Illinois Sporting Goods Ass'n v. County of Cook, 93 C 7403.

• Decision Date: 15 February 1994
• Docket Number: No. 93 C 7403.,93 C 7403.
• Citation: 845 F. Supp. 582
• Parties: ILLINOIS SPORTING GOODS ASSOCIATION, an Illinois not-for-profit organization; Ronald Straff, an individual; Donald Beltrame, an individual; William Klicka, an individual; and Paul Petersen, an individual, Plaintiffs, v. COUNTY OF COOK, a body corporate and politic; and Barbara Bruno, in her capacity as Director, Cook County Department of Revenue, Defendants.
• Court: U.S. District Court — Northern District of Illinois

845 F. Supp. 582

ILLINOIS SPORTING GOODS ASSOCIATION, an Illinois not-for-profit organization; Ronald Straff, an individual; Donald Beltrame, an individual; William Klicka, an individual; and Paul Petersen, an individual, Plaintiffs, v. COUNTY OF COOK, a body corporate and politic; and Barbara Bruno, in her capacity as Director, Cook County Department of Revenue, Defendants.

No. 93 C 7403.

United States District Court, N.D. Illinois, E.D.

February 15, 1994.

Royal B. Martin, Jr., William Gibbs Sullivan, Leigh David Roadman, Robert S. Grabemann, Martin, Brown & Sullivan, Ltd., Chicago, IL, for plaintiffs.

Jeffrey S. McCutchan, Connie R. Barba, Cook County State's Attorney's Office, Terry L. McDonald, Asst. States Atty., Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

HOLDERMAN, District Judge:

Plaintiffs Illinois Sporting Goods Association, a not-for-profit organization, and Ronald Straff, Donald Beltrame, William Klicka, and Paul Petersen, who are individual operators of licensed gun shops, have filed a five-count complaint against defendants Cook County and Barbara Bruno, Director of Cook County Department of Revenue, seeking a declaration that the Cook County Firearms Dealer's License and Assault Weapons Ban Ordinance, No. 190061 ("Ordinance") violates the Commerce Clause of the United States Constitution, Article 1, § 8 (Count I); is an invalid exercise of the County's police power under the Illinois Constitution, Article VII, § 6 (Count II); and denies plaintiffs their constitutional rights to procedural and substantive due process and equal protection guaranteed by the Fourteenth Amendment (Counts III, IV and V).

Plaintiffs have filed a motion for a preliminary injunction to enjoin defendants from enforcing Article II of the Ordinance which prohibits the location of gun shops within .5 miles of any school or public park. For the reasons stated below, plaintiffs' motion for a preliminary injunction is granted.

BACKGROUND

The following facts are undisputed by both parties. On October 19, 1993, the Board of Commissioners of Cook County passed Ordinance No. 190061 entitled "Cook County Firearms Dealer's License and Assault Weapons Ban Ordinance," establishing the licensing procedures for firearms dealers located in Cook County (Article II), and banning the possession of assault weapons in Cook County (Article III). Cook County Board President Richard Phelan signed the Ordinance on November 18, 1993.¹

Article II of the Ordinance, the article challenged by plaintiffs, makes it unlawful for any person licensed under federal law to engage in the business of dealing in firearms within Cook County without having applied for or obtained a Cook County firearms dealer's license pursuant to the Ordinance by February 15, 1994.² Pursuant to Article II, § 2-5(c), the Director of Revenue is not to issue a Cook County firearms dealer's license to any person who is engaged in the business of dealing in firearms or firearm ammunition, or indicates an intention to do so, within .5 miles of the grounds of any school or public park, unless:

(1) the person operates a gun shop upon leased premises where said lease was in effect on September 7, 1993, in which case such person is exempt from this provision, but is exempt only for the remainder of the term of that lease without taking into account any extension or renewal of the terms of such lease made on or after September 7, 1993; or

(2) the person owns the premises to which the license is issued, and owned the premises on September 7, 1993; or

(3) the person does not operate a gun shop as defined in this ordinance; or

(4) the person is engaged in the business of dealing in firearms or firearm ammunition only at gun shows or events.

Article II, § 2-5(c)(1)-(c)(4).

For purposes of the exemptions contained in Article II, § 2-5(c), a "gun shop" is defined in the Ordinance as, "the premises of any federally licensed firearms dealer where the only or primary business or commercial enterprise conducted on the premises is the purchase or sale of firearms or firearm ammunition." Article II, § 2-1(d).

