N&N Catering Co., Inc. v. City of Chicago, 98 C 6961.

• Decision Date: 02 December 1998
• Docket Number: No. 98 C 6961.,98 C 6961.
• Citation: 26 F.Supp.2d 1067
• Court: U.S. District Court — Northern District of Illinois
• Parties: N&N CATERING COMPANY, INC., Plaintiff, v. CITY OF CHICAGO, and Board of Election Commissioners of the City of Chicago, Defendants.

26 F.Supp.2d 1067

N&N CATERING COMPANY, INC., Plaintiff, v. CITY OF CHICAGO, and Board of Election Commissioners of the City of Chicago, Defendants.

No. 98 C 6961.

United States District Court, N.D. Illinois, Eastern Division.

December 2, 1998.

J. Brian Pierce, J. Brian Pierce & Associates, Chicago, IL, James Frederick Carlson, Law Offices of James F. Carlson, Chicago, IL, for N&N Catering Company, Inc., plaintiff.

Patrick Walter Johnson, City of Chicago, Law Department, Corporation Counsel, Chicago, IL, Ralphette Gaston Rhodes, Norma Reyes, Scott A. Frey, City of Chicago, Department of Law, Chicago, IL, for James Laski, defendant.

James Michael Scanlon, James M. Scanlon & Associates, Chicago, IL, for Board of Election Commissioners of the City of Chicago, defendant.

OPINION and ORDER

NORGLE, District Judge.

Plaintiff N & N Catering Company ("N & N") seeks a preliminary injunction enjoining enforcement of a referendum passed pursuant to the local option provision of the Illinois Liquor Control Act ("Liquor Control Act"), 235 ILCS 5/9-2. If operative, the referendum will void N & N's liquor licenses effective December 3, 1998. For the following reasons, the court issues a preliminary injunction.

I. BACKGROUND

N & N holds state and city licenses authorizing it to sell alcoholic beverages for on-premises consumption at 4220 S. Halsted in Chicago. Though N & N does not state so, it is important to note from the outset that 4220 S. Halsted is the address of a Chicago landmark: the International Amphitheatre ("the Amphitheatre"). In its heyday, the Amphitheatre was the site of five national political conventions (the most recent being the 1968 Democratic convention), world championship boxing matches, and major music concerts (Elvis in 1957, The Beatles in 1964). See John Kass, Daley Wants to Buy, Raze Amphitheatre, Chicago Trib., October 9, 1996 (Metro Chicago section), at 3, 1996 WL 2715347; Robert Davis, Amphitheatre Comes Back From Oblivion, Chicago Trib., November 27, 1987, (Chicagoland section), at 1, 1987 WL 2999569. By the early 1980s, however, the Amphitheatre ceased attracting prime events due to increased competition from newer, modern venues. See id. After closing in 1983, the Amphitheatre re-opened in 1987, and now is the site of "less popular" events such as rodeos and flea markets. See id.

In July 1998, certain residents of the precinct surrounding the Amphitheatre initiated a campaign to prohibit the sale of alcohol at the venue. Pursuant to the local option provision of the Liquor Control Act, 235 ILCS 5/9-2, those residents began circulating petitions that would allow precinct voters to decide, via referendum, whether to prohibit the sale of alcohol at the Amphitheatre. The petition read, in relevant part:

To the City Clerk or the City of Chicago, Illinois:

The undersigned, residents of the 35th Precinct of the 11th Ward of the City of Chicago, County of Cook, State of Illinois, respectfully petition that you cause to be submitted in the manner provided by law, to the voters thereof, at the next election to be held on November 3, 1998 the proposition:

"Shall the sale at retail of alcoholic liquor be prohibited at the following address:

4220 South Halsted Street, Chicago, Illinois"

See 235 ILCS 5/9-2, 9-4.

By August 4, 1998, the petition included the "signatures of not less than 40% of the legal voters" residing in the precinct, thereby requiring the Clerk of the City of Chicago to take the necessary administrative steps to place the referendum on the November 3rd ballot. See 235 ILCS 5/9-2, 9-10.

N & N, however, sought to prevent the referendum from being placed on the November ballot. On October 8, 1998, N & N filed suit in state court against James Laski ("Laski"), as Clerk of the City of Chicago, and the Board of Election Commissioners of the City of Chicago ("the Board of Election"). In its complaint, N & N challenged the validity of the petitions, see 235 ILCS 5/9-4, 9-19, and alleged that the Liquor Control Act deprived it of due process of law. (See Defs.' Resp. at 1, 10.)¹ On October 21, 1998, the Circuit Court of Cook County dismissed the suit, concluding that "[t]he failure of the Plaintiffs in this cause to file a bond for costs within the time prescribed by 235 ILCS 5/9-4 deprives this court of jurisdiction to hear this cause." (Id., Ex.1.) On October 30, 1998, the Illinois Appellate Court issued an order affirming the trial court's decision. (Id., Ex. 2.)

