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FRIEDRICH v. CITY OF CHICAGO

September 18, 1985

WALTER FRIEDRICH, INDIVIDUALLY AND ON BEHALF OF CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFF,
v.
CITY OF CHICAGO AND FRED RICE, SUPERINTENDENT OF POLICE IN HIS OFFICIAL CAPACITY, DEFENDANTS.



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

  MEMORANDUM OPINION AND ORDER

A class of street performers has sued the City of Chicago ("the City") challenging the constitutionality of an ordinance which allegedly violates the performers' rights to entertain pedestrians on Chicago's sidewalks. They claim violations of their First Amendment rights of expression and Fourteenth Amendment rights to equal protection of the laws. Last month we conducted a trial on plaintiffs' motion for a preliminary injunction enjoining the City from enforcing the ordinance. We converted the hearing into one for permanent injunctive relief. Having heard the testimony, reviewed the paper evidence and considered the parties' legal memoranda, we enter the following findings of fact ("findings") and conclusions of law ("conclusions") under Fed.R.Civ.P. 52.*fn1 For the reasons stated in those findings and conclusions, plaintiffs' motion for injunctive relief is granted in part and denied in part.

FINDINGS OF FACT

A. The Ordinance in Question

1. The original Chicago Street Performance Ordinance, Ch. 36.1 of the Municipal Code of Chicago, was enacted on September 28, 1983, and terminates on September 28, 1985.*fn2 (Plaintiffs' Ex. 1, Stipulation of Parties).

2. This ordinance regulates the manner in which street performers may perform in the public areas of Chicago. In particular, among other things, it establishes a permit system for performers, see Chapter 36.1-3; and it requires performers to be spaced at least 100 feet apart, see Chapter 36.1-5(e). Plaintiffs do not challenge these aspects of the ordinance.

3. The first amended Chicago Street Performance Ordinance, entitled "Ch. 36.1 of the Municipal Code of Chicago Amended Concerning Permitted Times For Street Performance," was enacted by a vote of 48-0 on January 23, 1985, and terminates on September 28, 1985. (Plaintiffs' Ex. 2, Stipulation of Parties).

4. This amendment, among other things, stated:

  A performer may not use electric, battery
  operated or electronic amplification except by
  special permit issued by order of the City
  Council of the City of Chicago and shall comply
  in all respects with the Noise and Vibration
  Control provisions of the Environmental Control
  Ordinance, Sections 17-4.1 et seq. of the Municipal
  Code.

Chapter 36.1-5(c) (as amended). Plaintiffs challenge that fact that no permit system exists for these noise provisions.

4A. The City Council of the City of Chicago has promulgated no rules or regulations guiding their discretion in granting or denying special permits for the use of electric, battery operated or electronic amplification under § 36.1-5(c) of the Municipal Code of Chicago.

5. The first amended ordinance also states:

    (2) Notwithstanding the provisions of
  subsection (d)(1), the City Council may by a
  majority vote designate certain public areas in
  which greater space requirements for the passage
  of pedestrian traffic shall apply.

Chapter 36.1-5(d)(1)-(2) (as amended). Plaintiffs did not challenge this amendment in their complaint, but raised a challenge at trial.

5A. The first amended ordinance also prohibits performances everywhere in the City during late night and early morning hours:

    (b)(1) A performance may take place at any time
  on a transit platform if said performance is not
  audible at any residence; otherwise, a
  performance may take place in any public area,
  but only at the following times:
    Between the hours of 8:00 A.M. and 10:00 P.M.
  on Mondays through Thursdays;
    Between the hours of 8:00 A.M. and 11:00 P.M.
  on Fridays;
    Between the hours of 9:00 A.M. and 11:00 P.M.
  on Saturdays;
    Between the hours of 10:00 A.M. and 10:00 P.M.
  on Sundays.
    (2) Notwithstanding the provisions of
  subsection (b)(1), the City Council may by a
  majority vote designate certain public areas in
  which greater restrictions as to days, dates or
  hours of performance shall apply.

