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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6401 November 25, 1986 CHILDREN AND MINORS: Regulation by home rule city of presence of minors upon premises of video game establishment CITIES, HOME RULE: Authority to regulate video game establishments Regulation of presence of minors upon premises of video game establishment Fees for licensing and regulating video game establishment A home rule city may license and regulate establishments which provide video games on the premises for public use. A home rule city may prohibit the use of games in video game establishments by minors under sixteen or eighteen years of age who are not accompanied by a parent or guardian. A home rule city may regulate time periods of the day during which minors may patronize video game establishments. The fee imposed by a home rule city for a license for a video game establishment must bear a reasonable relationship to and not be disproportionate to the costs involved in licensing and policing such activity. Honorable Donald Van Singel State Representative The Capitol Lansing, Michigan You have requested my opinion upon several questions relating to the licensing of establishments providing video games for public use. Your first question is: May a home rule city license and regulate establishments which provide video games on the premises for public use? Section 4i of the home rule cities act, MCL 117.4i; MSA 5.2082, provides: "Each city may in its charter provide: .... "(4) For the regulation of trades, occupations and amusements within its boundaries, not inconsistent with state and federal laws, and for the prohibition of such trades, occupations and amusements as are detrimental to the health, morals or welfare of its inhabitants." In People v. Jacqueline Walker, 135 Mich App 267, 278; 354 NW2d 312 (1984), lv den, 412 Mich 888, app dis, ---- US ----; 106 S Ct 32; 88 L Ed 2d 26 (1985), it was expressly held that a city had the constitutional and statutory authority to enact an ordinance regulating video games and video game establishments: "Also without merit is defendant's contention that the city had no authority to enact the ordinance. The City of Warren had constitutional authority, Const 1963, art 7, Sec. 22, as well as statutory authority derived from the home-rule cities act, MCL 117.1 et seq; MSA 5.2071 et seq. See MCL 117.4i(4); MSA 5.2082(4)." See also, Soof v City of Highland Park, 30 Mich App 400, 406; 186 NW2d 361 (1971); People v. Palazzolo, 62 Mich App 140; 233 NW2d 216 (1975), lv den, 395 Mich 807 (1975); People v Buff Corp, 94 Mich App 179; 288 NW2d 619 (1979). See generally, 6 McQuillin, Municipal Corporations (3rd ed), Secs. 24.139, 24.140, 24.141, and 26.154. It is my opinion, in answer to your first question, that a home rule city is authorized to license and regulate establishments which provide video games on the premises for public use as long as such regulations are not inconsistent with state and federal laws. Your second question is: In the regulation of video game establishments, may a home rule city prohibit the use of such machines by minors under sixteen or eighteen years of age? With regard to the prohibition of certain age groups utilizing such accommodations, the Elliott-Larsen Civil Rights Act, MCL 37.2102; MSA 3.548(102), provides, in part: "(1) The opportunity to obtain ... the full and equal utilization of public accommodations ... without discrimination because of ... age ... as prohibited by this act, is recognized and declared to be a civil right." Also, MCL 37.2301; MSA 3.548(301), provides, in part: "As used in this article: "(a) 'Place of public accommodation' means a business, or an ... entertainment, recreation ... facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public." In addition, MCL 37.2302; MSA 3.548(302), provides, in part: "Except where permitted by law, a person shall not: "(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of ... age,...." The Elliott-Larsen Civil Rights Act prohibits a denial of the use and enjoyment of public accommodations, based upon age, inter alia, except where the denial is permitted by law. A municipality's power to adopt resolutions and ordinances relating to municipal concerns is subject to the Constitution and law. Const 1963, art 7, Sec. 22; People v. Llewellyn, 401 Mich 314, 321-331; 257 NW2d 902 (1977). In People v Jacqueline Walker, supra, the court upheld a city ordinance which prohibited minors under the age of seventeen from entering such establishments and playing video games unless accompanied by a parent or guardian. The ordinance also imposed restrictions upon video game establishments in this regard. The court upheld the ordinance on constitutional grounds, such as the rights of expression and association, and equal protection, as well as under the Elliott-Larsen Civil Rights Act: "Defendant has not demonstrated that the communicative elements of playing video games are entitled to constitutional protection. We are not prepared on these facts to so hold. Therefore, the ordinance which restricts association for this purpose is not violative of the First Amendment." .... "We do not believe defendant has sustained her burden of showing that the ordinance in question is without any reasonable justification. We disagree that the ordinance must be struck down because the city chose to treat minors and pinball or video machine arcades differently than adults and bowling alleys. Cf. People v. Palazzolo, 62 Mich App 140; 233 NW2d 216 (1975). The current popularity of amusement arcades, particularly among young people, has clearly created problems unique to such businesses which the City of Warren has attempted to minimize by the implementation of the ordinance under attack here. The classifications in the ordinance are not 'essentially arbitrary'." .... "Finally, defendant's argument that the ordinance violates the prohibition against age discrimination in the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., is void of merit. Section 302 of the statute prohibits age-based discrimination in places of public accommodation 'except where permitted by law'. The term 'law' includes the entire body of law, including, it is clear, validly passed municipal ordinances. See Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428, 441; 310 NW2d 408 (1981)." People v Jacqueline Walker, 135 Mich at 275, 277-278. Moreover, in Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428, 