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                                    Appellate Court                          Date: 2017.12.21
                                                                             13:52:43 -06'00'




        Windy City Promotions, LLC v. Illinois Gaming Board, 2017 IL App (3d) 150434



Appellate Court         WINDY CITY PROMOTIONS, LLC, and PIER2 HOLDINGS, LLC,
Caption                 Plaintiffs, v. THE ILLINOIS GAMING BOARD, Defendant-
                        Appellee (Pier2 Holdings, LLC, Plaintiff-Appellant).



District & No.          Third District
                        Docket Nos. 3-15-0434, 3-15-0451, 3-15-0461 cons.



Filed                   July 19, 2017



Decision Under          Appeal from the Circuit Court of Grundy County, No. 14-LM-133; the
Review                  Hon. Joseph P. Hettel, Judge, presiding.



Judgment                Reversed.


Counsel on              Matthew J. Mueller, of Cortina, Mueller & Frobish, P.C., of Morris,
Appeal                  for appellant.

                        Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro and
                        David L. Franklin, Solicitors General, and Evan Siegel and Timothy
                        M. Maggio, Assistant Attorneys General, of counsel), for appellee.
     Panel                    JUSTICE McDADE delivered the judgment of the court, with
                              opinion.
                              Justices Lytton and Carter concurred in the judgment and opinion.


                                               OPINION

¶1         The defendant, the Illinois Gaming Board (Gaming Board), had posted a document to its
       website (the Website Document) opining, inter alia, that certain devices called “Electronic
       Product Promotion Kiosks” (the Kiosks) violated section 35 of the Video Gaming Act (230
       ILCS 40/35 (West 2014)). Shortly thereafter, the Gaming Board seized two of the Kiosks
       belonging to plaintiff Windy City Promotions, LLC (Windy City), from a health club in
       Morris. In response, Windy City sued the Illinois Gaming Board for declaratory relief and
       replevin, alleging that the Gaming Board lacked the authority both to issue the Website
       Document and to seize the Kiosks. Plaintiff Pier2 Holdings, LLC (Pier2), which had
       provided the software for the Kiosks, was allowed to intervene. The plaintiffs and the
       Gaming Board filed motions for judgment on the pleadings. The circuit court ruled in favor
       of the Gaming Board on the Website Document issue and in favor of the plaintiffs on the
       seizure issue. Pier2 appealed, arguing that the circuit court erred when it ruled in the Gaming
       Board’s favor regarding the Website Document. In a cross-appeal, the Gaming Board argues
       that the circuit court erred when it ruled that the Gaming Board lacked the authority to seize
       the Kiosks. We reverse.

¶2                                                FACTS
¶3          On July 10, 2014, Windy City filed a replevin action against the Gaming Board, alleging
       that the Gaming Board wrongfully seized two of Windy City’s Kiosks from a health club in
       Morris. In part, Windy City described the Kiosks as “stand-alone or table top devices
       featuring several buttons, a touch screen and a bill acceptor.” A participant would insert
       paper money into the machine in exchange for a coupon that could be applied toward
       products sold by a particular company. The Kiosk would also automatically enter the
       purchaser into a sweepstakes. The purchaser could either instantly reveal the results of the
       sweepstakes entry or “elect to reveal the results of his or her entries more slowly via an
       entertaining display of the customer’s choosing on the screen.” The “entertaining display”
       was a choice of games, “which mimic the look of slots, poker, keno and bingo.” Windy City
       alleged that the sweepstakes winners were “pre-determined by the internal promotional
       sweepstakes software. The customer cannot influence the sweepstakes results after the
       random choice is made.” If the purchaser was a sweepstakes winner, he or she would receive
       a ticket that could be exchanged for a cash prize with the location hosting the Kiosk.
¶4          On September 26, 2014, Windy City amended its complaint to request an expedited
       hearing, declaratory relief, and replevin. In addition to a request for the return of the Kiosks,
       Windy City sought declaratory rulings that its Kiosks were not unlawful gambling machines
       and that the Gaming Board lacked the authority to post the Website Document. The amended
       complaint contained a new description of the Kiosks, but it was substantially similar to the
       description given in the original complaint.


