(4th Cir. 1984); Association of American Railroads v. Costle, 183 U.S. App. D.C. 362, 562 F.2d 1310, 1316 (D.C. Cir. 1977). See also Lodge 1858, American Fed'n of Gov't Employees v. Webb, 188 U.S. App. D.C. 233, 580 F.2d 496, 510 (D.C. Cir. 1978) ("the established rule is that if there exists a conflict in the provisions of the same act, the last provision in point of arrangement must control," citing numerous cases), cert. denied, 439 U.S. 927, 99 S. Ct. 311, 58 L. Ed. 2d 319 (1978).
Because the Court finds Dingeman's reasoning to be more complete and persuasive, it believes that the Illinois Supreme Court would also find that sign ordinances such as the one at issue here are not preempted by HACA. It is thus unnecessary, in this case, to resolve the dispute between the approaches of Judge Marshall and Judge Shadur. Under either approach, this Court would uphold the City's Sign Code.
The same cannot necessarily be said with respect to the Zoning Ordinance, which takes the further step of completely prohibiting advertising signs in areas subject to regulation by HACA. The legitimacy of this provision under the decisions in Dingeman and Downers Grove is unclear. Although Dingeman distinguished Dolson on the basis that such a prohibition was not in issue in Dingeman, the court's reasoning, on its face, would seem to apply to a prohibition as well as to mere size restrictions. In any event, the Court sees no need to reach this issue here. The size restrictions in the Sign Code were sufficient for the City to deny Scadron's permit application; the question of whether or not the Zoning Ordinance is valid thus has no practical effect for Scadron. Furthermore, the issue concerns matters of state law alone. Under all of these circumstances, the Court sees no justification for offering an opinion on this matter.
VI. DISCRIMINATORY APPLICATION OF ORDINANCES
Remaining is Scadron's argument that the City has granted permits to other advertising companies whose billboards are equally, if not more, violative of the zoning and sign ordinances and that this inconsistent treatment of permit applications constitutes a violation of Scadron's constitutional rights, the equal protection clause.
A statute which is valid on its face may violate the equal protection clause if it is applied in a discriminatory manner. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). In order to state a claim that a zoning ordinance has been applied in violation of the equal protection clause, Scadron must allege that "the ordinance is applied or enforced with a discriminatory purpose." Scudder v. Town of Greendale, 704 F.2d 999, 1002 (7th Cir. 1983).
There must be allegations of "unfair and discriminatory conduct purposefully directed toward plaintiffs." Id. at 1003, quoting Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir. 1980). See also Orsinger Outdoor Advertising Inc. v. Dept. of Highways, 752 P.2d 55, 62 (Colo. 1988) (to prove violation of equal protection with respect to discriminatory enforcement of sign ordinance, plaintiff must show "that the enforcement not only proceeded from an unjust and illegal discrimination between persons in similar circumstances but also that the discriminatory enforcement was intentionally or purposefully carried out").
"Discriminatory purpose," in this sense, "implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group." Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir 1982).
In Scadron's complaint, there is no specific allegation of discriminatory purpose. However, Scadron has requested leave, in conjunction with its briefing of the equal protection issue, to amend its complaint to include allegations that the City intentionally discriminates against small sign companies in the enforcement of its ordinances. According to Scadron, the City treats large sign companies more favorably because large companies can afford to put up numerous signs and can thus be dissuaded from litigating by a compromise which allows them to erect some, but not all, of the signs they propose.
The City argues that even with the amendment, Scadron fails to state a claim under the equal protection clause. The City argues that it would not be in its interest to discriminate against small sign companies in the application of its ordinances, and indeed that, if anything, it would be in the City's interest to favor small sign companies rather than large ones. The Court does not find this argument to be helpful. It is relevant only to whether Scadron's allegations are true, and a motion to dismiss is not the appropriate forum to consider whether the alleged discrimination has actually occurred.
The City also argues that there is no case holding that the size of a company is an invidious or irrational classification. The absence of a suspect class does not affect the existence of a cause of action; it merely affects the standard of review. Stringer v. Rowe, 616 F.2d 993, 998 (7th Cir. 1980), quoting Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S. Ct. 1033, 59 L. Ed. 2d 82 (1979). With respect to the rationality of the classification, the absence of any precedent is not determinative. Whether the classification is rational or not is not an issue which can be decided on a motion to dismiss.
The City cites Evans v. City of Chicago, 873 F.2d 1007 (7th Cir. 1989), as the closest example it can find of a "small versus large" equal protection claim. In Evans, the Court found that the classification at issue did not violate equal protection; however, the Court made this determination after evidence had been received, not on a motion to dismiss.
The Court emphasizes that it expresses no view as to whether Scadron's equal protection claim is likely to succeed. It is true, as the City points out, that unequal treatment in itself does not violate equal protection. However, the complaint as amended alleges more than mere unequal treatment; it alleges that the City has intentionally treated Scadron differently because Scadron is a small sign company which has fewer resources than larger sign companies. The Court cannot conclude that the complaint, in light of the proposed amendment (which the Court will allow), does not state a claim on its face.
The City's motion to dismiss is granted with the exception of Scadron's equal protection claim, which is not dismissed. Scadron's motion for leave to amend its complaint is granted.
DATED: March 20, 1990