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Ohio 'skill' game a cross-border lure
Monday, May 01, 2006

MASURY, Ohio -- The Indians and Orioles were on TV, but only half of the leathery mid-day bar crowd could be bothered to watch. The rest, hunched around two machines in the corner, had their eyes on another game -- an addictive one with flashing lights, interactive graphics and, maybe, a chance to hit it big.

Columbus Dispatch
Tic Tac Fruit machines are seen inside Games of Skill in Buckeye Lake, Ohio, Friday.
Click photo for larger image.
They played and played, unmolested.

On the same day, 80 miles away in Parma, Ohio, police were about to raid more than a dozen bars, unplugging the same legally questionable, slots-like machines, and confiscating thousands of dollars in cash.

It's fair to say, then, that the people who play and distribute this game, usually called Tic Tac Fruit, are taking their chances in more than one way.

Slots gambling is banned in Ohio, but distributors say Tic Tac Fruit is legal. Many in the law enforcement community say it's not. The courts have been called on to settle the dispute.

In the interim, Tic Tac Fruit is proliferating in bars and truck stops around the state, especially along the Ohio-Pennsylvania border, where some proprietors hope to draw Pennsylvanians waiting for slot machines to come on line in their own state.

In Masury, Orangeville and Hubbard, Ohio, for example, Tic Tac Fruit is attracting players from places like Sharon, Farrell and Sharpsville.

"The vast majority of the machines exist east of us, close to Pennsylvania and close to West Virginia," said Matt Kanai, appellate director for Columbus's city attorney's office.

He figures that bar owners at Ohio's eastern edge are "trying to encourage major traffic from out of state to smaller populations centers that don't have the same legal problems" a Tic Tac proprietor might face in more heavily policed cities.

At Barto's bar, a dark karaoke joint in Masury just a mile from the Pennsylvania line, the machines were occupied for the better part of a recent afternoon.

Baltimore's Miguel Tejada homered, but nobody noticed. Cleveland's Eddie Perez did, too, but the men remained fixed on the glittering machines. When the Orioles regained the lead for good, a few bar patrons who'd been keeping one eye on the TV spun on their stools to play Tic Tac Fruit vicariously from 10 feet away.

Bars and truck stops aren't the only places where these games are popular. At a small supermarket in Brookfield, barely over the Pennsylvania border, contractors have just built a game room for Tic Tac Fruit machines. By Friday, a dozen games were up and running in the mini-casino, and the Southside Food Mart is eagerly advertising them on a signboard outside the store:

"Games of skill inside!"

It's important to emphasize "skill" because, in Ohio, this is what separates legal video games and other diversions from illegal games of chance, like slot machines.

Tic Tac Fruit sits right on the line between the two.

The game works like this -- you feed in your money, then video fruit strips spin, as they would in a regular slot machine. When they stop, you're left with a nine-square box that resembles a tic-tac-toe board.

The "skill" comes in deciding, as a clock ticks, which of the squares to turn into a wild card in order to produce three in a row of a certain fruit. Rows of lemons and cherries drain your account. Plums and oranges fatten it. If you're ahead when you quit, you can redeem points for cash.

So is Tic Tac Fruit legal or not?

Police face dueling legal rulings, and one result of the confusion is that in urban centers, the machines are being confiscated and bar owners are facing charges while in outlying rural areas, where police departments and district attorneys offices are undermanned, the games are staying put. (Unlike back-room poker machines in Pennsylvania, Tic Tac Fruit machines aren't hidden away).

This month, the Ohio liquor control commission found an Eagles lodge in violation of the state's gambling device prohibition, implicitly ruling that Tic Tac Fruit is a game of chance and therefore not allowed in Ohio bars. The decision was appealed.

Previously, a Meigs County, Ohio, court had ruled that the machines were legal, but that decision also has been appealed. An injunction attached to that court's November opinion has prevented liquor control agents from confiscating the machines -- even as some local police departments continue to do so.

"A lot of people are waiting to see what the courts will ultimately say," said Erika Sowry, assistant director at the liquor control commission, whose agents had confiscated 30 machines through November 2005.

Current Ohio law says that, in order to be recognized as a game of skill, a player's ability must have at least a "50 percent" bearing on the outcome. The 50 percent threshold is inherently difficult to evaluate, but Mr. Kanai, with the Columbus attorney's office, said Tic Tac Fruit doesn't meet it because you can play the game perfectly and still lose money.

A true game of skill doesn't work that way. Carnival games, like the one where you try to knock over milk bottles with a rubber ball, become easier the greater your skill level -- even if it is possible to win the game with a lucky throw every now and again. "If you get Nolan Ryan up there, he's going to win a lot more that I am," Mr. Kanai said.

The maker of the Tic Tac Fruit machine claims there's just enough skill involved make the game legal in Ohio.

Kurt Gearhiser, an attorney representing the manufacturer, Ohio Skill Games, said the skill level, though hard to quantify, is on par with hard-to-win games at carnivals and boardwalk arcades -- such as ring toss or skee-ball.

But those games reward winners with stuffed animals and other knickknacks. Tic Tac Fruit rewards players with cash, and that's why law enforcement takes offense, according to Mr. Gearhiser.

The payoff for a good round of Tic Tac Fruit can be hundreds, even thousands, of dollars.

"Obviously, we weren't talking about [a] ring toss anymore," he said.

Of course, the legal dispute over Tic Tac Fruit could matter little if slots are legalized in Ohio. Some groups and politicians are pushing to put a ballot proposal before voters to do that, but they face stiff opposition.

First published on May 1, 2006 at 12:00 am
Bill Toland can be reached at btoland@post-gazette.com or 412-263-1889.