                            Illinois Official Reports

                                   Appellate Court



             J&J Ventures Gaming, LLC v. Wild, Inc., 2015 IL App (5th) 140092



Appellate Court        J&J VENTURES GAMING, LLC, an Illinois Limited Liability
Caption                Company, and ACTION GAMING, LLC, an Illinois Limited Liability
                       Company, Plaintiffs-Appellees and Cross-Appellants, v. WILD, INC.,
                       d/b/a Wild Country, an Illinois Corporation, Defendant (Accel
                       Entertainment Gaming, LLC, Intervenor-Appellant and Cross-
                       Appellee).


District & No.         Fifth District
                       Docket No. 5-14-0092


Filed                  August 7, 2015


Decision Under         Appeal from the Circuit Court of Madison County, No. 13-MR-85; the
Review                 Hon. Donald M. Flack, Judge, presiding.



Judgment               Judgment vacated; motion denied; appeal dismissed.



Counsel on             Steven P. Blonder and Marissa L. Downs, both of Much Shelist, P.C.,
Appeal                 of Chicago, and Patricia S. Murphy and G. Patrick Murphy, both of
                       Murphy & Murphy LLC, of Marion, for appellant.

                       Christopher A. Koester and Aaron C. Jones, both of Taylor Law
                       Offices, P.C., of Effingham, for appellee J&J Ventures Gaming, LLC.

                       Corey M. Shapiro, William M. Gantz, and Irina Dashevsky, all of
                       Dentons US LLP, of Chicago, and Paul P. Waller III, of Walker &
                       Williams, P.C., of Belleville, for appellee Action Gaming, LLC.
     Panel                    JUSTICE STEWART delivered the judgment of the court, with
                              opinion.
                              Justices Goldenhersh and Schwarm concurred in the judgment and
                              opinion.



                                               OPINION

¶1         This case involves a conflict between two companies claiming to have exclusive
       contractual rights for the placement of video gaming terminals in an establishment owned by
       the defendant, Wild, Inc., doing business as Wild Country, pursuant to the Video Gaming Act
       (Act) (230 ILCS 40/1 et seq. (West 2012)). “Video gaming terminals” are electronic machines
       that accept cash or electronic cards or vouchers for the purpose of allowing users to play games
       such as video poker or blackjack. 230 ILCS 40/5 (West 2012). A “terminal operator” is a
       person or entity licensed under the Act that owns, services, and maintains video gaming
       terminals for placement in licensed establishments. Id.
¶2         Under the language of the Act, a terminal operator’s right to place video gaming terminals
       in a particular location must be established by a “written use agreement” with the owner of the
       establishment. 230 ILCS 40/25(e) (West 2012). The plaintiff, J&J Ventures Gaming, LLC
       (J&J Ventures Gaming), maintains that it has an exclusive right to place video gaming
       terminals in Wild Country’s establishment by virtue of a written use agreement that preceded
       any other agreements for the placement of the machines in Wild Country’s establishment. The
       intervenor, Accel Entertainment Gaming, LLC (Accel Entertainment), however, maintains
       that it entered into the only valid use agreement with Wild Country for the placement of video
       gaming terminals. It argues that the agreement upon which J&J Ventures Gaming relies is not
       a valid use agreement under the Act because it was created and then assigned to J&J Ventures
       Gaming by two entities that were never licensed to operate video gaming terminals under the
       Act.
¶3         J&J Ventures Gaming filed a lawsuit against Wild Country requesting the court to enter a
       declaratory judgment establishing that it had the exclusive right to be the video gaming
       terminal operator for Wild Country’s establishment until the expiration of the term of its use
       agreement. The circuit court granted Accel Entertainment’s request to intervene in the lawsuit
       over J&J Ventures Gaming’s objection. After a hearing, the circuit court concluded that J&J
       Ventures Gaming had a valid, binding, and enforceable use agreement with Wild Country that
       preceded Accel Entertainment’s use agreement. The court, therefore, enjoined Accel
       Entertainment from operating video gaming terminals within Wild Country’s establishment
       and ordered it to remove any video gaming terminals it had installed at the establishment.
¶4         Accel Entertainment appeals the circuit court’s judgment, arguing that J&J Ventures
       Gaming’s contract is not a valid and enforceable use agreement under the Act. J&J Ventures
       Gaming cross-appeals the circuit court’s order allowing Accel Entertainment to intervene in
       the lawsuit. For the following reasons, we vacate the circuit court’s judgment and dismiss this
       cause for a lack of subject matter jurisdiction.