ANALYSIS

To support the issuance of a preliminary injunction, the plaintiff bears the burden of proving five elements:

(1) no adequate remedy at law;

(2) the existence of irreparable harm if the injunction was not issued;

(3) a reasonable likelihood of success on the merits;

(4) the threatened harm to the plaintiff if the injunction was not issued outweighs the threatened harm an injunction would have on defendant; and

(5) the public interest is best served by granting an injunction.

Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 608 (7th Cir.1993). While plaintiff is required to prove each element, plaintiff has a "threshold burden" to prove the first three elements. Kellas v. Lane, 923 F.2d 492, 493 (7th Cir.1991) (citing Ping v. National Educ. Assoc., 870 F.2d 1369, 1371 (7th Cir.1989)). "If the movant can meet this threshold burden, the inquiry then becomes a `sliding scale' analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits." Ping, 870 F.2d at 1371. "The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor." Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir.1984) (citations omitted).

I. No Adequate Remedy and Irreparable Harm

Two threshold elements plaintiffs must prove to support the issuance of a preliminary injunction are that plaintiffs have no adequate remedy at law, and that plaintiffs will suffer irreparable harm if the injunction is not issued. In the preliminary injunction analysis these two requirements — irreparable harm and no adequate remedy at law — tend to merge. See Roland, 749 F.2d at 386. "The question is then whether the plaintiff will be made whole if he prevails on the merits and is awarded damages." Id.

To prove that they have no adequate remedy at law plaintiffs must show that an award of damages at the end of trial will be "seriously deficient as a remedy for the harm suffered." Roland, 749 F.2d at 386. See also, Kellas v. Lane, 923 F.2d 492, 496 (7th Cir.1991). To satisfy the requirement of irreparable harm, plaintiffs must show that their harm "cannot be prevented or fully rectified by the final judgment after trial." Roland, 749 F.2d at 386.

In Roland the Seventh Circuit listed four situations where a damage award may be inadequate:

(1) Plaintiffs may be forced to close their businesses while awaiting final judgment.

(2) Plaintiffs are unable to finance their lawsuit without the revenues from their businesses that defendants are threatening to destroy.

(3) Defendant may become insolvent before a final judgment can be entered.

(4) Plaintiffs' losses make damages difficult to calculate, such as lost business profits.

Roland, 749 F.2d at 386. See also, Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1018 (7th Cir.1990) and Zurn Constructors, Inc. v. B.F. Goodrich Co., 685 F.Supp. 1172, 1181 (D.Kan.1988) and cases cited therein ("Numerous cases support the conclusion that loss of customers, loss of goodwill, and threats to a business' viability can constitute irreparable harm." Id.).

In this case plaintiffs argue that if a preliminary injunction is not granted and the Ordinance becomes effective, plaintiffs will suffer significant economic injury, and, most likely, the loss of their businesses due to the difficulty of relocating their businesses in compliance with the requirements of the Ordinance. In addition, plaintiffs claim, citing Roland, that the nature of their losses, lost business profits, makes damages difficult, if not impossible, to measure.³

The court finds that if the Ordinance takes effect it will threaten the existence of plaintiffs' businesses and any money damages that plaintiffs may be awarded at the time of final judgment may come too late to save their businesses. In addition, the court finds that even if plaintiffs are able to save their businesses, plaintiffs' lost profits will be difficult to calculate. For the above reasons, the court concludes that plaintiffs have no adequate remedy at law and may suffer irreparable harm without the requested injunctive relief.

II. Likelihood of Success on the Merits

The third threshold element plaintiffs must prove to support the issuance of a preliminary injunction is a reasonable likelihood of success on the merits. See Retired Chicago Police Assoc., 7 F.3d at 608. To demonstrate a reasonable likelihood of success on the merits, plaintiffs must show that their chance of prevailing is "better than negligible." Kinney v. International Union of Operating Engineers, 994 F.2d 1271, 1275 (7th Cir.1993).⁴

A. Commerce Clause

Plaintiffs argue that the licensing procedures contained in Article II of the Ordinance violate the Commerce Clause of the United States Constitution, Article 1, § 8, because the Ordinance imposes an excessive burden on interstate commerce that outweighs any benefit which the ordinance may arguably provide to the citizens of Cook County. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).⁵

Where an ordinance applies even-handedly to intrastate and interstate commerce, "and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike, 397 U.S. at 142, 90 S.Ct. at 847. If the court determines that the Ordinance has a legitimate local purpose, "then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Id.

It is undisputed by both parties that the...