shall be one-half of the fee that would otherwise be applicable.
Municipal Code of Chicago, Ill, § 10-28-165. This provision regarding fees is not content-based and does not threaten:
Self-censorship by speakers in order to avoid being denied a license to speak; and the difficulty of effectively detecting, reviewing, and correcting content-based censorship "as applied" without standards to measure the licensor's action.
City of Lakewood v Plain Dealer Publishing Co., 486 U.S. 750, 760, 108 S Ct 2138, 2145, 100 L Ed 2d 771 (1988). Because it does not "give a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers," it provides no basis for a facial challenge to the ordinance on First Amendment grounds. City of Lakewood v Plain Dealer Publishing Co., 486 U.S. 750, 760, 108 S Ct 2138, 2145, 100 L Ed 2d 771 (1988).
Accordingly, Count I does not state a claim upon which relief may be granted. As it is apparent that plaintiff has not applied and been rejected for a permit under the new ordinance, plaintiff cannot state a claim challenging the new ordinance on first amendment grounds, either on its face or as applied. See City of Lakewood v Plain Dealer Publishing Co., 486 U.S. 750, 756-57, 108 S Ct 2138, 2143, 100 L Ed 2d 771 (1988). Count I will therefore be dismissed with prejudice.
With respect to Count II, plaintiff argues:
The Amended Complaint sets forth specific facts regarding disparate treatment of newsstands and other uses of the public way as well as between classes of permit holders. The issues raised by this challenge have not been previously litigated. They include: (1) Whether the City may require a newsstand operator to obtain approval from the Landmark Commission for operation of a newsstand at or near a designated landmark when other users of the public way under these circumstances are not required to obtain approval and (2) Whether the City may establish a size limitation when it does not establish any limitation for other uses of the public way such as sidewalk cafes.
The answer to the second question is that the city may establish a size limitation for newsstands "when it does not establish any limitation for other uses of the public way such as sidewalk cafes." See Chicago Observer, Inc. v City of Chicago, 929 F.2d 325, 328-29 (7th Cir 1991) (newsrack size limits which were not a part of a comprehensive beautification plan were not unconstitutional). On the first question, plaintiff is once again incorrect in his statement of what the Municipal Code of Chicago provides. The Landmark Commission's review and approval, parts of which were previously quoted, is not limited solely to newsstands. Rather, it applies generally to "alteration, construction, reconstruction, erection, demolition, relocation, or other work" in "any area, place, building, structure, work of art or other object for which the commission has made a preliminary determination of landmark status or which has been designated as a 'Chicago Landmark'" and specifically requires the review "where a permit would allow the construction or erection of any sign or billboard within the public view which may be placed on, in, or immediately adjacent to any improvement which constitutes all or part of any landmark or proposed landmark." Municipal Code of Chicago, Ill, § 2-120-740. While there are undoubtedly some possible uses of the public way near landmarks not reviewed by the Landmark Commission under the City's ordinances, such omissions are not sufficient to render the ordinance facially invalid on equal protection grounds. Count II, making an equal protection challenge to the ordinance on its face, will be dismissed with prejudice.
Counts I and II being dismissed with prejudice, there remains no claim with respect to the new ordinance. That being the case, there is no likelihood that plaintiff will be successful on the merits of any claim that could provide the basis for enjoining enforcement of the new ordinance and, consequently, plaintiff's motion for a temporary restraining order will be denied.
With respect to Count III of the first amended complaint, the court finds that there are factual questions precluding dismissal. However, the inclusion of both the City of Chicago and Mayor Richard M. Daley in his official capacity is duplicitous, because a suit against the mayor in his official capacity is the same as a suit against the City of Chicago. Therefore, Count III will be dismissed with respect to the claim against Mayor Richard M. Daley in his official capacity but will not be dismissed against the City of Chicago.
ORDERED: Plaintiff's motion for a temporary restraining order is denied.
Defendants' motion to dismiss plaintiff's first amended complaint is granted in part and denied in part.
The portion of the motion to dismiss directed at Counts I and II, and at the Count III's claim with respect to Mayor Richard M. Daley in his official capacity is granted. Counts I and II of the first amended complaint are dismissed with prejudice. The claim of Count III of the first amended complaint against Mayor Richard M. Daley in his official capacity is dismissed.
The portion of the motion to dismiss addressed to the claim of Count III of the first amended complaint against the City of Chicago is denied.
George W. Lindberg
United States District Judge
Date: May 28, 1992
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