                                                  -2-
¶5                                           BACKGROUND
¶6         The legislature enacted the Act on July 13, 2009. Pub. Act 96-34 (eff. July 13, 2009). The
       Act legalized the use of video gaming terminals for gambling purposes for the first time within
       the State of Illinois. This new video gaming industry is subject to extensive regulations under
       the statute’s comprehensive regulatory scheme. The Act requires the Illinois Gaming Board
       (the Gaming Board) to license all entities having video gaming terminals installed in their
       establishments (licensed establishments) and license all entities seeking to place and operate
       video gaming terminals (licensed terminal operators) within licensed establishments. 230
       ILCS 40/25(c), (e) (West 2012). Without a license issued by the Gaming Board, no person or
       entity can legally engage in the operation of video gaming terminals for gambling purposes.
¶7         When the legislature enacted the video gaming statute in 2009, video gaming did not begin
       immediately. Instead, there was a three-year start-up period before actual video gaming began.
       Video gaming terminals did not go “live” until October 9, 2012. During this start-up period,
       unlicensed persons and entities entered into agreements with establishments that hoped to
       become licensed establishments under the Act. These agreements purported to grant the
       unlicensed party the exclusive right to place video gaming terminals in the other party’s
       establishment upon each party obtaining its respective licenses under the Act.
¶8         The dispute in the present case stems from such an agreement initially entered into between
       Wild Country and another entity that is not a party to this lawsuit, Action Amusement
       Company (Action Amusement). Wild Country entered into the agreement with Action
       Amusement on August 17, 2009. This agreement purported to be an “Exclusive Location And
       Video Gaming Terminal Agreement” (exclusive location agreement, or agreement) granting
       Action Amusement the exclusive right to place video gaming terminals in Wild Country’s
       establishment.
¶9         The parties entered into the exclusive location agreement before the Gaming Board had
       established any rules for implementing the Act. Therefore, the Gaming Board had not licensed
       either party when they entered into this agreement. However, the agreement states that Action
       Amusement “is or shall become” a licensed terminal operator under the Act and that Wild
       Country “is or shall become” a licensed establishment under the Act. The stated purpose of the
       contract is for “placing and operating video gaming terminals” in Wild Country’s
       establishment for a period of 60 months, beginning when the first video gaming terminal
       begins operating in the establishment. The agreement states that Action Amusement “shall
       have the exclusive right to place video gaming terminals” in Wild Country’s establishment
       during the term of the agreement and that the agreement “shall be binding upon and inure to the
       benefit of the representative legal representatives, successors and assigns of the parties
       hereto.”
¶ 10       The Act does not specify any requirements that an agreement must meet in order to be a
       valid “use agreement” for the placement of video gaming terminals. However, rules
       promulgated by the Gaming Board after the effective date of the Act (and after the date of the
       exclusive location agreement) set out minimum standards for use agreements, including that
       they must be between a licensed terminal operator and a licensed establishment. See 11 Ill.
       Adm. Code 1800.320, amended at 36 Ill. Reg. 18550 (eff. Dec. 14, 2012).
¶ 11       On October 5, 2010, Action Amusement assigned its rights under various exclusive
       location agreements, including its rights under its agreement with Wild Country, to another
       entity, Action Gaming, LLC (Action Gaming). Action Amusement never became a licensed

                                                  -3-
       terminal operator under the Act. Nonetheless, the terms of the assignment provided that Action
       Amusement would receive compensation that is directly tied to video gaming operations.
       Under the assignment, Action Amusement is to receive compensation from Action Gaming in
       the amount of $10,000 per month on the first day of each month following execution of
       assignment until August 1, 2011. After August 1, 2011, Action Amusement would receive
       additional compensation once Action Gaming operated video gaming terminals in 70 of the
       locations included in the assignment. Once Action Gaming began operating in 70 locations,
       Action Amusement would receive $20,000 per month for a period of 10 years provided that
       Action Gaming maintained operation of video gaming terminals in 70 or more locations.
¶ 12       At the time that Action Gaming entered into this assignment with Action Amusement, it
       was also not a licensed terminal operator under the Act, but it intended to obtain the necessary
       licensing. However, as explained below, the Gaming Board later denied Action Gaming’s
       request for a license.
¶ 13       On January 12, 2012, while Action Gaming’s application for a terminal operator’s license
       was pending before the Gaming Board, Wild Country and Action Gaming signed a document
       purporting to be an amendment to the exclusive location agreement. In the amendment, the
       parties acknowledged that Action Gaming, rather than Action Amusement, was now a party to
       the exclusive location agreement. The parties also noted that amendments to the exclusive
       location agreement were necessary in order for the contract to comply with the Act “and the
       rules and regulations promulgated thereunder.”
¶ 14       The rules promulgated by the Gaming Board after the enactment of the Act “[p]rohibit any
       assignment [of use agreements] other than from a licensed terminal operator to another
       licensed terminal operator.” 11 Ill. Adm. Code 1800.320(d), amended at 36 Ill. Reg. 18550
       (eff. Dec. 14, 2012). Accordingly, the January 12, 2012, amendment to the parties’ exclusive
       location agreement added additional language addressing the right to assign the agreement by
       the “Terminal Operator” as follows:
                   “Assignment of Agreement by Terminal Operator: Prior to Terminal Operator
               being licensed as a ‘terminal operator’ pursuant to the Act and the rules and regulations
               promulgated thereunder (collectively, the ‘Video Gaming Law’), Terminal Operator
               may freely assign and/or transfer this Agreement and its rights and/or obligations
               hereunder, subject to the Video Gaming Law. After Terminal Operator becomes a
               licensed terminal operator, Terminal Operator may not assign and/or transfer this
               Agreement and its rights and/or obligations hereunder except: (i) to another licensed
               terminal operator; or (ii) as may otherwise be permitted by the Video Gaming Law.”
¶ 15       The amendment to the contract also included a provision concerning approval of the
       Gaming Board as follows:
                   “The parties acknowledge that this Amendment and the Agreement are subject to
               and contingent upon the Illinois Gaming Board’s (the ‘IGB’) review of, and to the
               extent required by the IGB, consent to the use of this Amendment. To that end, the
               parties agree to submit this Amendment to the IGB with any licensing application and
               to cooperate with each other in obtaining the IGB’s consent, if required. The parties
               agree to modify or amend this Amendment to comply with the requirements of the IGB
               or any change in the Illinois Video Gaming Act or the rules and regulations
               promulgated thereunder.”


