Clair v. Village of Hanover Park

2021 IL App (1st) 190515-U

• Court: Appellate Court of Illinois
• Decided: September 17, 2021
• Docket: 1-19-0515
• Status: Unpublished

Opinion

2021 IL App (1st) 190515-U

FIFTH DIVISION September 17, 2021

No. 1-19-0515

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

MAKHAN S. CLAIR, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of Cook County. ) v. ) 17 CH 16542 ) VILLAGE OF HANOVER PARK, ) Honorable Martin C. Kelley, ) Judge Presiding. Defendant-Appellee. )

JUSTICE CONNORS delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment.

ORDER

Held: The Administrative Officer of the Village of Hanover Park’s finding that plaintiff violated Village Ordinance 10.42.5(g) for failing to affix a video gaming sticker on two video gaming terminals located in his place of business was not clearly erroneous.

¶1 Plaintiff, Makhan S. Clair, appeals from an order of the circuit court affirming an adverse

final decision by defendant, the Village of Hanover Park (Village), fining him for violating

section 10-42.5(g) of the Hanover Park Code of Ordinances, which provides: “It is unlawful to

operate a video gaming terminal in the village without paying the tax and having a valid video

gaming tax sticker affixed thereon.” For the following reasons, we affirm. No. 1-19-0515

¶2 On May 25, 2017, Hanover Park police officer Thomas Langhenry issued plaintiff an

ordinance citation for unlawfully operating a video gaming terminal in the Village without

having a valid video gaming sticker applied thereon. Plaintiff was also cited for violating Village

Ordinance 10-42.5(b), which states: “Only premises licensed to sell alcoholic liquor as Class

AX, Class CX, DX, and Class EX are authorized to operate video gaming terminals and only

when licensed by the Illinois Gaming Board pursuant to the provisions in the Illinois Gaming

Act, 230 ILCS 40/1 et seq. and in accordance with this section.”

¶3 An administrative hearing officer heard the case on November 8 and 21, 2017. The

record shows there was an audio recording of the hearing, but the audio disc is not contained in

the record.1

¶4 Plaintiff’s arrest report was presented at the hearing and showed that, on the day of the

incident, Officer Langhenry observed two kiosk gaming terminals located just to the right of the

entrance of the north side of the business. They were free-standing with a touch screen monitor.

They did not have any state or Village gaming tax stickers attached. Officer Langhenry asked the

on-duty clerk, Jatinder Clair, to show him how to play the video game at one of the terminals.

Jatinder told him to insert money into the machine and purchase a promotional coupon. He could

then use the credits given to play. The officer inserted a dollar bill into the machine and was

given 100 promotional credits. The officer randomly selected a casino-style game from a list of

many on the video screen. He was able to use different credit amounts on each play. Wins were

determined by the machine and were recorded as promotional wins. The officer played several

times, using three credits each time. The terminal indicated wins and he accumulated $1.76 in

1 Upon careful review of the record, we can find several references to “audiotapes” of testimony that was given on November 8, 2017, and November 21, 2017, but there are no transcripts or physical copies of the discs from those hearing dates located in the record on appeal. 2 No. 1-19-0515

promotional wins. The game did not rely on any skill and was purely a game of chance. The

officer advised Jatinder he wanted to cash out and collect his winnings. She instructed him to

print out the promotional prize receipt and give it to her and she would pay him from the cash

register. The officer presented Jatinder the promotional wins receipt and she gave him $1.76 in

return.

¶5 Plaintiff, who was also present, told the officer that he obtained the machines from a

company named Ficus Promotional Kiosk, and that a person identified as Robert Wax came to

his business approximately four weeks prior and delivered the machines. Wax told plaintiff that

gaming machines do not require a license or approval from the Village. Wax also told plaintiff

that he would return every couple of weeks, collect the coupons, and then reimburse plaintiff for

the money plaintiff paid out to customers. Plaintiff would receive a commission of the profits

from Wax.

¶6 According to the police report, the officer then contacted Wax, who denied owning the

gaming terminals or being the owner of Ficus Promotional. He referred the officer to corporate

legal counsel to answer any further questions.

¶7 Prior to the Village administrative hearing, plaintiff filed a motion to dismiss the two

citations for violating Village ordinances. He argued that the kiosks in question allowed patrons

to purchase a product discount coupon, and at the same time, the patron was entered into a

sweepstakes with the possibility of winning cash or prizes. However, the kiosks also had a button

that said, “Free Play,” which allowed patrons to enter the sweepstakes without paying to

participate. The officer who visited the business on the date in question only followed one

option. Plaintiff argued that the kiosks were not “gambling machines” because users were not

required to pay or make a purchase to participate.

3 No. 1-19-0515

¶8 In support of his position, plaintiff relied on section 28-1(b)(13) of the Code of Criminal

Procedure (Code) (720 ILCS 5/2801(b)(12) (West 2018)), which states that participants in games

of skill or chance where money or other things of value can be won but no payment or purchase

is required to participate, will not be convicted of gambling. Plaintiff also relied on People v.

