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08/19/88 Triple A Services, Inc., v. Fred Rice Et Al.

August 19, 1988

TRIPLE A SERVICES, INC., ET AL., PLAINTIFFS-APPELLANTS

v.

FRED RICE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

528 N.E.2d 267, 174 Ill. App. 3d 654, 123 Ill. Dec. 722 1988.IL.1282

Appeal from the Circuit Court of Cook County; the Hon. Charles Freeman, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., concurs. JUSTICE MURRAY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiffs, Thunderbird Catering (Thunderbird) and Triple A Services, Inc. (Triple A), both mobile food vendor companies, were engaged in the business of selling prepared foods to pedestrians and motorists traveling within the "Medical Center District" of Chicago (the District) on the near west side of the city. Plaintiff Gilbert Vargas was a driver-salesman for Triple A, and plaintiff Nicolas Garcia was a driver-salesman for Thunderbird. Plaintiffs filed separate complaints for declaratory judgment, injunctive and other relief against the City of Chicago (the city) and Fred Rice, superintendent of the Chicago police department. The complaints were consolidated. In both complaints, plaintiffs sought to enjoin enforcement of section 27 -- 269.1 of the Municipal Code of the City of Chicago (the ordinance) (Chicago Municipal Code § 27 -- 269.1) on the ground that the ordinance was unconstitutional because it was overly broad, capricious, irrational, arbitrary, unreasonable, discriminatory, failed to accomplish the purpose for which it was ostensibly enacted and violated the constitutional principles of equal protection and due process.

The ordinance, enacted by the city council on September 6, 1984, states in pertinent part:

"Whereas the purpose of said district is to provide conditions most favorable for the special care of the sick and injured and for the study of disease; and

Whereas the continued and enhanced operation of said District requires the restriction of certain vehicular traffic therein; now therefore

No person shall conduct the business of a Mobile Food Dispenser or Peddler, as defined in this code, on any portion of the public way within the boundaries of the Medical Center District, to wit: Ashland Avenue on the east, Congress Parkway on the north, Western Avenue on the west, and a line coincidental with the north line of the property at or near 14th Street and 15th Street owned or used by the Baltimore and Ohio Chicago Terminal Railroad Company for railroad purposes, on the south. Nor shall any person operate, stop or park any vehicle on any portion of the public way for the purpose of conducting any such business.

Any person who violates the provisions of this Section shall be fined no less than $50 nor more than $500 for each offense."

The defendants and the State of Illinois Medical Center Commission, the governing body of the District and an intervening defendant, filed a motion to dismiss the complaints, which motion was denied. The trial court then conducted an evidentiary hearing on plaintiffs' request for preliminary injunctive relief and thereafter upheld the constitutional validity of the ordinance, denied plaintiffs relief and entered judgment in favor of the defendants. Plaintiff Vargas seeks reversal of the trial court's rulings and judgment. We reverse. The testimony presented at the hearing follows.

Dr. Carl Kriesel, plaintiffs' witness and a professor of geography and environmental studies at Northeastern Illinois University in Chicago, testified that the major portion of his current course work consisted of urban geography and metropolitan transportation and that he had extensive experience in urban planning and zoning. Dr. Kriesel testified that after examining the District he found that there was a low quantity of traffic and no traffic congestion. Dr. Kriesel opined that no adverse effects on any of the medical activities in the various buildings or upon the essential character and atmosphere of the District would occur because of the operation of mobile food vending vehicles. Dr. Kriesel also testified that as a city planner and urbanologist, the ordinance's 24-hour, 7-day-a-week ban of mobile food dispensing vehicles from the District could not be justified. Dr. Kriesel further testified that it was unsound planning to prohibit mobile food vehicles from the District for 24 hours a day because the ban required motorists in the District to leave the District for food and thereby increased the possibility of traffic accidents and congestion. Dr. Kriesel further opined that the poorer segment of the population would be most adversely affected by the ban and that a responsible urban planner in an area such as the District would not prohibit mobile food vending solely for aesthetic reasons and without regard to the resultant undesirable impact upon these semi-indigent individuals.