                                                   -4-
¶ 16       On July 19, 2012, the Gaming Board issued a preliminary notice of denial of Action
       Gaming’s application to become a licensed terminal operator. In a correspondence dated July
       30, 2012, the Gaming Board informed Action Gaming that it did not meet the requirements for
       licensing under the Act. Specifically, the Gaming Board noted that Action Gaming “through its
       employees and owners Nicky Nichols and Jason L. Rowell have associated both personally
       and professionally with James Koehler, who has a gambling conviction.” In addition, Nichols
       “has associated in business affairs with not only Mr. Koehler, but also others of questionable
       character.” The Gaming Board concluded that Nichols had also “engaged in questionable
       business practices related to business transactions with convicted felon[s], Tim Whitmer and
       Tim Coulon,” and “has a questionable association with felon, Robert Guirdry.” With respect to
       Rowell, the Gaming Board found that he “failed to disclose portions of his criminal record, and
       was untruthful with police during the course of one of his arrests.” The Gaming Board
       concluded, therefore, that Action Gaming failed to meet the requirements set forth in sections
       45(a), (d), and (e) of the Act (230 ILCS 40/45(a), (d), (e) (West 2012)).
¶ 17       Action Gaming petitioned the Gaming Board for a hearing. See 11 Ill. Adm. Code
       1800.615(c) (2011). Under the rules promulgated by the Gaming Board, “[a] request for
       hearing shall be deemed granted unless denied.” 11 Ill. Adm. Code 1800.615(g) (2011). In
       addition, under the rules, an applicant who has been denied a license and who has requested a
       hearing is still considered an applicant until final resolution of the request for hearing. 11 Ill.
       Adm. Code 1800.695, amended at 36 Ill. Reg. 18550 (eff. Dec. 14, 2012).
¶ 18       On August 24, 2012, while Action Gaming’s request for hearing was pending before the
       Gaming Board, Action Gaming entered into an asset purchase agreement with J&J Ventures
       Gaming in which Action Gaming assigned its rights, title, and interest in all of its exclusive
       location agreements, including the agreement with Wild Country, to J&J Ventures Gaming.
       Prior to this assignment, the Gaming Board had approved J&J Ventures Gaming as a licensed
       terminal operator under the Act.
¶ 19       Under the terms of the asset purchase agreement with J&J Ventures Gaming, Action
       Gaming would profit from J&J Ventures Gaming’s future video gaming operations by
       receiving future monetary compensation from J&J Ventures Gaming in exchange for the
       exclusive right to place and operate video gaming terminals in the locations included in the
       agreement, including Wild Country’s establishment. The amount of compensation Action
       Gaming is to receive under the asset purchase agreement has been redacted from the copy of
       the agreement that is included in the record on appeal. It is apparent from the unredacted
       portions of the asset purchase agreement, however, that the compensation that Action Gaming
       will receive under the contract is dependent on the extent to which J&J Ventures Gaming
       operates video gaming terminals in the licensed establishments that had been under contract
       with Action Gaming, including Wild Country.
¶ 20       On August 29, 2012, Wild Country entered into a new use agreement with the intervenor,
       Accel Entertainment, that granted Accel Entertainment the exclusive right to place video
       gaming terminals in Wild Country’s establishment. At the time of this agreement, the Gaming
       Board had granted Accel Entertainment a license to be a terminal operator.
¶ 21       On September 20, 2012, the Gaming Board denied Action Gaming’s request for a hearing
       on its application to become a licensed terminal operator. The Gaming Board’s denial of the
       request for hearing was its final decision, and the denial of licensure became the final order on


                                                    -5-
       the date the Gaming Board denied the request for hearing. See 11 Ill. Adm. Code 1800.615(g)
       (2011).
¶ 22       On March 18, 2013, J&J Ventures Gaming (along with Action Gaming as a coplaintiff)
       filed a complaint against Wild Country seeking a declaratory judgment from the circuit court
       establishing that J&J Ventures Gaming has the exclusive right to place video gaming terminals
       in Wild Country’s establishment. At that time, the Gaming Board had not yet granted Wild
       Country’s application to be a licensed establishment. The Gaming Board granted Wild
       Country’s application to become a licensed establishment on October 24, 2013.
¶ 23       Accel Entertainment filed a petition for leave to intervene in the lawsuit, which the circuit
       court granted over J&J Ventures Gaming and Action Gaming’s objection. Accel Entertainment
       alleged in its counterclaim that the original exclusive placement agreement between Wild
       Country and Action Amusement was not an enforceable use agreement under the Video
       Gaming Act because the agreement was not signed by a licensed terminal operator, but was
       between Wild Country and an unlicensed entity, Action Amusement. Accel Entertainment
       maintained that its use agreement with Wild Country was the only valid use agreement because
       it was the only agreement signed by a licensed terminal operator. J&J Ventures Gaming,
       however, argued that its assignment of the original exclusive location agreement was valid
       under common law contract principles and was not prohibited by either the terms of the Act or
       the rules for implementing the statute promulgated by the Gaming Board.
¶ 24       While the present case was pending in the circuit court, on July 26, 2013, the Third District
       of the appellate court issued an opinion in Triple 7 Illinois, LLC v. Gaming & Entertainment
       Management-Illinois, LLC, 2013 IL App (3d) 120860, 992 N.E.2d 1251, in which the court
       addressed the validity of an agreement similar to J&J Ventures Gaming’s exclusive location
       agreement in the present case. The Triple 7 court held that a “precursor” agreement for the
       placement of video gaming terminals, entered into between an unlicensed entity hoping to
       become a licensed terminal operator and a proposed licensed establishment, was valid and
       could be freely assigned and transferred among unlicensed entities prior to the parties to the
       agreement becoming licensed under the Act. Id. ¶ 23. The court stated, “The agreement is not
       invalid; it simply cannot be enforced under the Act until the parties’ applications are approved
       by the Gaming Board.” Id. “Once the parties are licensed,” the court continued, “the terms of
       the agreement can be fulfilled under the Act and the agreement cannot be assigned” except to
       other licensed terminal operators. Id.
¶ 25       In Illinois, decisions of an appellate court are binding precedent on all circuit courts
       regardless of locale. People v. Carpenter, 228 Ill. 2d 250, 259, 888 N.E.2d 105, 111 (2008).
       When conflicts arise between appellate court districts, the circuit court is bound by the
       decisions of the appellate court of the district in which it sits. Aleckson v. Village of Round
       Lake Park, 176 Ill. 2d 82, 92, 679 N.E.2d 1224, 1229 (1997).
¶ 26       On February 11, 2014, the circuit court entered an order granting J&J Ventures Gaming
       and Action Gaming’s request for declaratory judgment. The Triple 7 decision was the only
       appellate court case addressing the validity of precursor agreements purporting to control the
       placement of video gaming terminals. Therefore, the circuit court held that, based on the
       Triple 7 court’s holding, it was “compelled to find that the Agreement between J&J [Ventures
       Gaming] and Wild [Country] is valid, binding and enforceable.” The court concluded that J&J
       Ventures Gaming “possesses the exclusive rights to serve as terminal operator and operate
       video gaming terminals at Wild [Country] until the expiration of that Agreement, which is 60

                                                   -6-
       months from the date [J&J Ventures Gaming’s] first video gaming terminal first operates at
       Wild [Country].” The court held that Wild Country’s use of video gaming terminals from any
       operator, other than J&J Ventures Gaming, was a breach of the contract and enjoined Wild
       Country and Accel Entertainment from activating video gaming terminals at Wild Country’s
       establishment other than video gaming terminals provided and serviced by J&J Ventures
       Gaming.
¶ 27       The circuit court denied Accel Entertainment’s motion to reconsider, and Accel
       Entertainment timely filed a notice of appeal. J&J Ventures Gaming and Action Gaming filed a
       cross-appeal of the circuit court’s order allowing Accel Entertainment to intervene in the
       proceeding.

