589 F.3d 865 (7th Cir. 2009), 09-2082, Pro's Sports Bar & Grill, Inc. v. City of Country Club Hills

Docket Nº:09-2082.
Citation:589 F.3d 865
Opinion Judge:FLAUM, Circuit Judge.
Party Name:PRO'S SPORTS BAR & GRILL, INC., Tharon Bradley, Carla Nelson and Patricia Nelson, Plaintiff-Appellees, v. CITY OF COUNTRY CLUB HILLS, an Illinois Municipal Corporation, Dwight Welch, Mayor and Deborah M. McIlvain, Clerk, Defendant-Appellants.
Attorney:Thomas C. Crooks (argued), Chicago, IL, for Plaintiff-Appellees. John B. Murphey (argued), Rosenthal, Murphey, Coblentz & Janega, Chicago, IL, for Defendant-Appellants.
Judge Panel:Before FLAUM, MANION, and WOOD, Circuit Judges.
Case Date:December 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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589 F.3d 865 (7th Cir. 2009)

PRO'S SPORTS BAR & GRILL, INC., Tharon Bradley, Carla Nelson and Patricia Nelson, Plaintiff-Appellees,


CITY OF COUNTRY CLUB HILLS, an Illinois Municipal Corporation, Dwight Welch, Mayor and Deborah M. McIlvain, Clerk, Defendant-Appellants.

No. 09-2082.

United States Court of Appeals, Seventh Circuit.

December 16, 2009

Argued Oct. 29, 2009.

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[Copyrighted Material Omitted]

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Thomas C. Crooks (argued), Chicago, IL, for Plaintiff-Appellees.

John B. Murphey (argued), Rosenthal, Murphey, Coblentz & Janega, Chicago, IL, for Defendant-Appellants.

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Before FLAUM, MANION, and WOOD, Circuit Judges.

FLAUM, Circuit Judge.

This is a dispute between a bar, Pro's Sports Bar & Grill (" Pro's" ), and the City of Country Club Hills (the " City" ) over a liquor license. Pro's claims that it was given the standard liquor license for bars in Country Club Hills. The City claims that the bar was given a license that allows it to operate only with more restricted hours than is typical. The license initially given to Pro's made no mention of an hours restriction. After the City reissued the license with the restricted hours and began enforcing them-without a hearing or a vote by the city council-Pro's brought a claim against the City under 42 U.S.C. § 1983, alleging a violation of both its procedural due process rights and its right to equal protection. Pro's then moved for a preliminary injunction prohibiting the City from enforcing the limited hours. The district court found that Pro's was likely to prevail on its due process claim (but not its equal protection claim) 1 and faced irreparable harm if forced to continue operating under the more limited hours. The district courted granted the preliminary injunction. The City appeals. For the reasons set forth below, we affirm the district court's decision.

I. Background

Pro's is located at 18601 South Cicero Avenue, in the City of Country Club Hills, a southern suburb of Chicago. Tharon Bradley, Carla Nelson, and Patricia Nelson, the owners of Pro's, are also plaintiffs in this litigation. The City of Country Club Hills is governed by an elected mayor, an elected clerk, and ten elected aldermen (two from each of the City's five wards). The mayor, Dwight Welch, and the clerk, Deborah McIlvain, are named as defendants, along with the City itself.

To obtain a liquor license in Country Club Hills, a business must apply and satisfy certain preliminary requirements. The applicant must then secure from the city council an ordinance granting that particular business a license. The municipal code in Country Club Hills defines several types of liquor licenses, two of which are relevant here: Class A, for restaurants, and Class B, for bars. The code also sets the permissible hours of operation for these establishments. Both Class A and Class B licenses allow the holder to remain open until 2 a.m., Monday through Friday, and 3 a.m. on Saturday and Sunday.

Pro's satisfied the application requirements for a liquor license, and the city council considered an ordinance to grant Pro's a license on November 26, 2007. The parties dispute what took place at this meeting. Helpfully, the meeting was videotaped. The district court viewed this video and summarized it in its written opinion granting the preliminary injunction.

