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Serpico v. Village of Elmwood Park

October 31, 2003

PHILIP J. SERPICO, AN INDIVIDUAL, AND PHIL'S SPORTS BAR, INC., AN ILLINOIS CORPORATION, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF ELMWOOD PARK, A MUNICIPAL CORPORATION OF THE STATE OF ILLINOIS; PETER N. SILVESTRI, VILLAGE PRESIDENT OF THE VILLAGE OF ELMWOOD PARK, NOT INDIVIDUALLY BUT IN HIS OFFICIAL CAPACITY; AND THOMAS BRAGLIA, CHIEF OF POLICE OF THE VILLAGE OF ELMWOOD PARK, NOT INDIVIDUALLY BUT IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 01 CH 17896 The Honorable Sophia H. Hall, Judge Presiding.

The opinion of the court was delivered by: Justice Smith

UNPUBLISHED

Plaintiffs Phillip Serpico and Phil's Sports Bar, Inc. (plaintiffs or as named), filed a complaint for declaratory judgment against defendants Village of Elmwood Park, Peter Silvestri and Thomas Braglia (defendants or as named), seeking to declare invalid Ordinance 2001-08 prohibiting "simulated video gaming devices" in the village. Village of Elmwood Park Ordinance 2001-08 (eff. May 21, 2001). Although the trial court initially granted a preliminary injunction in favor of plaintiff staying the enforcement of the ordinance, the court ultimately reversed this ruling, granted defendants' motion for summary judgment and found the ordinance to be constitutionally valid. Plaintiffs appeal from the court's grant of summary judgment, contending that video gaming devices possess first amendment protections and that the ordinance does not survive either the strict scrutiny or rational basis test for purposes of determining its constitutionality. Plaintiffs ask that we find the ordinance unconstitutional on its face and reverse the trial court's decision or, alternatively, that we remand with an order staying enforcement of the ordinance pending further findings by the trial court. For the following reasons, we affirm.

BACKGROUND

In May 2001, defendants passed Ordinance 2001-08 (the ordinance), which prohibits anyone from keeping or maintaining simulated video gaming devices within village limits. Specifically, section 39-26 of the ordinance states:

"It shall be unlawful for any person, firm or corporation to keep, locate, maintain or operate any simulated video or mechanical gaming device within the Village." Village of Elmwood Park Ordinance 2001-08, §39-26 (May 21, 2001).
Section 39-25(b) defines these devices as follows:
"The term 'simulated video or mechanical gaming devices' means any video poker machine, video or mechanical slot machine ***, video or mechanical bingo machine, or other device which involves any game of chance or amusement based upon poker, blackjack, dog racing, or horse racing, craps, any card or dice game, or any similar device operated by means of the insertion of a coin, token, slug currency, or similar object." Village of Elmwood Park Ordinance 2001-08, §39-25(b) (May 21, 2001).
Plaintiff Serpico owns and operates plaintiff Phil's Sports Bar located in the village, and maintained two video slot machines in the bar at the time the ordinance was enacted. After removing the machines, plaintiffs filed a complaint for declaratory judgment, which they subsequently amended. This complaint claimed that the ordinance was unconstitutional because it was vague, overbroad and violated their rights of free speech, equal protection and due process; that its enactment exceeded defendants' police powers; and that defendants were estopped from enforcing it. Plaintiffs also filed a motion for preliminary injunction and a temporary restraining order.

The trial court denied plaintiff's motion for the temporary restraining order and continued the motion for preliminary injunction. Meanwhile, defendants moved to dismiss the cause. The trial court denied defendants' motion, and the cause proceeded through discovery.