                                                   -2-
¶5        The Website Document referenced by the complaint was dated December 5, 2013, and
     titled “The legality of Electronic Promotion Sweepstakes Kiosks in Illinois.” In full, it stated
     the following:
                 “The Illinois Gaming Board (IGB) has become aware that Electronic Product
             Promotion Sweepstakes Kiosks (Devices) have entered the Illinois market. These
             Devices allow a patron to insert cash and purchase credits in addition to receiving a
             coupon that can be redeemed via a website. The patron is then able to wager credits
             by playing electronic sweepstakes games that look like casino style slots. As credits
             are won or lost, they are represented on the screen by a running credits total. To cash
             out, the patron presses a button that removes and resets the credits shown on the
             screen and prints the total credits on a ticket/coupon. That ticket/coupon can be
             redeemed for cash at the location.
                 These Devices violate Section 35 of the Video Gaming Act (VGA), which
             provides that it is a felony to own, operate, possess or permit to be kept ‘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.’ 230 ILCS 40/35(a). Effective January 1, 2014, Public Act 098-0111 amends
             section 35(a) of the VGA by adding the following language:
                 Nothing in this Section shall be deemed to prohibit the use of a game device only
                 if the game device is used in an activity that is not gambling under section (b) of
                 Section 28-1 of the Criminal Code of 2012.
                 The Criminal Code codified the common law definition of gambling, which has
             three elements: (1) consideration or purchase, (2) chance, and (3) opportunity for a
             prize. If any one of these elements is missing, there is no illegal gambling. Thus, in
             order for these Devices to not constitute illegal gambling, both the Criminal Code and
             the Illinois Prizes and Gifts Act dictate that no purchase be required. 815 ILCS
             525/20, 720 ILCS 5/28-2(b)(13) [sic].
                 Promoters of these Devices (much like electronic raffle machines, internet cafes
             or Lucky Shamrock Vending Machines), attempt to exploit what they deem a ‘legal
             loophole’ in Illinois gambling laws by arguing that the purchase paid into the kiosks
             is for a coupon and not for the wagering of credits. This argument has been
             universally rejected in jurisdictions across the country. [Footnote 1: Courts from New
             York, Indiana, Ohio, Alabama, North Dakota, Florida, Hawaii, North Carolina all
             have rejected this argument.] Additionally, a promotion under the Illinois Prizes and
             Gifts Act that allows the opportunity for an alternate means of entry (‘no purchase
             necessary’) does not cancel out the element of consideration or purchase. The obvious
             purpose of these Devices is to offer a chance to win a prize for consideration. Finally,
             the Illinois Prizes and Gifts Act also requires that written promotional offers must
             contain all nine (9) elements outlined in a clear and conspicuous statement at the
             onset of the offer. These Devices might not meet all nine elements and accordingly
             would not comply with the Illinois Prizes and Gift [sic] Act.
                 It is the opinion of the IGB that Electronic Product Promotion Sweepstakes
             Kiosks fit the definition of a gambling device. These devices will not be licensed by
             the IGB. An owner of a Licensed Video Gaming Location found to be in possession
             of such a Device could be charged with a felony under the Video Gaming Act. At a

