Quick Charge Kiosk LLC v. Josh Kaul

2019 WI APP 51
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP947

†Petition for review filed

Complete Title of Case:

QUICK CHARGE KIOSK LLC AND JEREMY HAHN,

PLAINTIFFS-APPELLANTS,

V.

JOSH KAUL , IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL,

DEFENDANT-RESPONDENT.

Opinion Filed: August 13, 2019
Submitted on Briefs: March 1, 2019
Oral Argument:

JUDGES: Brash, P.J., Brennan and Dugan, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiffs-appellants, the cause was submitted on the
briefs of Ohioma Emil Ovbiagele and Samantha Huddleston in
Milwaukee.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Brad D. Schimel and Colin T. Roth of the Wisconsin Department
of Justice in Madison.
2019 WI App 51

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 13, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP947 Cir. Ct. No. 2016CV6655

STATE OF WISCONSIN IN COURT OF APPEALS

QUICK CHARGE KIOSK LLC AND JEREMY HAHN,

PLAINTIFFS-APPELLANTS,

V.

BRAD SCHIMEL, IN HIS OFFICIAL CAPACITY
AS ATTORNEY GENERAL,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
JOHN J. DiMOTTO, Judge. Affirmed.

Before Brash, P.J., Brennan and Dugan, JJ.

¶1 DUGAN, J. Quick Charge Kiosk LLC and Jeremy Hahn
(collectively Quick Charge) appeal the trial court’s order granting the Attorney
General’s motion for summary judgment declaring that Quick Charge’s “cell
No. 2018AP947

phone charging machines” (Machines), also referred to as cell phone charging
kiosks, constituted illegal gambling machines.1 We agree with the trial court’s
determination and, therefore, affirm.

BACKGROUND

¶2 In 2014 Hahn founded Quick Charge, which operates the Machines
and places them in retail establishments throughout the State. The Machines
resemble video gambling machines commonly found in casinos or taverns, and
they function in same manner. The Machines and their electronic video displays
look similar to those of a mechanical slot machine. The major components of the
Machines are (1) a cabinet structure; (2) electronic parts and associated software;
and (3) electronic device charging ports that fit almost all portable electronic
devices, including mobile phones and tablets.

¶3 When a customer puts one dollar into the Machine, that customer
receives 100 credits to play the video chance game, and one minute of charging
time. A customer who charges an electronic device cannot continue to play the
game after the expiration of the charging time, but the customer may cash out any
remaining credits by printing out a paper receipt using the Machine’s printer and
redeeming the receipt for cash at the Machine’s site. The credits are redeemable at
the ratio of one dollar per 100 credits, the same rate at which the credits are
acquired. Thus, a customer need not use any game credits while charging a phone
and may redeem all the credits for cash when the charging time expires. For

1
Brad Schimel, the State’s Attorney General at the time, filed the motion in his official
capacity.

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No. 2018AP947

instance, a customer may deposit one dollar in exchange for one minute of
charging time and 100 game play credits. When the one minute of charging time
expires, the customer may redeem all 100 game play credits for one dollar,
effectively receiving one free minute of cell phone charging. A customer may also
play the video chance game without connecting an electronic device for charging.
The Machines also have a random number generator that determines if a player
wins and, if so, the amount the player wins.

¶4 Based on an Attorney General opinion that the Machines are
unlawful gambling machines, the City of Greenfield ordered Quick Charge to
remove three Machines from a retail location in Greenfield. In Brown County,
representatives of the State obtained a search warrant for removal of the Machines
based on a probable cause finding that the Machines were illegal gambling
machines.

¶5 In August 2016, Quick Charge filed an action in Milwaukee County
Circuit Court seeking declaratory judgment that its Machines complied with the
“in-pack chance promotion” statute, WIS. STAT. § 100.16 (2017-18),2 and that they
did not violate Wisconsin’s gambling statutes found in WIS. STAT. ch. 945.
Thereafter, the Attorney General filed a summary judgment motion seeking an
order declaring that the Machines are unlawful gambling machines under WIS.
STAT. § 945.01(3). Quick Charge filed a cross motion for summary judgment
seeking an order declaring that its Machines and promotional games complied

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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with the “in-pack chance promotion” exception, and, therefore, did not violate
Wisconsin’s gambling statutes.

