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INDEPENDENT COIN PAYPHONE ASSN., INC. v. CITY OF C

September 12, 1994

THE INDEPENDENT COIN PAYPHONE ASSOCIATION, INC., an Illinois nonprofit corporation, and PUBLIC TELEPHONE CORPORATION, an Indiana corporation, Plaintiffs,
v.
THE CITY OF CHICAGO, a municipal corporation of the State of Illinois, GRAHAM GRADY, Zoning Administrator of the City of Chicago, and JUDITH C. RICE, Director of the City of Chicago Department of Revenue, in their official capacities and not individually, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiffs The Independent Coin Payphone Association ("Independent Coin") and Public Telephone Corporation ("PTC") *fn1" have brought Suit against the City of Chicago, Graham C. Grady ("Grady"), Chicago's Zoning Administrator, *fn2" and Judith C. Rice ("Rice"), Chicago's Director of Revenue (collectively, "the City"), arguing that two ordinances enacted by the City violate the United States and Illinois Constitutions in a variety of ways. Presently before us are plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss the Verified Complaint. For the following reasons, we deny the motion for a preliminary injunction, and grant in part and deny in part the motion to dismiss. *fn3"

 I. Factual Background

 On July 7, 1992, Chicago's city council enacted the two provisions at issue here. The first amended the Chicago Zoning Ordinance, while the second amended the Chicago Franchise Ordinance. See Municipal Code of Chicago, Title 17-44-220(12) (the "Zoning Ordinance"); Municipal Code of Chicago, Title 10-28-265 (the "Franchise Ordinance"). Together, these amendments effectively authorize city officials to prohibit and/or remove public payphones within city limits. The stated purpose behind the two ordinances, as plaintiff concedes, is to discourage criminal conduct -- particularly drug trafficking and gang activity centering around public payphones.

 The Zoning Ordinance prohibits the placement of outdoor public payphones on private property unless the payphone provider obtains an exception. The relevant provision states:

 
Exceptions from the requirements of this title may be granted by the Zoning Administrator only in the following instances and in no others: . . .
 
(12) To permit the installation of an outdoor public telephone, including any telephone booth, on any property or attached to the outside of any building or structure provided that the placement and location of the telephone will not be detrimental to the public welfare nor injurious to other property or improvements in the neighborhood in which it is located . . . . Such exceptions shall be subject to cancellation when, in the opinion of the Zoning Administrator, the public telephone is detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which it is located.

 Municipal Code of Chicago, Title 17-44-220(12). In addition, the Zoning Ordinance requires all pre-existing outdoor public payphones to obtain an exception.

 While appeals from the Zoning Administrator's decisions are not expressly addressed under this provision, the Municipal Code of Chicago permits parties to appeal decisions of the Zoning Administrator to the Board of Zoning Appeals, which has an unlimited amount of time within which to render a decision. *fn4" Municipal Code of Chicago, Title 17-44-060 and 070.

 Finally, the Zoning Ordinance requires the Zoning Administrator to notify the alderman of the ward in which such an exception is sought ten days prior to making a decision regarding the exception. According to plaintiffs, the alderman lets Grady, the Zoning Administrator, know whether he does or does not approve the application and, on the strength of the alderman's recommendation, Grady grants or denies the requested exception. Cmplt. at P 32.

 The Franchise Ordinance prohibits the placement of public payphones on the public way unless the phone provider enters into a franchise agreement with the city. The ordinance provides as follows:

 
(b) Such [franchise] contracts and the method of awarding such contracts shall, to the greatest extent possible, be designed to:
 
(1) Discourage illegal drug sales and other criminal activity that are sometimes associated with and facilitated by pay telephones in the public way;
 
(2) Reduce the disturbances that pay telephones may tend to promote in residential areas;
 
(3) Reduce visual clutter in the public way;
 
(4) Reduce the unnecessary obstruction of pedestrian and vehicular traffic;
 
(5) Ensure the availability of pay telephones where they are needed for lawful purposes;
 
(7) Generate revenue for the city.

 Municipal Code of Chicago, Title 10-28-265(b). The ordinance goes on to require that "any contract entered into pursuant to this section shall provide that the privileges granted by the contract are subject to the city council's authority to order the removal of a pay telephone pursuant to subsection (f)" of the ordinance. Subsection (f), in turn, states that:

 
the city council may at any time after January 1, 1993 or at any time after the effective date of this section if pursuant to a contract under this section, by ordinance order the removal of a ...

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