APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendants appeal an order of the circuit court of Cook County finding sections 2-11.3, 2-11.9, and 2-11.10 of North Riverside Ordinance No. 75-0-16 void and inapplicable as applied to the plaintiff. Plaintiff, a Delaware corporation licensed to do business in Illinois, operates amusement centers consisting solely of coin-operated amusement devices. The individual defendants are the trustees of the defendant Village of North Riverside (village). The issues on appeal are (1) whether the defendant village had the authority to adopt Ordinance No. 75-0-16, and (2) if so, whether the plaintiff presented sufficient competent and credible evidence to overcome the presumptive validity of the pertinent sections as a reasonable means of attaining an objective within this authority.
On July 2, 1975, plaintiff entered into a lease with Riverside Mall Associates for a 2,068 square foot store within the enclosed North Riverside Park Shopping Center. At the time this lease was entered into, the following relevant sections of the 1967 Municipal Code of North Riverside were in effect:
"2-11-6. No proprietor shall permit or allow any minor to operate or play any multiple play machine or device as defined herein and shall not permit any person under the age of 18 years to play any single play machine or device as defined herein.
2-11-8. No proprietor, operator, or person in charge of a coin operated amusement device shall permit free replays to players on the basis of the player's skill, accumulated score, or any other means, and no machine shall record or indicate free replays.
2-11-9. Any person, firm, partnership, corporation, association or club violating any of the provisions of this Article shall be fined not less than Five Dollars ($5.00) nor more than Two Hundred Dollars ($200.00) for each offense. A separate offense shall be deemed committed on each day during or on which a violation occurs or continues."
On November 3, 1975, the defendants adopted Ordinance No. 75-0-16 Although this new ordinance repealed the 1967 ordinance, it incorporated sections 2-11-6 (age restriction), 2-11-8 (replay restriction), and 2-11-9 (penalty provision) in sections 2-11.10, 2-11.9, and 2-11.11 respectively. The following section was added:
"2-11.3 No license shall be issued to any person or for any premises in excess of one (1) license for every 500 square feet or gross floor area for each premise in which said machine or device is located, provided however that no more than ten (10) licenses shall be issued to any applicant or for any premises, regardless of the gross floor area of said premises, provided further that one (1) such license may be issued for any premises with less than 500 square feet of gross floor area."
On October 1, 1976, plaintiff applied to the defendants for coin-operated amusement device licenses as required by the ordinance. Plaintiff's application stated that the gross floor area of its premises was 1,100 feet *fn1 and listed 40 single play machines as the number of devices sought to be licensed. The defendants denied the plaintiff's application on October 18, 1976, due to the provisions of section 2-11.3 permitting only one license for every 500 square feet of floor space and restricting the total number of licenses per premise to 10.
On November 9, 1976, plaintiff filed in the circuit court of Cook County its petition for the issuance of a writ of mandamus alleging that sections 2-11.3, 2-11.9, 2-11.10, and 2-11.11 of the ordinance were invalid, void, and unconstitutional, and further alleging that it had a clear right to the issuance of the licenses. Defendants answered alleging that the ordinance was not illegal and void, that plaintiff had not established a clear right to the issuance of the licenses, and that the ordinance was a reasonable and proper exercise of its police power. Thereafter, the trial court denied each party's motion for summary judgment.
Following a bench trial, the trial court denied plaintiff's petition for writ of mandamus. However, the trial court found that sections 2-11.3, 2-11.9, and 2-11.10 of Ordinance No. 75-0-16 bore no reasonable relation to the health, safety, or general welfare of the people of the village and were void and inapplicable as applied to the plaintiff. Accordingly, the trial court found plaintiff entitled to declaratory relief and ordered the defendants to issue the licenses to the plaintiff without regard to these restrictive sections of the ordinance. On appeal, the defendants contend that the plaintiff failed to meet its burden of proof to overcome the presumptive validity of these provisions, and that, therefore, the trial court's judgment is against the manifest weight of the evidence.
The village is a non-home-rule municipality. As such, the defendants assert that its authority to regulate coin-operated amusement devices is derived from sections 11-42-2 and 11-42-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, pars. 11-42-2 and 11-42-5), which state as follows:
"Sec. 11-42-2. The corporate authorities of each municipality may license, tax, regulate, or prohibit pinball, or bowling alleys, billiard, bagatelle, pigeon-hole, pool, or any other tables or implements ...