Milwaukee County panel recommends $83,000 payment to mobile app game creator to settle lawsuit prompted by Pokémon Go

Milwaukee County should pay a California "augmented reality" game creator $83,000 to settle a lawsuit prompted by Pokémon Go restrictions, a County Board committee recommended Thursday.

The judiciary committee on a 4-0 vote Thursday approved the payment to Candy Lab Inc. as reimbursement for the company's costs and legal fees in successfully challenging the county's ordinance.

The settlement is the result of a July federal court ruling that found county officials overstepped their legal authority this year in attempting to regulate the use of park locations in "augmented reality" games such as Pokémon Go.

"This is a 'ha-ha, I told you so' moment," County Supervisor Eddie Cullen said. Cullen, a Pokémon player, reminded fellow committee members that he voted against the ordinance in February as unnecessary regulation.

Cullen said the $83,000 would have been better spent on parks maintenance. Even so, he voted with the committee majority to accept the settlement.

The ordinance came in response to the parks department's inability in July and August 2016 to hold Niantic Inc. and its Pokémon franchise financially accountable for thousands of dollars in damage done at Lake Park by daily throngs of players.

"We all remember the summer of Pokémon," deputy county corporation counsel Colleen Foley said Thursday in asking the committee to accept the settlement. The full board will act on the agreement at its Dec. 14 meeting.

The County Board in February of this year approved an ordinance requiring creators of location-based augmented reality mobile applications to obtain a permit before they could incorporate park locations in the popular games. In playing the mobile app games, players with smartphones travel to multiple locations.

The ordinance was not an attempt to limit public access to the parks, Corporation Counsel Margaret Daun said.

In February, Candy Lab was testing a VR game it calls Texas Rope 'Em in Milwaukee, Austin, Texas, and several other cities. The game is a variation of the poker game Texas Hold 'Em and the goal is to beat the dealer. Players must visit locations in a city to collect virtual cards for their poker hands.

Candy Lab sued Milwaukee County in April in federal district court in Milwaukee. In its lawsuit, Candy Lab said the ordinance violated its First Amendment right to freedom of speech.

U.S. District Judge J.P. Stadtmueller agreed with the company in a July court order. Stadtmueller determined the game was entitled to First Amendment protection.

The judge ruled that the ordinance did not provide sufficient procedural safeguards to protect those free speech rights against a parks employee's unlimited discretionary authority. The ordinance allowed the parks department to deny or revoke a permit "at any time and for any reason."

Even the ordinance's criteria for a permit decision are too vague to protect free speech rights, Stadtmueller said. He issued a temporary injunction preventing the county from enforcing the ordinance pending any appeal.

The county will not appeal the federal district court ruling, Daun said. As part of the settlement, the county agreed to a permanent injunction against enforcement of the original ordinance.

County officials "will reconsider how to regulate this activity" and write a new ordinance, Daun said.

"We can't allow our parks to be highjacked by profit-seeking businesses," Daun said.

Related: Milwaukee County requires parks permit for Pokémon

Related: Panel OKs parks permit for Pokemon

In the summer of 2016, neighbors of Lake Park urged county officials to better control large crowds of players. In response to complaints of littering, lack of restrooms, traffic congestion and late-night activity, law enforcement officers cited several hundred players for not heeding the park's closing hours and other violations.

By August of that year, crews of inmates from the county's House of Correction were picking up litter several days a week at Lake Park.

The county was not notified when Niantic Inc. placed virtual Pokémon characters at the location of numerous historic landmarks within the park, officials said at the time.