LMP Servs., Inc. v. City of Chi.

• Decision Date: 18 December 2017
• Docket Number: No. 1–16–3390,1–16–3390
• Citation: 2017 IL App (1st) 163390,95 N.E.3d 1259
• Parties: LMP SERVICES, INC., Plaintiff–Appellant, v. The CITY OF CHICAGO, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 163390

95 N.E.3d 1259

LMP SERVICES, INC., Plaintiff–Appellant,

v.The CITY OF CHICAGO, Defendant–Appellee.

No. 1–16–3390

Appellate Court of Illinois, First District, FIRST DIVISION.

December 18, 2017

Eimer Stahl, LLP, of Chicago (James W. Joseph, of counsel), and Institute for Justice, of Arlington, Virginia (Robert Frommer, Robert Gall, and Erica J. Smith (all pro hac vice), of counsel), for appellant.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Suzanne M. Loose, Assistant Corporation Counsel, of counsel), for appellee.

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellant, LMP Services, Inc. (LMP), filed this lawsuit seeking both declaratory and injunctive relief against two sections of an ordinance passed by defendant-appellee, City of Chicago (City). The two challenged ordinances pertained to the operation of mobile food vehicles (hereinafter food trucks) within Chicago. Under the first challenged ordinance, food trucks may not, with limited exceptions, locate themselves within 200 feet of the principal customer entrance of a restaurant located at street level. LMP challenged this ordinance under the due process and equal protection clauses of the Illinois Constitution. Under the second challenged provision, food trucks must be equipped with a Global Positioning System (GPS) that sends real-time data to any service that has a publicly accessible application programming interface. LMP challenged this provision as a violation of its right under the Illinois Constitution to be free from unreasonable searches.

¶ 2 After LMP filed an amended complaint, the City moved to dismiss all of LMP's claims. The circuit court granted the motion with respect to the equal protection claim but denied the motion as to the due process and search claims. The City answered the remaining claims and the parties proceeded to discovery. At the close of discovery, the parties moved for cross-summary judgment. As to the 200–foot rule, the circuit court found it rationally related to (1) the City's need to balance the interests of both the food trucks and brick-and-mortar restaurants and (2) the City's need to balance sidewalk congestion. As to the GPS requirement, the circuit court found LMP lacked standing because the City had never requested its GPS information and, therefore, a search had not occurred. The court further concluded that, even if a search had occurred, the search was reasonable and therefore constitutional.

¶ 3 LMP now appeals the circuit court's grant of summary judgment in favor of the City. Upon this court's review, we agree with the circuit court's findings that LMP's constitutional challenge to both sections of the ordinance fails. The City has a critical interest in maintaining a thriving food service industry of which brick-and-mortar establishments are an essential part. The 200–foot exclusion represents a rational means of ensuring the general welfare of the City and is neither arbitrary nor unreasonable. The GPS is not a search pursuant to United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The GPS rule represents a method of requiring a licensee to maintain records as to its operational location in an electronic form as a condition of conducting business from the city street. Accordingly, the circuit court's grant of summary judgment in favor of the City is affirmed.

¶ 4 JURISDICTION

¶ 5 On June 13, 2013, the circuit court granted the City's motion to dismiss LMP's equal protection claim. On December 5, 2016, the circuit court granted the City's motion for summary judgment on LMP's due process and illegal search claims. LMP's cross-motion for summary judgment was denied the same day. On December 28, 2016, LMP timely filed its notice of appeal as to the December 5, 2016 order.¹ Accordingly, this court has jurisdiction over this matter pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 301 and 303. Ill. Const. 1970, art. VI, § 6 ; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 6 BACKGROUND

¶ 7 The plaintiff-appellant, LMP is a closely held Illinois corporation in Elmhurst, Illinois. Its owner, Laura Pekarik, operates the food truck called Cupcakes for Courage. Cupcakes for Courage is licensed in Chicago as a "mobile food dispenser," and since June 2011, Pekarik has sold cupcakes from the food truck.

¶ 8 On July 25, 2012, the Chicago city council passed an ordinance to expand food truck operations within the city limits of Chicago. The ordinance allows for food preparation on food trucks and established a number of regulations governing location, operation, and inspection of food trucks. The ordinance authorizes the commissioner of transportation for the City to establish fixed stands where parking space for food trucks is reserved. Chicago Municipal Code § 7–38–117(c) (added July 25, 2012). The ordinance requires a "minimum of 5 such stands" in each "community area * * * designated in section 1–14–010 of this Code [ (Chicago Municipal Code § 1–14–010 (added Dec. 15, 1993)) ], that has 300 or more retail food establishments." Id. Those community areas are the Loop,² Near West, Near North, Lincoln Park, Lakeview, and West Town.