Mercado, 15 CM 377, a case from the circuit court of DuPage County, in which a business

owner, who had a machine similar to plaintiff’s kiosks in his place of business, was found not to

have violated the Code because the machine fell into the exception listed in section 28-1(b)(13)

of the Code (720 ILCS 5/28-1(b)(13) (West 2018)).

¶9 The Village responded that a gambling license had never been issued to plaintiff and

plaintiff had never applied for a video gaming tax sticker. It further argued that there was no

mention in the police report that the machine could be played for free, and that it is considered

gambling when a person deposits money and gets money back after winning. The Village noted

that People v. Mercado, 15 CM 377, was a local criminal decision in the circuit court of DuPage

County, and it had no precedential value in the matter. The Village stated that the operation of

these machines was not what the legislature intended as an exception under section 28-1(b)(13)

¶ 10 The administrative hearing officer, Victor Puscas, issued an order dated November 22,

2017, finding plaintiff violated Village Ordinance 10-42.5(g) by “unlawfully operating a video

gaming terminal in the Village without paying the tax and having a valid video gaming tax

sticker affixed thereon.” The total judgment cost was $600, plus $100 in court fees. Plaintiff was

found “not liable” of violating Village Ordinance 10-42.5(b), making it unlawful to allow

gambling on a premises licensed to sell alcoholic beverages without a Class X license.

4 No. 1-19-0515

¶ 11 On December 15, 2017, plaintiff filed a complaint for administrative review pursuant to

the Illinois Administrative Review Act (737 ILCS 5/3-101 et seq. (West 2018)) in the circuit

court of Cook County. Plaintiff sought judicial review of the citation for violating Village

Ordinance 10-42.5(g), arguing that the administrative order was “clearly erroneous and contrary

to the evidence presented.”

¶ 12 In the Village’s response to plaintiff’s complaint for administrative review, it stated that

the kiosks in question were video gaming terminals within the meaning of the village ordinance.

The Illinois Video Gaming Act defines a video gaming terminal as:

“any electronic video game machine that, upon insertion of cash, electronic cards,

or vouchers, or any combination thereof, is available to play or simulate the play

of a video game, including but not limited to video poker, line up, and black jack,

as authorized by the [Illinois Gaming] Board utilizing a video display and

microprocessors in which the player may receive free games or credits that can be

redeemed for cash. This term does not include a machine that directly dispenses

coins, cash or tokens or is for amusement purposes only.” 230 ILCS 40/5 (West

2018)

¶ 13 The Village argued that because the kiosks in question operated by cash insertion and

were redeemable for cash coupon, they were video gaming terminals and therefore required a

Village video gaming tax sticker. A plain reading of the Village Ordinance in question showed

that plaintiff violated the ordinance by failing to apply for a video gaming sticker.

¶ 14 On September 28, 2018, the circuit court affirmed the decision of the administrative

hearing officer, finding that the kiosks were video gaming terminals subject to the Village

ordinance.

5 No. 1-19-0515

¶ 15 Plaintiff filed a motion to reconsider, arguing that the kiosks were not “illegal gambling

devices,” and that section 28-1(b)(13) of the Code specifically exempts games of skill or chance

where money or other things of value can be won but no payment or purchase is required to

participate “from the definition of gambling.” Plaintiff argued that the machines were not “video

gambling terminals.”

¶ 16 In response, the Village noted that while the kiosk operates in both a free mode and a

cash payment mode, it was required to pay a gaming tax on the kiosk since it had a mode for

cash payment. The Village argued that if plaintiff did not want to pay the tax, it could disable the

cash payment option and allow the kiosk to operate in “free mode” only. The Village argued that

as they currently operate, the kiosks qualify under the Video Gaming Act as a video gaming

terminal.

¶ 17 On January 11, 2019, a hearing was held on plaintiff’s motion to reconsider. The trial

court noted that it had to determine whether the kiosks were “defined under the Video Gaming

Act, thereby making [them] subject to the Village sticker, or is it the statutory exemption

provided.” After hearing arguments, the court ultimately found that the fact that the kiosks had a

legal non-gaming mode “does not change the essence or character of the gaming mode operation

requiring money to proceed to obtain discount coupons and a sweepstake entry.” The court

agreed with the Village that the kiosks did not qualify for the exemption provided in section 28-

1(b)(13) of the Code (720 ILCS 5/28-1(b)(13) (West 2018)), which exempted games of skill or

chance where money or other things of value can be won but no payment or purchase is required

to participate, from the definition of gambling. The court found that the kiosk was a video

gaming terminal under the Video Gaming Act and that it required a Village sticker. The motion

to reconsider was denied.

6 No. 1-19-0515

¶ 18 On appeal, plaintiff contends that that the trial court incorrectly interpreted section 28-1

of the Code and the kiosks are specifically exempted from the definition of “gambling” because

they “did not require any payment or purchase in order to participate in the Sweepstakes” in free

play mode. The Village has not filed a responsive appellee brief. This court, however, has

elected to consider this appeal on plaintiff’s brief alone under the principles set forth the in First

Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976).