                                                -3-
                minimum, possession of such a Device will jeopardize suitability for initial or
                continued licensure.”
¶6          In response to Windy City’s amended complaint, the Gaming Board filed an answer,
       affirmative defense, and counterclaim, which, in part, sought a ruling that the Kiosks were
       illegal and an injunction prohibiting Windy City from distributing the Kiosks. In part, the
       Gaming Board’s pleading alleged that the Kiosks in question had been seized by “IGB
       special agents” and that “IGB special agents are either employed by the Illinois State Police
       pursuant to [section 5(c)(20.7) of the Riverboat Gambling Act (230 ILCS 10/5(c)(20.7)
       (West 2014))] or are otherwise considered a ‘local authority’ as construed under [section
       28-5 of the Criminal Code of 2012 (720 ILCS 5/28-5 (West 2014))].”
¶7          On November 7, 2014, Pier2 was allowed to intervene.
¶8          On November 19, 2014, Windy City and Pier2 filed a motion for judgment on the
       pleadings. On February 27, 2015, the Gaming Board filed a responsive pleading in which it
       specifically alleged, for the first time, that the Kiosks had been seized by three Illinois State
       Police officers assigned to the Gaming Board. The officers’ affidavits were attached to the
       filing.
¶9          On February 10, 2015, the circuit court held a hearing on the outstanding matters, and it
       issued its written decision on March 13, 2015. First, the court ruled that the Gaming Board
       lacked the authority to seize the Kiosks, finding (1) the Gaming Board was not authorized by
       section 28-5 of the Criminal Code of 2012 (720 ILCS 5/28-5 (West 2014)) to conduct the
       seizure, as that section authorized only the Department of State Police and municipal or local
       authorities to take such action; (2) the seizure powers granted to the Gaming Board in the
       Riverboat Gambling Act and the Video Gaming Act were limited to activities connected with
       riverboat gambling and licensed video gambling terminals; and (3) the seizure powers
       granted to the Gaming Board by section 35 of the Video Gaming Act referred back to section
       28-5 of the Criminal Code of 2012, which gives seizure power exclusively to the Department
       of State Police or local law enforcement.
¶ 10        Second, the court ruled, without further clarification, that the plaintiffs had failed to
       convince the court that it had the authority to enjoin the Gaming Board from posting
       documents to its website. Further, the court stated that it “makes no findings as to Plaintiffs’
       contention that the [Gaming Board] exceeded its statutory authority in its publication and
       dissemination of the legal Opinion concerning Electronic Product Promotion Kiosks.”
¶ 11        Third, the court struck the affidavits of the officers that the Gaming Board had filed with
       its February 27, 2015, pleading.
¶ 12        Both parties filed motions for partial reconsideration of the circuit court’s judgment. 1 In
       their motion, the plaintiffs also sought leave to voluntarily dismiss their declaratory judgment
       claim regarding the legality of the Kiosks. The plaintiffs argued that because the court had
       ruled that the Gaming Board lacked the authority to seize the Kiosks, it was not the proper
       party to sue regarding the issue.
¶ 13        At the hearing on the motions, the plaintiffs argued that the Website Document
       constituted administrative rulemaking, whereas the Gaming Board argued that it did not. At

          1
            Notably, during the pendency of the motions for partial reconsideration, the Gaming Board told
       the circuit court that it had returned the Kiosks to Windy City.

                                                    -4-
       the close of the hearing, the circuit court denied both parties’ motions and granted the
       plaintiffs’ request for leave to voluntarily dismiss the Kiosk-legality issue. The court decided
       to consider the affidavits of the three Illinois State Police officers assigned to the Gaming
       Board, but the court stated that its consideration of the affidavits did not change its March 13,
       2015, ruling. The court did modify its March 13 ruling, however, to clarify that it had ruled
       in favor of the Gaming Board on the Website Document issue. In that regard, the court
       stated, “I’m not saying they have the authority to make the opinion or the opinion is correct,
       I’m saying that I don’t have the authority to tell them what they can and cannot put on their
       website based on the pleadings.”
¶ 14       Windy City, Pier 2, and the Gaming Board all appealed. Windy City has since dropped its
       appeal, but they have filed a responsive brief, which we have considered in resolving this
       appeal.

