Appeal from the Circuit Court of Cook County; the Hon. Joseph
M. Wosik, Judge, presiding.
JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
This appeal raises the question of whether the circuit court correctly held that plaintiff's blackjack tables are gambling devices prohibited by Illinois law, and therefore properly dismissed plaintiff's complaint for failure to state a claim for the relief sought.
In reviewing an order of a trial court dismissing a complaint for failure to state a cause of action, this court must accept as true all well-pleaded facts in the complaint, and all reasonable inferences flowing therefrom. (Samuels v. Checker Taxi Co. (1978), 65 Ill. App.3d 63, 382 N.E.2d 424.) Accordingly, a review of the facts contained in plaintiff's complaint is required.
On December 4, 1984, plaintiff, Playboy Hotel of Chicago, Inc., doing business as a private club under the trade name "Chicago Playboy Club," presented a written petition to city of Chicago officials seeking approval to conduct a promotion upon its premises involving the playing of the card game commonly referred to as "blackjack." According to plaintiff's proposal, a small area of its club on 1960 N. Lincoln Park West in Chicago, would be set aside for use by a limited number of its patrons for 45-minute periods during which time they would play blackjack at "blackjack tables" with professionally trained dealers. Each participant, upon entry into this area, would be issued a specific amount of "chips" or "script," at no charge, with which to play and would be required to turn in the script when the time limit for playing had expired. No additional script would be made available for purchase, no compensation, article, thing of value or any other consideration would be awarded to players, and no money would be allowed on the playing tables. Plaintiff planned to monitor these activities to assure that no gambling or wagering among patrons occurred.
Plaintiff's proposal was ultimately reviewed by members of the corporation counsel, who issued an opinion on March 28, 1985, regarding the legal considerations of the promotion. The opinion stated that the tables to be utilized by plaintiff would constitute illegal "gambling devices" within the definition of section 28-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 28-2(a)), and would violate the Municipal Code of Chicago. The counsel therefore concluded that use of the tables should be prohibited.
Plaintiff subsequently filed a two-count complaint against the city of Chicago, its police department, and the following city of Chicago officials: mayor and liquor control commissioner Harold Washington, police superintendent Fred Rice, and 18th District commander Charles Swaner. In count I of its complaint, plaintiff alleges that the conducting of its promotion would not constitute the offense of "gambling" through the use of a "gambling device" within the provisions of sections 28-1(a)(3) and 28-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 28-1(a)(3), 28-2(a)), and chapter 191 of the Municipal Code of Chicago. Plaintiff further alleges in count I that a contrary construction of the antigambling statute would deprive plaintiff and its employees of their rights to due process and equal protection under the law. Count II of plaintiff's complaint incorporates by reference the allegations contained in count I, and requests declaratory relief. Plaintiff also seeks injunctive relief against the institution of any criminal, civil or license proceedings arising out of its possession and use of the blackjack tables, and against any interference with such possession and use.
Defendants filed a motion to dismiss plaintiff's action pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615). In response, plaintiff moved to strike and dismiss defendant's motion and filed a cross-motion for summary judgment. On May 3, 1985, the trial court entered an order granting defendant's motion to dismiss, adopting the motion and its supporting memorandum as authority for its ruling that plaintiff's blackjack tables, as a matter of law, constitute illegal "gambling devices" within section 28-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 28-2(a)). For the following reasons, we affirm.
The Criminal Code of 1961 provides that a person commits the offense of gambling when he "[o]perates, keeps, owns, [or] uses * * * any gambling device." (Ill. Rev. Stat. 1983, ch. 38, par. 28-1(a)(3).) A "gambling device" is defined as:
"[A]ny clock, tape machine, slot machine or other machines or device for the reception of money or other thing of value on chance or skill or upon the action of which money or other thing of value is staked, hazarded, bet, won or lost; or any mechanism, furniture, fixture, equipment or other device designed primarily for use in a gambling place." (Ill. Rev. Stat. 1983, ch. 38, par. 28-2(a).)
Since no "money or other thing of value [will be] staked, hazarded, bet, won or lost" at plaintiff's blackjack tables, the issue before this court is whether the tables are "designed primarily for use in a gambling place" and therefore constitute "gambling devices" within the meaning of section 28-2(a).
• 1 Plaintiff reframes this issue by alleging in count I of its complaint that because its blackjack tables will not be used for gambling purposes since no consideration is involved in its promotion, they are not gambling devices per se. To support this allegation, plaintiff relies on section 28-5(a) of the Criminal Code of 1961, which provides that "[e]very gambling device which is incapable of lawful use is contraband and shall be subject to seizure, confiscation and destruction." (Ill. Rev. Stat. 1983, ch. 38, par. 28-5(a).) Based on this provision, plaintiff maintains that its tables are not "incapable of lawful use," and consequently, are not contraband. We find plaintiff's contention to be without merit.
We initially note that section 28-5(a) is not controlling in the instant case because it pertains solely to the seizure of contraband, not to what constitutes a gambling device under section 28-2(a). Moreover, section 28-1(a)(3) specifically states that one need only "own" a prohibited device to commit the offense of gambling. Plaintiff's position is further refuted by existing Illinois case law, the language of section 28-2(a), and the purpose of the antigambling statute's enactment.
• 2 In proving whether an item is a prohibited gambling device, "it is not a prerequisite to show that it was in fact used for gambling." (People v. One Machine Known as "Circus Days" (1960), 23 Ill. App.2d 480, 486, 163 N.E.2d 223.) Rather, "[t]he nature, object and purpose for which a device is designed must necessarily determine if it is a gambling device per se." (23 Ill. App.2d 480, 486, 163 N.E.2d 223; see also Almy Manufacturing Co. v. City of Chicago (1916), 202 Ill. App. 240, 244.) Thus, the device itself has been considered to be the defendant before the court. People v. One Machine Known as "Circus Days" (1960), 23 Ill. App.2d 480, 486, 163 N.E.2d 223.
The supreme court, in People v. Cattaneo (1955), 6 Ill.2d 122, 126 N.E.2d 692, applied these principles of law in determining that a crap table, an object similar in nature to plaintiff's blackjack tables, was a gambling device per se even though it was not in use when seized. The court reasoned that the table in question was covered with cloth, bore the markings used in "shooting craps," and as a "crap table," was admitted to be a device upon which players win or lose by the chance roll of the dice. (6 Ill.2d 122, 126, 126 N.E.2d 692.) Similarly, in Frost v. People (1901), 193 Ill. 635, 61 N.E. 1054, the evidence revealed that crap tables, among other articles ...