¶6 The trial court heard oral arguments from the parties on the summary
judgment motions and then issued a written decision granting the Attorney
General’s summary judgment motion. The trial court held that the Machines do
not comply with the “in-pack chance promotion exception” in WIS. STAT.
§ 100.16(2); that the exception does not apply to WIS. STAT. § 945.01(3), the
gambling machine subsection; and that the Machines are “gambling machines”
pursuant to § 945.01(3) and violate WIS. STAT. ch. 945. This appeal follows.

DISCUSSION

¶7 Quick Charge argues that its Machines are lotteries, not gambling
machines, under WIS. STAT. § 945.01(5) (the lottery subsection) and WIS. STAT.
§ 100.16(2). It asserts that the Machines do not involve consideration under the
lottery subsection because its machines use in-pack chance promotions, which the
lottery subsection exempts from its definition of consideration. It further argues
that, because exempted lotteries do not constitute gambling, the Machines cannot
be deemed to be gambling machines.

¶8 The Attorney General argues that because the lottery definition in
WIS. STAT. § 945.01(5) explicitly references the in-pack chance promotion of WIS.
STAT. § 100.16(2), the chance promotion exception only applies to lotteries. He
further argues that the in-pack chance promotion exception does not apply to the
definition of consideration in § 945.01(3) because the gambling machine
subsection does not include any reference to § 100.16(2). He argues that because
the Machines are gambling machines they are illegal.

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No. 2018AP947

¶9 As we further explain, we agree with the Attorney General.

I. Standard of review and principles of statutory
construction

¶10 Whether summary judgment has been properly granted is a question
of law which we review de novo, applying the same methodology as the trial
court, but benefiting from its analysis. See Eichenseer v. Madison-Dane Cty.
Tavern League, Inc., 2008 WI 38, ¶30, 308 Wis. 2d 684, 748 N.W.2d 154.
Summary judgment is appropriate where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. See WIS. STAT.
§ 802.08(2).

¶11 Here, the parties disagree over the interpretation and application of
WIS. STAT. §§ 945.01(3), 945.01(5), and 100.16(2) which involves questions of
law involving statutory interpretation. “Judicial deference to the policy choices
enacted into law by the legislature requires that statutory interpretation focus
primarily on the language of the statute. We assume that the legislature’s intent is
expressed in the statutory language.” See State ex rel. Kalal v. Circuit Ct. for
Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Thus,

statutory interpretation begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry. Statutory language is given its common,
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical
or special definitional meaning.

See id., ¶45 (citation omitted); see also WIS. STAT. § 990.01(1). “Statutory
language is read where possible to give reasonable effect to every word, in order
to avoid surplusage.” Kalal, 271 Wis. 2d 633, ¶46.

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No. 2018AP947

II. The Machines qualify as illegal gambling machines under
WIS. STAT. § 945.01(3)(a); they are not exempted lotteries
under § 945.01(5) and WIS. STAT. § 100.16(2)

A. The statutory scheme

¶12 WISCONSIN STAT. § 945.01 prohibits various forms of gambling.
Each prohibition is located in its own statutory subsection that defines the specific
prohibited activity. As relevant to this appeal, § 945.01(3) defines a gambling
machine and § 945.01(5) defines a lottery.3 Also relevant is WIS. STAT. § 100.16,
part of WIS. STAT. ch. 100, which regulates “Marketing; Trade Practices.” Section
100.16 prohibits selling anything with a pretense of a prize, with the exception of
“in-pack chance promotions” as described in § 100.16(2).4

Gambling machine definition—WIS. STAT. § 945.01(3)

¶13 WISCONSIN STAT. § 945.01(3)(a) establishes the following four
elements of a gambling machine: (1) “a contrivance”; (2) “which for a
consideration”; (3) “affords the player an opportunity to obtain something of
value”; and (4) “the award of which is determined by chance, even though
3
WISCONSIN STAT. § 945.02 is the statute that makes gambling illegal. The statute
states, “Whoever does any of the following is guilty of a [crime]: (1) Makes a bet; or (2) Enters
or remains in a gambling place with intent … to participate in a lottery, or to play a gambling
machine; or (3) Conducts a lottery[.]” WISCONSIN STAT. § 945.03 prohibits commercial
gambling and WIS. STAT. § 945.04 prohibits permitting premises to be used for commercial
gambling.

