or a scheme of chance if the person in any way knowingly aids in the conduct or operation of any game or scheme, including, playing any such game or scheme. Ohio Rev. Code Ann. § 2915.02(B) . Ohio Rev. Code Ann. § 2915.01(D) defines a “game of chance” as follows: “game of chance” means poker, craps, roulette, a slot machine, a punch board, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely or wholly by chance. Thus, in order to prove that defendants were engaged in a game of chance, the prosecution is required to establish that they were involved in any of the above-enumerated games or any other game whose outcome is determined largely by chance and for which players give something of value in hopes of gain. City of Dayton v. Combs, 94 Ohio App.3d 291 (Ohio Ct. App. 1993).

It is not essential to gambling that one party should have a chance to lose, if he or she has a chance and lure to get something for nothing, such as added amusement. Westerhaus, 165 Ohio St. at 336. Because amusement has value, and added amusement has additional value, it follows that if the amusement is subject to be procured by chance without the payment of additional consideration as a result, there are three elements involved in gambling – namely, chance, price, and a prize. Id.

3. Material element

A person, who knowingly procures, transmits, exchanges, or engages in conduct that facilitates the procurement, transmission, or exchange of information for use in establishing odds or determining winners in relationship with bookmaking or with any game or scheme of chance conducted for profit is considered a material element. Ohio Rev. Code Ann. § 2915.02(A)(3) .

4. “Any” chance

In Ohio “game of chance” is defined as poker, craps, roulette, or other game in which a player gives anything of value in the anticipation of gain, the outcome of which is determined largely by chance, but does not include bingo. Ohio Rev. Code Ann. § 2915.01(D).

The test is whether chance is the determining element in the outcome of the game. Stubbs v. Dick, 89 N.E.2d 480, 482 (Ohio, 1949). Thus, in order to prove that defendants were engaged in a game of chance, the prosecution is required to establish that they were involved in any of the above-enumerated games or any other game whose outcome is determined largely by chance and for which players give something of value in the hopes of gain. Combs, 94 Ohio App. 3d at 291.

In Dayton v. Combs, the court applied what appeared to be a substantial factor test to determine if a game was subject to Ohio’s gaming statutes Combs, 94 Ohio App. 3d at 291. In Dayton v. combs, the court of appeals upheld convictions for gambling when both defendants had “purchased poker chips, played blackjack or twenty-one, and lost money. The police officers testified that they observed gambling paraphernalia and persons dealing and playing cards. Finally, a member of the Club testified that he exchanged money for chips and played blackjack.” A gaming device which allows the outcome of its operation to be determined largely by the skill of the user does not constitute a "game of chance". Progress Vending, Inc. v. Dep’t of Liquor Control, 394 N.E.2d 324 (1978).

The state of Ohio proves existence of "game of chance" where evidence showing that by placing money into video slot machine player can acquire or win, purely by chance, additional playing time on that machine without paying any extra money. State v. Brown, 688 N.E.2d 295 (Ohio Ct. App. 1996).

Ohio prohibits engaging in a scheme of chance or “game of chance” for profit, or knowingly engaging in conduct that assists such a scheme or game. A "scheme of chance" includes lotteries, numbers games, pools, or other plans in which a participant gives valuable consideration for a chance to win a prize. Ohio Rev. Code Ann.§ 112:2 .

The "chance" to gain a prize or something of value is an element of gambling, and gambling is predicated upon the chance or uncertainty of the hazard. Gevaras v. City of Cleveland, 8 Ohio Op, 178, 24 Ohio L. Abs. 89, 1 Ohio Supp. 144 (Mun. Ct. 1937). If the outcome of a game is determined by chance and the other elements of gambling are present, then it is a game of chance. Stubbs v. Dick, 56 Ohio L. Abs. 2, N.E.2d 480 (C.P. 1949). A “game of chance” must be determined entirely or in part by lot or mere luck in which judgment, practice, skill, and adroitness have no effect or are thwarted by chance. Id. Playing bridge and similar social card games in which skill rather than chance plays the predominant role does not constitute a “game of chance” where any prize is awarded by the club or hostess and not by the players themselves contributing money or another thing of value to a pot or purse which affords the prize. Id.

Although a gamble cannot be predicated upon something certain, there can be a gamble on the happening of an event, the happening of which may be largely dependent upon skill, even though reliant upon the skill of one or all of those participating in the gamble. Westerhaus, 135 N.E.2d at 318.
 Where the result of a game is determined by the automatic operation of the device and not subject to the control of the player, it is a result determined by “chance”. The selection of a name by the turn of a wheel, which secures the acquisitor a large money award, is a “scheme of chance”. Troy Amusement Co. v. Attenweiler, 28 N.E.2d 207 (Ohio Ct. App. 1940).

