Illinois Restaurant Ass'n v. City of Chicago, No. 06 C 7014.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtManning
Citation492 F.Supp.2d 891
PartiesILLINOIS RESTAURANT ASSOCIATION and A.N.A.C, d/b/a Allen's New American Café, Plaintiffs, v. CITY OF CHICAGO, Defendant.
Docket NumberNo. 06 C 7014.
Decision Date12 June 2007

Page 891

492 F.Supp.2d 891
ILLINOIS RESTAURANT ASSOCIATION and A.N.A.C, d/b/a Allen's New American Café, Plaintiffs,
v.
CITY OF CHICAGO, Defendant.
No. 06 C 7014.
United States District Court, N.D. Illinois, Eastern Division.
June 12, 2007.

Page 892

Barry Stuart Rosen, Grant Young Lee, Michael David Richman, Reed Smith LLP, Chicago, IL, Martin Sander Kaufman, Atlantic Legal Foundation, New York, NY, for Plaintiffs.

Andrew S. Mine, David Alan Grossman, Mardell Nereim, City of Chicago, Law Department Corporation Counsel, Chicago, IL, for Defendant.

MEMORANDUM AND ORDER

MANNING, District Judge.


Foie gras, or "fatty liver," is produced using the French practice of gavage, which involves feeding ducks or geese with the goal of fattening their livers. The practice dates back to at least Roman times, when Pliny the Elder wrote of the practice of feeding geese dried figs to enlarge their livers. Pliny the Elder, Natural History, Book VIII, Ch. 77 (Teubner ed.1909). In the nineteenth century, the debate over the propriety of the practice continued, as Jean Anthelme Brillat-Savarin sided with the geese and ducks, writing that "Whey have not only been deprived of the means of reproduction, but they have been kept in solitude and darkness, and forced to eat until they were led to an unnatural state of fatness." Physiologic du gout (The Physiology of Taste), sec. III (1825). On the other hand, his contemporary, Charles Gerard, called the goose "an instrument for the output of a marvelous product, a kind of living hothouse in which there grows the supreme fruit of gastronomy." Charles Gérard, L'Ancienne Alsace à table (1862).

The debate rages on today, as the City of Chicago entered the fray in 2006 by enacting an ordinance banning the sale of foie gras at food dispensing establishments in the City. The Illinois Restaurant Association and Allen's New American Café sued the City in state court, claiming that the foie gras ordinance exceeded the City's police powers under the Illinois Constitution. The City removed this action after the plaintiffs amended their complaint to add a Commerce Clause claim arising under the federal Constitution. The City's motion to dismiss for failure to state a claim is before the court. For the following reasons, the court finds that the foie gras ordinance is consistent with the Illinois

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and United States Constitutions. Thus, the City's motion to dismiss for failure to state a claim is granted in its entirety.

I. Background

The court will accept the allegations in the complaint as true for the purposes of the City's motion to dismiss. On April 26, 2006, the City Council enacted Ordinance PO-05-1895 ("the Ordinance"), which became effective on August 23, 2006. First Amended Complaint ("FAC") at ¶ 22, Ex. 1. The Ordinance amends the City's Municipal Code to add a section prohibiting the sale of foie gras at "food dispensing establishments" within the City and provides that any business that violates the Ordinance is subject to a fine of between $250 and $500 per offense. FAC Ex. 1, §§ 7-39-001.1, 7-39-005.1

The City of Chicago is a home rule unit under the 1970 Illinois Constitution. Id. at ¶ 1. Plaintiff Illinois Restaurant Association is an Illinois non-profit organization consisting of member restaurants, and its mission is to advocate the interests of its members in order to advance their economic interests. Id. at ¶ 18. A number of these restaurants — including plaintiff A.N.A.C. d/b/a Allen's New American Café — are located in Chicago and, but for the Ordinance, would have continued to offer dishes containing foie gras to their patrons. Id. at ¶¶ 18-19.

Foie gras is not produced in Chicago or Illinois. Id. at ¶ 27. Instead, it is produced domestically at farms in California and New York and is produced and imported into the United States from farms in Canada and France. Id. ¶ 28. The production of foie gras in these out-of-state and foreign locations is lawful, and imported foie gras is subject to federal tariffs and other federal regulations allowing its importation for sale into the United States. Id. at ¶ 30, 33. Furthermore, the United States Department of Agriculture ("USDA") has found that foie gras is safe for human consumption. Id. at ¶¶ 3, 58.