The Attorney General points out an apparent anomaly by which Wisconsin taverns
appear to freely operate gambling machines and indicates that this anomaly can be explained by
WIS. STAT. § 175.38. This statute only allows Wisconsin Department of Revenue special agents
to enforce the video gambling prohibition in taverns and forbids its enforcement by any other
State or local law enforcement officers. See id.
4
WISCONSIN STAT. § 100.16(2) lists seven criteria, all of which must be met in order for
a promotion to constitute an “in-pack chance promotion.”

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No. 2018AP947

accompanied by some skill and whether or not the prize is automatically paid by
the machine.” Notably, this subsection does not define “consideration” and it
includes only three exceptions: (1) bingo machines; (2) machines that only reward
a player with nonredeemable free replays;5 and (3) skill-based amusement devices
that award novelty prizes. See § 945.01(3)(b)1.-3. None of those exceptions
apply to this case. We also note that the gambling machine definition does not
reference the in-pack chance promotion found in WIS. STAT. § 100.16(2).

Lottery definition —WIS. STAT. § 945.01(5)

¶14 Separate from the gambling machine definition, WIS. STAT.
§ 945.01(5)(a) establishes the following four elements of a lottery: (1) “an
enterprise”; (2) “wherein for a consideration”; (3) “the participants are given an
opportunity to win a prize”; and (4) “the award of which is determined by chance,
even though accompanied by some skill.” The lottery subsection, § 945.01(5)(b)1.
has its own special definition of the term “consideration” as follows:

“Consideration” in this subsection means anything which is
a commercial or financial advantage to the promoter or a
disadvantage to any participant, but does not include any
advantage to the promoter or disadvantage to any
participant caused when any participant learns from
newspapers, magazines and other periodicals, radio or
television where to send the participant’s name and address
to the promoter.

(Emphasis added.) Moreover, § 945.01(5)(b)1. specifically limits its definition of
consideration to the lottery subsection, stating “consideration in this subsection

5
Nonredeemable free replays reward a player for achieving certain scores and do not
change the ratio or record the number of free replays that are awarded. See WIS. STAT.
§ 945.01(3)(b)2.

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No. 2018AP947

means ….” (emphasis added). The lottery subsection exempts certain activities
from its definition of consideration and limits the exemptions to the lottery
subsection. It states that “none of the following constitutes consideration under
this subsection … [u]sing a chance promotion exempt under s. 100.16(2).” See
§ 945.01(5)(b)2.g. (emphasis added). We point out that the gambling machine
definition does not define consideration and, unlike § 945.01(5), does not provide
an exemption for an in-pack “chance promotion exempt under s. 100.16(2).” See
§ 945.01(3).

Prohibition of sales with the pretense of a prize—WIS. STAT.
§ 100.16

¶15 WISCONSIN STAT. § 100.16(1) prohibits the sale of anything using
the pretense that the purchaser may win a prize and states as follows:

No person shall sell or offer to sell anything by the
representation or pretense that a sum of money or
something of value, which is uncertain or concealed, is
enclosed within or may be found with or named upon the
thing sold, or that will be given to the purchaser in addition
to the thing sold, or by any representation, pretense or
devise by which the purchaser is informed or induced to
believe that money or something else of value may be won
or drawn by chance by reason of the sale.

As previously mentioned, § 100.16(2) includes an exception to that prohibition. It
states that “[t]his section does not apply to an in-pack chance promotion” if seven
conditions are met. As we further explain, based on this language, the exception
in § 100.16(2) only applies to § 100.16 unless another statute specifically
incorporates it by reference. Here, the lottery subsection specifically incorporates
the exception for in-pack chance promotions—the gambling machine subsection
does not.

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B. The definition of “consideration” for a gambling
machine is not the same as the definition of
“consideration” for a lottery

¶16 As we stated above, four elements are required to establish a
gambling machine under WIS. STAT. § 945.01(3)(a): (1) “a contrivance”;
(2) “which for a consideration”; (3) “affords the player an opportunity to obtain
something of value”; and (4) “the award of which is determined by chance, even
though accompanied by some skill and whether or not the prize is automatically
paid by the machine.” Quick Charge does not dispute that its Machines satisfy
three out of four elements; that is, they are contrivances that afford the player an
opportunity to obtain something of value, as determined by chance. Rather, Quick
Charge argues that its Machines do not afford a player an opportunity to obtain
something of value “for a consideration”—the second statutory element for a
gambling machine.