It is not essential to gambling that one party should have a chance to lose, if he or she has a chance and lure to get something for nothing, such as added amusement. Because amusement has value, and added amusement has additional value, it follows that if the latter is subject to be procured by chance without the payment of additional consideration therefore, there are involved the three elements of gambling -- namely, chance, price, and a prize. Kraus v. City of Cleveland, 135 Ohio St. 43, 13 Ohio Op. 323, 19 N.E.2d 159 (1939); Gevaras v. City of Cleveland, 8 Ohio Op. 178, 24 Ohio L. Abs. 89, 1 Ohio Supp. 144 (Mun. Ct. 1937).
  Where evidence demonstrates that by placing money into a video slot machine a player can acquire or win, purely by chance, additional playing time on that machine without paying any additional money, thereby gaining added amusement, it is a "game of chance" as that term is defined in the gambling statutes. State v. Brown, 688 N.E.2d at 295.

5. Other Test

A gaming device which allows the outcome of its operation to be determined largely by the skill of the user does not constitute a "game of chance". Progress Vending, Inc., 394 N.E.2d at 324.

6. Exemptions

Ohio exempts gambling activity authorized by law, pari-mutuel betting, the state lottery, and certain gambling activities organized and conducted for the benefit of tax-exempt organizations. See Legislative Service Commission (1973).

Ohio defines Bookmaking as the business of receiving or paying off bets. Ohio Rev. Code Ann. § 2915.01(A) . Ohio prohibits engaging in bookmaking or knowingly facilitating bookmaking. The primary offense covers the individual who maintains the operation and anyone who receives a bet or pays off a bet, except on behalf of an exempt activity or organization. Ohio Rev. Code Ann. § 2915.01(B) .

There is no culpable mental element specified for engaging in bookmaking, and the Ohio Supreme Court has imposed strict liability. The culpable mental element for facilitating is knowledge; the individual who places a bet or provides supporting services to a bookmaking operation must know that the person he is dealing with is in the business of taking or paying off bets. Ohio Rev. Code Ann. §112:2 .

Most state gambling laws contain, either expressly or so construed by the courts the following elements: consideration, a result determined buy chance rather than skill and a reward or prize within their definition of those games that constitute a “gambling devise.” 41 Brandeis L.J. 297, 301 (2002) (discussing contemporary gaming devices).

The State of Ohio prohibits various activities, including possession of any gambling device. A gambling device is broadly defined to include all equipment for bookmaking or a scheme or game of chance. Ohio Rev. Code Ann. § 2915.01(F) .

The culpable mental element is purpose; the actor must possess the gambling device for the purpose of engaging in the prohibited activities. Mere possession of a gambling machine is not enough; there must be some evidence from that the machines were used for profit. Garono v. State, 524 N.E.2d 496 (Ohio 1988).

In order for possession of a gambling device to be illegal, it must be acquired, possessed, controlled, or operated with the purpose to "establish, promote, or operate, or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit." Id.

All business endeavors carry some aspect of risk, but it is not intended that legitimate business risks be interpreted as gambling under the criminal code. If an evident business risk is not bona fide, however, it may constitute gambling, such as a 'bucket shop' operation in which members “wager on the fluctuations of the securities or commodities markets without actually trading any securities or commodities.” Ohio Rev. Code Ann.§ 112:2 .

Ohio Rev. Stat. § 6934a-1 not only enacts that it shall be unlawful to keep a “bucket-shop, but it, in express terms, also prohibits and makes unlawful the pretended buying or selling of the shares of stocks or bonds of any corporation either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold.

Ohio’s gambling statutes make a distinction between “schemes” of chance and “games of chance. Lavery v. Ohio Liquor Control Comm’n, 112 Ohio App. 3d 494, 679 N.E.2d 57, 1996 Ohio App. LEXIS 3022 (1996). A gaming device, which allows the outcome of its operation to be determined largely by the skill of the user, does not constitute a “game of chance” and its possession or display does not violate the code. A gaming device, which allows the outcome of its operation to be determined largely by the skill of the user, does not constitute a “game of chance” as defined by § 2915.01(D), and its possession or display does not violate § 2915.02. Progressive Vending Inc., 394 N.E.2d at 324.

