The Ninth District Court of Appeals recently reversed a ruling by the Barberton Municipal Court that had dismissed as invalid a complaint filed by ODPS agent Cynthia Armsey charging a tavern owner and a patron with violations of R.C. 2915.02, the state's gambling statute.

The Ninth District Court of Appeals recently reversed a ruling by the Barberton Municipal Court that had dismissed as invalid a complaint filed by ODPS agent Cynthia Armsey charging a tavern owner and a patron with violations of R.C. 2915.02, the state's gambling statute.

An agent of the Ohio Department of Public Safety (ODPS) who observes illegal gambling activity while the agent is working on or adjacent to a liquor permit premises has authority to sign a criminal complaint charging defendants with violations of the state’s anti-gambling law, according to a September 5 decision of the Ninth District Court of Appeals.

In a decision authored by Judge Carla D. Moore, the court of appeals reversed a ruling by the Barberton Municipal Court that had dismissed as invalid a complaint filed by ODPS agent Cynthia Armsey charging a tavern owner and a patron with violations of R.C. 2915.02, the state’s gambling statute.  The trial court based its action on a finding that Armsey’s authority was limited to enforcing state liquor laws and rules administered by ODPS, and she therefore lacked authority to sign a criminal complaint charging a non-liquor law violation.

Judge Moore noted that under R.C. 5502.14(B)(3) and (B)(4),  ODPS enforcement agents who are performing investigative duties “on, immediately adjacent to, or across from retail liquor permit premises ... have the authority ...  to enforce any section in Title [29] of the Revised Code  ... if they witness a violation of the section under any of the circumstances described in this division ... ”

Judge Moore wrote: “Here, the parties stipulated that Agent Armsey had entered the Tavern, which was a retail liquor permit premises, to investigate a complaint of gambling. Gambling upon a retail liquor permit premises is specifically prohibited by the rules promulgated by the ODPS. ... Therefore, because these alleged violations occurred on a retail permit premises during the course of her investigation of behavior prohibited under the rules promulgated by the ODPS, Agent Armsey had enforcement powers concurrent with that of police officers to enforce violations of Title 29. ... Thus, the trial court’s determination that the ODPS agents lacked the authority to enforce gambling laws pursuant to Title 29 under the facts of this case was in error.”

The court went on to hold that, even if Armsey had exceeded her powers as an ODPS agent, the state law that governs the filing of criminal complaints, R.C. 2935.09, authorizes any “peace officer” with knowledge of criminal conduct to file an affidavit charging an offense directly with a clerk of courts.   Because R.C. 2935.09(B) specifically includes ODPS agents as “peace officers,” Judge Moore wrote “ ... we cannot discern in what way Agent Armsey’s signature upon the complaints alone would require dismissal of the charges. ... Accordingly, the State’s sole assignment of error is sustained. The trial court’s judgment is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.”

Judge Moore’s opinion was joined by Judge Donna J. Carr.  Judge Eve V. Belfance entered a separate opinion in which she concurred with the court’s holding that Agent Armsey’s status as a peace officer empowered her to file complaints alleging non-liquor law violations regardless of the limits of her enforcement authority as an ODPS agent. Accordingly, Judge Belfance wrote,  in her view the court’s analysis of the enforcement authority of ODPS agents was unnecessary.

State v. Cole, 2012-Ohio-4027
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2012/2012-ohio-4027.pdf
Criminal Appeal From: Barberton Municipal Court
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: September 5, 2012

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