Quick Charge’s argument regarding “consideration” for a
gambling machine

¶17 Quick Charge acknowledges that WIS. STAT. § 945.01(2)(a), the
definition of a gambling machine, does not define consideration for the purposes
of § 945.01. However, it argues that the gambling machine definition of
consideration must not be read in a vacuum and must be read in conjunction with
the lottery subsection’s statutory definition of consideration. It further argues that
the gambling machine and the lottery definitions mirror one another, but for two
words—“contrivance” and “enterprise.”

¶18 Quick Charge further argues that when two separate statutes interact,
rules of statutory interpretation require that courts reasonably construe the statutes

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to avoid a conflict. It argues that the only reasonable interpretation of the meaning
of consideration, under both the lottery and gambling machine definitions, is that
“consideration” must have an identical meaning in both subsections of WIS. STAT.
§ 945.01, and that “it would be absurd for the term ‘consideration’ to mean one
thing when defining a ‘gambling machine’ and another when defining gambling
activity such as ‘lottery.’” Quick Charge then argues that, because WIS. STAT.
§ 100.16(2) applies to lotteries, it must also apply to gambling machines. It notes
that the lottery subsection defines consideration as explicitly excluding an in-pack
chance promotion exception under § 100.16(2). It then contends that because its
Machines involve an in-pack chance promotion they do not involve consideration
and, therefore, its Machines are not illegal gambling machines.

¶19 The problem with Quick Charge’s argument is that it contravenes
the principles of statutory construction. Our supreme court has emphasized that
“[i]n construing or interpreting a statute the court is not at liberty to disregard the
plain, clear words of the statute.” See Kalal, 271 Wis. 2d 633, ¶46 (citation
omitted). Quick Charge concedes that the gambling machine subsection, WIS.
STAT. § 945.01(3), does not reference WIS. STAT. § 100.16(2) as an exception to
consideration. However, rather than apply a plain language interpretation of
§ 945.01(3), Quick Charge argues that this court should, in essence, incorporate
part of the lottery subsection into the gambling machine subsection. We are not
persuaded.

¶20 Looking at the structure of WIS. STAT. § 945.01, we can see that the
subsections for a gambling machine and a lottery are separate and distinct. Each is
located in its own specific subsection—§ 945.01(3) and § 945.01(5). Each
subsection uses different words—a “contrivance” for a gambling machine and an
“enterprise” for a lottery. Unlike the gambling machine subsection, the lottery

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No. 2018AP947

subsection specifically defines the term “consideration” and provides exceptions
to that definition including the “in-pack chance promotion” found in WIS. STAT.
§ 100.16(2). Furthermore, the specific language used in the lottery subsection—
“consideration in this subsection means”—limits the application of that definition
of consideration to the lottery subsection. See § 945.01(5)(b)1. (emphasis added).

¶21 Further, the language limiting the exceptions to “consideration in
this subsection” in WIS. STAT. § 945.01(5) reflects the legislative intent not to
apply that exception to any other subsections of Chapter 945. “We assume that
the legislature’s intent is expressed in the statutory language.” See Kalal, 271
Wis. 2d 633, ¶44. We conclude that given the differences in the plain language of
the gambling machine subsection and the lottery subsection, this court cannot
simply take an exception expressly limited to a lottery and apply it to gambling
machines. Applying the exception to another subsection ignores that limiting
language and requires reading that limiting language out of the statute, which is
contrary to statutory principles. See id., ¶46. In selecting the wording of the
different subsections, the legislature indicated that it knew when it wanted to
provide a specific meaning for consideration and when it wanted to provide
exceptions to that meaning. Clearly, the legislature intended to treat the gambling
machine subsection differently than the lottery subsection. Our interpretation is
consistent with the statutory structure.

¶22 In sum, a plain language interpretation of WIS. STAT. § 945.01(5)
and § 945.01(3) prohibits incorporating WIS. STAT. § 100.16(2) into the gambling
machine subsection when determining whether the Machines involve
consideration under the gambling machine subsection. Thus, we conclude that the
definition of consideration found in the gambling machine subsection is different
than the definition of consideration in the lottery subsection. Based on similar

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reasoning, we also conclude that the in-pack chance promotion found in
§ 100.16(2) does not apply to gambling machines under § 945.01(3).6

The Machines involve “consideration” for purposes of the
gambling machine subsection

¶23 We next address whether the Machines involve consideration under
WIS. STAT. § 945.01(3)(a). As noted, that subsection does not define
consideration. Consequently, we apply the term’s ordinary definition of
“something given as recompense” as a “payment or reward.” See Consideration,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
(unabr. 1993).