On that same day, N & N filed a six-count complaint in federal court under 42 U.S.C. § 1983, again naming Laski and the Board of Election as defendants. In short, N & N alleges that the local option provision of the Liquor Control Act, 235 ILCS 5/9-2, violates its rights under the United States and Illinois constitutions. Accordingly, N & N moved for a temporary restraining order to enjoin Laski and the Board of Election from placing the referendum on the November 3rd ballot. On November 2, 1998, however, N & N withdrew its motion, and the court ordered this matter certified to the Attorney General of the State of Illinois pursuant to 28 U.S.C. § 2403(b).² See also Fed.R.Civ.P. 24(c); Perez v. City of Chicago, 95 C 685, 1995 WL 410981, at *6 (N.D.Ill. July 10, 1995).

The referendum was placed to a vote on November 3rd. The final voting tally was 178 in favor of passing the referendum and 88 against. Put another way, 67% of the ballots cast in the 35th precinct indicated that voters wanted to prohibit the sale of alcohol at the Amphitheatre. The passage of the referendum thus voided N & N's licenses to sell alcohol at the venue. See 235 ILCS 5/9-2.

As provided in the Liquor Control Act, the results of the referendum "become operative on the 30th day after the day of the election at which such vote is cast." 235 ILCS 5/9-3. Here, that operative date is December 3, 1998; voters in the 35th precinct will not have the opportunity to reconsider the prohibition for another four years. See 235 ILCS 5/9-11 (stating that a specific local option referendum cannot be resubmitted to the voters until 47 months have passed since the last referendum).

The election having gone forward, N & N no longer had a viable action against Laski and the Board of Election as real parties in interest. Therefore, N & N moved to substitute the Director of the Local Liquor Control Commission, an official of the City of Chicago responsible for enforcing the results of the referendum, as a defendant in place of Laski. See 235 ILCS 5/4-2, 4-6. After a hearing in which the parties debated whether the Local Liquor Control Commission is a suable entity, the parties agreed that the City of Chicago ("the City") is the real party in interest here. Though the Board of Election remains a defendant, it is unclear what, if any, claims remain against it.

Thus, N & N's complaint, as it currently stands, seeks declaratory and injunction relief solely against the City. Specifically, N & N alleges that the Liquor Control Act: (1) violates N & N's rights under the Fourteenth Amendment by depriving N & N of its liquor license without due process; (2) violates N & N's "rights to equal protection of the laws under the Fourteenth Amendment" by treating N & N differently from other similarly situated establishments within the 35th precinct; (3) violates the Bill of Attainder Clause of Article I, Section 10, of the United States Constitution by creating "a mechanism through which voters enact into law a provision which legislatively singles out an identifiable individual establishment for guilt and punishes it without the protection of judicial trial"; (4) creates an arbitrary and groundless distinction between the City of Chicago and all other municipalities within Illinois, thereby depriving licensees within the City of Chicago of equal protection of the laws under the Fourteenth Amendment; and (5) grants a special privilege and immunity to similarly situated retail establishments located outside the City in violation of the Special Legislation Clause, Article 4, Section 13 of the 1970 Illinois Constitution.

To those ends, N & N's prayer for relief seeks the following: (1) an order declaring the amended provisions of 235 ILCS 5/9-2 unconstitutional, invalid and void; (2) a preliminary, and ultimately permanent, injunction voiding the results of the November 3rd referendum and prohibiting its enforcement; (3) a preliminary, and ultimately permanent, injunction prohibiting the City from taking any adverse action against N & N in relation to the November 3rd referendum; and (4) reasonable attorney's fees pursuant to 42 U.S.C. § 1988.

At the moment, however, N & N's memorandum in support of its prayer for declaratory and injunctive relief presents arguments as to only two of its claims: due process and special legislation. First, N & N argues that the Liquor Control Act denies it due process of law by allowing a precinct to vote a single licensee dry. (See Pl.'s Mem. in Supp. at 5-8.) Second, N & N argues that the Liquor Control Act "arbitrarily distinguishes between Chicago and other municipalities in Illinois, in violation of the Special Legislation Clause of the Illinois Constitution." (Id. at 8-11.) The City, in turn, filed a response in which it seeks to dismiss N & N's due process claim, arguing that "under Illinois state law a liquor license is not property, but rather a privilege to which the due process clause does not apply" (Def. Resp., at 5.)³ The City also maintains that the Liquor Control Act does not violate the Special Legislation Clause of the Illinois Constitution.

As explained below, the court enters a preliminary injunction enjoining the impending enforcement of the November 3rd referendum on due process grounds; the City's motion to dismiss is therefore denied. Nonetheless, whether the court should enter a permanent injunction declaring the local option provision of the Liquor Control Act unconstitutional is left for another day. One...