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CONTRERAS v. CITY OF CHICAGO

March 29, 1996

RAUL CONTRERAS, ANTONIO CONTRERAS, AMALIA J. GLORIA, ARLENE MARTINEZ, HELEN'S PIZZA, d/b/a COMO'S PIZZA, and DAVE CLARK, Plaintiffs,
v.
CITY OF CHICAGO, a municipal corporation, CAROLYN SHOENBERGER, both individually and as Commissioner of the City of Chicago's Department of Consumer Services, EUGENE SCHULTER, both individually and as Alderman of the 47th Ward, Defendants.



The opinion of the court was delivered by: CASTILLO

 On May 23, 1994, Como's Pizza, a restaurant located at 1742 W. Wilson Avenue in the City of Chicago, was temporarily shut down for approximately three days after sanitarians from the City of Chicago's Department of Consumer Services issued citations to Como's for (1) unsanitary equipment, (2) improper pest control, (3) unsanitary interiors, (4) inadequate temperature of raw meat, and (5) having no food sanitarian certificate on the premises. The inspection by the city sanitarians followed a meeting called by defendant Alderman Eugene Schulter and attended by, among others, defendant Carolyn Shoenberger, the City's Commissioner of the Department of Consumer Services, after Schulter's office had received numerous complaints about Como's by area residents. Plaintiff Helen's Pizza Inc, Inc. d/b/a Como's Pizza, joined by Como's principal owner and manager Dave Clark and several of Como's employees, now bring this federal civil rights lawsuit against the City of Chicago, Alderman Schulter, and Commissioner Shoenberger, alleging that the inspection and shut-down of Como's was racially motivated and that the defendants violated the City's Municipal Code when sanitarians from the Department of Consumer Services rather than the Department of Health inspected and shut down the restaurant. The plaintiffs allege that defendants have infringed their rights under the First, Fourth, and Fourteenth Amendments and they seek money damages as well as injunctive and declaratory relief. Defendants Schulter and Shoenberger are sued in both their official and individual capacities. *fn1" Defendants' motion for summary judgment on all counts is presently before the Court, as is plaintiffs' motion for partial summary judgment as to (1) whether defendant Schulter may invoke the affirmative defense of absolute legislative immunity, and (2) whether the City violated the Municipal Code by using sanitarians from the Department of Consumer Services rather than the Department of Health to inspect and shut down Como's.

 RELEVANT FACTS

 Como's is a carry-out restaurant that has been operating since 1988 in Chicago's Ravenswood neighborhood, which, in relevant part, is within defendant Schulter's aldermanic ward. Plaintiff Dave Clark is the sole owner of Como's, which has employed numerous people over the years including plaintiffs Amalia Gloria, Antonio and Raul Contreras, and Arlene Martinez. (Defs.' Facts P 9; Pls.' Add'l Facts P 1). Como's business included a combination of walk-in customers, phone-order deliveries, and sales to mobile food trucks (such as the "Thunderbird" trucks). (Pls.' Add'l Facts P 4). Como's has sought to involve itself in the community over the years by sponsoring a Little League baseball team, and donating food to a school's spaghetti dinner. (Id. P 45).

 Across the street from Como's Pizza live Suzanne and Victoria Khamis, who have resided in their present home for at least 8 to 10 years and who have lived in the immediate neighborhood for approximately 20 years. (Pls.' Add'l Facts P 11; V. Khamis Dep. at 2-3; S. Khamis Dep. at 19-20). For about the last 9 or 10 years, Victoria Khamis has been the president of a community organization called UPRAVE which was founded 18 to 20 years ago by members of the Khamis family. Victoria Khamis testified that at any given time, UPRAVE has about 50 to 100 active members. It calls a general meeting every year and also holds numerous special meetings (sometimes more than once per week) to discuss discrete issues. (Pls.' Add'l Facts P 14). According to Victoria Khamis UPRAVE's motto is "a good neighbor is a nosy neighbor," and the organization performs a variety of activities, including going to housing and juvenile court, supervising juveniles who are performing court-ordered community service, being concerned with police matters and other neighborhood problems, neutering and placing animals, taking people to medical appointments, or "whatever a good neighbor does." (V. Khamis Dep. at 29-32; Pls.' Add'l Facts, P 15).