¶24 The trial court noted that Quick Charge made a brief argument that
its Machines are not gambling machines even if they do not qualify for the in-pack
chance promotion exemption. On appeal, Quick Charge does not make that
argument and, therefore, has abandoned it. See A.O. Smith Corp. v. Allstate Ins.
Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998).7

¶25 Instead, Quick Charge pursues an alternative argument that the
Machines are lotteries, not gambling machines. In addressing this issue, Quick
Charge discusses whether its Machines meet the definition of consideration under

6
WISCONSIN STAT. § 945.01(3) does not reference, let alone incorporate, WIS. STAT.
§ 100.16(2).
7
If Quick Charge does make an independent argument that the Machines do not involve
consideration under the gambling machine subsection even if the in-pack chance promotion does
not apply to the gambling machine subsection, it does not develop such argument. We need not
address undeveloped arguments. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992).

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No. 2018AP947

the lottery subsection. It asserts that its Machines do not involve consideration
under the lottery subsection because its Machines use in-pack chance promotions,
which the lottery subsection exempts from its definition of consideration. To
qualify for the exemption as an in-pack chance promotion, the promotion must
meet seven conditions, including the option for free play. See WIS. STAT.
§ 100.16(2)(a). Quick Charge argues that its machines provide a free play option
that fulfills the requisite condition to qualify as an exempt in-pack chance
promotion.8

¶26 The Attorney General responds that Quick Charge’s argument about
its free play option is absurd. However, the Attorney General has misconstrued
the argument.

¶27 In fact, Quick Charge does not attempt to refute the Attorney
General’s argument that if the in-pack chance promotion in WIS. STAT.
§ 100.16(2) does not apply to the gambling machine subsection, the Machines
fulfill the definition of consideration in the gambling machine subsection. Rather,
Quick Charge argues that, even if this court reads the gambling subsection and the
lottery subsection independently, the Machines cannot be deemed gambling
machines. It asserts that the Machines are merely devices used to conduct a

8
Quick Charge explains that its promotion—the opportunity to win a cash prize—has
been designed to afford individuals the opportunity to participate in an in-pack chance promotion
as that term is defined in WIS. STAT. § 100.16(2). It states that the promotion is available to all
individuals who desire to participate free and without purchase of any charging time. Such
individuals must fill out an entry form to request a free play from Quick Charge. Quick Charge
sends one free play voucher for each entry sent in by mail. Individuals may redeem the free play
voucher with the retailer to access the promotion for free. Each voucher provides participants
with 100 credits to play. Quick Charge also provides entry forms at Machine locations, and
certain Machines allow individuals to print off entry forms.

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No. 2018AP947

lottery. It then argues that the “removal of consideration through a[n in-pack]
chance promotion in compliance with § 100.16(2) precludes a contrivance used in
a lottery from becoming a gambling machine.”

¶28 Quick Charge’s argument is not that the free play option removes the
Machines from the definition of a gambling machine. Rather, it argues that the
Machines constitute a lottery not a gambling machine. It then argues that the
lottery subsection’s definition of consideration incorporates the exemption for in-
pack chance promotions of WIS. STAT. § 100.16(2). Thus, Quick Charge’s
argument that the Machines do not include consideration is based on its arguments
that the Machines are lotteries and, because they involve in-pack chance
promotions, they do not involve consideration and, therefore, they are not illegal
lotteries.

¶29 Thus, we conclude that Quick Charge’s Machines involve
consideration for the purposes of the gambling machine subsection because, as
noted above, the in-pack chance promotion exemption does not apply to gambling
machines. We next discuss whether Quick Charge’s Machines constitute
gambling machines or a lottery.

C. Quick Charge’s machines are gambling machines, not
a lottery

¶30 As noted above, Quick Charge argues that its Machines are lotteries,
rather than gambling machines. In Quick Charge’s view, the Machines can use
the lottery exception for in-pack chance promotions and, as a result, they are not
prohibited lotteries.

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No. 2018AP947

¶31 Chapter 945 of the Wisconsin Statutes defines a gambling machine
and a lottery differently. WISCONSIN STAT. § 945.01(3) states that “a contrivance”
can be an unlawful gambling machine, while § 945.01(5) says that “an enterprise”
can be an unlawful lottery. When the legislature chooses to use two different
words, this court generally considers each separately and presumes that different
words have different meanings. See Augsberger v. Homestead Mut. Ins. Co.,
2014 WI 133, ¶17, 359 Wis. 2d 385, 856 N.W.2d 874. Accordingly, the words
contrivance and enterprise must be given different meanings.

