06 Dec 2017
- By Bryan Manabat – [email protected] – Variety News Staff
THE federal court dismissed, without prejudice, a lawsuit filed by poker operators over the implementation of a zoning law. “Without prejudice” means that the lawsuit can be filed again.
Sin Ho Nam, principal shareholder of Winnerslife Inc./Sin Ho Development Inc., and Dan Bi Choi LLC sued the CNMI government, the Zoning Board and its chairman, Diego Blanco, in his official capacity.
In dismissing the case on Monday, District Court for the NMI Chief Judge Ramona V. Manglona also denied the plaintiffs’ request for a temporary restraining order and preliminary injunction.
The plaintiffs were represented by attorney Robert T. Torres while the CNMI government was represented by Christopher Timmons, civil division chief of the Attorney General’s Office.
The plaintiffs sued over the implementation of Saipan Local Law 18-5 which gave them until Oct. 25, 2017 to relocate their poker arcades to designated commercial zoning districts that are also at least 200 feet away from any church, public or private school, park or playground.
The lawsuit was originally filed in Superior Court but was moved by the Office of the AG to the federal court, saying the case alleged violation of due-process rights, and one of the plaintiffs’ immigration status hinges on the result of the case.
In her ruling, the federal judge said “the zoning law at issue provides a safety valve that will allow an entity operating in a nonconforming zone to avoid civil fines or other sanctions.”
She said “any entity may apply for an extension of its existing license while it assesses where and how to relocate to a conforming zone.”
She said the plaintiffs have done just that but whether the Zoning Board will approve an extension was uncertain as no decision or response has been received at this time, “indicating that the plaintiff’s alleged injury is too speculative to satisfy the ‘case or controversy’ requirement.”
The judge also quoted the government’s argument that if the plaintiffs are “unable to invest in a new location on Saipan, they are still able to use their licenses on the other two islands of Rota and Tinian.”
She said the plaintiffs’ contention that they may not begin a new poker business if their licenses are revoked due to the law does not establish ripeness.
Moreover, the judge said, even if there is a cap imposed on the number of licenses for poker machines, the plaintiffs have failed to demonstrate why they would be unable to obtain or renew their licenses within the cap.
In other words, the plaintiffs fail even to allege that the cap has been filled and it will never be unfilled in the future, the judge said.
She noted that because the zoning law has yet to be enforced, there is no history of prosecution for the court to consider.
For these reasons, the court “finds that the constitutional prong of the ripeness inquiry is not satisfied because any threat of enforcement on the plaintiffs is speculative at best at this time.”
The plaintiffs have also not established that the Department of Finance, which issues the business licenses, has threatened to revoke or is in the process of revoking their business licenses, the judge added.
“They have identified no regulations, policy, or practice of the department to suggest that a business license will be denied if the plaintiffs continue to operate the poker machines in a nonconforming zone while they seek an extension from the Zoning Board.”
Accordingly, the judge said, the constitutional part of the ripeness inquiry has not been satisfied with respect to the alleged deprivation of the business licenses.
As for the E2-C visa issue, Judge Manglona said Nam has made no allegation that the lack of judicial review at this time will result in a direct and immediate loss of his visa.
Additionally, because the Zoning Board has not yet made a decision about whether to grant the plaintiffs an extension, “issuing a preliminary injunction would potentially decide the constitutional issue prematurely or unnecessarily, and would also interfere with an ongoing administrative process.”
The judge reiterated that the plaintiffs’ “claim that the zoning laws deprive them of their constitutionally protected property is unripe. Therefore, [the] plaintiffs have no likelihood of succeeding on the merits.”
Source: Marianas Variety : http://www.mvariety.com/cnmi/cnmi-news/local/100642-us-court-dismisses-poker-operators-lawsuit