 Fueling plaintiffs' complaint are charges that the Khamis sisters harbored discriminatory animus against Mexicans. Plaintiff Amalia Gloria testified that she once had a conversation with Suzanne Khamis in which Khamis stated that there was "so much garbage outside all the time because these Mexican people over here are so dirty, they keep everything dirty, because they're so dirty." *fn2" (Gloria 5/17 Dep. at 40). When Gloria informed Suzanne Khamis that she was Mexican, Khamis stated that Gloria was different because she was born in this country. (Id.) On another occasion, Suzanne Khamis complained to Gloria about Como's failure to leave a night light on and in the context of that conversation Khamis stated that "some Mexican guy" had defecated in the alley. (Id. at 44). With respect to Suzanne Khamis' reference to the individual as a "Mexican guy," Gloria noted "she was always referring like that when we spoke." (Id.; see also Gloria 6/2 Dep. at 5, commenting "She had a mouth for that."). Plaintiff Arlene Martinez testified that a woman who lived in the corner house at Wilson and Hermitage (presumably the Khamis residence) used to complain--with reference to the Como's employees standing outside the store--about the "Latinos out there, that we were gangbangers." (Martinez Dep. at 47). As further evidence of the Khamises' discriminatory animus, plaintiffs offer the deposition testimony of Maria Tranculov, who worked at the apartment complex directly next door to Como's at 4606 N. Hermitage. Tranculov testified that a few years ago she attended a meeting at a church on the next block during which the 4606 N. Hermitage building was discussed as was Como's. Tranculov testified that Victoria Khamis spoke at the meeting. She then testified as follows:

 
Q. [By plaintiffs' counsel] And do you recall her making some derogatory comments . . .?
 
A. Yes.
 
Q. You recall her at that meeting complaining about the tenants of your building and that they were affiliated with gangs, right?
 
A. Yes.
 
Q. And you recall her saying that she, Victoria Khamis, was sick of sitting on the porch or watching from her house the tenants of your house come out of the building, right?
 
A. Yes.
 
Q. And she said, didn't she, that she was sick of seeing them with their funny hats and boots, right?
 
A. Yes.
 
Q. And she was sick of watching them eat their tamales or tortillas, right?
 
A. Yes.
 
. . .
 
Q. You understood, didn't you, by the words she used about the funny hats and boots and eating tamales or tortillas that she was referring to Hispanic tenants, didn't you?
 
A. [Over objection] Yes.

 (Tranculov Dep. at 32-34). Gary Kass, owner of the apartment building in which Tranculov worked, testified that based upon his experiences with the alderman's office and the Khamises concerning their complaints about the building and tenants, Como's Pizza, and the tenants of other buildings, it was his opinion that "to a degree" the complaints involved racial stereotyping. (Kass Dep. at 97-98). Tranculov also testified that one of the Khamis sisters (its not clear from the testimony which one) complained about conduct by minority residents that had not been complained about when done by a white resident. (Tranculov Dep. at 43-44). Also, Tranculov testified that Khamis once told her that "all of them look the same" referring to Hispanics. (Id. at 44).

 Paul Flynn, a manager at Como's in 1990 or 1991, stated that in late summer or fall of the year (which year is unclear from the record) he attended a meeting at the Zephyr restaurant, which was owned by Byron Kouris, who also owned Como's building. Present at the meeting were Flynn, Kouris, Susan Khamis, Sonja Aghakan, and Schulter. (Flynn Decl. PP 3-4). Flynn further stated that:

 (Id. P 5, 6). While acknowledging that "in any to-go restaurant such as Como's there will be an undesirable or littering customer," Flynn stated that he felt Khamis' and Aghakan's complaints about Como's minority patrons to be exaggerated and unfair. (Id. P 7). Finally, Flynn noted that during the meeting "Schulter generally remained silent, and never disavowed Susan Khamis' and Sonia Aghakan's remarks." (Id. P 6). *fn3"

 Plaintiffs seek to link the defendants with the Khamis sisters' alleged discriminatory animus through evidence relating to the Khamis' history with the City officials. Alderman Schulter testified that he first met the Khamises over 20 years ago. He met Victoria Khamis in connection with her involvement in UPRAVE. Schulter testified that he has probably spoken with her hundreds of times. *fn4" (Schulter Dep. at 33, 35). When asked the basis of his acquaintance with Victoria Khamis, Schulter stated "I believe it has been [a] desire to work on common issues affecting the ward." (Id. at 38). As examples of issues that he has discussed with Victoria Khamis, Schulter specifically identified the disrepair of a neighborhood YMCA building, and building code violations at the American Indian Center, the In and Out Grocery and an apartment complex located at 4606 N. Hermitage, which is next door to Como's and across the street from the Khamises' residence. (Id. at 38-43). Schulter also testified that either Suzanne or Victoria Khamis had complained to him about the cleanliness of a "pizza place" operating at the location of Como's Pizza, prior to the time that Como's began operating there. (Id. at 64-65). Schulter stated that Victoria Khamis is one of many people in the ward who is very active in bringing complaints to his attention and that he attempts to accommodate the concerns of civic organizations in the ward, including UPRAVE. (Id. at 61-62). Victoria Khamis testified that she may have contributed to Alderman Schulter's campaign about twenty years ago but not in recent years and that UPRAVE definitely has not contributed to Schulter within the past 10 years (V. Khamis Dep. at 182): Suzanne Khamis stated that the most they have done over the years is to put a campaign sign on their door or gate when asked. (S. Khamis Dep. at 26).