¶ 28                                           DISCUSSION
¶ 29        During oral arguments in this appeal, we sua sponte raised the issue of whether the circuit
       court has jurisdiction over the controversy raised in the plaintiffs’ complaint or whether the
       Gaming Board has exclusive or primary jurisdiction over the controversy. We directed the
       parties to submit supplemental briefs on this issue. Both parties maintain that the circuit court
       has jurisdiction over this controversy. However, upon review of the supplemental briefs and
       after further consideration of this jurisdiction issue, we believe that the Gaming Board has
       exclusive jurisdiction over the parties’ controversy.
¶ 30        The central issue in this case concerns whether the exclusive location agreement, entered
       into between unlicensed entities, can control the placement of video gaming terminals once the
       agreement is assigned to a licensed terminal operator. Resolution of this controversy
       necessarily involves a determination of whether the original contract along with the series of
       subsequent assignments constitute a valid “use agreement” under the Act and under the
       regulations enacted by the Gaming Board.
¶ 31        The assignments at issue purport to convey to unlicensed assignors the right to receive
       compensation that is directly tied to the future video gaming operations of the assignee.
       Enforcement of the exclusive location agreement and subsequent assignments as a use
       agreement, therefore, potentially allows entities that are unqualified for licensure under the Act
       to, nonetheless, profit from the legalization of video gaming in Illinois in a manner that appears
       to be contrary to the Act’s legislative intent. As explained more fully below, the legislature
       granted the Gaming Board all powers necessary and proper to fully and effectively execute the
       provisions of the Act to further the Act’s legislative purpose. We believe that these powers are
       exclusive and not concurrent with the circuit court’s jurisdiction.
¶ 32        Under the Act, the Gaming Board’s broad powers include the power to regulate who may
       and may not profit from video gaming through a strict licensing procedure and the regulation
       of the required terms of use agreements. Under this statutory and regulatory scheme, we
       believe that the legislature intended for the Gaming Board to have exclusive jurisdiction over
       all agreements purporting to control the placement of video gaming terminals within a licensed
       establishment, particularly when the agreements involve the potential distribution to
       unlicensed entities of monetary compensation that is directly linked to video gaming
       operations under the Act. These are issues that fall squarely within the Gaming Board’s
       exclusive authority to supervise all video gaming operations.



                                                   -7-
¶ 33       The parties in this case did not raise any issue with respect to the circuit court’s
       jurisdiction. They want the courts to decide this controversy. However, “[a] court has an
       independent duty to consider subject matter jurisdiction even when, as here, neither party
       raised it as an issue.” In re Rico L., 2012 IL App (1st) 113028, ¶ 109, 977 N.E.2d 1100. The
       parties cannot convey subject matter jurisdiction to a court by stipulation, consent, or waiver.
       In re Marriage of Epting, 2012 IL App (1st) 113727, ¶ 28, 994 N.E.2d 535.
¶ 34       Illinois courts have jurisdiction over all justiciable matters. Employers Mutual Cos. v.
       Skilling, 163 Ill. 2d 284, 287, 644 N.E.2d 1163, 1165 (1994). In administrative actions,
       however, the legislature may also vest exclusive original jurisdiction in an administrative
       agency. People v. NL Industries, 152 Ill. 2d 82, 96-97, 604 N.E.2d 349, 355 (1992). “Where
       the legislature enacts a comprehensive statutory scheme, creating rights and duties which have
       no counterpart in common law or equity, the legislature may define the ‘justiciable matter’ in
       such a way as to preclude or limit the jurisdiction of the circuit courts.” Board of Education of
       Warren Township High School District 121 v. Warren Township High School Federation of
       Teachers, Local 504, 128 Ill. 2d 155, 165, 538 N.E.2d 524, 529 (1989). “However, if the
       legislative enactment does divest the circuit courts of their original jurisdiction through a
       comprehensive statutory administrative scheme, it must do so explicitly.” Skilling, 163 Ill. 2d
       at 287, 644 N.E.2d at 1165.
¶ 35       With respect to administrative agencies, the term “jurisdiction” is not strictly applicable to
       an administrative body, but Illinois courts have used the term to designate the authority of the
       administrative body to act. Byington v. Department of Agriculture¸ 327 Ill. App. 3d 726, 730,
       764 N.E.2d 576, 579-80 (2002). An administrative agency is different from a court because an
       agency only has the authorization given to it by the legislature. Business & Professional
       People for the Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243, 555 N.E.2d
       693, 716 (1989). “Since an administrative agency *** is a creature of statute, its jurisdiction or
       authority must be found within the provisions of the statute by which it acts.” Byington, 327 Ill.
       App. 3d at 730, 764 N.E.2d at 580. An agency may adopt a rule and regulate an activity to the
       extent that a statute empowers the agency to do so. Popejoy v. Zagel, 115 Ill. App. 3d 9, 11, 449
       N.E.2d 1373, 1374 (1983).
¶ 36       The operation of video gaming terminals for gambling purposes is not an activity that is
       recognized in Illinois except by virtue of the Act. There is no common law right in Illinois to
       operate, profit from, or assign profits from video gaming terminals. Under the common law,
       gambling contracts are void. Tomm’s Redemption, Inc. v. Park, 333 Ill. App. 3d 1003, 1009,
       777 N.E.2d 522, 527 (2002); Semb’s, Inc. v. Gaming & Entertainment Management-Illinois,
       LLC, 2014 IL App (3d) 130111, ¶ 21, 12 N.E.3d 223 (Schmidt, J., dissenting). The passage of
       the Act created a new industry in Illinois, which is governed by new rules and procedures, and
       video gaming contracts that do not conform to the regulatory requirements are void. In our
       analysis, we must turn to the statutory framework of the Act to determine whether the
       legislature intended for the Gaming Board to have exclusive jurisdiction over the
       determination of the validity of agreements affecting the placement of and the distribution of
       income derived from the operation of video gaming terminals. Crossroads Ford Truck Sales,
       Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 27, 959 N.E.2d 1133 (“Statutory interpretation
       is necessary to determine if the legislature intended to divest the circuit court of subject matter
       jurisdiction.”).