The parties offer differing characterizations of the City Council's motives for passing the Ordinance. According to the plaintiffs, the City Council has never advanced any health, consumer protection, or fraud bases as justification for the Ordinance and no such justifications exist. Id. at ¶¶ 35-38. Instead, the Ordinance is a "moral statement" which was passed "because of the purportedly inhumane manner in which foie gras is produced." Id. at ¶ 59, 4 (emphasis in original).

On the other hand, the City points to the "WHEREAS" clauses of the Ordinance, which note the City Council's recognition that "the media has shed light on the unethical practices of the care and preparation of the livers of birds." FAC Ex. 1. The City Council specifically focused upon the practice during which "[b]irds, in particular geese and ducks, are inhumanely force fed, via a pipe inserted through their throats several times a day, in order to produce a rare delicacy, foie gras, for restaurant patrons." Id. With respect to that practice, the City Council identified a recent survey showing that nearly 80 percent of Americans oppose the treatment of geese and ducks whose livers become foie gras. Id.

The City Council also recognized that the City "is home to many famous restaurants offering the finest cuisine and dining

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experiences to their customers," and that "[m]illions of people visit Chicago every year, attending cultural events and dining in our legendary restaurants." Id. The City Council then expressed its view that "[t]he people of Chicago and those who visit here have come to expect, and rightfully deserve, the highest quality in resources, service and fare" and concluded that "[b]y ensuring the ethical treatment of animals, who are the source of the food offered in our restaurants, the City of Chicago is able to continue to offer the best in dining experiences." Id. The City then passed the Ordinance. Id.

The plaintiffs sued the City in state court, claiming that the Ordinance exceeded the City's home rule powers under the Illinois Constitution. The City removed this action after the plaintiffs amended their complaint to add a commerce clause claim arising under the United States Constitution. The City presently seeks to dismiss the complaint in its entirety under Rule 12(b)(6), contending that it fails as a matter of law to state a claim for which relief may be granted.

II. Discussion

A. Standard for a Rule 12(b)(6) Motion to Dismiss

In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must assume the truth of all facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir.1992). Dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, the court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir.1992).

B. The Illinois Constitution — Home Rule

The court, unlike the parties, begins by considering whether the Ordinance was properly enacted pursuant to the City's home rule powers under the Illinois Constitution because federal "[c]onstitutional adjudication is a last resort, and courts should do what they can to decide on other grounds." National Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124, 1126 (7th Cir.1995) (district court should have considered whether Chicago's spray paint ban was a valid exercise of home rule powers before addressing whether it violated the United States Constitution).

The plaintiffs contend that the Ordinance exceeds the City's home rule powers because it is not aimed at a legitimate local problem and has an impermissible extra-territorial effect since it is meant to affect the production process of foie gras, which only occurs outside Chicago. Under the Illinois Constitution of 1970, "a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare. ..." Ill. Const. Art. VII, § 6(a). The City "is a home rule unit of local government under the 1970 Illinois Constitution." City of Chicago v. Roman, 184 Ill.2d 504, 512, 235 Ill.Dec. 468, 705 N.E.2d 81 (Ill.1998). Thus, the Ordinance does not violate the Illinois Constitution if it is within the scope of the City's broad home rule powers.

The court begins with an overview of home rule. The Illinois Supreme Court

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has emphasized that home rule units have expansive powers. Id. ("Section 6(a) gives home rule units the broadest powers possible"); Schillerstrom, Homes, Inc. v. City of Naperville, 198 Ill.2d 281, 287, 260 Ill.Dec. 835, 762 N.E.2d 494 (2001) (same). Because home rule powers are "broad and imprecise in order to allow for great flexibility," City of Evanston v. Create, Inc., 85 Ill.2d 101, 107, 51 Ill.Dec. 688, 421 N.E.2d 196 (1981), a home rule unit's powers and functions "shall be construed liberally." Ill. Const.1970 art. VII, § 6(m). Moreover; a home rule unit "has broad discretion to determine not only what the public interest and welfare require, but to determine the measures needed to secure such interest." Chicago Nat'l League Ball Club, Inc. v. Thompson, 108 Ill.2d 357, 364, 91 Ill.Dec. 610, 483 N.E.2d 1245 (1985).