 Regarding his attendance at UPRAVE meetings, Schulter testified that he attends the meetings because he is asked to attend and if he cannot make it he usually sends a representative. (Id. at 24-25). Schulter's testimony regarding the number of UPRAVE meetings he has attended in recent years is somewhat unclear. When asked how many UPRAVE meetings he had attended in the last 5 years, Schulter responded "many"; yet when asked how many times Victoria Khamis had asked him to attend in the past 2 years, he responded "four or five" but added that he had only gone to about half of those personally. (Id. at 24-25). Schulter stated that the members of his staff who attended UPRAVE meetings in the last two years when he was unavailable to attend have included Ron Tindle and maybe Sonja Aghakan. (Id. at 26). Schulter testified that he had attended UPRAVE meetings when Sonja Aghakan was present. *fn5" (Id. at 27). Finally, Schulter testified that he has never heard Suzanne or Victoria Khamis make derogatory remarks about Mexicans. (Id. at 174).

 Suzanne Khamis testified that she had complained about Como's to various City departments for years. *fn6" (Pls.' Add'l Facts P 44). For instance, on or about October 21, 1991, an UPRAVE meeting was held at the Khamises' home. (Pls.' Add'l Facts P 21). The meeting was attended by two representatives from the City of Chicago: Terry Teele, from the Mayor's office of Inquiry and Information, and Graham Grady, from the Department of Zoning. Grady's notes from the meeting reflect several problems concerning Como's that were discussed including "gangs," delivery trucks making noise early in the morning, trucks double parking, and problems relating to Como's exhaust fan and a grease pit in the alley. Gray's notes also indicate that UPRAVE was opposed to Como's. (See Pls.' Group Ex. 1). Subsequent to the UPRAVE meeting, Grady sent a memorandum to Teele listing a number of problems meriting investigation regarding the operation of Como's, including early deliveries, parking problems, the grease pit and exhaust fan, rodent control, and gang problems. (See Pls.' Group Ex. 2). The memorandum to Teele also reflects that issues of concern other than Como's were also discussed such as a problematic parking lot located at Wilson and Paulina streets, possible zoning violations by a restaurant and grocery store at Montrose and Paulina streets, and possible overcrowding at a couple of residential dwelling units. (Id.). Grady also sent a memorandum to the Commissioner of Buildings requesting his department to investigate possible building code violations at these residential dwelling units which included the multi-unit apartment complex at 4606 N. Hermitage. (Id.). The record also reflects that Grady initiated a complaint with the Department of Health concerning Como's alleged grease pit and rodent control problems. The health inspector's remarks on the complaint form indicate that the complaints were without merit. (Id.).

 Como's owner, Dave Clark, testified that, over the years, he attended about four or five meetings at Alderman Schulter's office, all of which were essentially the same. (Clark Dep. at 92). In addition to Clark and Schulter (and perhaps one of Schulter's aides), either Victoria or Suzanne Khamis were also present at the meetings. (Id.). Clark testified that the topics of concern at the meetings included parking problems, the grease bin and the exhaust fan on Como's roof. (Id. at 87-92). Clark also testified that at the meetings Schulter indicated that he wanted to work things out and he seemed amenable to working with Clark. (Id. at 93). Nevertheless, Clark stated that Schulter treated him as if the Khamises were always right and Como's was always wrong. (Id. at 283).

