Wnek Vending & Amusements Co., Inc. v. City of Buffalo
| Decision Date | 19 December 1980 |
| Citation | 107 Misc.2d 353,434 N.Y.S.2d 608 |
| Court | New York Supreme Court |
| Parties | WNEK VENDING & AMUSEMENTS CO., INC., Steerwell Leisure Corporation, John Wnek, d/b/a Merit Vending Co., Alfred M. Bergman, E. V. B. Corporation, Voelkers Bowling, Inc., James Van Dyke, Norman Levine, d/b/a Bell Vending, Art's Vending Machines, Inc., Richard E. Naylon, Jr., d/b/a International Vending, Judith Flatt, d/b/a Musiphone Vending, Rank Amusements, Arthur Jakubowski, State Music Distributors, Inc., John Bielecki, d/b/a Johnny's Amusements, Petitioners/Plaintiffs, v. CITY OF BUFFALO, Buffalo Police Department, James B. Cunningham, Commissioner of Police of the City of Buffalo, Herbert R. Johnston, Jr., Commissioner of Inspections and Licenses for the City of Buffalo, Frank J. Hahn, Director of Licenses and Permits for the City of Buffalo, Respondents/Defendants. |
This is an Article 78 proceeding. Petitioners question the application and constitutionality of a 1952 City of Buffalo Ordinance (Ch. VII, § 27) which regulates the licensing of coin-operated amusement devices. They seek declaratory and injunctive relief. Petitioners contend that the Ordinance is substantively vague, procedurally deficient, unevenly applied and beyond the legitimate exercise of the police power of the Buffalo Common Council. Petitioners suggest that because public concern about gambling has changed significantly during the last thirty years the Ordinance represents a regulatory scheme whose time has come and gone.
We have been asked to decide these constitutional issues, ably briefed and argued by counsel, and to convert this Article 78 proceeding to a Declaratory Judgment Action. (Kovarsky v. Housing and Development Administration of N. Y. C., 31 N.Y.2d 184, 335 N.Y.S.2d 383, 286 N.E.2d 882). We recognize, of course, that legislative enactments carry with them a strong presumption of constitutionality (Montgomery v. Daniels, 38 N.Y.2d 41, 54, 378 N.Y.S.2d 1, 340 N.E.2d 444; People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 253 N.E.2d 202) and that courts should not concern themselves with the wisdom of legislation nor substitute their judgment for that of the Legislature. (Lincoln Bldg. Assoc. v. Barr, 1 N.Y.2d 413, 153 N.Y.S.2d 633, 135 N.E.2d 801; Thompson v. Wallin, 301 N.Y. 476, 95 N.E.2d 806). Therefore, we decline the invitation because considerations of propriety and long established practice instruct us to refrain from reaching the constitutionality of a statute when another less intrusive ground for reconciling the competing interests exists. (Ashwander v. T. V. A., 297 U.S. 288, 331, 346-348, 56 S.Ct. 466, 475, 482-483, 80 L.Ed. 688, J. Brandeis, concurring).
We view the sole issue in this proceeding to be whether Respondents' blanket policy of denying licenses to Petitioners to distribute coin-operated video games constitutes an arbitrary and capricious exercise of administrative discretion pursuant to C.P.L.R. 7803(3).
On September 3, 1980, the Petitioners filed this action. On September 2, 1980, a stay, pursuant to C.P.L.R. 7805, was granted by Justice Theodore S. Kasler which enjoined Respondents from enforcing the Buffalo Ordinance against Petitioners and their customers and prohibited further interference with Petitioners' operation of coin-operated video games located on premises within the City of Buffalo. On September 19, 1980, we continued the stay pending final resolution of this proceeding.
We reviewed all the pleadings and memoranda and determined that a hearing pursuant to C.P.L.R. 7804(h) was necessary. The hearing commenced on December 1, 1980 and lasted two days. The Court realized that it could not fully understand the exact nature and operation of the video games from the testimony of the witnesses. Counsel requested that the Court view the machines at the warehouse of one of the Petitioners. The Court refused and suggested that Petitioners bring the machines into Court. The operation of four video games (SPACE INVADERS, SUPER BREAK OUT, DOUBLE PLAY and CIRCUS) and one bowling game (TAURUS BOWLER) was described and demonstrated by both an experienced player and a novice.