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4 practice notes
  • Ass'n Des Eleveurs De Canards Et D'Oies Du Quebec v. Harris, No. 12–56822.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 30, 2013
    ...pending in the Seventh Circuit, the city repealed the ordinance and the decision was vacated. See Ill. Rest. Ass'n v. City of Chicago, 492 F.Supp.2d 891 (N.D.Ill.2007), vacated as moot,06 C 7014, 2008 WL 8915042 (N.D.Ill. Aug. 7, 2008). On this record, Plaintiffs' fear of balkanization is b......
  • Portland Pipe Line Corp. v. City of S. Portland, 2:15-cv-00054-JAW
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • August 24, 2018
    ...foie gras producers does not amount to extraterritorial regulation. Id. at 63 (citing Ill. Rest. Ass'n v. City of Chicago , 492 F.Supp.2d 891 (N.D. Ill. 2007) ). The City maintains that the focus of the extraterritoriality prong is on the effect of the Ordinance, not its purpose. Even if ex......
  • Midwest Title Loans, Inc. v. Ripley, No. 1:07-cv-1479-SEB-DML.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 24, 2009
    ...invalid where it has the "practical effect" of controlling commerce wholly outside the state). Cf. Ill. Rest Ass'n v. City of Chicago, 492 F.Supp.2d 891 (N.D.Ill.2007) (holding that despite a city ordinance's extraterritorial effects, it was valid because it was aimed at a sufficiently loca......
  • Ass'n des Eleveurs de Canards et d'Oies due Quebec v. Harris, No. 12-56822
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 30, 2013
    ...in the Seventh Circuit, the city repealed the ordinance and thePage 24decision was vacated. See Ill. Rest. Ass'n v. City of Chicago, 492 F. Supp. 2d 891 (N.D. Ill. 2007), vacated as moot, 06 C 7014, 2008 WL 8915042 (N.D. Ill. Aug. 7, 2008). On this record, Plaintiffs' fear of balkanization ......
4 cases
  • Portland Pipe Line Corp. v. City of S. Portland, 2:15-cv-00054-JAW
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • August 24, 2018
    ...foie gras producers does not amount to extraterritorial regulation. Id. at 63 (citing Ill. Rest. Ass'n v. City of Chicago , 492 F.Supp.2d 891 (N.D. Ill. 2007) ). The City maintains that the focus of the extraterritoriality prong is on the effect of the Ordinance, not its purpose. Even if ex......
  • Ass'n Des Eleveurs De Canards Et D'Oies Du Quebec v. Harris, No. 12–56822.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 30, 2013
    ...pending in the Seventh Circuit, the city repealed the ordinance and the decision was vacated. See Ill. Rest. Ass'n v. City of Chicago, 492 F.Supp.2d 891 (N.D.Ill.2007), vacated as moot,06 C 7014, 2008 WL 8915042 (N.D.Ill. Aug. 7, 2008). On this record, Plaintiffs' fear of balkanization is b......
  • Midwest Title Loans, Inc. v. Ripley, No. 1:07-cv-1479-SEB-DML.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 24, 2009
    ...invalid where it has the "practical effect" of controlling commerce wholly outside the state). Cf. Ill. Rest Ass'n v. City of Chicago, 492 F.Supp.2d 891 (N.D.Ill.2007) (holding that despite a city ordinance's extraterritorial effects, it was valid because it was aimed at a sufficiently loca......
  • Ass'n des Eleveurs de Canards et d'Oies due Quebec v. Harris, No. 12-56822
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 30, 2013
    ...in the Seventh Circuit, the city repealed the ordinance and thePage 24decision was vacated. See Ill. Rest. Ass'n v. City of Chicago, 492 F. Supp. 2d 891 (N.D. Ill. 2007), vacated as moot, 06 C 7014, 2008 WL 8915042 (N.D. Ill. Aug. 7, 2008). On this record, Plaintiffs' fear of balkanization ......
1 books & journal articles
  • INTRASTATE PREEMPTION: A NEW FRONTIER IN BURDENING CHOICE.
    • United States
    • Columbia Journal of Gender and Law Vol. 40 Nbr. 1, June 2020
    • June 22, 2020
    .../2016-ACCE-White-Paper-Dillon-House-Rule-Final.pdf [https://perma.cc/LTM2-DWXV]. (111) See 111. Rest. Ass'n v. Chicago, 492 F. Supp. 2d 891, 894 (N.D. 111. 2007), vacated as moot, No. 06 C 7014, 2008 WL 8915042 (N.D. 111. Aug. 7, 2008). (112) See Protect Fayetteville v. City of Fayetteville......

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