Tavarez v. O'MALLEY
| Decision Date | 22 May 1986 |
| Docket Number | No. 85 C 4283.,85 C 4283. |
| Parties | Nydia TAVAREZ, Manny Tavarez, d/b/a LaNydia Grocery, Plaintiffs, v. Michael O'MALLEY, Roy McCampbell, Phillip Mole, Maurice Iorio, Robert Radek, Richard Bacha and County of Cook, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Daniel Galatzer/Thomas Grippando, Daniel Galatzer, Ltd., Chicago, Ill., for plaintiffs.
Karen Diamond, Asst. State's Atty., Donald J. O'Brien, Jr., Chicago, Ill., for defendants.
Plaintiffs Nydia and Manuel Tavarez, formerly doing business as "LaNydia Grocery" in Schiller Park, Illinois, brought this suit under the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1982), against Michael O'Malley, an inspector for the Cook County Department of Environmental Control ("the Department"), Phillip Mole, the Director of the Department, the County of Cook ("the County") and Schiller Park employees Roy McCampbell, Robert Radak, Robert Bacha and Maurice Iorio ("the Schiller Park defendants"). The Tavarezes allege that they were deprived of their property without due process of law in violation of the fifth and fourteenth amendments to the Constitution when the individual defendants, in response to a gas heater malfunction, sealed the LaNydia Grocery and denied the Tavarezes access to the store for a period of approximately four weeks. The Tavarezes also allege that § 1983 liability should be imposed on the County since O'Malley and Mole were acting under established County policy.1 Presently before this Court is a motion for summary judgment filed by O'Malley, Mole and the County. For the reasons stated below, the motion is granted.
The parties do not dispute that on November 21, 1983 a gas heater located in the LaNydia Grocery malfunctioned and emitted carbon monoxide fumes which injured several people on the premises. The facts regarding the defendants' response to this situation, however, are strongly disputed. By the Tavarezes' account, O'Malley and the Schiller Park defendants arrived at the store, shut off the heater and sealed the store entrances with "coroner seals" which pronounced that "Any person breaking or mutilating this seal or entering these premises will be prosecuted to the full extent of the law." They further allege that despite their repeated efforts to gain access to the sealed building in order to protect the inventory and make the necessary repairs to the heater, the Tavarezes were denied access by Mole and O'Malley. Mole allegedly warned the Tavarezes that they would face a year in jail if they broke the seals.
The damages allegedly suffered as a result of these actions stemmed partially from freezing temperatures which caused some water pipes to burst during the time the building was sealed. The resulting flood damaged fixtures and equipment in the store. Furthermore, perishable inventory spoiled or was destroyed by the water during this period. Finally, the Tavarezes assert that their inability to conduct business while the building was sealed destroyed the business and any consumer goodwill which had been established.
The County contends that it is entitled to judgment as a matter of law because the Tavarezes can show no established or employed County policy which authorized the alleged actions of O'Malley and Mole. We agree. Cook County has an extensive ordinance regulating environmental matters ("the ordinance") which establishes the duties and powers of the County's Department of Environmental Control ("the Department"). The parties point to two different portions of this ordinance to show that a county policy authorizing sealing without notice or a hearing did or did not exist. The Tavarezes cite Section 16-8.4-1 which provides:
Cook County, Ill., Ordinance ch. 16, § 16-8.4-1. The Tavarezes claim that the Director's authority to summarily abate a public nuisance under this provision constitutes a county policy sanctioning the sealing of buildings without any sort of hearing. The power of public officials to summarily abate public nuisances existed at common law. Village of Riverwoods v. Untermeyer, 54 Ill.App.3d 816, 822, 12 Ill. Dec. 371, 375-76, 369 N.E.2d 1385, 1389-90 (2d Dist.1977). However, the scope of that special remedy, whether conferred by common law or statute, is narrowly limited to doing only what is necessary to eliminate the nuisance. 58 Am.Jr.2d Nuisances §§ 195-198 (1971). In this case, a summary abatement merely would have entailed shutting down the defective heating unit, and perhaps cutting off the natural gas. The Tavarezes do not complain that their rights were deprived by that type of behavior on the part of the defendants. Rather, the activity about which they complain could not have been authorized by this part of the ordinance.
