CDH Food & Beverage, Inc. et al v. Kane County, Illinois et al

Filing 44

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 9/29/2017. The Court grants Defendants' Motion for Summary Judgment 21 and denies Plaintiffs' Motion for Summary Judgment 26 . Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CDH FOOD & BEVERAGE, INC.
and DEBORAH “DEBBIE” DIAZ,
Plaintiffs,
v.
KANE COUNTY, ILLINOIS
and KANE COUNTY BOARD,
Defendants.

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No. 15 C 4282

Honorable Virginia M. Kendall

MEMORANDUM ORDER AND OPINION
Following the Kane County Board’s (“the Board”) denial of CDH Food & Beverage,
Inc.’s (“CDH”) application for a liquor license for its gentlemen’s club, CDH and its owner,
Deborah Diaz, filed this lawsuit alleging that the Board’s refusal to issue the license violated the
First and Fourteenth Amendments of the United States Constitution. Plaintiffs therefore seek
declaratory relief (that the Court declare a provision of the Kane County Code unconstitutional),
injunctive relief (enjoining Kane County from enforcing its unconstitutional statute), and
compensatory and punitive damages for the loss of profits caused by Defendants’ refusal to issue
the liquor license.
Both parties now move for summary judgment, arguing that there are no material
disputes of fact, and that both are entitled to judgment as a matter of law. For the reasons set
forth below, the Court grants Defendants’ Motion for Summary Judgment [21] and denies
Plaintiffs’ Motion for Summary Judgment [26].

1

FACTS
In accordance with the Kane County Liquor Code, the local control commissioner is the
chairman of the Kane County Board. She may appoint others to assist in exercising the powers.
(Kane County Liquor Code, Dkt. 33-3, ¶¶ 3–55.) Those appointed, along with the control
commissioner, constitute the local liquor control commission.
This case arises from the denial of Plaintiffs’ liquor license application. On February 27,
2015, Plaintiff Deborah Diaz signed a lease agreement (“the Lease”) with the owners of
Blackjacks Gentlemen’s Club (“Blackjacks”) on behalf of her company, CDH Food & Beverage
(“CDH”), to operate a new gentleman’s club on the premises of Blackjacks. (Pl. SOF ¶¶ 5–6;
Dkt. 33-1.) The Lease included an insurance provision requiring that Plaintiffs obtain liability
insurance if liquor was sold on the premises. (Dkt. 33-1 at 6.) The provision further barred
CDH from “selling or giving away” alcohol “without the express written consent of the
Landlord.” (Id.) Diaz, however, testified that she believed that the Lease included a contingency
that if CDH were unable to obtain a liquor license at the property, then the Lease would be void.
(Pl. Resp. ¶ 12.) Later in her deposition, Diaz conceded that the contingency she remembered
may have been contained in a previous agreement and not in the Lease. (Def. SOAF ¶ 7.)
Shortly after signing the Lease, CDH applied for a liquor license from Kane County. (Pl.
SOF ¶ 10.)

On March 17, 2015, the Kane County Liquor Control Commission (the

“Commission”) heard CDH’s case for why it should receive a liquor license. (Dkt. 29-2 at 22–
24.) Plaintiffs claim that the Commission recommended to the Board that Plaintiffs be granted
the liquor license for which they applied. (Pl. SOF ¶ 12.) In support of this fact, Plaintiffs cite to
the meeting minutes1 from the Kane County April 14, 2015 meeting. Nothing in the meeting

1

Plaintiffs do not include a page number and instead cite to the entire exhibit.