Matthew C. Sielski, a witness for plaintiffs, testified that he had a bachelor of science degree in civil engineering, a master of science degree in transportation and traffic engineering and that he had approximately 50 years of experience in traffic engineering and safety analysis. Sielski testified that the District was bifurcated; the first area of the District, bounded by Congress, Roosevelt, Ogden, and Ashland Streets, consisted primarily of medical facilities and two high schools; and the second area, bounded by Congress, Roosevelt, Western and Ogden Streets, consisted primarily of residential and industrial areas. Sielski testified that the traffic control measures in the first area of the District were excellent and that traffic there was moderate and well regulated. In the second area of the District, Sielski testified, there was no heavy pedestrian or vehicular traffic and very little traffic congestion. Sielski testified further that in his opinion legally parked mobile food vendor vehicles transacting business in the District did not affect the flow of traffic in the District and were not hazardous to vehicular or pedestrian traffic in the District.

Shirley Landers, a paramedic and ambulance attendant, driver and dispatcher in the District for several years, testified for plaintiffs that she was in the District frequently, often on a 24-hour-a-day basis. Landers testified that the route of her ambulance was never obstructed or even interfered with by a mobile food vendor vehicle and that no ambulance driver ever reported any such interference at any time. Additionally, Landers testified that she often purchased food from mobile food vendors in the District and never saw any litter in the area around the mobile food vehicles.

Plaintiffs' witness Pierre Devise, an associate professor, writer, consultant and community activist specializing in urban geography and medical geography, testified that he had a Ph.D. in public policy analysis, that he was a consultant to hundreds of local and international agencies and had published scores of articles, many of which dealt with Chicago hospitals and the District. Devise testified that he was recognized as an expert in urban planning and medical geography and had examined the District at least 200 times. Devise testified that the possibility of any increase in the number of hospital beds in the District within the foreseeable future was remote and that in recent years the Federal government had called for reductions of hospital beds in the District.

Devise testified that after he investigated the District and observed traffic and the mobile food vendors transacting business in the District he concluded that the presence of legally parked mobile food vending vehicles had no measurable impact upon the flow of traffic or upon health and sanitation considerations in the District. Devise further testified that the presence of mobile food trucks within the District was not likely to impact upon the willingness or desire of people to use the District, with the exception of some North Shore patients who "may be distressed at the sight of black poor people eating out of these mobile vendors." Devise stated that no consideration of public interest justified the exclusion of mobile food vendor vehicles from the District because the mobile food vendor vehicles had only a minor, insubstantial and insignificant impact upon the flow of vehicular traffic, pedestrian traffic and sanitation in the District. Devise also testified that the presence of mobile food vending services in the District would have an economic impact upon food service facilities provided by the hospitals, but that the exclusion of business competition from an area was not a proper function of city planning. Devise opined that the deterrent effect attributable to the presence of poor and minority people using the mobile food vending services was "very minor and insignificant."

Plaintiffs' witness Lester Rockoff, a certified public accountant, testified that for 10 years he was an accountant for plaintiff Thunderbird. Rockoff projected annual sales of $835,000 by Thunderbird for the year of 1985, with 23% of that amount derived from sales in the District.

George Toft, called by plaintiffs as an adverse witness, testified that he had been an administrative aide to the Chicago city council committee on traffic control and safety since 1974. Toft testified that a schedule of the regular meetings of that committee for 1984 was not prepared or posted. Toft testified that he prepared the agenda for the July 27, 1984, meeting of the committee on traffic control and safety. Toft related that the ordinance involved herein was not included on the agenda for the committee's July 27, 1984, meeting. The main objective of the meetings of the committee on traffic control and safety, Toft testified, was to study and analyze proposed ordinances. Toft testified, however, that no studies were considered and no reports were received by the committee concerning the feasibility of this ordinance as of the date of the July 27, 1984, meeting and that no expert appeared before the committee to review or to present testimony concerning this ordinance. Rather, Toft testified, this ordinance was only considered by the committee on traffic control and safety for "maybe three to four minutes," because the members of the committee were "in a hurry to have cake and coffee" in celebration of the committee chairman's birthday. Toft further testified that no statements were presented to the committee at the July 27, 1984, meeting on the necessity of this ordinance, that the committee had never considered a similar ordinance, and that he did not know how the individual members of the committee informed themselves of the merits of this ordinance before voting for its approval.

