After receiving 10 citations for violating zoning regulations, Spin to Win has filed a lawsuit in United States District Court to stop what the business calls "continuing illegal harassment" from Norwalk officials.
The suit asks for $200,000 in compensatory damages and $2 million in punitive damages for Spin to Win owner David Pugh, business operators Ed and Bonnie Cordle, and James Loyer, the owner of the Water Street property where the business is located.
Pugh has been cited seven times. Ed Cordle has been cited twice and Bonnie Cordle has received one citation.
Norwalk Law Director Stuart O'Hara said the city has issued daily citations because Spin to Win has not complied with zoning regulations requiring the business to receive a conditional use permit from the city to operate Tic Tac Fruit machines.
Norwalk police received a complaint about the business Aug. 14 and passed information on to the city's zoning office. The zoning office sent a letter telling Spin to Win to "cease and desist" on Aug. 21.
Spin to Win's attorney Reese Wineman filed the suit in the Toledo branch of the federal court on Tuesday. "As of today, I picked up three more citations in Norwalk municipal court filed yesterday," Wineman said this morning. "Our position is that it's a misuse of zoning ordinances. They've been ordered to shut their operation down."
Spin to Win recently reduced the number of Tic Tac Fruit machines from eight to five because city regulations define an amusement arcade as a business that has more than five coin-operated machines.
City zoning officer Linda Hebert said, however, that just reducing the number of machines does not bring the company into compliance with zoning regulations because regulations also require any business that has a "primary purpose" of coin-operated machines to acquire a conditional use permit in the zone in which Spin to Win is located.
She explained that means that any business in the city could have up to five coin-operated machines as long as the main purpose of the business was not the machines.
"A bakery could have one" without getting a permit, she said, because the primary business is the bakery instead coin-operated machines.
Hebert said the application form for a conditional use permit is available at city hall and also on-line, but no one representing Spin to Win has requested the form from city hall.
The lawsuit contends that Pugh contacted unnamed city officials and was told no application for a license was available.
Wineman said the issue of primary purpose as a reason for restricting coin-operated machines is "a matter of interpretation.
"They've got to live with their own zoning ordinance and that calls for more than five machines," he continued. "It's our position that my clients have been selectively chosen to be prosecuted."
Wineman also said he believes it is not only unfair to Spin to Win, but a waste of time for the police and court officials to handle the paperwork resulting from the numerous citations.
City officials have said that a business such as Spin to Win would be allowed to operate in an area zoned as a manufacturing area, primarily on the northern or eastern sides of town. But Wineman said the business is not considering moving from its current location.
"Moving is not an option at this time," he said. Wineman added that he doesn't believe the location of the business is the problem. "I believe they're attempting to shut them down and I don't believe it's over zoning violations," he said.
"I believe this is selective prosecution based upon the fact that two businesses in more restrictive zoning areas have not been cited and have been utilizing these machines for quite a while."
He added that he believes the timing of the city's efforts to close down Spin to Win are linked to the state's current case to outlaw machines such as Tic Tac Fruit. Proponents of the machine claim it is a game of skill, but authorities consider it a game of chance or gambling, which makes it illegal in Ohio.
Attorney General Marc Dann ordered 50,000 of the machines be shut down and sought to overturn a judge's order stopping the state from enforcing a ban on Tic Tac Fruit machines last month. Dann has argued that if the machines continue to operate, they would lead to neighborhood degradation, gambling addiction, prostitution and other social problems associated with gambling.
The 4th District Court of Appeals in Meigs County ruled that machines such Tic Tac Fruit were games of skill rather than games of chance. The 10th Ohio District Court of Appeals, however, has ruled that a temporary restraining order must be resolved by a lower court.