¶ 15                                           ANALYSIS
¶ 16        Initially, we emphasize that the legality of the Kiosks is not at issue in this appeal. We
       also note that the Gaming Board has returned the Kiosks to Windy City. However, we
       believe that neither the absence of the Kiosk-legality issue nor the return of the Kiosks
       precludes consideration of the merits of the parties’ arguments. The questions raised in the
       appeal and cross-appeal relate only to the authority of the Gaming Board to take the actions
       in question—namely, whether it could issue the Website Document and seize the Kiosks
       from the Morris health club. There is nothing in the Riverboat Gambling Act, Video Gaming
       Act, or section 28-5 of the Criminal Code of 2012 that requires a pre-seizure judicial
       determination that a particular device is, in fact, an illegal gambling device. See 230 ILCS
       10/1 et seq. (West 2014); 230 ILCS 40/1 et seq. (West 2014); 720 ILCS 5/28-5 (West 2014).
       Indeed, requiring such a determination would seem to run afoul of these statutes. See, e.g.,
       230 ILCS 10/2(b) (West 2014) (noting that the provisions in the Riverboat Gambling Act
       “are designed to strictly regulate the facilities, persons, associations and practices related to
       gambling operations pursuant to the police powers of the State, including comprehensive law
       enforcement supervision” (emphasis added)); 720 ILCS 5/28-5(c) (West 2014) (providing for
       a forfeiture hearing, when criminal charges have been filed, to determine whether a device
       constituted a gambling device at the time of seizure); 720 ILCS 5/28-5(d) (West 2014)
       (listing available procedures when criminal charges have not been filed, or when the charges
       were permanently terminated or indefinitely discontinued; procedures include persons having
       property interests in the seized device commencing civil proceedings). In sum, we conclude
       that controversies still exist in this appeal and cross-appeal, despite the absence of the
       Kiosk-legality issue and the fact that the Gaming Board has returned the Kiosks to Windy
       City.
¶ 17        This appeal and cross-appeal involve the circuit court’s rulings on a motion for judgment
       on the pleadings. A motion for judgment on the pleadings is similar to a motion for summary
       judgment except that the resolution of the motion is limited to the pleadings. Fagel v.
       Department of Transportation, 2013 IL App (1st) 121841, ¶ 26. When ruling on a motion for
       judgment on the pleadings, a circuit court “ ‘must consider only those facts apparent from the
       face of the pleadings, judicial admissions in the record and matters subject to judicial
       notice.’ ” Id. (quoting Illinois ToolWorks, Inc. v. Commerce & Industry Insurance Co., 2011
       IL App (1st) 093084, ¶ 16). The moving party admits all well-pled facts in the nonmoving

                                                   -5-
       party’s pleading and the reasonable inferences from those facts. Pekin Insurance Co. v.
       Wilson, 237 Ill. 2d 446, 455 (2010). “Judgment on the pleadings is properly granted if the
       pleadings disclose no genuine issue of material fact and that the movant is entitled to
       judgment as a matter of law.” Id. When faced with a challenge to a circuit court’s decision on
       a motion for judgment on the pleadings, our review is de novo. Fagel, 2013 IL App (1st)
       121841, ¶ 26.

