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Tomm's Redemption, Inc. v. Hamer

Court of Appeals of Illinois, First District, First Division

March 10, 2014

TOMM'S REDEMPTION, INC., Plaintiff-Appellant,
v.
BRIAN HAMER, ILLINOIS DEPARTMENT OF REVENUE, AARON JAFFE, LEE GOULD, MICHAEL HOLEWINSKI, MERIBETH VANDER WEELE, and THE ILLINOIS GAMING BOARD, Defendants-Appellees

Page 751

As Corrected.

Appeal from the Circuit Court of Cook County. No. 12 CH 31569. Honorable Thomas R. Allen, Judge Presiding.

Affirmed.

SYLLABUS

The constitutionality of section 35(a) of the Video Gaming Act, which prohibits the possession or operation of " any device that awards credits and contains a circuit, meter, or switch capable of removing and recording the removal of credits when the award of credits is dependent upon chance," was properly upheld, since plaintiff raised only a facial challenge and it had to prove that no situation existed in which section 35(a) would be valid, but section 35(a) is clear and it is intended to criminalize the possession of devices containing a knockoff switch and a retention meter used to transform ordinary games into gambling devices, and, therefore, the statute is not unconstitutionally vague, and further, plaintiff's due process claim was rejected on the ground that plaintiff failed to identify any protected property interest in the renewal of the decal showing that the tax on each individual machine had been paid.

For PLAINTIFF-APPELLANT: George E. Becker, GEORGE E. BECKER P.C., Chicago, Illinois.

For DEFENDANTS-APPELLEES: Lisa Madigan, Michael A. Scodro, Timothy M. Maggio, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, Chicago, Illinois.

PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Hoffman and Cunningham concurred in the judgment and opinion.

OPINION

CONNORS, PRESIDING JUSTICE

Page 752

[¶1] Plaintiff Tomm's Redemption, Inc. is in the business of providing coin-operated amusement devices to various establishments in the Chicago area. Section 35(a) of the Video Gaming Act (230 ILCS 40/35(a) (West 2010)), however, prohibits the possession or operation of " any device that awards credits and contains a circuit, meter, or switch capable of removing and recording the removal of credits when the award of credits is dependent upon chance." [1] Violation of the provision is a class 4 felony. Claiming that the provision is unconstitutionally vague and a violation of due process, plaintiff filed this lawsuit. The circuit court dismissed the complaint, and we affirm.

[¶2] Constitutional challenges to statutes can be made in one of two ways. First, a challenge can be " as applied," in which a plaintiff argues that the statute is unconstitutional under circumstances specific to that plaintiff. In that situation, " the facts surrounding the plaintiff's particular circumstances become relevant." See Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶ 26, 975 N.E.2d 153, 363 Ill.Dec. 351Alternatively, a plaintiff can raise a " facial" challenge, which is a significantly more difficult route. Unlike an as-applied challenge, " an enactment is invalid on its face only if no set of circumstances exists under which it would be valid." (Internal quotation marks omitted.) Id. ¶ 25. Importantly, the plaintiff's individual circumstances are irrelevant in the context of a facial challenge. See id. ¶ 27.

[¶3] A review of plaintiff's complaint demonstrates that plaintiff has raised only a facial challenge to ...


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