Thirty-nine minutes into the meeting, the council turned to the " Economic Development" portion of its agenda, the only item being whether to pass an ordinance granting Pro's a liquor license. Alderman Tyrone Hutson, one of the aldermen for Ward 3, where Pro's is located, was granted the floor. He did not immediately introduce the proposed ordinance, however. Instead, he began by explaining that he wished to " amend the ordinance, and place a time frame on the liquor license." He proposed limiting the hours of alcohol sales to 11 p.m. on weekdays and 12:30 a.m. on weekends. At Mayor Welch's direction, Hutson introduced the amendment via motion.

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Hutson called for a vote, but Welch stated that a discussion of the amendment must occur first. Welch spoke for about three minutes about the license process generally, then observed that Pro's was surrounded by residential zoning. Welch said that he did not have a problem with the hours proposed by Hutson and emphasized that Pro's license, like all other licenses, would last only until May 1 of the following year, at which time it would need to be renewed. He indicated that he traditionally defers on decisions related to liquor licenses to the aldermen from the particular ward where the business is to be located and asked " Tom" if he had " anything to say." " Tom" is not identified in the video but was presumably Thomas Comein, the other alderman from Ward 3. He agreed with proposed hours and said that if there was a problem, the police would take care of it.

Another alderman, Vincent Lockett, suggested moving the weekday closing time to 11:30 p.m. so that patrons would not have to leave before sporting events, such as Monday Night Football, had ended. Welch opposed the change, saying that just because the bar had to stop serving liquor did not mean that patrons had to leave.2 Welch then said, seemingly to someone in the crowd, " You guys good with that? All right. All right. Let's move on."

No vote was taken on the amendment. Instead, after Welch directed the council to " move on," Hutson introduced, by motion, the original ordinance, a draft of which had been prepared before the council meeting. Hutson introduced it as " an ordinance providing for the granting of a Class A liquor license" to Pro's. The motion received a second. Welch called for discussion and an unidentified alderman asked whether the original or amended ordinance was being considered. Welch responded:

This is amended, but we are going to have to put this, I talked to our city attorney, we'll have to put this into a formal ordinance at the next council meeting, but I'm going to give them permission to go ahead and proceed, as the Liquor Commissioner, based on the Council's action tonight.

Welch then proceeded to a roll call, and all ten alderman voted in favor.

The council next met in December of 2007, but did not revisit Pro's liquor license. An ordinary Class A liquor license-with no mention of the restricted hours-was issued to Pro's. Bradley, one of the owners, obtained this license from the clerk, McIlvain, on January 4, 2008. However, a new " Class A-1" liquor license was " reissued" on January 8, 2008, signed by McIlvain and Welch. Like the original " Class A" license, the " Class A-1" license does not mention any time limitations on the service of alcohol. The municipal code does not have any provision describing a Class A-1 license.

At the preliminary injunction hearing, McIlvain testified that she was uncertain why she " reissued" the license to Pro's, but speculated that she did so in anticipation of an ordinance that would have created a Class A-1 license with the limited hours discussed at the November 2007 council meeting. No such ordinance was ever adopted. However, the owners of Pro's claim that a police officer subsequently showed them the first page of a draft ordinance that purports to establish such a classification. Pro's alleges that the

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police began enforcing these time limitations, resulting in several citations, arrests of management, and frequent visits by the police to Pro's at or shortly before the new closing time. Bradley testified that this resulted in lost business and revenues, identifying in particular the refund of fees to those who had booked private parties that were terminated early by police and lost bookings to other bars in the City that could remain open later.

In March of 2008, the city council entertained a motion to extend Pro's hours to those of a regular license holder. That ordinance did not pass, receiving five votes in support and five votes against.

Pro's applied for a new license prior to May 1, 2008, as all licensees were required to do. Pro's applied for a Class B license, apparently at the direction of Welch. When Pro's received its new Class B license, it stated the following limitation:

This Liquor...

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