Paepke v. Leck

496 N.W.2d 181, 173 Wis. 2d 230, 1992 Wisc. App. LEXIS 960

• Court: Court of Appeals of Wisconsin
• Decided: December 10, 1992
• Docket: No. 92-0754
• Status: Published

Opinions

GARTZKE, P.J.

If the video poker machines taken from the plaintiff Paepke are not "gambling machines" as defined in sec. 945.01(3)(a), Stats., the police must return them to plaintiff.¹ We conclude that the machines are not gambling machines. We therefore affirm the order requiring their return to plaintiff.

The facts are undisputed. On September 28, 1991, the appellants, Officers Leek and Grady, executed a search warrant at plaintiffs bar in Stoughton. The officers seized two video poker machines plaintiff owns. Charges were not filed against plaintiff. He petitioned the circuit court under sec. 968.20(1), Stats., for return of his machines.

Section 945.01(3), Stats., provides in part:

(a) A gambling machine is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the machine.

(b) "Gambling machine" does not include any of the following:

2. Any amusement device if it rewards the player exclusively with one or more nonredeemable free replays for achieving certain scores and does not change the ratio or record the number of the free replays so awarded.

A person inserts a coin to play the machines. The machines themselves provide no reward to a winning player, but Paepke told the officers that he had paid money to bar customers who won on the machine.

The application of a statute to a set of undisputed facts presents a question of law which we review independently of the trial court's decision. First Nat'l Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251, 253 (1977).

Appellants contend that the definition of a gambling machine in sec. 945.01(3)(a), Stats., includes contrivances in which neither the opportunity to obtain a reward nor the actual reward itself derives from the machine itself. That construction would mean the definition includes machines as to which a third party rewards a player for his or her score in a game.

We reject that construction of sec. 945.01 (3)(a), Stats. It would make gambling machines out of pool tables, dart boards and many other articles. A machine need not automatically disburse a reward to come within the definition. The last sentence in the statute expressly so provides. But Paepke's video poker machines do not provide the player with the opportunity to obtain a reward other than free replays. Free replays do not bring the machines within the definition of " gambling machine." Section 945.01 (3)(b)2., Stats. Whatever the reward Paepke's customers receive, it is not from an opportunity the machine provides. The opportunity is from the person who provides the reward, in this case Paepke.

A video poker machine with other characteristics may well provide a player with the opportunity to receive something of value and fit the gambling machine definition. However, Paepke's poker machines do not fall within the statutory definition of a gambling machine and are therefore not contraband within sec. 968.13(l)(a), Stats. For that reason, Paepke is entitled to their return under sec. 968.20(1), Stats.

By the Court. — Order affirmed.

1 Section 968.20(1), Stats., provides in part:

Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned .... If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband ..., returned ....

2 Contraband" includes gambling machines.

Section 968.13(l)(a), Stats.