¶ 18                                             I. APPEAL
¶ 19       In its appeal, Pier2 argues that the circuit court erred when it ruled in the Gaming Board’s
       favor regarding the Website Document. Variously, Pier2 claims that (1) the Gaming Board
       exceeded its authority when it posted the Website Document, (2) the Gaming Board does not
       have the statutory authority to issue “advisory legal opinions,” and (3) the Gaming Board
       should be enjoined from unauthorized rulemaking. The Gaming Board responds briefly that
       because it has since removed the Website Document from its website, Pier2’s appeal is moot.
¶ 20       An appeal can become moot when an intervening event has transpired that prevents the
       reviewing court’s ability to grant effectual relief. In re Donald L., 2014 IL App (2d) 130044,
       ¶ 18. Generally, courts will not decide moot questions. In re Alfred H.H., 233 Ill. 2d 345, 351
       (2009). However, exceptions exist that allow for the review of an otherwise moot question.
       In re Kurtis C., 2015 IL App (3d) 130605, ¶ 16. One such exception is the “capable of
       repetition yet evading review exception.” (Internal quotation marks omitted.) Id. “The
       ‘capable of repetition yet evading review’ exception requires the complaining party to show
       that (1) the challenged action is too short in duration to be fully litigated prior to its cessation,
       and (2) there is a reasonable expectation that the same complaining party would be subjected
       to the same action again.” Id. ¶ 18 (quoting In re Vanessa K., 2011 IL App (3d) 100545,
       ¶ 14).
¶ 21       We believe that this issue qualifies for the “capable of repetition yet evading review”
       exception to the mootness doctrine. First, the challenged action was too short because while
       the Gaming Board’s action of posting the Website Document had no duration, the Gaming
       Board decided to pull the document from its website. Second, the Gaming Board could repost
       the Website Document and thereby resurrect the same controversy. It would be inherently
       unfair to allow the Gaming Board to manipulate the process and avoid review of this issue
       through the simple removal of a disputed document from its website. Accordingly, we reject
       the Gaming Board’s mootness claim.
¶ 22       In addressing the merits of Pier2’s argument, we examine the Gaming Board’s
       administrative authority. The Gaming Board is an administrative agency created by the
       Riverboat Gambling Act under the following terms:
                “There is hereby established the Illinois Gaming Board, which shall have the powers
                and duties specified in this Act, and all other powers necessary and proper to fully
                and effectively execute this Act for the purpose of administering, regulating, and
                enforcing the system of riverboat gambling established by this Act. Its jurisdiction
                shall extend under this Act to every person, association, corporation, partnership and
                trust involved in riverboat gambling operations in the State of Illinois.” 230 ILCS
                10/5(a)(1) (West 2014).
       The Gaming Board’s jurisdiction also extends to matters under the Video Gaming Act (230
       ILCS 40/78(a) (West 2014)). Both the Riverboat Gambling Act and the Video Gaming Act

                                                     -6-
       contain provisions that extend their provisions to each other, unless two provisions conflict
       (230 ILCS 10/24 (West 2014); 230 ILCS 40/80 (West 2014)).
¶ 23       Among the powers granted to the Gaming Board is the power to adopt administrative
       rules. 230 ILCS 10/5(b)(3) (West 2014) (stating that the Gaming Board’s duties include
       “promulgat[ing] such rules and regulations as in its judgment may be necessary to protect or
       enhance the credibility and integrity of gambling operations authorized by [the Riverboat
       Gambling Act] and the regulatory process hereunder”); 230 ILCS 40/78(a)(3) (West 2014)
       (stating that the Gaming Board’s powers include “adopt[ing] rules for the purpose of
       administering the provisions of [the Video Gaming Act] and to prescribe rules, regulations,
       and conditions under which all video gaming in the State shall be conducted”). Pursuant to
       section 78(b) of the Video Gaming Act, the legislature has mandated that when the Gaming
       Board seeks to adopt a rule, it must follow the procedures for emergency rulemaking set forth
       in section 5-45 of the Illinois Administrative Procedure Act (5 ILCS 100/5-45 (West 2014)).
       230 ILCS 40/78(b) (West 2014).
¶ 24       In relevant part,2 section 1-70 of the Illinois Administrative Procedure Act defines a
       “rule” as an “agency statement of general applicability that implements, applies, interprets,
       or prescribes law or policy.” (Emphasis added.) 5 ILCS 100/1-70 (West 2014). “An
       interpretive rule is any rule an agency issues without exercising delegated legislative power
       to make law through rules.’ ” United Consumers Club, Inc. v. Attorney General, 119 Ill. App.
       3d 701, 704 (1983) (quoting 2 Kenneth Culp Davis, Administrative Law Treatise § 7:8, at 36
       (2d ed. 1979)). More specifically, an interpretive rule has been described as “one that is
       issued by an agency to advise the public of the agency’s construction of the statutes and rules
       which it administers. [Citation.] An interpretive rule thus represents the agency’s reading of
       statutes and rules rather than an attempt to make new law or modify existing law. [Citation.]”
       (Internal quotation marks omitted.) Guerra v. Shinseki, 642 F.3d 1046, 1051 (Fed. Cir.
       2011). Interpretive rules are not law and are not binding on the courts. United Consumers
       Club, Inc., 119 Ill. App. 3d at 704-05 (quoting Joseph v. United States Civil Service Comm’n,
       554 F.2d 1140, 1154 n.26 (D.C. Cir. 1977)).
¶ 25       Based on the above-cited authority, it is clear that the Gaming Board is empowered to
       adopt interpretive rules; i.e., rules that represent the Gaming Board’s reading of statutes it
       administers. See Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 362 Ill. App. 3d
       652, 656 (2005) (holding that “[a]n agency may adopt a rule and regulate an activity only
       insomuch as a statute empowers the agency to do so”); see also Metropolitan School District
       v. Davila, 969 F.2d 485, 490 (7th Cir. 1992) (“All agencies charged with enforcing and
       administering a statute have ‘inherent authority to issue interpretive rules informing the
       public of the procedures and standards it intends to apply in exercising its discretion.’ ”
       (quoting Production Tool Corp. v. Employment & Training Administration, United States
       Department of Labor, 688 F.2d 1161, 1166 (7th Cir. 1982))). The Website Document, at least
       in part, contained the Gaming Board’s interpretation of section 35(a) of the Video Gaming
       Act (230 ILCS 40/35(a) (West 2014)) in relation to the Kiosks. Additionally, to the extent
       that the Website Document also contained a policy statement—i.e., the Gaming Board’s
       future intentions—the Illinois Administrative Procedure Act’s definition of a rule includes