¶ 9 Beyond food stands, food trucks may park in legal parking spots on the street for up to two hours. Chicago Municipal Code § 7–38–115(b) (amended July 25, 2012). Food trucks may not park within 20 feet of a crosswalk, 30 feet of a stop light or stop sign, or adjacent to a bike lane. Chicago Municipal Code § 7–38–115(e) (amended July 25, 2012). In addition, the ordinance provides:

"No operator of a mobile food vehicle shall park or stand such vehicle within 200 feet of any principal customer entrance to a restaurant which is located on the street level; provided, however, the restriction in this subsection shall not apply between 12 a.m. and 2 a.m." Chicago Municipal Code § 7–38–115(f) (amended July 25, 2012).

"Restaurant" is defined as:

"[A]ny public place at a fixed location kept, used, maintained, advertised and held out to the public as a place where food and drink is prepared and served for the public for consumption on or off the premises pursuant to the required licenses. Such establishments include, but are not limited to, restaurants, coffee shops, cafeterias, dining rooms, eating houses, short order cafes, luncheonettes, grills, tearooms, and sandwich shops." Id.

There are two exceptions to the 200–foot requirement. The first exception allows food trucks to park at one of the five established food stands even if that stand is within 200–feet of the primary entrance of a restaurant. The second exception allows food trucks to park near construction sites and serve those sites.

¶ 10 Mobile food vendors are also subject to regulations designed to ensure safe food preparation and sanitary operations, including requirements for storage and plumbing equipment, food preparation, cleaning products, temperature control, and the presence of certified food service manager when food is prepared. Chicago Municipal Code §§ 7–38–132; 7–38–134 (added July 25, 2012). Each food truck must be linked to a commissary used daily for supplying, cleaning, and servicing. Chicago Municipal Code § 7–38–138 (added July 25, 2012). The Chicago board of health (board) is authorized to enact rules and regulations to implement those requirements (Chicago Municipal Code § 7–38–128 (added July 25, 2012)) and the department of public health conducts inspections. Chicago Municipal Code § 7–38–126 (added July 25, 2012).

¶ 11 The ordinance also has a requirement concerning the use of GPS equipment on the food trucks. The ordinance provides:

"Each mobile food vehicle shall be equipped with a permanently installed functioning Global–Positioning–System (GPS) device which sends real-time data to any service that has a publicly-accessible application programming interface (API). For purposes of enforcing this chapter, a rebuttable presumption shall be created that a mobile food vehicle is parked at places and times as shown in the data tracked from the vehicle's GPS device." Chicago Municipal Code § 7–38–115(l) (amended July 25, 2012)

The Board subsequently enacted "Rules and Regulations for Mobile Food Vehicles." Rule 8 provides that the GPS device be permanently installed; be an " ‘active,’ " not " ‘passive,’ " device that sends real-time location data to a GPS provider; and be accurate no less than 95% of the time. Chicago Board of Health, Rules and Regulations for Mobile Food Vehicles, R. 8(A)(1)-(3) (eff. Aug. 7, 2014), https://www.cityofchicago.org/content/dam/city/depts/bacp/ general/MFV_Rules_and_Regulations-8-7-2014.pdf. The City claimed that the GPS requirement's purpose was so that it could locate food trucks in order to conduct field inspections and investigate public health complaints.

¶ 12 The rule further provides that the device must function during business operations and while at a commissary and transmit GPS coordinates to the GPS service provider at least once every five minutes. Chicago Board of Health, Rules and Regulations for Mobile Food Vehicles, R. 8(A)(4)-(5) (eff. Aug. 7, 2014). The rule further provides that the City will not request GPS information without consent, a warrant, or court authorization unless the information is needed "to investigate a complaint of unsanitary or unsafe conditions, practices, or food or other products at the vehicle"; "to investigate a food-related threat to public health"; to "establish[h] compliance with" the ordinance and regulations; or for "emergency preparation or response." Chicago Board of Health, Rules and Regulations for Mobile Food Vehicles, R. 8(B) (eff. Aug. 7, 2014). Rule 8 also clarified that, while GPS providers must "be able to provide" an API "that is available to the general public," licensees need not "provide the appropriate access information to the API"...