John Alexander, plaintiffs' witness, testified that as an employee of Thunderbird for 23 years he had spent a total of 15 years in the District. Alexander testified that as a supervisor at Thunderbird his duties included the inspection of trucks and drivers for cleanliness. Alexander testified that "99 percent of the time" the mobile food vending trucks in the District were parked next to parking meters, and that the other 1% of the time Alexander had the drivers move the trucks to legal parking spaces. The trucks, Alexander testified, contained garbage disposal facilities and the drivers were trained to properly dispose of their own litter and the litter of any other fast-food outlets near plaintiffs' mobile food vehicles. Alexander testified that pedestrians did not have difficulty passing people making purchases from plaintiffs' trucks. Alexander also stated that plaintiffs' drivers were instructed not to serve individuals who were double parked and attempting to purchase food from plaintiffs' trucks.

Steven Roman, also called by plaintiffs as an adverse witness, testified that he was the coordinating planner for the City of Chicago and the Chicago department of planning. He related that neither he nor anyone else conducted a study or investigation on the effect of mobile food vendors in the District and that he knew of no investigation or study of the effect of mobile food vendors doing business in the District. Roman further testified that planning department objectives included the safe flow of traffic in the District and a "most professional looking environment." Roman injected simply that mobile food vending was "primarily out of character with the Medical Center Commission's appearance and presentation to those coming into it."

Ellen O'Donnell, an employee of Thunderbird for 17 years, testified as plaintiffs' witness that it took mobile food vendors approximately five or six years to develop a route. O'Donnell also testified that the mobile food vendors did not interfere with traffic or pedestrians and that Thunderbird had never been ticketed by the board of health for refuse around the trucks.

Plaintiff Gilbert Vargas testified that he was granted licenses in 1984 and 1985 by the city to serve as a mobile food vendor. Vargas testified that at no time in 1984 was he given notice by the city or by any other agency of the city that an ordinance would be considered by the city which would prohibit him and other mobile food vendors from operating in the District. Neither, Vargas testified, did he receive any notice prior to September 6, 1984, of any limitations or restrictions on his right to transact business in the District. Vargas testified that he was not advised by the city or any agency of the city that an ordinance was before the city council for consideration and adoption which would prohibit his operating in the District and he was not notified that he had a right to be present at any hearing relative to the ordinance in question. Vargas further testified that he was authorized to operate his mobile food dispensing vehicle anywhere else in the city but that he had operated at the same location in the District for the past eight years. Vargas also testified that he sold food only to persons standing on the sidewalks, that neither his mobile food vehicle nor his customers had ever restricted the movement of any emergency vehicle and that the only ticket he had received within the past five years was for an alleged violation of this ordinance in question before us.

John Guth, a salesman, administrator and supervisor of plaintiff Triple A vendors in the District, testified as plaintiffs' witness that he supervised routes, coordinated stops and trained new drivers. Guth testified that the mobile food vendors parked only at parking meters and sold only to customers on the sidewalks near the mobile food vehicles. Guth further testified that he never observed a mobile food vendor or customer obstruct the path of an emergency vehicle.

Prior to September 6, 1984, Guth testified, Triple A did not receive notice that a hearing would be conducted on any date regarding this proposed ordinance which would terminate the rights of or place any restrictions upon the operation of mobile food vendors in the District. Guth knew of no citations received by Triple A from the board of health for littering.