           2
             Enumerated exceptions to the definition of a rule have been omitted because they do not apply to
       this case.

                                                     -7-
       policy statements (5 ILCS 100/1-70 (West 2014)) and therefore empowers the Gaming Board
       to issue policy statements.
¶ 26       We acknowledge that in the circuit court, the parties and the court itself struggled to
       classify the Website Document. We also note that the Gaming Board itself argued during the
       reconsideration hearing that the Website Document was merely an “opinion” and not an
       attempt at rulemaking. However, simply because the Gaming Board argued as such does not
       change the fact that the Website Document was interpretive and policy-setting in nature. As
       we have stated above, the Gaming Board is authorized to adopt interpretive rules and policy
       statements. See 230 ILCS 10/5(b)(3) (West 2014); 230 ILCS 40/78(a)(3) (West 2014); 5
       ILCS 100/1-70 (West 2014). Therefore, we conclude that the Gaming Board had the
       authority to attempt to adopt the contents of the Website Document.
¶ 27       The plaintiffs further contend that if the Gaming Board had the authority to issue the
       Website Document, it did not follow the appropriate rulemaking procedures. We agree. Our
       review of the pleadings filed in this case reveal nothing to indicate that the Gaming Board
       followed the appropriate rulemaking procedures when it issued the Website Document. In
       fact, as previously noted, the Gaming Board took the position in the circuit court that the
       Website Document did not even constitute a rule.
¶ 28       However, we disagree with the plaintiffs that the appropriate remedy for the Gaming
       Board’s failure to follow the appropriate rulemaking procedures is to enjoin the Gaming
       Board. The appropriate remedy is for this court simply to strike down the attempted rule. See
       Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 181 (1984) (holding that “[s]ince we
       believe that the amended procedure was a rule within the meaning of the Illinois
       Administrative Procedure Act and since the agency did not, and does not contend that it did,
       follow the proper procedure for adoption of a rule, the rule is invalid”); see also 5 ILCS
       100/5-10(c) (West 2014); Walk v. Department of Children & Family Services, 399 Ill. App.
       3d 1174, 1184 (2010) (“Rules not properly promulgated are invalid, not effective against any
       person or entity, and may not be invoked by an administrative agency for any purpose.
       [Citation.]” (Internal quotation marks omitted.)); Riverboat Development Corp. v. Illinois
       Gaming Board, 268 Ill. App. 3d 257, 259 (1994) (“If an agency does not ‘follow the proper
       procedure for adoption of a rule, the rule is invalid.’ [Citation.]”). Pursuant to the foregoing
       authority and analysis, we hold that the Gaming Board had authority to issue an interpretive
       rule and to post it but that, because it failed to follow the appropriate rulemaking procedures,
       the attempted rule is invalid. To the extent that the circuit court made a contrary finding, its
       judgment is reversed.