2

minutes indicates that the Commission recommended CDH be granted a liquor license. Instead,
the Commission denied CDH’s application. (Dkt. 22 at 19.)
The Liquor Code does not prohibit gentlemen’s clubs from obtaining licenses. To the
extent that the Code regulates adult entertainment, the relevant provision prohibits licensees from
lewd acts including the “displaying of breasts, buttocks, pubic hair, anus, vulva or genitals” at an
establishment with a liquor license. (Dkt. 33-3 at 21.).
The particular liquor license the CDH applied for required the Board’s approval because
the Board limits the number of licenses in each township. The township in which Blackjacks is
located had already reached its limit; granting the additional license, therefore, required the
Board to pass an amendment to the ordinance. (Pl. SOF ¶ 12; Def. SOAF ¶¶ 9–10.)
On April 14, 2015, the Board voted against a motion to authorize an additional liquor
license for CDH by a vote of seven ayes and sixteen nays. (Pl. SOF ¶ 13.) During that meeting,
Diaz summarized her plans to open a club and introduced Michael Peter who had opened upscale
clubs around the world and who discussed the financial benefits the proposed business would
bring to the community. (Dkt. 29-3 at 6.) The Board asked Ms. Diaz how she would support her
female employees regarding mental health issues and pointed out that only $1,172.00 was listed
in the budget for security measures, which the Board estimated would double.2 (Dkt. 29-3 at 6.)
The members of the Board who voted “no” provided various explanations for their “no” votes.
(Pl. SOF ¶¶ 15–26.) Some members voted “no” out of concerns for safety and traffic conditions.
(Def. SOAF ¶ 12; Pl. SOF ¶ 22.) Others voted “no” because they believed that was what their
constituents desired. (Pl. SOF ¶ 14.) Still others voted “no” out of concern that the gentleman’s
club might turn into a gambling establishment. (Pl. SOF ¶¶ 20–21.)
The final decision of the Liquor Commission states:
2

There is no explanation for how the Board determined the exact calculation of the security budget.

3

WHEREAS, the Liquor Control Commission recently met to
review the Liquor License application of Thee [sic] Doll House3 in
unincorporated Kane County, and WHEREAS, there is a
requirement that the County Board pass an ordinance to amend
Appendix C of the Kane County Code to add a new Class AR
liquor license for Thee [sic] Doll House in St. Charles Township
prior to the issuance of a liquor license.” Denied.”
(Dkt. 22 at 19.) The Kane County Liquor Code also incorporates by reference the Illinois Liquor
Act

stating,

in

relevant

part,

“any

order

or

action

of

a

local

liquor

control

commissioner...refusing to grant a license ... may, within 20 days after notice of such order or
action, be appealed...to the State Commission.” Id. After the Commission refused to grant
Plaintiffs a liquor license, Plaintiffs did not appeal to the State Commission.
LEGAL STANDARD
Summary judgment is proper only if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual
dispute is genuine if a rational trier of fact could return a verdict for the nonmoving party. Scott
v. Harris, 550 U.S. 372, 380 (2007). On cross-motions for summary judgment, the Court
construes all facts and draws all reasonable inferences in favor of the party against which the
motion under consideration was brought. Nat’l Am. Ins. Co. v. Artisan and Truckers Cas. Co.,
796 F.3d 717, 723 (7th Cir. 2015).
DISCUSSION
Plaintiffs move for summary judgment, arguing that providing adult entertainment is
protected speech, the Board’s “unbridled discretion” to deny a liquor license “cannot be
allowed,” and the lack of procedural safeguards is prohibited under the First Amendment. (Dkt.
39 at 4.)
3

The Dollhouse was the proposed name for the new club to be opened on the premise where Blackjack’s is located.

4

Defendants move for summary judgment, arguing first that Plaintiffs do not have
standing to bring their claims. (Dkt. 24.) Defendants claim that because the Lease forbade the
sale of alcohol on the premises without the express written consent of the Landlord (which
Plaintiffs did not have), no Constitutional deprivation was possible. Thus even if the Board had
approved the license, Plaintiffs still would have been forbidden from serving alcohol.
Before addressing the summary judgment motions, the Court must address a fallacy
weaved throughout Plaintiffs’ arguments.

Plaintiffs suggest, without support, that the

Commission recommended their application for a license. In their Reply brief in support of their
Motion for Summary Judgment, Plaintiffs state that they “do not complain of the actions of the
Kane County Liquor Control Commission, which found that Plaintiffs had met all of the
qualifications for issuance of the liquor license they sought.” (Dkt. 39 at 2.) Instead, Plaintiffs
charge the Kane County Board as unconstitutionally deciding whether a license is available
“despite any finding by the Liquor commission.” (Id.)
The Plaintiffs addressed the Board directly because the Board needed to amend the
ordinance in order to allow another license above the number that the ordinance permitted. The
Board heard the reasons from the Plaintiffs and then voted against amending the ordinance to
add a higher number of licenses. As such, it is not accurate to say that the Commission approved
the application and then the Board denied it. Plaintiffs might be suggesting that all of the
requirements for the license were met and therefore that they should be granted a license without
more. But that miscomprehends the posture of the case. The first reason that a license would not
be given was that the number of licenses permitted under the statute had been issued. Plaintiffs
do not contest that Defendants can set such a limit based on legitimate municipal concerns

