Milwaukee Must Pay App Maker’s Legal Fees

MILWAUKEE (CN) — Milwaukee County approved an $83,000 settlement Thursday for an app maker that challenged an ordinance requiring companies to get an event permit for apps such as Pokemon Go to be played in parks.

The settlement prohibits Milwaukee County from enforcing the ordinance; the money award goes to Nevada-based developer Candy Lab Inc. for attorneys’ fees.

The ordinance, which amended Section 47.03 of the Milwaukee County Code, required businesses introducing augmented reality games to be played in to the county to file a special-event application, including liability for damage done to parks by game players. The county said it was necessary because of “increased trash, wear on the parks, and the need for a police presence in the parks.”

Candy Lab, represented by Brian Wassom with Warner Norcross & Judd, filed the federal lawsuit in April, claiming the ordinance violates its speech rights and interferes with customers’ access to its apps.

U.S. District Judge J.P. Stadtmueller agreed with Candy Lab and granted a preliminary injunction this past summer.

“The ordinance … dooms itself in its failure to provide ‘narrowly drawn, reasonable and definite standards’ to guide the County officials who must apply it,” the ruling states. “This finding is enough to invalidate the ordinance.”

App makers faced potential fees including “hotline fee ($500.00), garbage collection ($50.00 per employee per hour), recycling containers rental ($5.00 per day), picnic tables rental ($15.00 per day), garbage baskets rental ($7.00 per day), barricades rental ($8.00 per day) and an excessive clean-up fee ($150.00 minimum) and participant fees.”

Candy Labs was founded in 2010 and released an augmented reality app this year called “Texas Rope ‘Em,” which spurred the lawsuit.

The county plans to revise the ordinance, according to Margaret Daun, corporation counsel for Milwaukee County.

“Milwaukee County respects Judge Stadtmueller’s decision that enjoined enforcement of the County’s current ordinance.  After careful consideration, the County believes the best course is to conclude this litigation and thereby consent to a permanent injunction, under which the County agrees that the current ordinance related to augmented reality games will not be enforced in the future at any time,” she said.

Daun added, “But more importantly, the Office of Corporation Counsel is working on a revised ordinance, based on the guidance received from Judge Stadtmueller, that we believe will be much more difficult to attack…We also continue to work cooperatively with game developers to ensure that resident and park user concerns are fairly addressed.  In undertaking these efforts, the County seeks to strike the right balance between health and safety concerns of County residents, the protection of our valuable park land, which was leveraged without permit or permission by for-profit enterprises without compensation to the County, and the County’s commitment to free and open access for all to the parks.”

Brian Wassom, an attorney for Candy Lab Inc., said he was satisfied with the result.

“The settlement is a welcome, though belated, recognition by the County that it overreached here,” he said. “As the Court recognized, the First Amendment does not allow government to regulate the publication of speech just because some find it undesirable or inconvenient, and those protections apply in full to new media such as location-based augmented reality. This settlement makes the Court’s ruling permanent, and will serve as a warning to other municipalities that it is they who need to adapt to changing trends in digital publishing—not vice-versa.”

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