Petitioners are sixteen distributors of coin-operated amusement devices including the six models of video games which are the subject of this proceeding. (SPACE INVADERS, GALAXIAN, DOUBLE PLAY, LUNAR RESCUE, ASTEROIDS and COSMIC GUERILLA) Between August 15, 1980 and August 21, 1980, Petitioners submitted applications to Respondent HAHN, the City Director of Licenses and Permits, for approval of licenses for coin-operated video games at numerous locations within the City of Buffalo. In response to these applications the Petitioners received the following notice:
We note that some of the Petitioners involved in this lawsuit commenced an Article 78 proceeding a few years ago to annul Respondents' denial of licenses for coin-operated bowling machines. (UNITED GRANITE BOWLER and WILLIAMS CHEROKEE BOWLER) However, counsel for the City of Buffalo stipulated and agreed that these bowling machines should be licensed even though they offered extended play. On March 23, 1978, a consent judgment was entered before Supreme Court Justice Frank R. Bayger. Licenses for these and similar bowling machines have been granted, without exception, since that time.
The typical bowling machine now licensed contains five different games; REGULAR, FLASH, ONE-SHOT, REPEAT STRIKE, and STRIKE-90. The rules for each game are prominently posted on the machine. Each game has ten frames and is played by sliding a metal puck with one hand down a rectangular alley. In each game the pins are eliminated as the puck crosses over various metal eaves located directly in front of the pins causing the pins to move backwards and upwards off the alley. In the REGULAR game a player may receive two extra shots in the tenth frame for a strike and one for a spare at which time the game is ended. In the FLASH option, lights dart across the alley directly in front of the pins. If a player is skillful enough to throw a strike when the flashing light is directly in front of either the 1-2 or 1-3 pocket, the player receives one extra shot for a strike in whatever frame the strike is made. In STRIKE-90 there is no limit to the number of extra shots a player may receive. As long as he keeps striking the particular frame remains the same. In this game, a skillful player could continue to play forever and never go beyond the first frame.
The SPACE INVADERS model which Petitioners seek to license is representative of the video games involved in this proceeding. Complete operation instructions appear on the machine. Two large buttons at the bottom left of the machine control lateral movement of three laser bases which are provided each player at the start of the game. The laser bases are located at the bottom of the video screen. The SPACE INVADERS are actually projectiles which move vertically at uniform speeds from top to bottom of the video screen which is immediately in front of the player. The INVADERS can shoot back at the player and when such shots occur, a sound is emitted and the shot is visible on the video screen. The object of the game is for the player to erase the invaders before they destroy the player's laser bases. He does this by pressing a button on the bottom right of the machine. This controls the player's electronic blip fire from the laser base he is moving at any given moment.
On each machine, prominently displayed in large capital letters, is the notice: "1 BONUS LASER BASE AWARDED AT 1500 PTS." A player scores points by hitting the invader projectiles with his fire. At various intervals during a game, opportunities for greater scores appear in the form of different colored "mystery ships." Once a player reaches 1500 points one additional laser base is awarded, but no more. If a player scores 4,500 points for example, he would receive only one extra laser base, not three. Once a player loses all of his laser bases the game is over. Depending upon the skill and experience of the player, the game may last anywhere from a few seconds to more than ten minutes.
The electronic circuitry that provides an extra laser base at 1500 points is contained in a logic board in the back of the machine. There is only one logic board for each type of video game and it cannot be altered in any way by the proprietor of the establishment where it is located. The number of laser bases in a game can be changed by the manufacturer by adjusting a dip switch in the logic board but all the logic boards in SPACE INVADERS have been set for three laser bases and cannot be changed once they are distributed.
Section 27(1)(a) defines a "gambling device" in general terms:
The term "gambling device" shall mean and include:
(a) A machine, slot machine, apparatus, paraphernalia or device whether manually, mechanically, electrically or otherwise operated, in or upon which a game or contest involving an element of chance may be played and the machine or device may be operated by one or more persons, singly or collectively, upon and as the result of, the insertion of a piece of money or coin, or other object for which a fee, charge, or other consideration is imposed directly or indirectly.
I find that the video games which Petitioners seek to...
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