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regarding the secondary effect of issuing more licenses, nor could they because such concerns
can be addressed by such a legal quota.
Possibly recognizing this first hurdle, Plaintiffs attempt to claim they were approved by
the Commission as if the Board was then required to amend its ordinance. This misconception
allows them to jump over that first hurdle which in and of itself could end their case. Of course,
the reason Plaintiffs would want to jump over this step is because if there are only a limited
number of licenses issued in the municipality then they could have investigated that public fact
prior to leasing the property. If they had done their due diligence before entering into the lease,
they would have known that there were no liquor licenses available and that they would have
needed to petition for a change in the ordinance. That, in itself, would have dissuaded them from
leasing the property. Now, after leasing, and not looking into the ordinance prior to entering the
lease, Plaintiffs attempt to meld the whole process into one allegedly unconstitutional action by
the Village.
The Lease / Standing
The Court begins by addressing the question of standing. See Meyers v. Nicolet
Restaurant of De Pere, LLC, 843 F.3d 724, 726 (7th Cir. 2016) (standing is a threshold question
in every case because the court does not have authority to consider the merits if the plaintiff
lacks standing). To establish Article III standing, a litigant must “prove that he has suffered a
concrete and particularize injury that is fairly traceable to the challenged conduct, and is likely to
be redressed by a favorable judicial decision.” Hollingsworth v. Perry, 133 S.Ct. 2652, 2661
(2013). That being said, parties that are subject to licensing statutes that allegedly vest unbridled
discretion in a licensing body may challenge those statutes facially, so long as the statutes

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regulate expressive activity. Six Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 802
(7th Cir. 2016).
Defendants argue that whether Plaintiffs suffered such an injury depends on whether the
Lease permitted Plaintiffs to serve alcohol at the establishment. Or, put another way, the Lease
and not the Board caused Plaintiffs’ injury. The plain text of the Lease forbids the Tenant from
selling alcohol on the premises without the express written consent of the Landlord. (Dkt. 33-1
at 6.) Plaintiffs ask the Court to rely on parol evidence to indicate that the Landlord had intended
for Plaintiffs to serve alcohol on the premises. (Pl. Resp. ¶ 12.) But, under Illinois law, the
Court must interpret unambiguous contracts without resorting to parol evidence.
Duckworth, 776 F.3d 453, 456 (7th Cir. 2014).

In re

This Lease is unambiguous: it does not

“authorize the use of the Premises for [the sale or giving away of alcohol] without the express
written consent of the Landlord.” (Dkt. 33-1 at 6.) Defendants argue that the lease, therefore,
prohibits alcohol on the property and that is the injury, not the denial of the license.
The issue remains, however, whether a provision in a Lease with a third-party negates
Plaintiffs’ claim against the Board.

The Illinois Liquor Control Act of 1934 specifically

prohibits the issuance of liquor licenses to certain categories of applicants:
§ 6-2. Issuance of licenses to certain persons prohibited.
(a) Except as otherwise provided in subsection (b) of this Section
and in paragraph (1) of subsection (a) of Section 3-12, no license
of any kind issue by the State Commission or any local
commission shall be issued to:
(13) A person who does not beneficially own the premises
for which a license is sought, or does not have a lease
thereon for the full period for which the license is to be
issued.
235 ILCS 5/6-2 (West 2015).
Defendants do not dispute that Plaintiffs “have a lease thereon for the full period for
which the license is to be issued.” 235 ILCS 5/6-2 (West 2015). That is all that the Code

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requires if a person does not beneficially own the premise. It would be overreaching to interpret
this section of the Act as prohibiting issuance of licenses to a person who has a lease that
expressly requires written consent to serve liquor. Whether Plaintiffs obtain their license and
proceed to violate their lease is not a situation regulated by the Act. Plaintiffs intended to open a
new gentleman’s club that served liquor and the Commission denied the application. Therefore,
Plaintiffs experienced an injury because of the Commission’s actions. See Six Star Holdings,
821 F.3d 795 (company had intention to engage in a course of conduct protected by the First
Amendment and the conduct was proscribed by the ordinances giving the gentleman’s club
standing.)
Limiting Number of Liquor Licenses
Although Plaintiffs overcome this hurdle of standing, they do not and cannot challenge
the validity of Kane County’s quota of licenses. It is undisputed that Kane County has a limited
number of liquor licenses and the County had already reached its quota. Plaintiffs, nevertheless,
ignored this public fact and entered the agreement to open the gentlemen’s club on the
assumption that the Board would amend the amount of licenses in Plaintiffs’ favor. But the
Board has a right to impose such a quota and Plaintiffs do not have a property right in a license
that they never had in the first place.
“The power to license, regulate, or prohibit liquor sales is a matter of the police powers of
the state and, if so delegated, local municipalities[.].” Vino Fino Liquors, Inc. v. License Appeal
Comm’n of City of Chicago, 394 Ill. App. 3d 516, 523 (Ill. App. 4d 2009) (internal citations
omitted). Included in these police powers is a municipality’s discretion in limiting liquor
licenses:
In every city, village or incorporated town, the city council or
president and board of trustees, and in counties in respect of

