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BASIM ESMAIL, ZABCO ENTERPRISES v. MACRANE

August 25, 1994

BASIM ESMAIL, ZABCO ENTERPRISES, INC., an Illinois corporation, and NAZCO ENTERPRISES, INC., an Illinois corporation, Plaintiffs,
v.
SAMUEL MACRANE, in his official capacity as mayor and Liquor Control Commissioner of the City of Naperville, Il., and the CITY OF NAPERVILLE, a municipal corporation, Defendants.


NORDBERG


The opinion of the court was delivered by: JOHN A. NORDBERG

Before the Court is Defendants' Motion to Dismiss Plaintiffs' Complaint pursuant to the Abstention Doctrine and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted.

 ALLEGED FACTS

 Plaintiffs, Basim Esmail, Zabco Enterprises and Nazco Enterprises ("Plaintiffs"), bring their Complaint, pursuant to 42 U.S.C. ยง 1983, alleging that Defendants Samuel Macrane and the City of Naperville ("Defendants"), under color of state law, have violated their Fourteenth Amendment constitutional rights to equal protection of the law and due process.

 In their Complaint, Plaintiffs allege that the Defendants violated Plaintiffs' equal protection and due process rights when the Defendants sought to deny Plaintiffs' application for a new liquor license for Extra Value Liquors located at 1550 North Route 59, Naperville, Illinois and Plaintiffs' application for renewal of the liquor license for Extra Value Liquors located at 353 East Bailey Road, Naperville, Illinois. According to Plaintiffs, the Defendants sought to deny the liquor licenses because (1) on June 11, 1991, Plaintiff Basim Esmail had been charged with purchasing liquor for an underage individual and (2) Plaintiffs had provided false information on their applications in stating that their Bailey Road liquor license had never been previously revoked. (Complaint at P 9.) In fact, Plaintiffs' Bailey Road liquor license had been revoked by the control commissioner in 1985, but such order of revocation was subsequently overturned by the State Liquor Control Commission and reduced to a thirty day suspension. Id.

 Plaintiff Basim Esmail asserts that he pled not-guilty to charge of buying liquor for an underage individual and he was placed on court supervision with no fine assessed against him. Id. at P 8. Plaintiffs also assert that on each prior application for the renewal of the Bailey Road liquor license, they stated that their liquor license had never previously been revoked but it had been suspended for 30 days. Id. at P 10.

 At a hearing to determine whether to grant or deny Plaintiffs' applications for a liquor license, the hearing officer found that Plaintiff Basim Esmail did not deliver a bottle of champagne to an underage individual but Basim Esmail had purchased other liquor for the same underage individual and had provided false information on his applications. Id. at PP 11-12. According to Plaintiffs, Defendant Samuel Macrane, in his capacity as Liquor Commissioner, denied Plaintiffs' applications for liquor licenses based on the findings of the hearing officer and on Macrane's own finding that Plaintiffs did not qualify for a liquor license under Section 3-3-5:1 of the Municipal Code of Naperville. *fn1" Id. at P 13. Plaintiffs appealed the Liquor Commissioner's decision to the State Liquor Control Commission and the Commission affirmed the decision on October 28, 1993. Id. at P 14.

 Subsequently, Plaintiffs filed suit in the Circuit Court in DuPage County, Illinois requesting review of the administrative decision of the State Liquor Control Commission. Id. at P 15. The Circuit Court of DuPage County overturned the decision of the State Liquor Control Commission and ordered Defendants to grant Plaintiffs' two liquor license applications. Defendant City of Naperville has appealed the Circuit Court's ruling.

 Count I of Plaintiffs' Complaint states that Defendants violated their Fourteenth Amendment constitutional right to equal protection of the law when they denied Plaintiffs' applications for the liquor licenses based on unfounded charges or trivial infractions of the Naperville Municipal Liquor Control Ordinance and provisions of state law. Id. at P 36A. Count I notes further that Defendants maintained a policy and practice of routinely granting new liquor licenses as well as renewing liquor licenses to persons who had engaged in similar conduct as Plaintiffs. Id. Plaintiffs charge that Defendants denied Plaintiffs' applications not for the purpose of fairly and uniformly enforcing the Naperville Liquor Control Ordinance but for the "sole and exclusive purpose of exacting retaliation and vengeance against the Plaintiffs." Id.

 Finally, Plaintiffs allege that Defendants violated Plaintiffs' due process rights by refusing Plaintiffs' requests for records relating to offenses committed by other liquor licensees, and by failing to afford Plaintiffs written notice and an opportunity to challenge the Commissioner's finding that Plaintiff Basim Esmail was not a man of good character or reputation. Id. at P 40C - D.

 Count III of Plaintiffs' Complaint states a state claim for the tort of malicious prosecution.

 ANALYSIS

 When reviewing a motion to dismiss, the court views all of the facts alleged in the complaint as well as any reasonable inferences drawn therefrom, in a light most favorable to the plaintiff. Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1992). Dismissal is appropriate only if it is clear that there is no relief that can be granted under any sort of facts that can be proved consistent with ...


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