                                                    -8-
¶ 37        “The interpretation of a statute is a question of law, which we review de novo.” People ex
       rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370, 380, 899 N.E.2d 227, 232 (2008).
       The court’s “primary objective in interpreting a statute is to ascertain and give effect to the
       intent of the legislature.” Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440, 925
       N.E.2d 1113, 1117 (2010). When interpreting the plain meaning of a statute, we consider the
       statute as a whole, the subject it addresses, and the legislature’s apparent intent in enacting it.
       Id.
¶ 38        We now turn to the language of the Act to determine the legislature’s intent with respect to
       the Gaming Board’s authority over transactions affecting the placement and operation of video
       gaming terminals.
¶ 39        The Gaming Board is a five-member board, appointed by the Governor and confirmed by
       the Senate. 230 ILCS 10/5(a)(2) (West 2012). The Act expressly vests the Gaming Board with
       authority over all aspects of implementing the Act in order to prevent “practices detrimental to
       the public interest.” 230 ILCS 40/78(a) (West 2012). The legislature’s enactment of the Act
       included an amendment to the Riverboat Gambling Act, in which the legislature allocated
       “responsibility for administration and enforcement of the Video Gaming Act to the Illinois
       Gaming Board.” Wirtz v. Quinn, 2011 IL 111903, ¶ 26, 953 N.E.2d 899; Pub. Act 96-34, § 940
       (eff. July 13, 2009).
¶ 40        Section 78 of the Act sets out the authority of the Gaming Board with respect to
       implementing and supervising video gaming in Illinois as follows:
                    “(a) The Board shall have jurisdiction over and shall supervise all gaming
                operations governed by this Act. The Board shall have all powers necessary and proper
                to fully and effectively execute the provisions of this Act, including, but not limited to,
                the following:
                        (1) To investigate applicants and determine the eligibility of applicants for
                    licenses and to select among competing applicants the applicants which best serve
                    the interests of the citizens of Illinois.
                        (2) To have jurisdiction and supervision over all video gaming operations in
                    this State and all persons in establishments where video gaming operations are
                    conducted.
                        (3) To adopt rules for the purpose of administering the provisions of this Act
                    and to prescribe rules, regulations, and conditions under which all video gaming in
                    the State shall be conducted. Such rules and regulations are to provide for the
                    prevention of practices detrimental to the public interest and for the best interests of
                    video gaming, including rules and regulations regarding the inspection of such
                    establishments and the review of any permits or licenses necessary to operate an
                    establishment under any laws or regulations applicable to establishments and to
                    impose penalties for violation of this Act and its rules.” 230 ILCS 40/78(a) (West
                    2012).
¶ 41        In order to preserve the integrity of the gaming industry, the legislature outlined strict
       licensing procedures to prevent unsavory persons or entities from profiting from video gaming.
       Section 45 of the Act requires the Gaming Board, with the assistance of law enforcement, to
       conduct a background check of each person seeking and possessing a license under the Act.
       The Act defines findings by the Gaming Board, which require denial of a license as follows:


                                                     -9-
                    “(d) No person may be licensed *** if that person has been found by the Board to:
                        (1) have a background, including a criminal record, reputation, habits, social or
                    business associations, or prior activities that pose a threat to the public interests of
                    the State or to the security and integrity of video gaming;
                        (2) create or enhance the dangers of unsuitable, unfair, or illegal practices,
                    methods, and activities in the conduct of video gaming; or
                        (3) present questionable business practices and financial arrangements
                    incidental to the conduct of video gaming activities.” 230 ILCS 40/45(d) (West
                    2012).
¶ 42       Section 15 of the Act directs the Gaming Board to “adopt rules” and establish “criteria to
       preserve the integrity and security of video gaming in this State.” 230 ILCS 40/15 (West 2012).
       Section 45 of the Act empowers the Gaming Board to “adopt rules to establish additional
       qualifications and requirements [for licensing] to preserve the integrity and security of video
       gaming” in Illinois. 230 ILCS 40/45(e) (West 2012). The rules adopted by the Gaming Board
       prohibit it from granting a video gaming license to any applicant until the Gaming Board is
       satisfied that the applicant is, among other things:
                    “1) A person of good character, honesty and integrity;
                    2) A person whose background, including criminal record, reputation and
                associations, is not injurious to the public health, safety, morals, good order and general
                welfare of the people of the State of Illinois; [and]
                    3) A person whose background, including criminal record, reputation and
                associations, does not discredit or tend to discredit the Illinois gaming industry or the
                State of Illinois[.]” 11 Ill. Adm. Code 1800.420(a)(1)-(3), amended at 36 Ill. Reg.
                18550 (eff. Dec. 14, 2012).
¶ 43       In the context of the controversy in the present case, section 45 of the Act and the Gaming
       Board’s licensing regulations are insightful in assessing the Gaming Board’s authority,
       because the agreements at issue purport to allow unlicensed entities to receive compensation
       that is directly linked to video gaming operations. The Gaming Board specifically found that
       Action Gaming was unfit for licensing under the Act because Nichols and Rowell have
       associated both personally and professionally with felons, a person with a gambling
       conviction, and “others of questionable character.” In addition, the Gaming Board found that
       Nichols had “engaged in questionable business practices related to business transactions with
       convicted felon[s]” and that Rowell “failed to disclose portions of his criminal record, and was
       untruthful with police during the course of one of his arrests.”
¶ 44       The circuit court, however, in following the Triple 7 decision, has usurped the Gaming
       Board’s authority and has allowed Action Gaming to profit from video gaming in Illinois
       outside the regulatory scheme of this newly created industry. The court’s decision undermines
       the Gaming Board’s ability to control who may profit from the newly established video
       gaming industry by validating the transactions upon which J&J Ventures Gaming makes its
       claim. No reasonable interpretation of the Act and its regulatory scheme of this new industry,
       taken as a whole, can lead to a conclusion that the legislature intended the courts to make such
       decisions.
¶ 45       The rules established by the Gaming Board under the authority of the Act also set out
       minimum standards for use agreements. In section 1800.110, the Gaming Board defines the