On March 7, 2002, the trial court held an evidentiary hearing with respect to plaintiffs' motion for preliminary injunction, wherein four witnesses testified. Defendant Braglia testified that he is the police chief of the village. He admitted that, under the terms of the ordinance, certain devices that could be used for gambling would not be prohibited because they do not meet the definition of section 39-25(b), while other devices that may not always be used for gambling would in fact be prohibited because they do meet the definition of section 39-25(b). Chief Braglia stated that prior to the ordinance's enactment, there were 15 arrests for possession and maintenance of video gaming devices. He further testified that while anything can be gambled upon, the types of devices listed in section 39-25(b) were, in his experience as police chief, those most often used for gambling and illegal gaming. Defendant Silvestri, the president of the village, also testified. He stated that while it was possible that some video gaming devices would be banned even though they may not be used for gambling, the ordinance was intended to ban those types of machines and video devices generally used for gambling located in bars and other public places. He testified that the village did not have an interest at this time in enforcing the ordinance against private citizens, unless they were violating laws with respect to gambling. President Silvestri noted that the focus of the ordinance was to prevent illegal gaming in public locations, which was the basis for some nine arrests in the village since 1999. Robert Signorelli, a vice unit investigator, testified that between October 1998 and July 1999, before the enactment of the ordinance, eight police raids were conducted and resulted in several arrests for illegal gaming in the village. One of the raids occurred at plaintiffs' bar, where one of plaintiffs' video slot machines was being used to facilitate illegal gambling. Officer Signorelli further testified that the other seven raids conducted before the enactment of the ordinance involved video poker machines, as specified in section 39-25(b).

Plaintiff Serpico also testified at the evidentiary hearing. He stated that he had been operating two video slot machines before he received notice from defendants that these would now be prohibited under the ordinance. Plaintiff Serpico testified that when he removed the machines, he lost revenue at his bar. Plaintiff Serpico admitted that the video slot machines did not have characters or storyline plots, but rather, a patron needed only to pull a lever and certain figures inside the machine would spin for an accumulation of points. He further admitted that in 1999, a raid was conducted at his bar, wherein it was uncovered that his bartender was conducting payouts to patrons who used the video slot machines and accumulated a certain number of points.

Following this testimony, the trial court granted plaintiffs' motion for preliminary injunction, finding that they had a protectible right and a likelihood of success on the merits of their cause. The court further concluded that the ordinance was vague and overbroad, that it violated plaintiffs' due process rights, and that plaintiffs would sustain irreparable harm if the ordinance was enforced. Thus, the court ordered defendants not to enforce the ordinance as against plaintiffs.

On April 12, 2002, at the suggestion of the trial court, plaintiffs and defendants filed cross-motions for summary judgment. On May 16, 2002, after a hearing, the trial court issued an order reversing its prior ruling, vacating the preliminary injunction, and granting defendants' motion for summary judgment. The court held that the ordinance, as drafted on its face, was constitutional. With respect to section 39-25(b), the court stated that this section was "very specific about the games that are involved" and that there was an overall "reasonable specificity within this ordinance" to determine which video gaming devices are prohibited. Thus, the court declared that the ordinance was not vague or overbroad. The court further concluded that "the first amendment certainly does not apply" here because there was "[n]o evidence *** presented in that regard" by plaintiffs. Since no fundamental rights were implicated, the court performed a rational basis test and held that the ordinance "does bear [a] rational relationship to [a] legitimate government [interest] for purposes of regulating gambling" in the village. Accordingly, because the ordinance did not violate constitutional principles and defendants did not supersede their police powers, the court found that there was no basis for estoppel or for the prevention of the ordinance's enforcement in the village.

ANALYSIS

Plaintiffs contend on appeal that the trial court erred in granting defendants' motion for summary judgment because it is clear that the ordinance is unconstitutional. Plaintiffs assert that video gaming devices, as defined in section 39-25(b) of the ordinance, possess first amendment implications that require protection. Plaintiffs further assert that, as such, the ordinance does not survive the strict scrutiny test that courts must employ in this situation because defendants do not have a compelling interest in eliminating these video gaming devices and there are other, less intrusive actions defendants could have taken here. Alternatively, plaintiffs claim that even if these video gaming ...


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