dissenting.
{¶ 13} Because I am unable to agree with the majority decision, I respectfully dissent.
{¶ 14} The majority relies on VFW Post 8586 v. Ohio Liquor Control Comm. (1998), 83 Ohio St.3d 79, 697 N.E.2d 655, but I believe that that case is distinguishable from the matter herein. Concededly, the Supreme Court of Ohio in VFW Post 8586 states, “[b]ecause poker is per se a ‘game of chance’ within the meaning of R.C. 2915.01(D), and because it was stipulated that the machines in question play poker, the department was not required to produce separate evidence regarding a player’s giving of value in hope of gain.” Id. at 83, 697 N.E.2d 655. However, just prior to that statement, the Supreme Court notes that “R.C. 2915.01(D) recognizes that its enumerated games * * * involve a player giving something of value in the hope of gain.” (Emphasis added.) Id. at 82, 697 N.E.2d 655. There is undisputed evidence in the case sub judice that there is nothing of value given by the players. The idea that VFW Post 8586 is distinguishable is further reinforced by footnote 2, in which the Supreme Court specifically notes that VFW Post 8586 “did not attempt to introduce evidence that in any essential respect differentiates the game being played on the video machines from poker as it commonly understood to be played.” (Emphasis added.) Here, it is undisputed the players give nothing of value to play, and, thus, there is undisputed evidence that differentiates the game being played here from “poker” as it is commonly understood to be played. I believe that this distinction is critical and is one that the Supreme Court did not encounter when it reviewed VFW Post 8586 because in that case it was undisputed that players had to pay money in order to play the video poker machine.
{¶ 15} Based on the foregoing, I find the facts before us distinguishable from those set forth in VFW Post 8586 and would, therefore, reverse the judgment of the trial court and remand the matter to the commission for a new decision. One *397can call something a “game of chance,” but if in fact there is no chance being taken, it is not a “game of chance.”