The Legislature has recognized by enactment of R. C. Chapter 2915, which permits bingo operations in a limited and extensively regulated manner by charitable organizations holding state licenses, that bingo operations for certain purposes and places are not inherently evil. Bingo is not so inherently evil that the Legislature enacted legislation constituting a blanket prohibition of bingo operations.
In view of the state's recognizing, by permitting bingo operations, that bingo operations for certain purposes and times serve a common good, may the state validly, within the constitutional framework, limit a noncharitable lessor from *Page 52 leasing his premises to a charitable organization licensed to conduct bingo operations by limiting it so that the operations cannot be conducted on each night of each week? Further, may the amount of rent agreed upon by the noncharitable lessor to the charitable organization be limited to a fixed amount per bingo session, such as $250?
R. C. 2915.09, containing limitations on the right of the lessor and charitable organization lessees to make their own contract provisions governing the number of bingo sessions each week and the maximum rental to be paid, appears to be a limitation that impinges on the freedom and right of the parties to contract.
R. C. 2915.09(A)(3), which provides that a noncharitable lessor may rent premises to a charitable organization for bingo operations "for a rental rate that is not more than is customary and reasonable for premises that are similar in location, * * * but not in excess of two hundred fifty dollars per bingo session," may well be self-contradictory when applied to the facts sub judice. The appellant's premises may justify a reasonable rate of $500 or more per bingo session. A ceiling of $250 per session is arbitrary in my view.
National Foundation v. Fort Worth (C.A. 5, 1969),415 F.2d 41, certiorari denied 396 U.S. 1040 (1970), concerned a city ordinance which regulated by its licensing requirements solicitation of funds by charitable organizations and provided that where costs of solicitation exceeded 20 percent of the amount collected, it would be deemed unreasonable unless certain described circumstances existed.
Thus, in National Foundation, supra, there was no ceiling provided, unlike the absolute rental ceiling of $250 per bingo session in the case sub judice.
Accordingly, in National Foundation, at page 46, the following apropos rationale would make R. C. 2915.09(A)(3) invalid:
"A fixed percentage limitation on the costs of solicitation might be undesirable and inapplicable if applied to all types of charitable organizations. What may be proper in one situation may not be so in other situations. The ordinance before us does not imply a fixed standard but permits a determination of the reasonableness of the ratio between the cost of solicitation and the amount collected. The import of the ordinance is that if the *Page 53 costs of collection do not exceed twenty percent of the amount collected no further inquiry need be made into collection costs and the amount collected. However, if the ratio of cost of collection to the amount collected does exceed twenty percent, the organization seeking the permit may show that such excess is not unreasonable. Although given the opportunity, the Foundation made no such showing."
In the case sub judice, appellant is given no right under the Ohio statute to show that more than $250 rental per bingo session is not unreasonable.
The case of Serrer v. Cigarette Service Co. (1947), 148 Ohio St. 519, contains a rationale, incident to declaring invalid the Ohio "Unfair Cigarette Sales Act," that is applicable to the bingo statute in the case at bar.
The syllabus in Serrer, supra, holds:
"Section 6402-11(c) * * * a part of the so-called `Unfair Cigarette Sales Act,' containing a formula for determining the minimum prices at which wholesalers of cigarettes may sell the same, (1) fails to recognize and make allowance for the differences in operating costs of different types of wholesalers, (2) creates discrimination in favor of one wholesaler over another, in its application to wholesalers whose operating costs differ, and (3) in such circumstances is violative of the due-process and equal-protection clauses of the federal and state constitutions and is invalid."
It can just as readily be argued and contended in the casesub judice that the ceiling on rental of premises for bingo operations, when limited to $250, likewise does not make allowances for the differences in operating costs of premises. A large building certainly should justify a large rental, perhaps far in excess of $250 per night, whereas a small building may well justify a rental of much less than $250. Therefore, such a rental ceiling discriminates in favor of the lessor of a small building as opposed to the lessor of a large building in connection with bingo operations. Justice Zimmerman, in discussing the gist of that case, at page 522 of Serrer, supra, stated:
"* * * Section 6402-11(c) * * * in attempting to prescribe a method for determining minimum sales prices, fails to recognize and provide for cost differentials between the operations of `service wholesalers' on the one hand and `cash and carry wholesalers' on the other, * * * and * * * hence the statute *Page 54 as it stands is arbitrary, unreasonable and discriminatory, and violates the due-process and equal-protection clauses of the 14th Amendment to the Constitution of the United States and Section19, Article I of the Constitution of Ohio."
By a parity of reasoning, it is my view that the bingo statute in the case sub judice violates the same due process and equal protection clauses of the federal and state constitutions.
