N & N Catering Co., Inc. v. City of Chicago

• Decision Date: 17 February 1999
• Docket Number: No. 98 C 6961.,No. 98 C 7831.,No. 98 C 8054.,98 C 6961.,98 C 7831.,98 C 8054.
• Citation: 37 F.Supp.2d 1056
• Parties: N & N CATERING COMPANY, INC., Plaintiff, v. CITY OF CHICAGO, Defendants. Alberto Bedoya d/b/a Casanovas, Inc., Plaintiff, v. City of Chicago, Richard M. Daley, as Mayor and Commissioner of the Liquor Control Commission of the City of Chicago, Liquor Control Commission of the City of Chicago, Defendants. Club Misty Inc., d/b/a Tequila Roadhouse, Plaintiff, v. James Laski, Clerk of the City of Chicago, Board of Election Commissioners of the City of Chicago, and City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

37 F.Supp.2d 1056

N & N CATERING COMPANY, INC., Plaintiff, v. CITY OF CHICAGO, Defendants.

Alberto Bedoya d/b/a Casanovas, Inc., Plaintiff, v. City of Chicago, Richard M. Daley, as Mayor and Commissioner of the Liquor Control Commission of the City of Chicago, Liquor Control Commission of the City of Chicago, Defendants.

Club Misty Inc., d/b/a Tequila Roadhouse, Plaintiff, v. James Laski, Clerk of the City of Chicago, Board of Election Commissioners of the City of Chicago, and City of Chicago, Defendants.

No. 98 C 6961.

No. 98 C 7831.

No. 98 C 8054.

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

February 17, 1999.

COPYRIGHT MATERIAL OMITTED

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.

J. Brian Pierce, J. Brian Pierce & Associates, Chicago, IL, for Alberto Bedoya, plaintiff.

Michael A. Moses, Richard G Schoenstadt, Morton Siegel, James L. Webster, Siegel, Moses, Schoenstadt & Webster, P.C., Chicago, IL, for Club Misty, Inc., plaintiff.

Patrick Walter Johnson, City of Chicago, Law Department, Corporation Counsel, Chicago, IL, Ralphette Gaston Rhodes, City of Chicago, Law Department, Chicago, IL, Norma Reyes, City of Chicago, Chicago, IL, 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.

Patrick Walter Johnson, City of Chicago, Law Dept. Corp. Counsel, Chicago, IL, Ralphette Gaston Rhodes, City of Chicago Law Dept., Chicago, IL, Michael A. Forti, Scott A. Frey, City of Chicago, Department of Law, Chicago, IL, Norma Reyes, City of Chicago, Chicago, IL, for City of Chicago, Richard M. Daley, defendants.

Patrick J. Solberg, Illinois Attorney General's Office, Chicago, IL, Patrick Walter Johnson, City of Chicago, Law Dept. Corp. Counsel, Chicago, IL, Michael A. Forti, Scott A. Frey, City of Chicago Dept. of Law, Chicago, IL, for State of Illinois Liquor Control Commission, defendant.

Patrick Walter Johnson, City of Chicago, Law Department, Corporation Counsel, Chicago, IL, Michael A. Forti, Scott A. Frey, City of Chicago, Department of Law, Chicago, IL, for James Laski, defendant.

OPINION and ORDER

NORGLE, District Judge.

Before the court are challenges to the constitutionality of the single-address local option provision of the Illinois Liquor Control Act, 235 ILCS 5/9-2 (1995). For the following reasons, those challenges brought pursuant to the federal constitution are denied. The court declines to exercise its jurisdiction over the claim attacking the Liquor Control Act on state constitutional grounds.

I. BACKGROUND

The plaintiffs in these three related actions hold state and city licenses authorizing them to sell alcohol at their respective establishments within the City of Chicago. What they share in common is that single-address local option referenda under the Illinois Liquor Control Act ("Liquor Control Act"), 235 ILCS 5/9-2 (1995), jeopardize the validity of their liquor licenses. In a prior Opinion and Order, this court temporarily enjoined on due process grounds the enforcement of a local option referendum passed pursuant to the Liquor Control Act. If operative, the referendum would have extinguished Plaintiff N & N Catering Company's ("N & N") licenses to sell alcohol at the International Amphitheatre. See N & N Catering Co. v. City of Chicago, 26 F.Supp.2d 1067 (N.D.Ill. 1998).

Two other liquor licensees, Alberto Bedoya ("Bedoya") and Club Misty Inc. ("Club Misty"), have since filed actions in federal court on the same constitutional grounds as N & N. Because their respective complaints include claims nearly identical to those raised by N & N, Bedoya and Club Misty each moved for reassignment of their cases to this court pursuant to Local Rule 2.31. Like N & N, Bedoya seeks an order enjoining enforcement of a local option referendum passed in the November 3, 1998, election. The City of Chicago ("the City"), however, has agreed not to enforce any local option referenda from that election until the court issues a final ruling on the constitutionality of the Liquor Control Act. In contrast to N & N and Bedoya's claims for post-election relief, Club Misty seeks a pre-election ruling that would enjoin placement of a local option referendum on the ballot for the February 23, 1999, election.

Although the three related cases may not be at identical stages of litigation, they each seek a decision on the same constitutional issues. In fact, N & N, Bedoya, and Club Misty (collectively referred to as "the Licensees") have filed consolidated memoranda in support of their claims. Thus, in the interests of judicial economy, the court submits the following opinion as a comprehensive adjudication of all three actions.

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

N & N is licensed to sell alcoholic beverages for on-premises consumption at 4220 S. Halsted in Chicago; 4220 S. Halsted is a notable address in Chicago because it is the site of the International Amphitheatre ("the Amphitheatre"), an arena which has a considerable place in the city's history.¹ In July 1998, certain residents of the precinct surrounding the Amphitheatre initiated a campaign to prohibit the sale of alcohol at the arena's address. 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 4220 S. Halsted. 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"

(N & N Orig.Mem., Ex. A.); see also 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 3rd 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 City's Orig.Resp. at 1, 10.) 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 and 28 U.S.C. § 1367(a), again naming Laski and the Board of Election as defendants. N & N alleges that the single-address local option provision of the Liquor Control Act, 235 ILCS 5/9-2, violates its rights under the United States and Illinois constitutions. Specifically, the complaint alleges that the Liquor Control Act: (1) deprives N & N of its liquor license without due process of law in violation of the Fourteenth Amendment; (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 of Chicago 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 single-address local option provision 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.

With the November 3rd election date fast-approaching, N & N immediately moved for a temporary restraining order to enjoin Laski and the Board of Election from placing the referendum on the 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). See also Fed.R.Civ.P. 24(c); Perez v. City of Chicago, 95 C 685, 1995 WL 410981,...