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territory outside the limits of any such city, village or incorporated
town the county board shall have the power by general ordinance
or resolution to determine the number, kind and classification of
licenses, for sale at retail of alcoholic liquor[.]
235 ILCS 5/4-1 (West 2016) (emphasis added). Here, Plaintiffs do not challenge the limit on the
number of liquor licenses. Plaintiffs also do not contest that there were no available licenses
when Plaintiffs submitted their application. Plaintiffs, therefore, were not simply applying for a
liquor license but applying for an unavailable liquor license that would require amendment by
the Board to Kane County’s ordinance. Limiting the number of licenses was well within
Defendants’ discretion and the Board’s decision not to amend the ordinance did not implicate
Plaintiffs’ constitutional rights. The First Amendment arguments are a distraction from this
dispositive procedural backdrop.
Furthermore, Plaintiffs do not have a property right at stake when they never had a
license to begin with. An Illinois liquor license is a form of property within the meaning of the
due process clause of the Fourteenth Amendment. See Club Misty, Inc. v. Laski, 208 F.3d 615,
618 (7th Cir.2000) (citing Reed v. Village of Shorewood, 704 F.2d 943, 948-49 (7th Cir.1983),
overruled on other grounds by Brunson v. Murray, 843 F.3d 698, 713 (7th Cir. 2016)).
However, a “[p]laintiff’s right to this license is not vested by virtue of her mere application for it.
Rather, her interest in the license is “meager, transitory, or uncertain.” Reed, 704 F.2d at 948.
“There is no right to sell alcoholic beverages; the privilege of doing so is always subject to
governmental control.” Vino Fino Liquors, Inc. v. License Appeal Comm'n of City of Chicago,
394 Ill. App. 3d 516, 523, 914 N.E.2d 724, 730–31 (2009) (internal quotation omitted).
Disregarding this distinction between a revocation and a denial, Plaintiffs cite to
revocation cases to support their summary judgment motion. In Reed, the court held that an

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Illinois liquor license is a property right within the meaning of the Fourteenth Amendment and
therefore was revocable only for cause. 704 F.3d at 948–49. The court further held:
For most purposes, perhaps for all but one purpose, an Illinois
liquor license is not property; but insofar as it is revocable (or
nonrenewable) only for cause, it is property for purposes of
determining whether the state can deprive the licensee of it without
according him due process of law.
Id. at 619 (citing Baer v. City of Wauwatosa, 716 F.2d 1117, 1122 (7th Cir. 1983)). Reed made
clear that only for the purpose of revocability was an Illinois license property—not for purposes
of applying for such a license. Because Kane County has the discretion to limit the number of
liquor licenses granted and because Plaintiffs do not have a property interest in a license that they
never had, summary judgment is appropriate in favor of Defendants.
First Amendment
Ignoring the above explained posture of this case, Plaintiffs suggest that Kane County’s
scheme violates the First Amendment. The adult entertainment offered at Plaintiffs’ club is
undoubtedly expressive conduct. See, e.g. City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000)
(nude dancing is expressive conduct that falls within “the outer ambit of the First Amendment’s
protection); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 (1986) (the First
Amendment requires that governments refrain from denying people the opportunity to own and
operate adult entertainment venues). Although the performances themselves are within the limits
of the constitutional freedom of expression, the critical fact in Defendants’ favor is that there is
neither a prohibition in the Liquor Code nor in Kane County’s broader “scheme” that prohibits
the expression of erotic dancing. Instead, Defendants are regulating the issuance of liquor
licenses and the secondary effects of such issuance to an adult entertainment venue. See Ben’s