This interpretation is bolstered by the fact that a separate ordinance provision sets forth the procedures which the Department must follow in order to seal a building. Section 16-5.5-3(b) of the ordinance establishes detailed procedures for the Director to use before a building is sealed.2 Among the prescribed prerequisites to sealing is the establishment and notification to the offending party of three violations of the environmental control ordinance within a twelve-month period and written notification requiring the offender to show cause why the equipment or building should not be sealed. Furthermore, the right to a pre-sealing hearing is explicitly preserved under this regulatory scheme. The defendants do not dispute that in order for the Department to lawfully seal any building, the requirements of § 16-5.5-3(b) must be fulfilled. However, the County maintains, and this Court agrees, that since such a carefully constructed procedure for pre-disposition notice and hearing is firmly in place in the ordinance, even if the plaintiffs' allegations of the individual defendants' conduct were true, those acts were not undertaken pursuant to a County policy. Accordingly, the County's motion for summary judgment is granted.3
The facts regarding the participation of O'Malley and Mole in the events which led to the sealing of the building where the Tavarezes' store was located are in substantial dispute.
The dispute regarding O'Malley involves his alleged participation in sealing the building on November 21, 1983. O'Malley states in an affidavit that on November 21, 1983 he visited the building where the Tavarezes' store was located in order to inspect the conditions. However, he claims that he did not shut off any heaters, seal any entrances or post any signs prohibiting entrance. This is corroborated by the deposition testimony of Robert Radak. Radak Dep. at 11-12. However, Manuel Tavarez ("Manuel") testified at his deposition that he personally witnessed O'Malley place a seal on one of the doors to the building. Manuel Tavarez Dep. at 55.4 This conflicting evidence certainly raises a factual dispute.
With respect to Mole there is similarly disputed evidence. According to the Tavarezes, O'Malley told Manuel at the time of the sealing that he would have to meet with O'Malley and Mole on the following day. Manuel Tavarez Substituted Aff. ¶ 2. There is also evidence that some of the Schiller Park defendants informed Manuel that he could not reopen his business until he contacted the Department.
The parties agree that the Tavarezes met with O'Malley and Mole on November 22, 1983 and with just Mole on at least one other occasion. However, two very different versions of these meetings have been presented to the Court. Both O'Malley and Mole claim that at the November 22 meeting they merely acted in an advisory capacity and informed the Tavarezes what repairs would be necessary. They both deny telling the Tavarezes that they could not gain access to their store. By affidavit, both Manuel and Nydia Tavarez ("Nydia") state that Mole warned them that they would be subject to criminal penalties if they entered the building. They claim that they asked Mole and O'Malley when they could reenter the building and were told to wait about one week.
A second meeting allegedly took place where, according to Nydia, Mole said that the Tavarezes could get into their store if they submitted a statement from their landlord that he would repair the heating unit. Nydia states in their affidavit that she asked Mole to call the landlord, Pat Malfeo, to request such a statement and that Mole obliged. Nydia Tavarez Substituted Aff. ¶ 5. Malfeo confirmed at his deposition that Mole called him with this request. Malfeo Dep. at 26-27. Mole admits making the call, but claims that he did so as a favor to the Tavarezes to help expedite the process, not as a condition to get into the building. Mole Aff. ¶ 8. Malfeo prepared the letter and Nydia claims that she delivered it to Mole who told her that it was inadequate for the purposes of getting permission to reenter the store. Nydia Tavarez Substituted Aff. ¶ 5. Manuel asserted in his second affidavit that he visited Mole about three weeks after their first meeting, and that Mole...
To continue reading
Request your trial
-
Tavarez v. O'Malley, 86-2501
...Park--had deprived them of property without due process of law. The district judge granted summary judgment for the defendants, 635 F.Supp. 1274 (N.D.Ill.1986), so we must construe the facts as favorably to the plaintiffs as the record will On November 21, 1983, a gas heater in the Tavareze......
- Tavarez v. O'MALLEY
- Starnes v. Hill