¶ 29                                       II. CROSS-APPEAL
¶ 30       In its cross-appeal, the Gaming Board argues that the court erred when it ruled that the
       Gaming Board lacked the authority to seize the Kiosks from a health club in Morris. For the
       following reasons, we agree.
¶ 31       The legislature granted sweeping power to the Gaming Board under the Riverboat
       Gambling Act. Section 2 states the following regarding legislative intent:
               “(a) This Act is intended to benefit the people of the State of Illinois by assisting
               economic development and promoting Illinois tourism and by increasing the amount
               of revenues available to the State to assist and support education.


                                                  -8-
                   (b) While authorization of riverboat gambling will enhance investment,
               development and tourism in Illinois, it is recognized that it will do so successfully
               only if public confidence and trust in the credibility and integrity of the gambling
               operations and the regulatory process is maintained. Therefore, regulatory provisions
               of this Act are designed to strictly regulate the facilities, persons, associations and
               practices related to gambling operations pursuant to the police powers of the State,
               including comprehensive law enforcement supervision.” 230 ILCS 10/2 (West 2014).
       To effectuate these goals, the Riverboat Gambling Act created the Gaming Board, “which
       shall have the powers and duties specified in this Act, and all other powers necessary and
       proper to fully and effectively execute this Act for the purpose of administering, regulating,
       and enforcing the system of riverboat gambling established by this Act.” 230 ILCS 10/5(a)(1)
       (West 2014). Further, the Gaming Board’s “jurisdiction shall extend under this Act to every
       person, association, corporation, partnership and trust involved in riverboat gambling
       operations in the State of Illinois.” Id.
¶ 32       The Video Gaming Act also grants sweeping power to the Gaming Board. Section 78
       employs language similar to that used in the Riverboat Gambling Act in describing the
       responsibilities of the Gaming Board regarding the regulation of video gaming operations.
       230 ILCS 40/78(a)(1) (West 2014).
¶ 33       As pointed out in our analysis of Pier2’s appeal, both the Riverboat Gambling Act and
       the Video Gaming Act contain provisions that extend their provisions to each other, unless
       two provisions conflict (230 ILCS 10/24 (West 2014); 230 ILCS 40/80 (West 2014)). This
       extension of provisions is especially significant for the purposes of this case due to the
       provisions related to seizure powers granted to the Gaming Board.
¶ 34       Both the Riverboat Gambling Act and the Video Gaming Act grant the Gaming Board the
       power to appoint investigators with the rights and powers of peace officers, which include
       the power to conduct investigations, searches, seizures, and arrests. 230 ILCS 10/5(c)(20.6)
       (West 2014); 230 ILCS 40/79 (West 2014). However, the power of these appointed
       investigators is limited. The Riverboat Gambling Act limits this power essentially “to
       offenses or violations occurring or committed on a riverboat or dock” (230 ILCS
       10/5(c)(20.6) (West 2014)), and the Video Gaming Act limits it essentially to the licensing
       and supervising of video gaming operations (230 ILCS 40/78 (West 2014)).
¶ 35       Another significant provision for our purposes is section 5(c)(20.7) of the Riverboat
       Gambling Act, which allows the Gaming Board to contract with the Department of State
       Police and the Department of Revenue to use personnel from those agencies to aid the
       Gaming Board in carrying out its duties. 230 ILCS 10/5(c)(20.7) (West 2014). Personnel
       from both agencies are granted the power “to conduct investigations, searches, seizures,
       arrests, and other duties imposed under this Act and to exercise all of the rights and powers
       of peace officers.” However, section 5(c)(20.7) limits the powers of the Department of
       Revenue personnel (called “investigators”) essentially to “offenses or violations occurring or
       committed on a riverboat or dock,” whereas there is no such limitation placed on personnel
       from the Department of State Police (called “qualified State police officers” rather than
       “investigators”). Id.
¶ 36       This distinction is key because, historically, the power to seize unlawful gambling
       devices has rested with the Department of State Police or local authority with jurisdiction