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Bar, Inc. v. Village of Somerset, 316 F.3d 702, 710 (7th Cir. 2003) (citing California v. LaRue,
409 U.S. 109, 118–19 (1972)). On these facts, intermediate scrutiny is appropriate.
Regulations of adult entertainment receive intermediate scrutiny if they are designed not
to suppress the “content” of erotic expression, but rather to address the negative secondary
effects caused by such expression. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
426 (2002) (plurality opinion); id. at 444 (Kennedy, J., concurring); see also Renton, 475 U.S. at
48. Because Kane County’s Liquor Code in no way is designed to suppress the “content” of the
erotic message, intermediate scrutiny is appropriate. Ben’s Bar is instructive. 316 F.3d 702. A
tavern and two nude dancers brought an action against the city seeking declaratory and injunctive
relief against enforcement of ordinance that prohibited sale, use, or consumption of alcohol on
premises of “Sexually Oriented Businesses,” in violation of the First and Fourteenth
Amendments. Based on the road map provided by the Supreme Court in 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484 (1996), a liquor regulation prohibiting the sale or consumption of
alcohol on the premises of adult entertainment establishments is constitutional if: (1) the State is
regulating pursuant to a legitimate governmental power, U.S. v. O’Brien, 391 U.S. at 367, 377
(1968); (2) the regulation does not completely prohibit adult entertainment, Renton, 475 U.S. at
46; (3) the regulation is aimed not at the suppression of expression, but rather at combating the
negative secondary effects caused by adult entertainment establishments, City of Erie v. Pap’s
A.M., 529 U.S. 277, 289–91 (2000); and, (4) the regulation is designed to serve a substantial
government interest, narrowly tailored, and reasonable alternative avenues of communication
remain available, see Alameda Books, 535 U.S. at 434–35 (2002) (plurality opinion); id. at 445
(Kennedy, J. concurring).

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Applying this analytical framework, the regulation in Ben’s Bar did not violate the First
Amendment. 316 F.3d 702. First, it was clearly within the village’s general police powers to
regulate alcohol sales and consumption in “inappropriate locations.” Id. at 711 (citing 44
Liquormart, 517 U.S. at 515.) The second and third prongs were met because the relevant
regulations did not target the content of the speech but instead whether alcohol could be
consumed or sold during the expression of the speech, “[i]n the absence of alcohol, Ben’s Bar’s
dancers are free to express themselves all the way down to their pasties and G-strings.” Id. at
708. Finally, in Ben’s Bar, the ordinance served a legitimate government purpose and was
narrowly tailored because “[p]rohibiting alcohol on the premises of adult entertainment
establishments will unquestionably reduce the enhanced secondary effects resulting from the
explosive combination of alcohol consumption and nude or semi-nude dancing.” Id. at 727-728.
For the same reasons applied in Ben’s Bar, the Liquor Code here is facially
constitutional. Kane County holds the same general police powers to regulate alcohol sales and
consumption and deny a gentleman’s club a liquor license. Next, even though Plaintiffs’ were
denied a license, Kane County does not have a broader prohibition on gentleman’s clubs
obtaining a liquor license. The Liquor Code contemplates that liquor licenses may be granted to
gentleman’s clubs so long as certain body parts are covered up. In other words, there is even
more speech facially protected by the Code than the ordinance in Ben’s Bar because there, even
when women had “g-strings and pasties,” a business was prohibited from selling alcohol.
Moreover, neither the Liquor Code nor the licensing scheme is aimed at the content of the
speech. The text of the ordinance, any preamble or express findings of the Board, and studies
and information of which the Board members were clearly aware are relevant in determining
whether the ordinance targets the content of the expression or the negative secondary effects. Id.

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at 723 n.28. Here, the Code does not target the erotic message conveyed. Additionally, the
meeting minutes show that the Board was not concerned with prohibiting the speech, but instead
the secondary effects of alcohol sale and consumption on a premise with nude dancing.
Members voiced concerns ranging from traffic to economic considerations. (Dkt. 29-3 at 6.)
Others shared concern regarding the well-being of the dancers’ mental health and whether
Plaintiffs had enough money in their budget to provide security.4 (Id.) None of the members
expressed concerns about the erotic content itself, only these secondary effects. Finally, the
same presumption is applicable that the ordinance here served a legitimate government purpose
and was narrowly tailored because the scheme reduces the secondary effects of nude-dancing
combined with alcohol consumption while protecting the dancing. Id. at 727–28.
Unbridled Discretion / Procedural Safeguards
Plaintiffs further challenge that the “scheme” affords unbridled discretion to the Board
and lacks procedural safeguards given this discretion.
Turning first to unbridled discretion, the standard is usually applied in circumstances
where the law at issue either explicitly involves censorship, such as the law governing the
Maryland board of censors at issue in Freedman v. Maryland, 380 U.S. 51 (1965), or when the
law at issue presents a significant censorship risk, such as when a single person is granted power
to decide whether a group will be allowed to hold a rally in a public park, see American Knights
of Ku Klux Klan v. City of Gary, Indiana, 334 F.3d 676, 683 (7th Cir. 2003), or when a single
person is granted power over a newspaper’s ability to sell papers, see City of Lakewood v. Plain
Dealer Pub’g Co., 486 U.S. 750 (1988). City of Lakewood, cited by Plaintiffs, was concerned
with a licensing statute that vested unbridled discretion in a government official over whether to
4