                                                    - 10 -
       term “use agreement” as “[a] contractual agreement between a licensed terminal operator and a
       licensed video gaming location establishing terms and conditions for placement and operation
       of video gaming terminals by the licensed terminal operator within the premises of the licensed
       video gaming location.” 11 Ill. Adm. Code 1800.110, amended at 36 Ill. Reg. 18550 (eff. Dec.
       14, 2012).
¶ 46       Section 1800.320 requires that use agreements:
                   “a) Only be between:
                       1) a licensed terminal operator; *** and
                       2) a licensed establishment ***;
                   b) Contain an affirmative statement that no inducement was offered or accepted
               regarding the placement or operation of video gaming terminals in a licensed
               establishment ***;
                   c) Contain an indemnity and hold harmless provision on behalf of the State, the
               Board, and its agents relative to any cause of action arising from a use agreement;
                   d) Prohibit any assignment other than from a licensed terminal operator to another
               licensed terminal operator;
                   e) Contain a provision that releases the video gaming location from any continuing
               contractual obligation to the terminal operator in the event that the terminal operator
               has its licensed revoked *** or surrenders its license.” 11 Ill. Adm. Code 1800.320,
               amended at 36 Ill. Reg. 18550 (eff. Dec. 14, 2012).
       Semb’s, Inc., 2014 IL App (3d) 130111, ¶ 25, 12 N.E.3d 223 (Schmidt, J., dissenting).
¶ 47       These rules are meant to control who may or may not profit from the legalization of video
       gaming (licensed establishments and licensed terminal operators) and are meant to regulate
       contracts (use agreements) affecting entities operating in and profiting from the video gaming
       industry in Illinois. This regulatory framework concerning minimum requirements of use
       agreements stems from the Gaming Board’s authority to regulate the “conditions under which
       all video gaming in the State shall be conducted.” 230 ILCS 40/78(a) (West 2012). Whether
       the agreement and assignments at issue in the present case violate section 1800.320’s
       requirements or are otherwise prohibited is a question we believe the legislature intended for
       the Gaming Board to decide exclusively, because it is an issue that could directly impact the
       integrity and security of video gaming in this State and that otherwise concerns the conditions
       under which video gaming in this State shall be conducted.
¶ 48       Nothing within this regulatory framework evidences a legislative intent that the circuit
       courts have concurrent jurisdiction over matters directly relating to what may or may not
       constitute a valid use agreement for placing machines in a licensed establishment. Instead, the
       regulatory scheme is an explicit declaration by the legislature that the Gaming Board has
       authority over the placement and operation of video gaming terminals. This regulatory scheme
       may be frustrated if the courts allow a person lacking “good character, honesty and integrity”
       to circumvent the regulatory framework by entering into agreements for the exclusive
       placement of video gaming terminals and assign the contracts to a licensed entity in return for
       compensation directly linked to video gaming operations. Whether this contractual scheme
       violates the Act and the Gaming Board’s regulations concerning use agreements and licensing
       requirements is an exclusive question for the Gaming Board.


                                                 - 11 -
¶ 49        The Gaming Board’s authority as defined by the Act is also supplemented by its authority
       that the legislature outlined in the Illinois Riverboat Gambling Act. Section 80 of the Act states
       that the “provisions of the Illinois Riverboat Gambling Act, and all rules promulgated
       thereunder, shall apply to the Video Gaming Act, except where there is a conflict between the
       2 Acts.” 230 ILCS 40/80 (West 2012). The Riverboat Gambling Act, in turn, notes that the
       legislature’s intention in legalizing gambling is to promote Illinois tourism and increase
       revenues available to the State. 230 ILCS 10/2(a) (West 2012). This intent can be
       accomplished, the statute continues, “only if public confidence and trust in the credibility and
       integrity of the gambling operations and the regulatory process is maintained.” 230 ILCS
       10/2(b) (West 2012). The regulatory provisions of the Riverboat Gambling Act (applicable to
       the Video Gaming 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.) Id.
¶ 50        Section 5 of the Riverboat Gambling Act grants the Gaming Board “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 2012). Section 5 also provides that 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. Because these provisions do not
       conflict with the Act, we believe that the legislature intended that this grant of “all other
       powers” and “jurisdiction” to the Gaming Board applies equally to the video gaming
       operations in Illinois under the Act. Therefore, the Gaming Board’s “jurisdiction shall extend
       *** to every person, association, corporation, partnership and trust involved in [video gaming]
       operations in the State of Illinois.” Id.
¶ 51        Section 5 of the Illinois Riverboat Gambling Act also outlines the duties and
       responsibilities of the Gaming Board, which include the “administration and enforcement of
       the Video Gaming Act.” 230 ILCS 10/5(b)(13) (West 2012). The Gaming Board “shall have
       jurisdiction over and shall supervise all gambling operations governed by” the Riverboat
       Gambling Act. 230 ILCS 10/5(c) (West 2012). The Gaming Board has the authority “[t]o
       conduct hearings, issue subpoenas for the attendance of witnesses and subpoenas duces tecum
       for the production of books, records and other pertinent documents in accordance with the
       Illinois Administrative Procedure Act, and to administer oaths and affirmations to the
       witnesses, when, in the judgment of the Board, it is necessary to administer or enforce [the
       Riverboat Gambling] Act or the Board rules.” 230 ILCS 10/5(c)(9) (West 2012). The Gaming
       Board may “take any other action as may be reasonable or appropriate to enforce” the
       Riverboat Gambling Act and rules and regulations under the statute. 230 ILCS 10/5(c)(21)
       (West 2012).
¶ 52        Section 17 of the Riverboat Gambling Act states that the “Illinois Administrative
       Procedure Act shall apply to all administrative rules and procedures of the Board under *** the
       Video Gaming Act.” 230 ILCS 10/17 (West 2012). Finally, section 17.1 of the Riverboat
       Gambling Act states that jurisdiction and venue for the judicial review of a final order of the
       Gaming Board relating to “owners, suppliers or special event licenses is vested in the
       Appellate Court of the judicial district in which Sangamon County is located.” 230 ILCS
       10/17.1(a) (West 2012). “Judicial review of all other final orders of the Board shall be