Chapter 36.1-5(b)(1)-(2) (as amended).

6. The second amended Chicago Street Performance Ordinance entitled "Amendment of Municipal Code, Ch. 36.1 Concerning Restriction For Street Performance in Near North Area" was also enacted by a vote of 48-0 on January 23, 1985, and terminates on September 28, 1985. (Plaintiffs' Ex. 3; Stipulation of Parties). Plaintiffs' suit focuses on this second amendment.

7. Passed under the authority of Chapter 36.1-5(d)(2), see Finding 5, the second amendment restricts the times and days of street performances in three relatively congested north side public areas. The exact street areas covered by the second amended Chicago Street Performance Ordinance are accurately highlighted on the maps in evidence. (Defendants' Exs. A, B and C).

8. Specifically, the second amendment limits performances in the three areas to the following days and times:

  a.  In the "North Rush Street" area, from April
      15 through October 15, between 3 p.m. and 11
      p.m. on any Wednesday, Friday, and Saturday,
      as well as certain holidays.*fn3
  b.  In the "North Michigan Avenue" area, between
      11 a.m. and 2 p.m. and 4-11 p.m. on weekdays;
      all day Saturdays and Sundays; any time
      between Thanksgiving and Christmas.
  c.  On Division Street, between Dearborn and
      State Streets, no performer may perform ever.

9. The Second Amended Ordinance contains a severability clause, which authorizes this Court to strike, if necessary, only unconstitutional parts of the ordinance.

B. The Nature of the Areas Covered by the Ordinance

10. The Rush Street area is a center of Chicago's night-life, offering many bars, restaurants and sidewalk cafes, including many that close at 4:00 or 5:00 a.m. (Stipulation; Fed.R.Evid. 201(b)(1) (judicial notice)). Large numbers of people come to the Rush Street areas from all over the City and environs to be entertained. (Callaghan at 10; Rule 201(b)(1)). The crowds get especially heavy on Friday and Saturday nights. The Friday night crowd starts around 5:00 p.m. and escalates around 7:00 p.m. The Saturday crowd gathers around 7:00 p.m. and escalates around 9:00 p.m. (Callaghan at 10-11). Traffic conditions get extremely heavy at those times. (Id.; Rule 201(b)(1)).

11. Rush Street is one way with 1-2 traffic lights; one at Oak and one at Cedar. Traffic moves slowly, and conditions are made worse by taxicabs, people parking in no-parking spaces and cars parking in alleys. (Id.)

12. Besides the cars and pedestrian traffic, there are frequently 20-30 horse-drawn carriages offered for sightseeing which meander up and down Rush Street, State Street and Division Street. Many buses and taxicabs pass through this area. (Id. at 11-13). These vehicles exacerbate the crowded situation.

13. On Friday and Saturday nights the sidewalks are choked with people sightseeing, bar-hopping, dining and people-watching, as well as with prostitutes and other purveyors of illicit goods and services. The area has a carnival atmosphere. (Id.; Pepp at 13; Rule 201(b)(1)).

14. Because of the large number of retail and entertainment establishments and tourist attractions in the areas regulated by the challenged ordinances, pedestrians using the sidewalks in these areas commonly stroll aimlessly, slowly wander from place to place, sightsee and talk to other pedestrians they meet on the sidewalks. (Callaghan at 39; Bogue at 42; Def.Group Ex. R-6). Because of the width of the sidewalks, the obstacles on the sidewalk and the congestion, pedestrians often walk into the street. As described later, in 1983 and 1984 street performers also sometimes caused pedestrians to walk into the streets. It is also true, however, that pedestrians in the areas of Rush, State and Division Streets regulated by the challenged ordinance often walk into or across the streets, between cars, without being forced to do so and without street performers being present. (Callaghan at 49, 71, 91; Def.Exs. R-36, R-8).

