Chi. Joe's Tea Room, LLC v. Vill. of Broadview, 07-cv-2680
| Decision Date | 31 March 2016 |
| Docket Number | 07-cv-2680 |
| Parties | CHICAGO JOE'S TEA ROOM, LLC & PERVIS CONWAY, Plaintiffs, v. THE VILLAGE OF BROADVIEW, ILLINOIS, HENRY VICENIK, FITZGERALD MULLINS, JAMES JOHNSON, JR., ROBERT PAYNE, MICHAEL TYL, JOHN FERGUSON, SAM D'ANZA, BEVERLY KEEHM, JUDY ABRAHAM, BILLY DAVIS, JUANITA HINTON JOHNSON, MINNE REESE & RAY DONATO, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Hon. John Z. Lee
Plaintiffs Chicago Joe's Tea Room, LLC, and Pervis Conway claim that the Village of Broadview and the individual defendants violated the First Amendment's guarantee of freedom of expression by rejecting Chicago Joe's application for a permit to open a restaurant and nightclub featuring semi-nude dancing on a particular parcel of land in Broadview. Plaintiffs seek declaratory and injunctive relief as well as damages. Broadview and all but one of the individual defendants have filed motions for summary judgment, and Plaintiffs have filed a cross motion for partial summary judgment. In addition, Broadview has moved for reconsideration of an earlier order in this case, and the individual defendants have moved for reconsideration of another. Defendants have also moved to strike an expert report.
For the reasons given below, the Court grants Broadview's motion for reconsideration, grants its motion for summary judgment in part, grants the individual defendants' motion for summary judgment, and denies Plaintiffs' motion for partial summary judgment. The other motions are stricken as moot. What remains is to hold a trial on Plaintiffs' damages for the constitutional violation identified in the September 11, 2008, order granting partial summary judgment in their favor.
This case has a nearly decade-long history that includes multiple previous motions for summary judgment. The Court presumes familiarity with the earlier orders issued and will discuss them only insofar as they are relevant to the motions currently under consideration.
The basic facts of this case are that Chicago Joe's Tea Room, LLC, wanted to open a restaurant and nightclub that would feature semi-nude dancing and serve alcohol in the Village of Broadview, a municipality in Cook County, Illinois, west of Chicago off Interstate 290. Broadview's SOF ¶¶ 46-48 [ECF 589]; Pls.' Resp. Br./Mem Supp. at 1 [ECF 608]. Chicago Joe's applied for a "special use" permit to allow it to open the proposed business on a plot of land in an area of Broadview zoned "industrial." Pls.' SOF ¶¶ 19, 25, 33 [ECF 602]. A local zoning ordinance, § 10-7-4(D) (the "special-useordinance"), set criteria for the issuance of such permits. Broadview's SOF § 73.
Broadview's Zoning Board of Appeals held a public hearing about Chicago Joe's permit application on February 28, 2007. Pls.' SOF §§ 37-38. During the hearing, members of the Zoning Board questioned representatives from Chicago Joe's on various issues relating to the application. See generally Broadview's Ex. 29, Zoning Board Hearing Trans. One of those issues was that the application sought permission to serve alcohol. Id. at 28-29, 31, 36-37.
Near the close of the hearing, a member of the Zoning Board moved to recommended that the Village Board deny Chicago Joe's application because an ordinance regulating adult businesses, § 10-4-6(D)(11) (the "adult-business ordinance"), prohibited alcohol from being served or consumed at such businesses. Id. at 102-03. The motion was seconded and carried unanimously. Id. The following week, on March 5, 2007, the Village Board voted to adopt the Zoning Board's recommendation. Pls.' SOF §§ 39-40; Pls.' Ex. Q, Minutes of the Village Board, at 3.
After denying Chicago Joe's a permit, Broadview amended the adult-business ordinance to prohibit adult businesses within 1,000 feet of any residential area. Broadview's SOF § 67. This new restriction, if enforceable, would have prevented Chicago Joe's from opening at the proposed site.
On May 11, 2007, Chicago Joe's and Pervis Conway, the owner of the proposed site for the business, filed this lawsuit against Broadview, members of the Zoning Board, and members of the Village Board. See Compl. [ECF 1.] In Count I, Plaintiffs seek a declaratory judgment that the ordinance prohibiting alcohol at adult establishments and the ordinance governing the issuance of special-use permits violate the First Amendment's free speech clause on their face and as applied. In Count II, Plaintiffs seek to enjoin Defendants from enforcing the ordinances in question and denying Chicago Joe's the sought-after permit. In Count III, Plaintiffs seek damages for the purportedly unconstitutional denial of the permit application.