                                                   - 12 -
       conducted in accordance with the Administrative Review Law.” 230 ILCS 10/17.1(b) (West
       2012).
¶ 53       Read as a whole, this statutory scheme, which encompasses the provisions of the Riverboat
       Gambling Act, evidences the legislature’s explicit intent that the Gaming Board have exclusive
       power over the gaming industry in order to preserve the integrity of legalized gambling in this
       State. The legislature intended that video gaming would be conducted in Illinois only under the
       supervision of and authority granted by the Gaming Board because a lack of public confidence
       in video gaming would undermine the legislative purpose of legalized gambling, which
       includes promoting Illinois tourism and increasing revenues available to the State.
¶ 54       Agreements and assignments that potentially allow unlicensed entities to receive
       compensation directly linked to the placement and operation of video gaming terminals can
       directly impact the public’s interest in the video gaming industry. “[T]he authority to
       determine public interest is vested in the legislature and cannot permissibly be delegated to the
       judiciary.” Fields Jeep-Eagle, Inc. v. Chrysler Corp., 163 Ill. 2d 462, 478-79, 645 N.E.2d 946,
       954 (1994). We believe that the Act, therefore, confers authority to the Gaming Board, not the
       circuit court, to resolve the controversy in the present case. The controversy falls within the
       Gaming Board’s “jurisdiction and supervision over all video gaming operations in this State
       and all persons in establishments where video gaming operations are conducted.” 230 ILCS
       40/78(a)(2) (West 2012). Because resolution of the present case will have a significant impact
       on who profits from the legalization of video gaming in Illinois, this court believes that the
       Gaming Board must address the controversy.
¶ 55       J&J Ventures Gaming and Action Gaming argue that we should follow the court’s decision
       in Triple 7, 2013 IL App (3d) 120860, 992 N.E.2d 1251. We decline to follow Triple 7 because
       we believe Triple 7 was wrongly decided; we believe that the court lacked jurisdiction to
       decide the merits of that case.
¶ 56       In Triple 7, the owner of an establishment called Da Lee’s Fine Dining signed an
       agreement with Metro Amusements, which provided Metro the exclusive right to place video
       gaming terminals in Da Lee’s establishment. Id. ¶ 2. At that time, Metro was not a licensed
       terminal operator under the Act. Id. Subsequently, Metro entered into an asset purchase
       agreement with Best Gaming in which Best Gaming acquired most of Metro’s assets,
       including the contract with Da Lee’s. Id. ¶ 3. At that time, Best had applied to be a licensed
       terminal operator, but the Gaming Board had not granted it a license. It later denied the request,
       and Best requested a hearing. Id. ¶ 4. In the meantime, it assigned the contract with Da Lee’s to
       GEM, which was a licensed terminal operator; the Gaming Board subsequently denied Best’s
       request for a hearing. Id.
¶ 57       Sometime after Best’s assignment to GEM, Triple 7 entered into a contract with Da Lee’s
       that provided that it would have the exclusive right to place and service video gaming terminals
       at Da Lee’s establishment. Id. ¶ 5. A dispute arose between Triple 7 and GEM concerning
       which entity had a valid contract with Da Lee’s, and Triple 7 filed a complaint for a declaratory
       judgment. Id. ¶ 7. The circuit court dismissed Triple 7’s complaint, holding that “the
       agreement between Da Lee’s and Metro was not a use agreement and therefore did not violate
       the Act or the video gaming regulations.” Id. ¶ 8. Triple 7 appealed. On appeal, the Triple 7
       court did not analyze its jurisdiction over the controversy. It affirmed the circuit court on the
       merits of the lower court’s decision.


