During the recent “lame duck” session, a bill passed both houses of the Illinois General Assembly facilitating liquor delivery by retailers. If signed by the Governor, Ill. S.B. 54 would amend the Liquor Control Act to provide that nothing in the ...

Municipal Minute

Liquor Delivery Bill Passes Both Houses in the Illinois General Assembly

During the recent “lame duck” session, a bill passed both houses of the Illinois General Assembly facilitating liquor delivery by retailers. If signed by the Governor, Ill. S.B. 54 would amend the Liquor Control Act to provide that nothing in the Liquor Control Act will “deny, limit, remove, or restrict the ability of a holder of a retailer’s license to deliver alcoholic liquor to the purchaser for use or consumption,” with just a few exceptions. Except for Chicago, home rule and non-home rule units alike may not regulate the delivery of alcoholic liquor inconsistent with the proposed statutory amendments.

“Delivery” means the movement of alcoholic liquor purchased from a licensed retailer to a consumer through:

1.delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;

2.delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or

3.delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers. While nothing in the Liquor Control Act will limit the authorized deliveries, other laws surely would including the Vehicle Code’s open container law.

With the Governor’s signature, “on-premises only” licensees and other licensed retailers could make the liquor deliveries authorized by the amendments. Of course, many local liquor commissioners are already allowing temporary delivery of alcoholic liquor according to the guidance issued by the Illinois Liquor Control Commission in response to the COVID-19 pandemic. Additionally, many municipalities allow delivery and carry-out of “cocktails to-go” based on a previous statutory authorization, but that authorization is due to sunset on June 2, 2021. 

Although the liquor delivery landscape is not yet settled since this has not been signed into law yet, municipalities may want to proactively review their ordinances and be ready to address any potential changes once the legislation is enacted, assuming the Governor signs it into law.

Post authored by Daniel J. Bolin, Ancel Glink

       

Appellate Court Rejects "Sovereign Citizen" Defense to Speeding Ticket

After being cited for speeding by a police officer and convicted at a bench trial, the driver appealed to the Illinois Appellate Court. The driver raised a "sovereign citizen" defense and claimed that (1) the court and the municipality had no authority to impose a monetary fine because money ceased to exist in 1933; (2) the municipality and court conspired to deprive him of his civil rights, including his right to travel; (3) traffic tickets were nothing more than fraud, extortion, blackmail, intimidation, harassment, mail fraud; and (4) the citation capitalized his name, among other reasons. 

In Village of Frankfort v. Cantway, the Appellate Court upheld the speeding conviction, determined that the appeal was frivolous, and imposed sanctions on the driver for the appeal, including requiring the driver to pay the Village's legal fees incurred in defending the appeal in court. 

Illinois Appellate Court Rules on Tort Immunity Case

In Dycus v. County of Edgar, Illinois, the Illinois Appellate Court ruled in favor of the county in a case involving a motorcycle accident, finding that the Tort Immunity Act protected Edgar County from liability. 

In May 2018, the plaintiffs were riding their motorcycles on an Edgar County road. During their ride, the riders crashed and sustained injuries after encountering a road section that recently underwent repair to replace a culvert (a tunnel carrying a stream or drainage pipe). They sued the county arguing its actions amounted to negligence for failure to (1) repair the road, (2) inspect the road, and (3) post signs warning of road repair.

After months of litigation, the county asked the judge rule in its favor, arguing that the county was absolutely immune from liability under the Tort Immunity Act for not posting warning signage and its discretionary decisions in “improving, maintaining, repairing and inspecting the road” surrounding the culvert replacement. The county also argued that the plaintiffs were negligent as well. The circuit court found that the county was immune, and the plaintiffs appealed.

On appeal, the plaintiffs argued the Tort Immunity Act did not protect the county because the county failed to establish that its employees—tasked with road repair—made policy determinations and exercised discretion when performing work on the culvert, which injured the plaintiffs. 

The appellate court first looked at the specific language of the statute relied on by the circuit court in finding immunity:

the complained injuries must have resulted from the employee’s ‘act or omission in determining policy when acting in exercise of such discretion’. . .the act or omission giving rise to the injuries must be both a determination of policy and an exercise of discretion.

Here, the plaintiffs argued that the roadcrew and road engineer’s replacement of the culvert constituted a ministerial act and was not discretionary. The county, on the other hand, argued that its employees’ actions were discretionary based on the procedures established by the county engineer and the nature of replacing culverts. The Illinois Appellate Court agreed with the county, finding that the county engineer made discretionary decisions regarding the method, means, and material used for the culvert replacement. In addition, the roadcrew employees made discretionary decisions regarding the depth of gravel, number of layers, and the number of times to compact the gravel. As a result, these acts constituted discretionary acts, which shielded the county from liability under the Tort Immunity Act.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink


       

Federal Court Addresses Challenge to Short Term Rental Ordinance

A federal court recently denied vacation property owners’ due process and Fourth Amendment challenges to an ordinance regulating short-term rentals. Stone River Lodge, LLC v Village of North Utica

In 2004, Grand Bear Lodge, LLC purchased land near North Utica to develop a hotel. North Utica annexed the land. The annexation agreements between the village and hotel granted special use approvals for the development of a hotel and a number of buildings that each would include multiple vacation villas. The annexation agreements provided, among other things, that no owner would be prohibited from renting his or her unit and that this right would run with the land and would inure to subsequent owners. 