                                                  -9-
       over the location in which the devices are seized. 720 ILCS 5/28-5(a) (West 2014). Section
       28-5(a) of the Criminal Code of 2012 states:
                    “(a) Every device designed for gambling which is incapable of lawful use or
               every device used unlawfully for gambling shall be considered a ‘gambling device’,
               and shall be subject to seizure, confiscation and destruction by the Department of
               State Police or by any municipal, or other local authority, within whose jurisdiction
               the same may be found. As used in this Section, a ‘gambling device’ includes any slot
               machine, and includes any machine or device constructed for the reception of money
               or other thing of value and so constructed as to return, or to cause someone to return,
               on chance to the player thereof money, property or a right to receive money or
               property. With the exception of any device designed for gambling which is incapable
               of lawful use, no gambling device shall be forfeited or destroyed unless an individual
               with a property interest in said device knows of the unlawful use of the device.” 720
               ILCS 5/28-5(a) (West 2014).
¶ 37       A review of the Riverboat Gambling Act and the Video Gaming Act reveals that while
       the legislature appears to have created a means for the Department of State Police and
       Gaming Board to collaborate in enforcing the state’s gambling laws (i.e., 230 ILCS
       10/5(c)(20.7) (West 2014)), the legislature did not intend to change the historical locus of
       power to seize unlawful gambling devices except in the very limited circumstances provided
       by those particular acts. In fact, to the extent that the Gaming Board is authorized to seize
       unlicensed gambling devices, that power relates back to section 28-5 of the Criminal Code of
       2012. Section 35(a) of the Video Gaming Act provides, in relevant part:
               “Every gambling device found in a licensed establishment, licensed truck stop
               establishment, licensed fraternal establishment, or licensed veterans establishment
               operating gambling games in violation of this Act shall be subject to seizure,
               confiscation, and destruction as provided in Section 28-5 of the Criminal Code of
               2012. *** No person may own, operate, have in his or her possession or custody or
               under his or her control, or permit to be kept in any place under his or her possession
               or control, 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.
                    Nothing in this Section shall be deemed to prohibit the use of a game device only
               if the game device is used in an activity that is not gambling under subsection (b) of
               Section 28-1 of the Criminal Code of 2012.
                    A violation of this Section is a Class 4 felony. All devices that are owned,
               operated, or possessed in violation of this Section are hereby declared to be public
               nuisances and shall be subject to seizure, confiscation, and destruction as provided in
               Section 28-5 of the Criminal Code of 2012.” 230 ILCS 40/35(a) (West 2014).
¶ 38       The import of these statutes for this case is that the seizure of the Kiosks—i.e., unlicensed
       devices—from the health club in Morris—i.e., an unlicensed establishment—was lawful only
       if had it been conducted by the Department of State Police or local authority. See 230 ILCS
       10/5(c)(20.7) (West 2014); 230 ILCS 40/35(a) (West 2014). The Gaming Board’s pleadings
       stated that it contracts with the Department of State Police for the use of its police officers,
       and there is nothing in the pleadings to indicate that those officers failed to conduct the
       seizure of the Kiosks in accordance with section 28-5 of the Criminal Code of 2012. Under

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       these circumstances, the pleadings indicate that the seizure was a valid exercise of
       administrative authority. Accordingly, we hold that the circuit court erred when it ruled that
       the seizure of the Kiosks was unauthorized.


¶ 39                                         CONCLUSION
¶ 40       For the foregoing reasons, we hold that (1) the Gaming Board has the authority to adopt
       interpretive rules and policy statements and to post them to its website, but that it failed to
       follow the appropriate procedures for doing so when it composed and posted the Website
       Document and (2) the circuit court erred when it ruled that the Gaming Board lacked the
       authority to conduct the seizure of the Kiosks. Accordingly, the judgment of the circuit court
       of Grundy County is reversed.

¶ 41      Reversed.




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