1. Poker/card games

It is not a violation of Ohio law to have a poker game with your friends in your home, as long as all of the amounts wagered are paid to the winners, and the "house" is not taking any portion of the amounts wagered. Michelle Gatchell, Attorney General Jim Petro Reminds Ohioans That Games Of Chance Like Texas Hold 'Em Are Illegal Unless Guidelines Are Followed (Last modified October 20, 2004), available at, http://www.ag.state.oh.us/press/04/10/press_release_20041020.asp

If an insignificant charge is made for admission or for a seat in the game, or a small percentage of the pot or pool is taken, or the house takes an edge in the odds, then that is considered a profit for the purposes of applying the code. Legislative Service Commission (1973).

Poker is also listed as a “game of chance” by statute in Ohio. Ohio Rev. Code Ann. § 2915.01(D). The General Assembly appropriately determined poker to be a “game of chance” under § 2915.01(D). Garono, 524 N.E.2d at 496.

The fact that an element of skill may be involved in a game does not override the fact that elements of chance still exist and, therefore, the game can be classified as a “game of chance” under § 2915.01, event thought the element of chance might have been eliminated. United States v. Tripp, 782 F.2d (6th Cir. 1986).

A deck of cards, dice, gaming table, roulette wheel, slot machine, or other equipment designed for use in conjunction with a “game of chance” is considered a gaming device. Ohio Rev. Code Ann. § 2915.01(F)(3).

Ohio exempts gambling activity authorized by law, pari-mutuel betting, the state lottery, and other certain gambling activities organized and conducted for the benefit of tax-exempt organizations. Legislative Service Commission (1973).

1. Charity gaming

Under Ohio law a “game of chance” is illegal unless the games are conducted under exemptions provided by Ohio's Charitable Gambling Law. Michelle Gatchell, Attorney General Jim Petro Reminds Ohioans That Games Of Chance Like Texas Hold 'Em Are Illegal Unless Guidelines Are Followed (Last modified October 20, 2004), available at, http://www.ag.state.oh.us/press/04/10/press_release_20041020.asp The statute exempts gambling activity authorized by law, pari-mutuel betting, the state lottery, and certain gambling activities organized and conducted for the benefit of tax-exempt organizations.

The exemption for tax-exempt charitable organizations is not absolute; it does not extend to craps or roulette for money or to slot machines, and it must satisfy the other limitations. Ohio Rev. Code Ann. § 2915.02(D) . A nonprofit organization may be convicted of gambling for profit under 2915.02 if they do not follow proper procedures. State v. Posey, 534 N.E.2d 61 (Ohio 1988). For example, charitable bingo is specifically exempted. Ohio Rev. Code Ann. § 112:2 . However, if it is a bingo game, it must be licensed and conducted in agreement with the Revised Code. Ohio Rev. Code Ann. § 2915.08 .

There is also a distinction drawn between gambling conducted by non-profit organizations and that carried on by other persons or entities. R.C. 2915.02(A)(2) states that "no person shall establish, promote, or operate or knowingly engage in conduct that facilitates any scheme or “game of chance” conducted for profit[.]" R.C. 2915.02(D)(1)-(3) grant non-profit or charitable organizations the right to conduct gambling operations to raise revenue provided that certain conditions are met. Most significant among these conditions is a requirement that any profit beyond payment of prizes go only to charitable organizations. Lavery, 112 Ohio App. at 499.

2. Social gaming

It is not a violation of Ohio law to have a poker game with your friends in your home, as long as all of the amounts wagered are paid to the winner or winners, and the “house” is not taking any portion of the amounts wagered.

3. Chuck Cheese exemptions

Ohio law contains statutory authority, attorney general opinions, or case law regarding “Chucky Cheese” exemptions.

4. Lottery

A "lottery" is a scheme where money is paid and the winner of the prize is determined by chance; the term "gambling" is broader than the term "lottery." State ex rel. Gabalac v. New Universal Congregation of Living Soul., 379 N.E.2d 242 (Ohio Ct. App. 1977). Lottery is "a scheme for the distribution of prizes by lot or chance." State ex rel. Gabalac, 379 N.E.2d at 242. It is a type of gaming contract, by which, for a valuable consideration, one may obtain a prize of a value superior to the amount or value of that which he or she risks. Stevens v. Cincinnati Times-Star Co., 72 Ohio St. 112, 73 N.E. 1058 (1905);

To constitute a lottery, three elements must be present. There must be consideration, giving of a prize and the winning must be determined by chance Troy Amusement Co., 28 N.E.2d at 213.

As to what constitutes a lottery in the criminal context, a lottery is a species or form of gambling; it is scheme for distribution of prizes by lot or chance, the essential elements of which are prize, chance and consideration. Fisher v. Neusser, 660 N.E.2d 435 (1996). Also, a lottery is a scheme for the distribution of money or property by chance among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, gift enterprise, or by some other name. State v. Bader, 24 Ohio N.P. (n.s.) 186 (Mun. Ct. 1922).