433; 310 NW2d 408 (1981), lv den, 413 Mich 890 (1982), the court considered a prohibition against minor children attending adult-rated motion pictures, and the application of exceptions to the Elliott-Larsen Civil Rights Act, stating: "[L]iteral application of the prohibition against age discrimination would outlaw many regulations, rules, laws and policies designed to protect children. We believe it is clear that, by adding the words 'except where permitted by law,' the legislature intended, among other things, to retain age discrimination as a protection for children." It is my opinion, in answer to your second question, that a home rule city may prohibit the use of games in video game establishments by minors under the age of sixteen or eighteen years of age who are not accompanied by a parent or guardian. Your third question is: May a home rule city set a curfew for persons under sixteen or eighteen years of age to regulate the time periods during which minors may patronize such establishments and play video games? The ordinance upheld in People v Jacqueline Walker, supra, contained a provision regulating the hours for the operation of video game devices. Your third question inquires whether municipalities may regulate the time periods during which minors would be permitted to operate such devices. A street curfew for minors is established in MCL 722.751 et seq; MSA 28.342(1) et seq, which also authorizes local curfew ordinances at MCL 722.754; MSA 28.342(4). See, People v Arnold Smith, 87 Mich App. 730, 739; 276 NW2d 481 lv den, 406 Mich 951 (1979). Compare, Walsh v City of River Rouge, 385 Mich 623; 189 NW2d 318 (1971). Curfew ordinances, like other ordinances regulating the conduct or activities of minor children, may classify and treat children differently than adults, but such ordinances are subject to constitutional standards which require a rational relationship in the accomplishment of a legitimate state purpose, such as for the protection of children. Curfew ordinances have been upheld and invalidated upon the particular provisions of a given ordinance, or under particular circumstances in which the ordinance was applied. Additional cases are annotated at 59 ALR3d 321, Secs. 5 and 6. In In Re Carpenter, 31 Ohio App 2d 184; 287 NE2d 399 (1972), a daylight curfew ordinance prohibiting a minor's mere presence in places of amusement was upheld for the prevention of truancy. A nighttime ordinance for minors in places of amusement was upheld in In Re C, 28 Cal App 3d 747; 105 Cal Rptr 113 (1972), for the purpose of protecting children and prevention of delinquency. In People v Jacqueline Walker, supra, an ordinance was upheld which prohibited minors from frequenting video establishments and operating video machines. A less restrictive ordinance, which would permit use by minors but regulate the time periods for use by minors, would equally be within the authority of a municipality. It is my opinion, in answer to your third question, that home rule cities have the general authority, pursuant to MCL 722.751 et seq; MSA 28.342(1) et seq, to adopt curfew ordinances regulating the times during which minor children may patronize video game establishments. The validity of a particular ordinance, or of its application, would depend upon the exact provisions of that ordinance, or the circumstances under which it is applied and enforced. Your final question is: May a fee for a license be imposed that is greater than the municipality's actual cost for policing and licensing video games? The distinction between a tax and a license fee was discussed in Merrelli v City of St Clair Shores, 355 Mich 575, 583-584; 96 NW2d 144 (1959). Quoting with approval from Vernor v Secretary of State, 179 Mich 157, 167-170; 146 NW 338 (1974), the court in Merrelli stated: " 'To be sustained, the act we are here considering must be held to be one for regulation only, and not as a means primarily of producing revenue. Such a measure will be upheld by the courts when plainly intended as a police regulation, and the revenue derived therefrom is not disproportionate to the cost of issuing the license, and the regulation of the business to which it applies. (Citing cases.) " 'Anything in excess of an amount which will defray such necessary expense cannot be imposed under the police power, because it then becomes a revenue measure. (Citing cases.) " 'It is true that it has been held that what is a reasonable fee must depend largely upon the sound discretion of the legislature, having reference to all the circumstances and necessities of the case. It will be presumed that the amount of the fee is reasonable, unless the contrary appears upon the face of the law itself, or is established by proper evidence. (Citing cases.) " 'In determining whether a fee required for a license is excessive or not, the absence or amount of regulatory provisions and the nature of the subject of regulation should be considered, and, if the amount is wholly out of proportion to the expense involved, it will be declared a tax....' " Merrelli v City of St Clair Shores, 355 Mich at 583-584. The court in Merrelli v City of St Clair Shores, 355 Mich at 588, further stated: "The police power may not be used for a subterfuge to enact and enforce what is in reality a revenue-raising ordinance. Cooley, Taxation (4th ed), Sec. 1680. Here the testimony ... makes it clear that what was sought to be defrayed was ... 'the general cost of government under the guise of reimbursement for the special services required by the regulation and control....' At this point lies the fatal defect in the defendant's course of action. We would not, of course, be construed as holding that only the direct costs (e.g., the salaries of inspectors) are chargeable to the new construction. The indirect costs, as well, of administering and enforcing the police regulation are recoverable, but they must in fact be such indirect costs, as distinguished from the costs of expanded government services, and they must be established by reasonably accurate accounting procedures ...." It is my opinion, in answer to your fourth question, that the fee imposed by a home rule city for a license for a video game establishment must bear a reasonable relationship to and not be disproportionate to the costs involved in licensing and policing such activity. Frank J. Kelley Attorney General
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