The defendants called only two witnesses. Martin Murphy testified for the defendants that he was an urban land planner and that he was very familiar with the District. Murphy testified that the effects of mobile food vending on the District could be measured in terms of vehicular and pedestrian traffic safety, housekeeping, nuisance, and maintenance of the general well-being of the area, and the protection of the investments of the property owners, who were "the major institutional base of hospitals and related facilities."

Murphy testified that on one occasion he observed a mobile food truck parked across the driveway of a loading dock in the District which caused traffic to be blocked. He did not relate, however, what, how or the extent to which the traffic was thereby blocked. Murphy indicated that protection of the investments of property owners in the area of the District was a consideration warranting the prohibition of mobile food vendors in the District. Murphy testified that the mobile food vehicles detracted from the ambiance of the District and that mobile food vending did not fit aesthetically anywhere within the District, although he did not relate the manner in which it did not aesthetically fit. Murphy admitted that he had no experience in the planning development of the District. Murphy admitted further that he knew of no studies which presented a correlation between traffic safety and the presence of mobile food vending trucks within the District, or between the presence of mobile food vending vehicles and pedestrian traffic hazards in the District. Murphy acknowledged that he was not aware of any studies of the impact of mobile food vending vehicles on housekeeping considerations as compared to those of other forms of food services within the District, that he knew of no document prepared by the department of planning of the City of Chicago which recommended that mobile food vendors be eliminated from the District, and that neither he nor the department of planning ever recommended to any agency of the city that mobile food vendors be banned from the District. Murphy admitted that he did not know (1) of any traffic accident which was caused by the presence of a mobile food vehicle in the District, (2) of any mobile food vehicle interfering with an emergency vehicle, (3) of any personal injury caused by a vendor, or (4) of any health problems attributable to the presence of a mobile food vendor in the District.

Charles Sklavanitis, director of the office of technology development of the University of Illinois at Chicago, the other witness for the defendants, testified that he had a background in public administration and planning and extensive involvement with the District. Sklavanitis testified that assuring the free flow of traffic, avoiding or minimizing vehicular and pedestrian conflicts, and the security and appearance of the District were considerations which he employed in arriving at his Conclusion that mobile food vendors should be banned from the District. Sklavanitis testified that he observed a tendency of mobile food vendors to concentrate their business activities in heavy traffic areas and that he objected to the presence of the vehicles on the bases of safety and appearance, two features which he associated with the regulation of street activity within the District. Sklavanitis admitted that he knew of no traffic study or traffic report which found that mobile food vending vehicles obstructed the path of motor vehicles or pedestrians in the District. Sklavanitis also admitted that of the thousands of vehicles in the District on a daily basis only six of those vehicles were mobile food vending vehicles. Sklavanitis knew of no accident or personal injury caused by a mobile food vehicle.

Hiram Sibley, a rebuttal witness for the plaintiffs, testified that he was an emeritus professor at the University of Illinois School of Public Health and had spent 50 years in the field of public health. Sibley worked at the American Hospital Association for seven years, was the director of the Hospital Planning Council of Metropolitan Chicago for nine years, a professor of health resources management at the school of public health at the University of Illinois for 10 years and also during the decade, 1971 to 1981, was the director of the Center for Study of Patient Care and Community Health. Sibley testified that he graduated from the Yale University School of Public Health and was the director of the Connecticut Hospital Association for nine years. Sibley also testified that he had "a great deal" of experience in planning the District, including acting as the director of the Hospital Planning Council of Metropolitan Chicago and reviewing and approving plans for the expansion and development of four major local hospitals. Sibley stated that he knew of only four cafeterias and two restaurants in the District and that they had "long lines" and were "slow going."

There was no evidence presented at the hearing which established that there was any relationship or connection, direct or casual, between the mobile food vendor vehicles in the District and the District's purpose "to provide conditions most favorable for the special care of the sick and injured and for the study of disease." Nor was there any evidence presented that the prohibition of mobile food vendor vehicles, and none other, from the District, enhanced the District's performance and fulfillment of its purpose of providing care for the sick and injured and for the study of disease. Moreover, no evidence was presented ...


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