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September 5, 1980


The opinion of the court was delivered by: Moran, District Judge.


This is an action under 42 U.S.C. § 1983*fn1 to redress an alleged deprivation of the plaintiff's civil rights resulting from the denial of an occupancy permit and a liquor license. The defendant City of Waukegan has filed a motion to dismiss the third amended complaint.

Plaintiff alleges that in 1976 the City of Waukegan, acting through its chief executives and policy-making officials, denied plaintiff an occupancy permit and liquor license for premises located at 550 Green Bay Road, Waukegan, Illinois. Count I of the complaint specifically names the mayor, building commissioner, and assistant building commissioner as the individuals involved in the city's refusal to grant an occupancy permit. Count II names the mayor as the official who made the decision to deny the liquor license.*fn2 Plaintiff states that, although he complied with all applicable ordinances and procedures, the defendants "invidiously, arbitrarily, and unjustifiably" denied his applications while routinely granting permits and licenses to others similarly situated. Plaintiff charges that his applications were refused without a statement of reasons and without a hearing. The complaint concludes that the defendants' acts violated the due process and equal protection clauses of the fourteenth amendment.

Count III of the complaint alleges that the city, by way of various ordinances embodied in chapter 4, article II of the Waukegan Municipal Code, vested total authority and discretion regarding issuance of Waukegan liquor licenses in the mayor. These municipal ordinances, says the plaintiff, represented the official policy of the city and failed to provide for: (a) standards governing mayoral discretion in evaluating "good character and reputation in the community"; (b) notice to an applicant of denial, revocation or renewal of a liquor license; (c) a statement of reasons why an applicant is denied a liquor license; (d) a right to a hearing on denial of a license; and (e) a right to appeal a mayoral decision denying a license to another decision-making body. According to the plaintiff, the city's failure to provide procedural safeguards in the issuance of licenses deprived plaintiff of his occupation and business and proximately resulted in severe financial losses for which he seeks compensatory and exemplary damages.

The City of Waukegan has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted. A district court should grant such a motion only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The defendant asserts several reasons why this court should grant its motion.

First, defendant contends that plaintiff's third amended complaint alleges no new facts to distinguish it from his earlier pleadings. Defendant notes that the case was assigned to this court by executive order on September 7, 1979. Prior to reassignment, on October 18, 1978, another judge in this district granted the city's motion to dismiss. Thereafter, on August 9, 1979, he denied plaintiff leave to file a second amended complaint for the purpose of reintroducing the city of Waukegan as a defendant into the case. Therefore, concludes the defendant, plaintiff's third amended complaint, allegedly lacking in new facts, is an attempt to seek collateral review of this judge's orders of October 18, 1978, and August 9, 1979. According to the defendant, such tactics represent a form of "judge-shopping" that should not be permitted.

Defendant's contentions are not persuasive. The city is ignoring Count III, which has been added to the complaint, and challenges city ordinances as implemented by the mayor. Furthermore, the law of municipal liability remains somewhat unsettled since the Supreme Court's decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There, the court expressly declined to address "what the full contours of municipal liability under § 1983 may be." Id. at 695, 98 S.Ct. at 2038. The instant case warrants reconsideration in light of recent case law interpreting Monell.

The Monell Court held that local governments can be sued directly under § 1983 when constitutional deprivation stems from "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body's officers." Id. at 690, 98 S.Ct. at 2036. Relief is also available "for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision-making channels." Id. at 691, 98 S.Ct. at 2036.

The defendant's claim is that, in view of this language in Monell, the complaint fails to allege any official misconduct on the part of the city which would give rise to a cause of action under § 1983. The city argues that the mayor, as local liquor control commissioner, has exclusive control over the issuance of liquor licenses. The power is conferred upon the mayor by the State of Illinois, Ill.Rev.Stat. ch. 43, §§ 111, 112, 113, and 120 (1979). Thus, the defendant contends that it had no authority to develop its own policy regarding the issuance or non-issuance of liquor licenses. It was not that the city abdicated responsibility or granted unfettered discretion to the mayor. Rather, it was simply that the city had no jurisdiction because the mayor's power is exclusive. That the mayor acted on his own, says the city, is further evident from the fact that it was the policy and custom of Waukegan to issue liquor licenses. The mayor was therefore not implementing city policy when he denied a license to the plaintiff. Defendant points out that liability cannot be imposed on a municipality under a respondeat superior theory, Id. at 691, 98 S.Ct. at 2036, and therefore concludes that the plaintiff's claim lies against the mayor as an individual who misused the power of his office, not against the government as a whole.

The defendant's argument is somewhat contradictory. First, the city states that it had no authority to create a policy regarding issuance of liquor licenses. Then, the city states that it had a policy of granting them. The defendant cannot have it both ways. While it is true that Ill.Rev. Stat. ch. 43, §§ 111, 112, and 113 charge the mayor with issuance of liquor licenses, he does not act entirely on his own. Section 111 provides in pertinent part: "The mayor . . . shall be the local liquor control commissioner . . . and shall be charged with administration . . . of such ordinances and resolutions relating to alcoholic liquor as may be enacted." Thus, the statute anticipates that the mayor will act in conjunction with the city council. Chapter 4, article II of the Waukegan Municipal Code deals with retail liquor licenses. Section 4-26 states that "applications for a license . . . shall be made to the mayor." Also included are provisions regarding persons ineligible for a license, classes of licenses, fees, renewal, and revocation. However, as plaintiff correctly points out, these ordinances, promulgated by the city council, fail to provide for a right to a hearing or a statement of reasons for denial of an application. It appears that city policy was to leave the manner of issuance of licenses to the mayor's discretion. Therefore, when the mayor denied plaintiff's application without a hearing or reasons he was acting pursuant to authority given him by the council, and his actions must be viewed as those of the city.

Plaintiff suggests an alternate approach to impose liability on the City of Waukegan for the alleged misconduct of the mayor. Plaintiff focuses on the following language from Monell:

  It is when execution of a government's policy or
  custom, whether made by its lawmakers or by those
  whose edicts or acts may fairly be said to
  represent official policy, inflicts the injury
  that the government as an entity is responsible
  under Sec. 1983.

Id. at 694, 98 S.Ct. at 2038. Many courts construing Monell have interpreted this language to mean that the policies of high-ranking officials constitute "official policy." In Goss v. San Jacinto Junior College, 588 F.2d 96, modified, 595 F.2d 1119 (5th Cir. 1979), plaintiff, an untenured junior college instructor was denied renewal of her contract in retaliation for her exercise of first amendment rights. The Board of Regents voted not to rehire plaintiff on the recommendation of the president of the college. The court ruled that the college as an entity was liable under Monell for the actions of its president since "[the president] is surely one `whose edicts or acts may fairly be said to represent official policy.'" Id. at 98.

Similarly, in Williams v. Codd, 459 F. Supp. 804 (S.D.N Y 1978), the actions of high-ranking police officials were held sufficient to qualify as the official policy of the police department and create a cause of action under Monell. In addition, in Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980), the court concluded that a showing that the mayor directed a campaign to stigmatize the plaintiff in his position as director for a model neighborhood corporation would state a claim for municipal ...

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