Broadview moved for summary judgment, arguing that the amendment to the adult-business ordinance creating the 1,000-foot ban mooted Plaintiffs' claims. Plaintiffs filed a cross-motion for partial summary judgment. Judge Gottschall, to whom this case was previously assigned, granted in part and denied in part both motions. See Chi. Joe's Tea Room, LLC v. Vill. of Broadview, No. 07 C 2680, 2008 WL 4287002, at *24 (N.D. Ill. Sept. 11, 2008) (the "September 2008 opinion").
Judge Gottschall first concluded that the new 1,000-foot restriction did not moot Plaintiffs' claims. Id. at **3-6. Relying on 754 Orange Ave., Inc. v. City of W. Haven, Conn., 761 F.2d 105 (2d Cir. 1985)—a case involving a similar zoning ordinance—she reasoned that a municipality cannot moot a First Amendment claim by amending an ordinance in a way that, instead ofaddressing the purported constitutional infirmity, creates new restrictions intended to target the plaintiff. Id. In 754 Orange, the defendant municipality had attempted to bar an adult bookstore that would have otherwise been permitted by amending an ordinance to ban such businesses from operating within 1,500 feet of a playground. 754 Orange Ave., 761 F.2d at 109-10. The Second Circuit concluded that applying the amended ordinance would be inequitable because the amendment's sole purpose was to target the plaintiff. Id. at 113. Based upon the reference in 754 Orange to "vested rights," see id., Judge Gottschall went on to conclude that Chicago Joe's had acquired a "vested right" under Illinois law to proceed under the adult-business ordinance as it existed at the time that the permit application was filed. Chi. Joe's Tea Room, No. 07 C 2680, 2008 WL 4287002, at *4. She explicitly confined this holding on vested rights to the adult-business ordinance, explaining that the holding did not apply to the special-use ordinance. Id. at *6 n.10.
Also in the September 2008 opinion, Judge Gottschall considered Plaintiffs' claim that the special-use ordinance was unconstitutional both as applied and on its face. Rejecting the first argument, Judge Gottschall explained that Broadview, by denying Chicago Joe's a permit solely on thebasis of the alcohol ban in the adult-business ordinance, had not applied the special-use ordinance to Chicago Joe's at all.1 Id. at *13.
As for the facial challenge to the ordinance, Judge Gottschall first explained that Broadview had amended the special-use ordinance since denying the permit and that only the current version could be considered in deciding a facial challenge. Id. at *20. She then explained that Plaintiffs' submissions were insufficient to decide whether the ordinance was facially invalid. Id. at *21.2
Judge Gottschall, however, did grant Plaintiffs' cross-motion for summary judgment "to the extent it seeks a declaration that § 10-4-6(D)(11) [the alcohol ban] is unconstitutional." See Chi. Joe's Tea Room, No. 07 C 2680, 2008 WL 4287002, at *19. She explained that the ban wasunconstitutional because there was no evidence indicating that the ordinance was primarily motivated by concerns about the "secondary effects" of mixing alcohol with nude dancing. Id. Judge Gottschall acknowledged that, in determining the primary concern of a law, "the court may consider a range of materials including 'the text of the ordinance, its preamble or express legislative findings associated with it, and studies and information of which legislators were clearly aware.'" Id. at *15 (citing Joelner v. Vill. of Washington Park, Ill., 508 F.3d 427, 431 (7th Cir. 2007)). Broadview, however, had made no reference to secondary effects in the ordinance nor put forward any evidence that village officials were concerned with the secondary effects of mixing nude dancing with alcohol consumption. Id. at ** 18-19.
Broadview responded to the September 2008 ruling by again amending its ordinances. The village retained the ban on alcohol but added legislative findings as to the secondary effects of mixing alcohol and nude dancing to justify it. Broadview's SOF ¶ 61. The village also eliminated the ban on adult businesses within 1,000 feet of a residential area, the provision that Judge Gottschall opined was targeted at Chicago Joe's. Id. ¶ 62.
Meanwhile, Illinois law also changed. On August 16, 2007, about three months after this lawsuit was commenced, the Illinois legislature amended 65 Ill. Comp. Stat. § 5/11-5-1.5, a law governing the placement of "adult entertainment facilities." The amendment was adopted roughly eight monthsafter Chicago Joe's had submitted its permit application and five months after Broadview had rejected it.
Under the amended version of § 5/11-5-1.5:
it is ... prohibited to locate, construct, or operate a new adult entertainment facility within one mile of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, or place of religious worship located in that area of Cook County outside of the City of Chicago.
Id. This law effectively bans any new strip club from opening anywhere in Broadview because the entirety of Broadview falls within its scope in one fashion or another.
Defendants did not raise the enactment of § 5/11-5-1.5 during the first round of summary judgment...
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