The villa owners alleged that they had, for years, been allowed to rent out their units without any regulation or mandates from the village. In February 2020, however, the village adopted an ordinance making it unlawful for anyone in the village to operate a “vacation rental unit” without a current, valid license from the village. As defined in the ordinance, a “vacation rental unit” is a dwelling unit or portion of that unit offered for rent for a period of less than 30 days, not including hotels, motels, lodging houses, boarding houses, or bed-and-breakfast establishments that are licensed under other provisions of the North Utica Village Code. The ordinance also established standards and procedures for application and issuance of licenses.

The villa owners filed suit in federal court, alleging due process, Fourth Amendment and equal protection claims. In the lawsuit, the villa owners claimed they had applied for licenses, but were denied by the village in a letter that informed the owners that only one hotel license is issued to the Grand Bear Lodge & Resort P.U.D., and that villa owners that wanted to rent out their property for overnight and short-term rental accommodations had to utilize the rental pool administered directly by the Grand Bear Lodge & Resort.

The villa owners also alleged that on two occasions, the village chief of police “approached an owner’s unit, rang the bell and stated, ‘I’m curious if you’re renting this for the weekend.’” The villa owners were subsequently issued citations seeking $750 fines. 

The court found no violation of the villa owners’ due process rights because the annexation agreements specifically provided that the village retained the right to enact zoning changes. The court noted that the ordinance qualified as a zoning change within the meaning of the annexation agreement. The court also found that the ordinance was a valid exercise of the village’s police powers to address legitimate life-safety, tax revenue, security, quality of life, and fire-safety concerns. 

In rejecting the villa owners’ argument that the police chief’s actions violated the Fourth Amendment, the court reasoned that a police officer may approach a home and knock to make a preliminary inquiry— just as any private citizen may do. Because the police chief merely knocked on the owners’ doors and did not stay for an unreasonable amount of time or enter the property, the court dismissed the villa owners’ Fourth Amendment claim.

However, the court did allow the villa owners’ equal protection claim to move forward against the village. The court noted that the villa owners may have been treated differently than other short-term rental owners because the villa owners were precluded from renting their properties unless they joined a “rental pool” agreement with the Grand Bear Lodge. At this early stage of the lawsuit, the court found that it could not make a determination that this differential treatment did not violate the Equal Protection Clause. As a result, the court allowed the villa owners’ equal protection claim to move forward.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Court of Appeals Upholds $22 Million Jury Verdict for Wrongful Conviction

The Seventh Circuit Court of Appeals recently upheld a jury award of $22 million in a wrongful conviction case against the City of Chicago. Fields v. City of Chicago.

In 1986, Nathson Fields and his co-defendant Earl Hawkins were convicted of murder by a Cook County Circuit Court Judge. Twelve years after the trial, in 1998, those convictions were overturned based on evidence that Hawkins’s attorney had bribed the Judge to secure an acquittal and that the Judge had became concerned that he was being investigated by law enforcement during the trial and returned the bribe. Fields was then retried for the murder. Under a plea agreement, co-defendant Hawkins pled guilty to lesser charges in exchange for testifying against Fields in his murder trial. The plea agreement also stated that it was “the intent of both parties that Hawkins remain in custody until he reaches 72 years of age,” which would be in 2027.

Fields was acquitted in the retrial in 2009. Following his acquittal, Fields filed suit, alleging civil rights and state law claims against the City of Chicago and Chicago police detectives. Fields argued that the detectives pulled Fields as a suspect out of the air, fabricated witness identifications, and failed to provide the police investigative “street file” to Cook County prosecutors. Fields contended that the detectives’ failure to turn over street files to prosecutors was a widespread practice within the Chicago police department, which deprived defense attorneys of the opportunity to fully represent the accused at trial. After a mistrial, a second trial took place in April 2014, and at the close of the trial, a jury found in favor of Fields on a due process claim against one of the police detectives, and in favor of the City and detectives on the remaining claims. 

Following the end of the trial, new evidence came to light that Hawkins was granted a new plea-deal in exchange for testifying against Fields at trial— Hawkins was released on parole three months after the trial, which was 13 years earlier than his original 42 year sentence. Fields and his attorney were not made aware of the deal until after the trial. Fields moved for a new trial on the basis that his attorney could have used the evidence of the new plea deal to discredit Hawkins’s testimony, and as a result, he was deprived of a fair trial. The district court granted Fields’s motion for a new trial, and after a month-long trial, a jury found in favor of Fields against the detectives on his civil rights and state law claims, and against the city on Field’s civil rights claim under §1983. The jury awarded Fields over $22 million in damages. The City and detectives appealed to the Seventh Circuit Court of Appeals, arguing that the district court improperly granted Fields’s motion for a new trial and that the jury verdict should be overturned.

On appeal, the Seventh Circuit found that Fields was unable to fully and fairly present his case without the newly discovered evidence of Hawkins’s new plea-deal with prosecutors. The Court reasoned that the evidence that Hawkins’s trial testimony would lead to his near-immediate release would have severely damaged the City and detectives’ case—and could reasonably have produced a different outcome. Therefore, the Court upheld the district court’s decision to grant a new trial.

The Court also upheld the jury trial’s verdict against the City. In rejecting the City’s argument that Fields failed to show a widespread practice or policy required to establish a civil rights claim, the Court reasoned that Fields presented evidence of a “systemic underproduction of police reports of exculpatory evidence to prosecutors and defense attorneys,” which went well beyond Fields’s case. As a result, the Court held that there was a reasonable basis for a jury to find for Fields on the civil rights claim and upheld the jury trial’s verdict in his favor against the City.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink