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12/06/89 Robert B. Earnhart Et Al., v. Director of the Department

December 6, 1989

ROBERT B. EARNHART ET AL., D/B/A EARNIE'S FINER FOOD AND SPIRITS, PLAINTIFFS-APPELLANTS

v.

DIRECTOR OF THE DEPARTMENT OF REVENUE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

548 N.E.2d 81, 191 Ill. App. 3d 613, 138 Ill. Dec. 851 1989.IL.1894

Appeal from the Circuit Court of Madison County; the Hon. Michael J. Meehan, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. HARRISON and GOLDENHERSH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

Plaintiffs, Robert and Debra Earnhart, d/b/a Earnie's Finer Food and Spirits, raised money for the Multiple Sclerosis Society by running horseshoe games, road rallies, golf matches, concerts with door prizes and Las Vegas nights. Not having a license as required by the Charitable Games Act (Ill. Rev. Stat. 1987, ch. 120, par. 121 et seq.), they were assessed a civil penalty of $250 by the Illinois Department of Revenue.

Plaintiffs sued the Director of the Department and the manager of the Department's Charitable Games Division in Madison County for declaratory and injunctive relief, challenging the constitutionality of the Charitable Games Act (the Act).

The circuit court upheld the constitutionality of the Act, and the plaintiffs appeal. We affirm.

While plaintiffs' case was pending in the circuit court, plaintiffs also sought administrative review of the decision to assess them the civil penalty made by the Department of Revenue. Therefore, at the outset, we address whether plaintiffs can seek judicial relief without first exhausting their administrative remedies.

Although as a general rule one must exhaust administrative remedies before obtaining judicial review, an exception applies when a party challenges the constitutionality of a statute on its face. County of Kane v. Carlson (1987), 116 Ill. 2d 186, 199, 507 N.E.2d 482, 486; Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552, 359 N.E.2d 113, 117.

We now address plaintiffs' constitutional claims. I

Plaintiffs claim that the Charitable Games Act is not specific as to what is a "charitable game." In consequence of that infirmity, plaintiffs make three constitutional attacks upon the Act: (1) the Act is unconstitutionally vague, denying them due process; (2) the Act is overbroad, reaching beyond gambling to other games, and therefore, denies them due process; and (3) the Act is an unlawful delegation of legislative authority, since it does not specify the games to which it applies, thereby allowing the Department of Revenue to determine what games are to be licensed under the Act. Each of these arguments necessarily turns on whether the Act is specific as to the games to which it applies.

The Act lists the only games which may be conducted at a charitable games event; they are: (a) roulette; (b) black-jack; (c) poker; (d) pull-tabs; (e) craps; (f) bang; (g) beat the dealer; (h) big six; (i) gin rummy; (j) five-card-stud poker; (k) chuck-a-luck; (l) keno; (m) hold-em-poker; and (n) merchandise wheel. (Ill. Rev. Stat. 1987, ch. 120, par. 1128 (15); 86 Ill. Adm. Code 435.160 (Supp. 1987).) Furthermore, "charitable games" is defined in the Illinois Administrative Code as "[t]he fourteen games of chance involving cards, dice, wheels, random selection of numbers, and gambling tickets enumerated in section 435.160 . . . which may be conducted at charitable games events." 86 Ill. Adm. Code 435.110 (Supp. 1987).

The express purpose of the Act is to permit not-for-profit organizations to conduct charitable games as well as to reaffirm that gambling in Illinois, for noncharitable purposes, is not to be allowed. (Ill. Rev. Stat. 1987, ch. 120, par. 1121.1(c).) The Act further provides that "[a]ny person who conducts or knowingly participates in an unlicensed charitable game commits the offense of gambling in ...


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