¶32 The statute does not define either term and, therefore, we look to
dictionary definitions. See Kalal, 271 Wis. 2d 633, ¶53. The dictionary defines a
“contrivance” as a “mechanical device,” and an “enterprise” as an “undertaking
that … has a strong element of risk.” See Contrivance, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (unabr. 1993); see Enterprise, id. Therefore,
machines—mechanical devices—can be a “gambling machine.” This
interpretation is supported by prior decisions applying the gambling machine
provision to machines, analyzing a video poker machine as a gambling machine
and a pinball machine as a gambling machine. See State v. Hahn, 221 Wis. 2d
670, 679, 586 N.W.2d 5 (Ct. App. 1998) (applying the subsection to video poker
machines); State v. Lake Geneva Lanes, Inc., 22 Wis. 2d 151, 153, 125 N.W.2d
622 (1963) (applying the subsection to a pinball machine). By contrast, traditional
prize drawings or other non-mechanical schemes—an enterprise—can be a lottery
(i.e., pull tab contests as a lottery.) See Bohrer v. City of Milwaukee, 2001 WI
App 237, ¶¶2-3, 248 Wis. 2d 319, 635 N.W.2d 816.

¶33 Quick Charge responds that this definition of contrivance is too
narrow and that it should be read to mean “a thing that has some intended
purpose.” The Attorney General argues that such interpretation cannot be correct

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No. 2018AP947

for two reasons. First, WIS. STAT. § 945.01(3) is titled “gambling machine” and
refers to a “machine” in multiple places, which indicates that the term
“contrivance” should be given a definition that encompasses only machines.
While a heading is not part of a law, it can be persuasive in the interpretation,
given the statute. See State v. White, 180 Wis. 2d 203, 213, 509 N.W.2d 434
(Ct. App. 1993). Moreover, the last element of a “gambling machine,” is an
“award … determined by chance … whether or not the prize is automatically paid
by the machine.” See § 945.01(3)(a) (emphasis added). We conclude that these
express references to “machine” mean that a “contrivance” should be interpreted
to mean machine-like devices.

¶34 The gambling machine and lottery subsections are strikingly similar.
Aside from the differences related to “consideration,” the only meaningful
difference is that a gambling machine is a contrivance, while a lottery is an
enterprise. The only way to give effect to both provisions is to give those two
terms different meanings. Quick Charge’s preferred reading would effectively
give them the same meaning, improperly rendering one or the other surplusage.
“Statutory language is read where possible to give reasonable effect to every word,
in order to avoid surplusage.” Kalal, 271 Wis. 2d 633, ¶46. When the legislature
chooses to use two different words, this court generally considers each separately
and presumes that different words have different meanings. See Augsberger, 359
Wis. 2d 385, ¶17.

¶35 “We assume that the legislature’s intent is expressed in the statutory
language.” See Kalal, 271 Wis. 2d 633, ¶44. Given the plain language differences
between the gambling machine subsection and the lottery subsection, we conclude
that the legislature intended to treat the gambling machine subsection differently
than the lottery subsection. This interpretation is the one that is the most

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No. 2018AP947

consistent with the statutory structure. Thus, we conclude that Quick Charge’s
Machines are gambling machines, not lotteries.9

CONCLUSION

¶36 For the reasons explained above, we conclude that the definition of
“consideration” in WIS. STAT. § 945.01(3) for a gambling machine is different
than the definition of “consideration” in § 945.01(5) for a lottery; the in-pack
chance promotion exception found in WIS. STAT. § 100.16(2) does not apply to
gambling machines under § 945.01(3); the Machines involve consideration for
purposes of § 945.01(3) regarding gambling machines; and the Machines are
gambling machines, not a lottery. Thus, the Machines are illegal gambling
machines under § 945.01(3).

By the Court.—Order affirmed.

9
Quick Charge also argues that the Machines meet all seven conditions of the in-pack
chance promotion exception of WIS. STAT. § 100.16(2) and, therefore, the Machines are exempt
lotteries. The Attorney General argues that the Machines do not meet those conditions.

We have concluded that the Machines are gambling machines and that WIS. STAT.
§ 100.16(2) does not apply to gambling machines. Thus, we need not address this issue.

17