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June 24, 1982


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


Harold Rubin is a Berwyn resident who has, since 1977, been denied the licenses or permits necessary to operate newsstands. Defendants denied forty of Rubin's permit applications on July 28, 1978. On March 28 and May 21, 1979, six additional applications were rejected. Plaintiff brought this action on June 14, 1979; his original complaint did not contest the facial constitutionality of the ordinances, but only their application to him. After the parties filed a stipulated statement of facts and cross-motions for summary judgment, Judge McMillen granted Rubin partial summary judgment on April 4, 1980.

Judge McMillen held that Rubin had a clear First Amendment right to sell and disseminate public information, and noted that defendants now license "at least three locations on state routes within the city", in apparent derogation of Ill.Rev.Stat., Ch. 121, § 9-113.1. That statute provides in relevant part that:

  [N]o commercial establishment for serving
  motorists or highway users shall be located
  within the right-of-way of, or on publicly owned
  or publicly-leased land acquired or used for or
  in connection with a Freeway or a controlled
  access highway . . .

Judge McMillen ruled that defendants had failed to demonstrate a compelling state interest for rejecting Rubin's applications, where other applications for licenses had been "granted under substantially the same conditions as his." Rubin v. City of Berwyn, 79 C 2460 (Memo Opinion, April 4, 1980). However, because Judge McMillen recognized that defendants had the right to regulate the use of city streets and other public facilities to assure public safety, and because there had never been any hearing or determination regarding the public safety aspects of plaintiff's requested locations, Judge McMillen held that he could not decide which of plaintiff's forty-six applications were properly denied, nor issue a mandatory injunction requiring the defendants to issue any specific license or licenses to plaintiff. Opinion at 8.

Plaintiff filed an amended complaint to conform with Judge McMillen's opinion, and sought unsuccessfully to resolve this matter consistent with that opinion. He subsequently filed a second amended complaint on July 30, 1981. Count I of the latter complaint challenges the facial validity of Chapters 8 and 18 of the Berwyn City Code, which govern the issuance of business licenses and newsstand permits. Count II alleges that the ordinances and state statute were and are being unconstitutionally applied to deny Rubin the right to operate six newsstand locations for which he is presently seeking permits. On July 31, 1981, plaintiff sought a preliminary injunction directing defendants to issue the requested six newsstand permits.

Findings of Fact

1. The stipulated Statement of Facts filed December 21, 1979 is incorporated by reference into these findings of fact, with the following amendments:

  a) Defendant Joseph J. Lanzillotti is the present
  mayor of the defendant City of Berwyn. Defendant
  Thomas A. Hett was the mayor during the period
  that plaintiff sought his permits and when the
  original complaint was filed. Defendant Jeanne
  Deckman is presently the Acting Commissioner of
  Public Works for the City. A. Lovisek, the
  Commissioner of Public Works during the period
  that plaintiff sought to obtain his permits, is
  now deceased, and plaintiff has named

  his estate as a successor defendant in the second
  amended complaint.*fn1
  b) Berwyn's city council and mayor govern and
  make policy decisions for the City. Defendant
  Lanzillotti is responsible for the review,
  approval, and issuance of licenses and permits.
  Defendant Hett was responsible for fulfilling
  these duties while in office; at all relevant
  times, he was aware and informed of plaintiff's
  attempts to obtain newsstand licenses. Defendant
  Deckman receives applications for certain
  licenses and permits, investigates them, and
  grants or denies them. Defendant Lovisek was
  responsible for these same duties while in
  office. These defendants formulated and acted
  pursuant to an official City policy in denying
  plaintiff a permit to own and operate newsstands
  in the City.
  c) The ordinances at issue here consist of
  Article XXXIX of the Berwyn City Code (Ch. 8,
  § 240 et seq.) and Chapter 18 of the Code. The
  relevant statutory provision is Ill.Rev.Stat. Ch.
  121, § 113.1.
  d) The defendant City allows numerous unlicensed
  newsboxes and ad benches to be placed on the
  City's public streets and on State rights-of-way
  within Berwyn.
  e) There are three existing newsstands presently
  operating on State rights-of-way in Berwyn. These
  newsstands are ...

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