                                                   - 13 -
¶ 58       In deciding the controversy, the Triple 7 court stated that the Gaming Board’s regulations
       require use agreements to be between a licensed terminal operator and a licensed video gaming
       location. Accordingly, the court concluded that the contract at issue could not be a use
       agreement because neither Da Lee’s nor Metro was licensed when it entered into the original
       agreement. Id. ¶ 17. The Triple 7 court stated, “[t]herefore, the rules and regulations
       prohibiting the assignment of a use agreement do not apply to the agreement assigned to
       GEM.” Id. In addition, the Triple 7 court rejected an argument that sections 1800.110 and
       1800.320 of the Gaming Board’s rules prohibit prelicensure agreements. Accordingly the
       court’s ruling validated a practice of assigning precursor agreements, purporting to control the
       placement of video gaming terminals, between unlicensed individuals and entities “until the
       terminal operator becomes licensed under the Act.” Id. ¶ 23. At that point, according to the
       Triple 7 court, the agreement may not be assigned “except to another licensed terminal
       operator.” Id.
¶ 59       In the present case, the circuit court was required to follow the Triple 7 court’s reasoning,
       which resulted in a holding that the original exclusive location agreement was not a use
       agreement under the Act for a period of time and was capable of being freely traded and
       exchanged between unlicensed entities for profit. The exclusive location agreement then
       transitioned into a use agreement once it was finally passed into the hands of a licensed entity
       and, at that time, controlled the placement of video gaming terminals in Wild Country’s
       licensed establishment and served as a basis for further compensation directly tied to video
       gaming operations to be transferred to unlicensed entities.
¶ 60       We believe that the highly regulated nature of the statutory scheme making video gaming
       legal in Illinois evidences a legislative intent that the Gaming Board have exclusive authority
       over the issues decided by the circuit court in the present case and by the appellate court in
       Triple 7. The legislature intended for the Gaming Board to determine the requirements and
       limitations for use agreements so that it may preserve the integrity of the video gaming
       industry. Nothing in the statutory scheme evidences a legislative intent that the courts should
       have concurrent jurisdiction to regulate use agreements or precursor agreements that would
       later purport to control the placement and operation of video gaming terminals. We believe the
       Triple 7 court usurped the Gaming Board’s authority and decided issues that were within the
       Gaming Board’s exclusive authority to decide. Accordingly, we decline to follow Triple 7.
¶ 61       Furthermore, we believe that the legislature intended for the Gaming Board to have
       exclusive authority over agreements affecting the placement and operation of video gaming
       terminals because there is an obvious need for uniform application of the gaming laws
       throughout the State. Allowing the parties in disputes over the placement of video gaming
       terminals to seek circuit court intervention has the potential of disrupting the Act’s statutory
       scheme. There are multiple lawsuits in this court’s district involving the enforcement of
       agreements similar to the agreements at issue in the present case and in Triple 7.1 It is likely
       that similar lawsuits are pending throughout the State. This case was consolidated for oral

           1
            The record on appeal includes a motion that Accel Entertainment filed with the supreme court,
       pursuant to Illinois Supreme Court Rule 384, in which it sought to consolidate 28 cases (including the
       present case) that are or were pending in 10 different counties and that involved similar disputes over
       the placement of video gaming terminals in various establishments. The supreme court denied the
       motion.

                                                     - 14 -
       argument with nine different lawsuits from three different counties. In each case, Accel
       Entertainment asks us to reject the Triple 7 decision and hold that the assignment of the
       agreement from Action Gaming to J&J Ventures Gaming was invalid. This would result in
       conflicting appellate court rulings. Therefore, we believe that the legislature’s grant of
       exclusive authority to the Gaming Board furthers its intent that the rules of this newly created
       and strictly regulated industry be applied uniformly.
¶ 62       Both parties have argued that the Gaming Board has no authority over the validity of the
       agreements at issue in the present case. We disagree. J&J Ventures Gaming claims to have the
       exclusive right to place and operate video gaming terminals as a result of the original exclusive
       location agreement and subsequent assignments. J&J Ventures Gaming is correct only if the
       agreements constitute a valid use agreement under the Act. There is no question that the
       Gaming Board has authority to promulgate rules related to and exercise jurisdiction over use
       agreements. It has already done so by enacting rules pertaining to the minimum standards for
       use agreements in section 1800.320. We believe its authority over use agreements is exclusive
       and that this authority, by necessity, includes jurisdiction over the exclusive location
       agreement and assignments at issue in the present case. The validity of any agreement that
       controls the placement of video gaming terminals rests exclusively within the Gaming Board’s
       authority. Its decision is reviewable under the standards of the Administrative Review Law.
¶ 63       In their brief, J&J Ventures Gaming and Action Gaming argue that the Gaming Board “has
       acknowledged that it lacks jurisdiction and power to decide the enforceability of pre-licensure
       agreements.” It cites to statements made by an attorney of the Gaming Board in a
       correspondence dated September 11, 2013. In the letter, the attorney states that the Gaming
       Board has consistently said that a contract entered into by two unlicensed parties could not be
       considered a use agreement pursuant to the rules adopted by the Gaming Board and that the
       Gaming Board is not concerned with whether or not such an agreement is valid or enforceable
       under contract law. The attorney further stated that “[w]hether or not that contract can become
       a valid Use Agreement pursuant to the Adopted Rules of the Illinois Gaming Board is an issue
       that is decided once the parties to the contract are licensed by the Illinois Gaming Board.”
¶ 64       This correspondence does not control our analysis. “Determining the scope of any
       agency’s power and authority is a judicial function, rather than a question for the agency to
       answer itself.” Gallaher v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 19, 3 N.E.3d 913. The
       validity of the agreements at issue falls within the Gaming Board’s authority because J&J
       Ventures Gaming maintains that it has the exclusive right to place and operate video gaming
       terminals within Wild Country’s establishment as a result of the agreements. Whether the
       agreements collectively constitute a valid use agreement under the Act is a matter for the
       Gaming Board to decide. The agreements’ purported conveyance of video-gaming-linked
       monetary compensation to unlicensed entities also brings the validity of the agreements under
       the exclusive authority of the Gaming Board.
¶ 65       In their cross-appeal, J&J Ventures Gaming and Action Gaming argue that the circuit court
       erred in allowing Accel Entertainment to intervene permissively. Section 2-408(a) of the Code
       of Civil Procedure (735 ILCS 5/2-408(a)(2) (West 2012)) allows a person or entity to intervene
       in an action “when the representation of the applicant’s interest by existing parties is or may be
       inadequate and the applicant will or may be bound by an order or judgment in the action.” The
       issue of whether the circuit court erred in granting Accel Entertainment’s petition to intervene


                                                   - 15 -
       is moot in light of our determination that the Gaming Board has exclusive jurisdiction over the
       merits of the controversy.
¶ 66       Finally, J&J Ventures Gaming and Action Gaming have filed a motion to dismiss Accel
       Entertainment’s appeal, arguing that it lacks standing and is not a proper intervenor. For the
       reasons stated above, this motion is denied as moot.

¶ 67                                      CONCLUSION
¶ 68      For the foregoing reasons, we vacate the circuit court’s judgment and dismiss this appeal.

¶ 69      Judgment vacated; motion denied; appeal dismissed.




                                                 - 16 -