The First Amendment does not require the Board “to conduct new studies or produce evidence independent of that
already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be
relevant to the problem that the city addresses.” Renton, 475 U.S. at 51–52.

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permit or deny expressive activity—a newspaper’s ability to sell papers. 486 U.S. at 750. The
mayor was given complete discretion in making that determination. This unfettered discretion
“coupled with the power of prior restraint, intimidates parties into censoring their own speech,
even if the discretion and power are never actually abused.” But while Plaintiffs quote this
language in their brief, here the nude dancing currently occurs on the premise without any
censoring at all. (Pl. SOF ¶¶ 5–6; Dkt. 33-1.) Concerns of potential self-censorship, therefore,
are not applicable. Moreover, the record does not demonstrate that only one person in Kane
County makes licensing determinations that could potentially target speech. Instead, the Board
held a hearing, Plaintiffs presented at that hearing, the motion to amend the ordinance by the
amount of liquor licenses was brought to a vote, and Plaintiffs had the opportunity to appeal that
vote.
Just as the “unbridled discretion” standard is aimed at protection from censorship, so too
are the required procedural safeguards Plaintiffs claims they are entitled to but are absent from
the licensing scheme.

Chief among those requirements is that any final decision on an

application to engage in speech must be made promptly and the procedure must assure prompt
judicial review. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (ordinance did not
provide possibility for prompt judicial review in the event license was erroneously denied.)
Plaintiffs’ argument fails for at least three reasons. First, promptness is required when the
government’s “permission is required for speech to proceed.” (Dkt. 27 at 9.)

For example,

Plaintiffs cite to Church of American Knights of Ku Klux Klan v. City of Gary, Indiana, in which
the KKK challenged a restriction requiring application for a permit to march 45 days in advance
of the march that was an arbitrary delay “obviously aimed at the Klan,” and other groups often
sought permits in Gary no more than two weeks before planned events. 334 F.3d 676, 683 (7th

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Cir. 2003). But there, whether or not the permit was issued would determine whether or not the
KKK could engage in the speech. Here, regardless of whether the application on the liquor
license is given, Plaintiffs are still able to convey the speech, indeed they are already dancing at
Blackjack’s, just without alcohol.
Second, Plaintiffs allege that there is a lack of procedural safeguards relating to appellate
review. Plaintiffs disagree that an appellate process was available here. The Kane County
Liquor Code states that: “any and all sections of the Illinois liquor control law and any
amendments thereto applicable to local liquor control commissions, or to local liquor control
commissioners in counties, be and are the same hereby adopted and made a part of this chapter.”
§ 3.7. In Illinois, it is permissible to incorporate a statute by reference in local regulations. See
People v. Lewis, 125 N.E.2d 87, 89–90 (1955); (Dkt. 35 4-5.). In relevant part, the Illinois
Liquor Control Act of 1934, 235 ILCS 5/7 9 (West 2016) states “any order or action of a local
liquor control commissioner…refusing to grant a license…may, within 20 days after notice of
such order or action, be appealed…to the State Commission. Id. It is permissible to incorporate
a statute by reference. Lewis, 125 N.E.2d at 89–90. Plaintiffs respond that the cited portion of
the statute applies to the Commissioner, not to the Board. This distinction is not supported by
the record.

With no support, Plaintiffs suggest that the Commissioner recommended their

application to the Board. The Commission made the final decision by denying the license.
Plaintiffs should have appealed the denial of the license using the state statute available to them
to do so. They failed to do so and instead filed this case. There was no due process violation
because a procedure was in place that Plaintiffs merely failed to use. Even if this federal case
were properly before this Court, there was no constitutional violation by the City when the Board
refused to amend its valid ordinance to accommodate Plaintiffs.

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.
CONCLUSION
Plaintiffs’ Motion for Summary Judgment [26] is denied. Defendants’ Motion for
Summary Judgment [21] is granted.

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: September 29, 2017

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