¶ 19 As an initial matter, we note that when reviewing administrative matters, we review the

decision of the administrative agency and not the judgment of the circuit court. Rose v. Board of

Trustees of Mount Prospect Police Pension Fund, 2011 IL App. (1st) 102157, ¶ 1. Accordingly,

the circuit court’s interpretation of section 28-1 of the Code is irrelevant for purposes of this

appeal.

¶ 20 Our standard of review of each issue depends upon the type of question presented. Cinkus

v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). An

administrative agency’s factual determinations are deemed prima facie true and correct. Id. We

are limited to reviewing those findings and conclusions to ascertain whether they are against the

manifest weight of the evidence. Id. When presented with an administrative agency’s

conclusions on pure questions of law, we give no deference to those determinations and review

them de novo. Id. When reviewing mixed questions of fact and law, we apply the clearly

erroneous standard of review, which lies between the manifest weight of the evidence standard

and a de novo standard. AFM Messenger Service, Inc. v. Department of Employment Security,

198 Ill. 2d 380, 392 (2001). Mixed questions are those in which the historical facts are admitted

or established, the rule of law is undisputed, and the question is whether those facts satisfy the

7 No. 1-19-0515

legal standard. Cinkus, 228 Ill. 2d at 211. An agency’s decision is clearly erroneous when we are

left with a definite and firm conviction that a mistake has been made. Id.

¶ 21 The administrative agency is responsible for determining the credibility of the witnesses,

weighing the evidence, and drawing reasonable inferences from that evidence. Aich v. City of

Chicago, 2013 IL App (1st) 120987, ¶ 18. When reviewing an agency’s factual findings, this

court will not reweigh the evidence or substitute its judgment for that of the agency. Cinkus, 228

Ill. 2d at 210. The burden of proof is on the plaintiff seeking administrative review. Shachter v.

City of Chicago, 2016 IL App (1st) 150442, ¶ 22.

¶ 22 In this case, our review is frustrated by an incomplete record. An appellant has the burden

of presenting a sufficiently complete record of the trial court proceedings to support claims of

error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Without a complete record, this court

will not speculate as to errors that may have occurred below and will presume that the trial

court’s order conformed with the law and had a sufficient factual basis. Id. Any doubts arising

from an incomplete record will be resolved against appellant. Id. This rule also applies in the

context of an administrative review if the appellant fails to provide the necessary transcript from

an administrative hearing. See Burns v. Department of Insurance, 2013 IL App (1st) 122449, ¶

15.

¶ 23 Here, the record consists of the pleadings, the police reports, and the transcript of the

hearing on plaintiff’s motion to reconsider the circuit court’s ruling affirming the administrative

agency’s order. The record does not contain a transcript or audio of the administrative hearings.

Without those items, this court will not speculate as to what occurred before the administrative

hearing officer. We therefore presume the administrative agency acted in conformity with law

8 No. 1-19-0515

and its evidentiary rulings had a sufficient factual basis. Foutch, 99 Ill. 2d at 391-92; Burns, 2013

IL App (1st) 122449, ¶ 15.

¶ 24 Notwithstanding the incomplete record on appeal, we also conclude that plaintiff failed to

meet his burden of proof to support his claim. Plaintiff’s argument on appeal is that the kiosks in

question were not subject to Village video gaming taxes and therefore did not need video gaming

stickers.

¶ 25 Village Ordinance 10-42.5(g) states that “[i]t is unlawful to operate a video gaming

terminal in the village without paying the tax and having a valid video gaming tax sticker affixed

thereon.” The Illinois Video Gaming Act defines a “video gaming terminal” as:

“any electronic video game machine that, upon insertion of cash, electronic cards,

vouchers, or any combination thereof, is available to play or simulate the play of a

video game, including but not limited to video poker, line up, and blackjack, as

authorized by the [Illinois Gaming] Board utilizing a video display and

microprocessors in which the player may receive free games or credits that can be

redeemed for cash. The term does not include a machine that directly dispenses

coins, cash, or tokens or is for amusement purposes only.” 230 ILCS 40/5 (West

2018).

¶ 26 The kiosks fall squarely into the definition of a video gaming terminal as defined by the

Act. The arrest report indicated that the Officer Langhenry put $1 into the kiosk, which was an

electronic video game machine, played a video game, and received credits in the amount of

$1.76 that were immediately redeemable for cash. The Village hearing officer found that the

kiosks were video gaming terminals as defined by the Act, and therefore plaintiff violated

Village Ordinance 10-42.5(g) by failing to pay taxes and obtain video gaming stickers for the

9 No. 1-19-0515

kiosks. As stated above, the agency’s factual findings and conclusions are held to be prima facie

true and correct, and plaintiff has shown nothing in the record which would preclude such a

conclusion.

¶ 27 We are unpersuaded by plaintiff’s contention that possessing the kiosks are an exception

to gambling under section 28-1(b)(13) of the Code because they have a “free play” mode. The

free play mode does not negate the fact that a patron can insert money in the kiosks, play games

of chance, and receive credits that are immediately redeemable for cash, making them video

gaming terminals under the Act.

¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County

affirming the decision of the Village of Hanover Park.

¶ 29 Affirmed.