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Tic Tac Fruit game subject of gambling debate
SOURCE: The Plain Dealer
Reginald Fields
September 03 2007

Columbus- Slip some money into the slot, hit "Play," and the screen jumbles to produce a colorful, mind-tingling fruit cocktail of a puzzle, similar to a tic-tac-toe board.

Touch the screen to flip an icon - maybe a cherry, a lemon or an orange - into a matching, three-set combination. That's all it takes to play. It's hard to lose, yet difficult to win big.

On its surface, Tic Tac Fruit is a simple tabletop video machine that costs from 50 cents to $4 per play, a game an elementary school kid could figure out. The winning combinations net prizes of a few pennies to enough to spring for dinner.

And yet Tic Tac Fruit is far more complicated than that. For one, what is it? A dressed-up, illegal slot machine in disguise? Or a game of skill, where success comes with devising strategy against a draining clock?

These questions are at the heart of a growing debate over what to do about an explosion this year of cash-paying video games that state leaders are convinced are akin to illegal slots. An estimated 50,000 such games - Tic Tac Fruit and dozens of other titles - are in Ohio today, more than double the number earlier this year.

The machines, state leaders say, have spawned an unregulated gambling subculture in plain view of law enforcement officers, thanks to an ambiguous law that makes it difficult to prove what is or isn't a legal game of skill.

The games used to be mainly in bars, restaurants, bowling alleys and VFW halls.

But the games are now prevalent in storefront parlors that look like rundown casinos, the type Ohio voters have rejected several times.

So frustrated are Gov. Ted Strickland and Attorney General Marc Dann that the pair of Democrats two weeks ago banned any game that pays out cash -- even if it has been ruled a legal game of skill in court.

"We will fight this battle with every necessary resource," Dann said last week.

Republican House Speaker Jon Husted has promised to make the issue a high priority this fall. He plans legislation that will clarify what is legal and probably will include a regulatory component.

But how did Ohio get here -- with Strickland declaring an emergency on video games the same week he pressed the federal government for help with flooding in nine northern counties?

Dann's office said the problems started in 2003 when the current skilled-game law was tucked into a budget bill with no debate. The law says games must be based on skill and not chance, but it doesn't define what skill is.

"They left huge ambiguity in the law," said Dann spokesman Leo Jennings, who blamed the GOP-led legislature. "It said the games had to be predominantly based on skill, which left a complete loophole."

Later, Jim Petro, a Republican then serving as attorney general, issued a non-legally binding opinion that said the games had to be based at least 51 percent on skill.

"He could have set that level much higher, and the game manufacturers would have had a much higher hill to climb when you get into court," said Jennings.

Jennings pointed out that Husted was part of the House leadership in 2003 when the law passed. Husted said he wasn't aware at the time that the gaming law had been placed in the bill, which was signed by Republican Gov. Bob Taft.

Husted said he was later assured by the House legal staff that the law was merely intended to ensure that places like Chuck E. Cheese and Cedar Point could operate their games without running afoul of the law.

He noted that the games are being brought into the state at a breakneck pace since Dann, who took office in January, tried to settle a lawsuit with a game maker, Castle King -- whose officials had contributed to Dann's political campaign -- rather than fight the game maker's lower-court victory that declared its "Match Um Up" game to be legal.

Dann later rescinded that May agreement when Castle King tried to block the release of a report of tests run on the game.

"What happened is Marc Dann came up with a new interpretation of the law and came up with an agreement to settle a case with a game maker and then rescinded it," Husted said. "Now we've got a problem."

Dann blamed the proliferation of the machines on Castle King's court victory at the end of January, which other game makers took as a sign that Ohio was open for business.

Meanwhile, Tic Tac Fruit games had also been upheld by lower-court judges as legal games of skill. The game's maker, Ohio Skill Games, just won a temporary order blocking Dann from enforcing the new ban on Tic Tac Fruit.

"It's simple; our games are legal," said Columbus attorney William Meeks, who represents Ohio Skill Games. "You can't take the back of these games off and tweak it in some type of way to make it illegal."

But William Riedthaler, a retired Cleveland police sergeant and state expert on video games, disagrees, saying Tic Tac Fruit can be manipulated to control payouts.

"You're applying the same skill level to play every time but can have a different prize outcome every time, so for that reason you are taking a chance -- it's a game of chance," he said.

Gambling opponent David Zanotti of the Ohio Roundtable said the game makers are tying the issue up in court while the games live on. He'd like to fight the makers in court and leave the law alone.

"I think the law is clear enough," he said. "It's only unclear if you want to pull at a thread here and there and find a judge who is pro-gambling."

David Corey, president of the Ohio Coin Machine Association, which represents distributors, said game makers began putting new facades on their games to make them look like Match Um Up and Tic Tac Fruit.

Instead of a complete crackdown that could put distributors out of business, Corey wants the state to use its anti-gambling laws to go after operators of slots masquerading as legal games.

"If we take aspirin and crush it up and it looks like cocaine, are we going to ban aspirin?" Corey asked. "We have an anti-gambling, anti-slot machine law. Just enforce that."

In the end, the legislature might get the last word. The staffs of Husted and Senate President Bill Harris will meet this week. Game distributors will be invited, because a new bill is likely to allow some games and not go as far as Strickland and Dann would like.

Game manufacturers won't be there, but they plan a meeting of their own to discuss lobbying the legislature.

"If the legislature changes the law, we'll look at our game," said Eric Yavitch, another Ohio Skill Games attorney. "We'll see if our game can survive a change in law or if that is the end of the run."

More information on legalizing gambling in Ohio.

Related issue:More information on the 2008 ballot initiative that would legalizing gambling in Ohio: MyOhioNow.