Judge to decide the venue in 8 liner case
By FERNANDO DEL VALLE
BROWNSVILLE — Is it a state or federal case?
That’s the question surrounding Sebastian game room owners’ request to keep their businesses open despite a tough, new Willacy County ordinance that shut them down.
Yesterday, Robert Flores, an attorney representing the Silver Star Game Room, Silver Express Game Room, La Victoria Game Room and the Silver Outpost, said he will request the case remain in state District Court after Willacy County requested it be moved to federal court.
Nearly a month ago, the game rooms launched a legal battle months after the county approved the ordinance that led them to shut down.
The ordinance allowed the game rooms to re-apply for permits to operate eight-liner machines.
Now, the game room owners argue the county unfairly rejected their applications, denying them their due process rights.
On Friday, attorney Ricardo Morado, representing Willacy County, requested the case be moved to federal court because due process arguments constitute federal claims.
“It’s clear there is no federal law at issue,” Flores told reporters after a hearing was canceled in 197th state District Court yesterday morning. “The county ordinance is at issue.”
Attorney Ed Cyganiewicz, also representing game room owners, claimed the county was buying time.
“We believe it’s a delay tactic,” Cyganiewicz told reporters outside the courtroom door.
Game room owners are demanding the county pay damages of $50,000 to $2 million.
However, Morado argued the case should be moved to federal court after Flores argued the county violated his clients’ rights to due process, a federal claim under the 14th Amendment.
“The district courts of the United States have original jurisdiction over this action because the claim arises under federal law question in that plaintiff’s plead an action under the 14th Amendment of the U.S. Constitution,” Morado wrote.
State District Judge Migdalia Lopez is expected to decide the matter.
Lopez has not set the date in which to consider the county’s request.
Wheels of justice
On Aug. 13, the four game room owners requested Lopez grant their request for temporary restraining orders.
In response, Lopez allowed the game rooms to reopen until she hands down her ruling.
In Sebastian, some residents feel the case is dragging in court.
Since Aug. 22, Lopez has reset the case twice.
Yesterday, Lopez was expected to hear the merits, or facts, of the case before handing down a ruling.
However, the hearing was canceled as a result of the county’s request to move it to federal court.
Meanwhile, the Silver Star Game Room, Silver Express Game Room, La Victoria Game Room and the Silver Outpost continue to operate despite the county’s new ordinance set in February which led the game rooms to shut down.
Game rooms’ argument
Before Lopez, Flores has argued the county shut down the game rooms although they lawfully operated.
The ordinance, which allows game rooms to re-apply for permits to operate eight-liner machines, failed to fairly administer the process with which to re-apply for those permits, Flores has argued.
As part of that process, the Sheriff’s Department reviewed game room applications to determine whether to grant permits.
Factors leading to denials include game rooms’ code violations, any owners’ or employees’ criminal histories and failure to properly complete the applications.
After the Sheriff’s Department review, the county allowed three game rooms to reopen while denying 11 applications.
Of those 11, six game rooms appealed the decisions before a hearing examiner appointed as part of the ordinance.
In June, hearing examiner Richard Solis, a retired justice of the peace, denied the six appeals.
Flores has argued the county failed to give his clients notice of any “deficiencies” that may have led their applications to be denied.
However, the county accused the game room owners of “a false representation or concealment of material facts.”
Morado has also argued the game room owners have “no viable claim for damages.”
How we got here
In Sebastian, many residents are counting on the courts to side with the county, whose ordinance cut the number of game rooms there from eight to three.
For years, many residents have called for an ordinance to control the spread of eight-liner arcades across the county’s vast unincorporated areas.
Under the ordinance, law enforcement has the authority to inspect game rooms for violations.
Meanwhile, game rooms cited for violations are required to shut down.
Sheriff Larry Spence has said even building code violations might be enough to force some to close.
The ordinance carries $10,000 fines for every violation.
Under the ordinance, game rooms must limit operations between 10 a.m. and 11 p.m. Sundays through Thursday and from 10 a.m. to 1 a.m. on Fridays and Sunday mornings.
Meanwhile, the ordinance requires new eight-liner arcades to be located at least 5,000 feet from other game rooms, on frontage property with direct access to highways.