15. As noted in the previous Finding, the sidewalks in parts of the Rush Street area are too narrow to handle the pedestrian flow on some Friday and Saturday nights. The sidewalks also contain many obstacles, including such things as parking meters, locked-up bicycles, newspaper machines, fire hydrants and sidewalk cafes. These facts are detailed further below:

  (a) The sidewalks along Rush Street regulated by
      the challenged ordinances vary in width from
      six to twenty-three feet. Of the thirty-six
      locations along Rush Street where sidewalk
      measurements were taken, twenty-six locations
      had sidewalks measuring thirteen feet or
      wider and twenty locations had widths
      measuring fifteen feet or wider. (Stipulated
      Facts, Attachment A).
  (b) The sidewalks along North State Street
      regulated by the challenged ordinances vary
      in width from seven to fifteen feet.
      (Stipulated Facts, Attachment A).
  (c) The sidewalks along Division Street regulated
      by the challenged ordinances vary in width
      from seven feet to ten feet two inches.
      (Stipulated Facts, Attachment A).
  (d) The sidewalks along those sidestreets in the
      vicinity of Rush, State and Division Streets
      regulated by the challenged ordinances vary
      in width from seven feet eight inches to
      twenty-four feet five inches. Of the
      thirty-five locations along those sidestreets
      where sidewalk measurements

      were taken, twenty locations have widths
      measuring fifteen feet or wider and
      twenty-four locations have widths measuring
      twelve feet or wider. (Stipulated Facts,
      Attachment A).
  (e) Flower pots, 4' X 4' or 5' along the Rush
      Street area interfere with the ability of
      pedestrians to walk down the sidewalks
      without going into the streets. (Callaghan at
      15-16, 53-54). In addition, several
      restaurants put out tables and chairs,
      further blocking the sidewalks along Rush
      Street (Callaghan at 53), and the City has
      recently passed an ordinance permitting
      sidewalk cafes. (Munic.Code ch. 174.1).
  (f) There are a total of 77 newspaper machines on
      the sidewalks along those streets in the
      vicinity of North State, Rush and Division
      Streets regulated by the challenged
      ordinances. (Stipulated Fact 22).

16. Division Street is the primary tavern, lounge and disco area of Rush Street. The sidewalks are only 7 to 10 feet wide and contain numerous parking meters and light poles. On especially crowded nights in 1984 (such as after Chicago Cubs' baseball games), wooden barricades were put up at least five feet into the street, extending the sidewalks by that much. Putting the barricades up narrowed the vehicular traffic from two lanes down to one, making the traffic more congested. (Callaghan at 16-17, 98).

17. Barricades are not usually used on Rush Street because the sidewalks are wider there. (Id.) However, on rare occasions, such as the night of July 3, 1984, when crowds from the Grant Park fireworks show flooded the area, the police closed Rush Street to vehicular traffic, from Chestnut to Cedar Streets. (Callaghan at 102). Street closings in the area of Rush, State and Division Streets during the spring, summer and fall of 1984 were not a result of the presence of street performers. (Callaghan at 102).

18. On the first block of State Street south of Division Street, the pedestrian flow is similar to that on Division Street; i.e., the sidewalks are very narrow, pedestrian flow is difficult and wooden barricades sometimes would be used. (Pepp at 16).

19. North Michigan Avenue is one of the great urban thoroughfares in the world, comparable to New York's Fifth Avenue. (Whyte testimony). The area, which includes the world-renowned "Magnificent Mile," is a business, shopping and entertainment area and, to a lesser extent, a residential area. The street is lined with luxury hotels, posh clothing and jewelry stores, fancy restaurants and architectural landmarks. The cross streets include much of the same, as well as luxury apartments and condominiums. (Defendants' Ex. D; Rule 201(b)(1)).

20. Michigan Avenue attracts people from outside the area because of its reputation and its close proximity to downtown and McCormick Place Convention Center; people come there to shop or browse, as well as tour. (Flanagan at 6-7; Rule 201(b)(1)). On North Michigan Avenue pedestrians frequently window shop at a leisurely pace. (Flanagan at ...


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