A three-pronged test has been established by the Ohio Supreme Court in determining constitutionality of legislation enacted pursuant to police power. In support thereof, the cases ofDragelevich v. Youngstown (1964), 176 Ohio St. 23; Teegardin v.Foley (1957), 166 Ohio St. 449 (statute regulating retail installment sales) and Froelich v. Cleveland (1919), 99 Ohio St. 376 (ordinance regulating weight loads and width of tires), have been cited in the majority opinion. The three tests or standards are understandable but are difficult to apply. The Dragelevich case, supra, involved primarily a municipal ordinance which was held invalid because of vagueness and lack of standards. Therefore, it offended due process of law guaranteed by theFourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution. It is my view that the Dragelevich case does not support the position of the appellees, but contains rationale showing that the police power is not unlimited.
In Dragelevich, supra, at pages 30 to 31, in discussing the invalidity of the ordinance banning game devices, the Ohio Supreme Court stated:
"Practically all athletic contests would come under the ban of this ordinance. Football and basketball, * * * in fact any game that requires that a score be kept or registered would be subject to seizure by a police officer. Were such drastic powers used, the damage to private property would run into tremendous sums of money. The investment in Youngstown in bowling alleys alone no doubt runs into scores of thousands of dollars. The trial court itself concluded that bowling alleys came under the ban of the ordinance."
In applying this reasoning to the case sub judice, I find that the rental ceiling established by statute may be only a fraction of the rental value that the lessor and lessee recognize as the true value. Under the Dragelevich test, the statutory rental ceiling is unreasonable, discriminatory, bears no *Page 55 substantial relation to the purpose sought to be effectuated and is, therefore, unconstitutional.
Likewise, what logical mode of reasoning can be utilized to reach a conclusion that it is good and proper and for the welfare of the community to permit two charitable organizations to operate on the leased premises two nights each week, a total of four nights, but that it is evil and not for the public welfare to have such operation seven nights of the week? The answer, as I see it, is "none."
The Dragelevich case, supra, at page 30, refers to and excerpts from the syllabi of two earlier Ohio Supreme Court cases, Teegardin v. Foley (1957), 166 Ohio St. 449, and Froelich v. Cleveland (1919), 99 Ohio St. 376. Each of those syllabi, as well as the syllabus and rationale in Dragelevich itself, requires that in order to constitute a valid exercise of police power, legislation must directly promote the general health, safety, welfare or morals and must be reasonable. Further, the means adopted to accomplish the legislative purpose "must be suitable to the end in view, must be impartial in operation * * * must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation." (Emphasis added.) Froelich, supra, paragraph three of the syllabus.
Dragelevich, supra, at page 30, also states "that the courts have always asserted the right to restrain the exercise of the police power to the extent that private rights may not be arbitrarily or unreasonably infringed. Such cases are within the rights reserved by Section 20, Article I of the Ohio Constitution. Mirick v. Gims, Treas., 79 Ohio St. 174."
The majority decision recognizes appellant's contention that because it had a contract to rent the premises for bingo at $500 per session, the rent limitation of $250 per session amounts to a taking of property without due process of law. The answer of the majority to this contention is that the United States Supreme Court and Ohio Supreme Court have repeatedly held that regulatory legislation does not constitute a taking of property, even though economic hardship may result. The cases cited by the majority to support such proposition and conclusion, namely,Bowles v. Willingham (1944), 321 U.S. 503 (federal war power under Emergency Price Control Act); Goldblatt v. Hempstead (1962), 369 U.S. 590 (ordinance *Page 56 prohibiting certain types of excavation); Comtronics, Inc., v.Puerto Rico Tel. Co. (Puerto Rico 1975), 409 F. Supp. 800, affirmed 553 F.2d 701 (C.A. 1, 1977) (government monopoly of communication facilities); Wessell v. Timberlake (1916), 95 Ohio St. 21 (statute regulating interest on chattel loans); Curtiss v. Cleveland (1959), 170 Ohio St. 127 (validity of zoning legislation); Ghaster Properties, Inc., v. Preston (1964),176 Ohio St. 425 (power of state to prohibit billboards adjacent to highways); Porter v. Oberlin (1965), 1 Ohio St. 2d 143 (ordinance prohibiting housing discrimination), all contain factual situations and legal issues vastly unlike the facts in the present case, and are therefore neither controlling nor applicable. Many of these cases prohibit completely certain types of activity or evil conditions. In the case sub judice, there is no complete prohibition of bingo nor any evil condition existing.
For the foregoing reasons, I respectfully dissent. *Page 57