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Serpico v. Village of Elmwood Park

Case Date: 10/31/2003
Court: 1st District Appellate
Docket No: 1-02-1762 Rel

SIXTH DIVISION
October 31, 2003

No. 1-02-1762


PHILIP J. SERPICO, an Individual, and
PHIL'S SPORTS BAR, INC., and 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.

JUSTICE SMITH delivered the opinion of the court:

Plaintiffs Phillip Serpico and Phil's Sports Bar, Inc. (plaintiffs or as named), filed acomplaint for declaratory judgment against defendants Village of Elmwood Park, Peter Silvestriand Thomas Braglia (defendants or as named), seeking to declare invalid Ordinance 2001-08prohibiting "simulated video gaming devices" in the village. Village of Elmwood Park Ordinance2001-08 (eff. May 21, 2001). Although the trial court initially granted a preliminary injunction infavor of plaintiff staying the enforcement of the ordinance, the court ultimately reversed thisruling, granted defendants' motion for summary judgment and found the ordinance to beconstitutionally valid. Plaintiffs appeal from the court's grant of summary judgment, contendingthat video gaming devices possess first amendment protections and that the ordinance does notsurvive either the strict scrutiny or rational basis test for purposes of determining itsconstitutionality. Plaintiffs ask that we find the ordinance unconstitutional on its face and reversethe trial court's decision or, alternatively, that we remand with an order staying enforcement ofthe 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 prohibitsanyone 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, maintainor operate any simulated video or mechanical gaming device within the Village." Village of Elmwood Park Ordinance 2001-08,