A lottery is a sort of gaming contract by which, for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount or value of that which he or she risks. Stevens v. Cincinnati Times-Star Co., 73 N.E. 1058 (1905). If the determination of who shall be the winner of a prize is by mere blind luck, the scheme is a lottery. Fisher v. State, 14 Ohio App. 355, 1921 WL 1304 (8th Dist. Cuyahoga County 1921).

The definition of a "prize" is some advantage or inequality in amount or value, accruing to some but not all, of the participants in a game or contest, and no lottery exist if every contestant receives something of value of precisely the same nature. Great Atlantic & Pac. Tea Co. v. Cook, 240 N.E.2d 114 (C.P. 1968), Contests for prizes awarded as a matter of grace or favor for skill, where the player risks nothing, are not lotteries or gambling contracts. Stevens, 73 N.E. at 1058.

A lottery pooling venture in which participants pay a company a valuable consideration in exchange for chances to participate in Ohio's state lottery on terms other than those offered by the state lottery commission and for a prize in an amount different from the amount set by the State Lottery Commission is, itself, a scheme of chance, separate from Ohio's state lottery, the company's operation of which is prohibited by Ohio law. Legislative Service Commission 1973.

Lotteries are regulated by the state constitution, Ohio Const. Art. XV § 6 which is silent regarding other forms of gambling, rendering the legislature able to pass laws legalizing other forms of gambling, which are not lotteries. State ex rel. Gabalac, 379 N.E.2d at 242.

5. Horse racing

Under Ohio law, all promises, or securities, when the consideration is for something of value won or lost or betted at upon a horse race for the purpose of being wagered, are void. Ohio Rev. Code Ann. § 3763.01 .

Horse racing and wagering on the results are regulated by the horse racing law and the rules and regulations under the OHIO Admin. Code 3769:1-18 (West, Weslaw current through July 2006 amendments). No horse racing may be conducted for any stake, purse, or award without a lawful permit. § 3769.01,12,13. Because the horse racing statute contradicts the constitutional provision against conducting lotteries in the State of Ohio, it should be strictly interpreted. Bedford Sportspark, Inc. v. Leslie,155 N.E.2d 730 (C.P. 1959).

6. Other pari- mutual

The state of Ohio exempts pari-mutuel betting, because this is expressly permitted and regulated by law. Ohio Rev. Code Ann. § 3763.01.

Ohio does not have any statutory authority, attorney general opinions, or case law regarding internet gaming prohibitions.

The Ohio Supreme Court held that no culpable mental element is stated for the offense of engaging in a scheme or game of chance for profit, but the offense of facilitating such a scheme or game must be done "knowingly." Consequently, the rationale of Wac appears to require that the offense of engaging in a scheme or game of chance for profit be construed as a strict liability offense. State v. Wac, 428 N.E.2d 428 (Ohio 1981).

1. Misdemeanor versus Felony

Gambling is a first-degree misdemeanor but escalates to a fifth-degree felony if the offender has a prior conviction for any gambling offense. Ohio Rev. Code Ann. § 2915.02(F) .

2. Player versus operator

Schemes and games of chance conducted for profit, as well as bookmaking, are expressly forbidden. These prohibitions reach the bookie, the casino operator, and the manager of a floating crap game, but also the clerk of the handbook, the dealer, and the person who places a bet with a bookie or plays an illicit game or scheme. Legislative Service Commission (1973).

Mere possession of a gambling machine is insufficient; there must be some evidence from which it can be inferred that the machines were used for profit. Gerona v. State, 524 N.E.2d 496 (Ohio 1988). Because the Code classifies criminal possession and control of a gambling device as a misdemeanor of the first degree it is this statute, not the criminal statute that controls whether gambling devices are indeed possessed.

Some Ohio trial courts have considered the age and number of victims, the continuing course of conduct, the amount of damage, the involvement of others, and the impact on many others including defendant's minor children, and defendant's previous activity in other counties, in determining the appropriate punishment. State v. Moore, No. C.A. 21975, 2004 WL 2243549, at *1 (Ohio Ct. App. Sept. 30, 2004).

A person who spends money to purchase or secure a lottery, chance, or interest on a lottery, policy, scheme of chance, or scheme of gambling, or a person dependent or entitled to the earnings, may sue for and recover from the person receiving such money, with “exemplary” damages, which will not be less than fifty nor more than five hundred dollars, and may join as defendants in a suit all persons having an interest in such lottery, policy, or scheme of chance, as backers, vendors, or owners. Ohio Rev. Code Ann. § 3763.08.

Ohio does not have any statutory authority, attorney general opinions, or case law granting authority for commercial casino gaming.