 On about May 13, 1994, Schulter organized a meeting with various City officials to discuss Como's Pizza and possibly other matters. The City had already engaged in some enforcement activity involving Como's in the weeks and months immediately preceding the May meeting called by Schulter. For instance, Sherri Cianciarulo, a project coordinator in the Department of Revenue's Compliance and Enforcement Division, testified that about one month before the meeting her department had responded to a complaint that was received from the Zoning Department concerning alleged wholesaling activity at Como's. (Cianciarulo Dep. at 13-16). A field inspection report completed by a zoning department inspector on March 30, 1994, noted that Como's was engaged in "catering" and that the premises did not have a catering license. The report recommended a referral to the Department of Revenue. (Pls.' Group Ex. 6). The zoning department's referral form that was sent to the revenue department remarked "Pizza restaurant operating catering business [without] catering license." (Id.). On April 28, 1994, a revenue department investigator investigated Como's to determine the type of business activity being conducted. The investigation report notes that a Como's employee stated that an increasing amount of business comes from mobile food trucks. Cianciarulo testified that she felt that the initial investigative report was incomplete and that, based on the reference to increasing business from Thunderbird trucks, the issue of wholesaling should have been looked at more thoroughly. (Cianciarulo Dep. at 41-42). Accordingly, Cianciarulo told the investigator to conduct a follow-up investigation, which involved investigation outside of the normal 8:00 a.m. to 4:00 p.m. working hours. (Id. at 46, 48-49). Subsequent investigation by the Department of Revenue resulted in a determination that Como's was engaged in wholesaling to Thunderbird mobile food trucks. A revenue department investigator issued a cease and desist order and a citation to Como's for engaging in food wholesaling without a license. *fn7" (Pls.' Group Ex. 7).

 In addition to Schulter, present at the May 13 meeting were Schulter's aide Ronald Tindle, Sherri Cianciarulo and Ronald Calicchio of the Department of Revenue, Paul Woznicki of the Department of Zoning, and Suzanne and Victoria Khamis. (Schulter Dep. at 116-17). At some point during the meeting, defendant Shoenberger was called and asked to attend to discuss enforcement issues. *fn8" (Id. Dep. at 130). Although the parties disagree as to whether other matters were discussed at the meeting -- and, if so, to what degree (see, e.g., Pls.' 12(N)(3(a) Facts P 19), there is no dispute that the Khamises discussed their complaints about Como's. Among other issues, problems associated with Como's sales to catering trucks were discussed, as were problems relating to garbage and grease. *fn9" (Defs.' Facts P 19). Ron Tindle testified that Schulter requested that the Department of Consumer Services form a task force to investigate Como's. (Tindle Dep. at 52, 86-87). Similarly, Shoenberger testified that Schulter indicated to her that he would like her department to look into Como's and she understood that to mean that he wanted the Department of Consumer Services to conduct an investigation of Como's. (Shoenberger Dep. at 200). At no time during the meeting was there any mention of the race or ethnicity of any of Como's employees or customers. (Id. P 20).

 During, or shortly after the meeting, Shoenberger wrote a memorandum to Pat Jackowiak, a Deputy Commissioner in the Department of Consumer Services, that reads as follows:

 
Please organize a task force to investigate Connie's Pizza *fn10" -- 1742 W. Wilson Ave. Please include the following Depts:
 
S S [streets and sanitation]
 
Health
 
Revenue
 
Zoning
 
Bldg
 
ENV [environment]
 
CPD [Chicago Police Department]
 
Numerous complaints have been received from residents in the area regarding: traffic, sanitation, licensing, noise, pollution, bldg violations etc.

 (Pls.' Ex. 8). Jackowiak was not specifically informed of the identity of the residents who had made the complaints. (Defs.' Facts P 27). Ultimately, the Department of Health was not involved in the inspection of Como's. Shoenberger testified in this regard that Jackowiak stated to her that Arlene Lopez, a Consumer Investigator II supervisor with five years of prior experience as a sanitarian with the Department of Health (Defs.' Facts P 29), had the requisite experience to conduct an inspection and that Lopez along with a Department of Consumer Services sanitarian would conduct the investigation. Shoenberger understood Jackowiak's input to be a recommendation that the Department of Health not be included in the task force, that it could be handled internally--a recommendation to which Shoenberger agreed. (Shoenberger Dep. at 139; Shoenberger Cont. Dep. at 45). Jackowiak included Como's on the next regularly-scheduled Consumer Services task force, which was scheduled for May 23, 1995. Como's was just one of several businesses inspected by the DCS task force that day. (Defs.' Facts P 28).

 On May 23, 1994, DCS employees Arlene Lopez and Sharon Lewis, a DCS sanitarian who transferred to DCS from the Department of Health, inspected Como's for health violations. (Defs.' Facts P 29). Although Lewis was a sanitarian with the Department of Health, she never did any health sanitation inspections of restaurants while at the Department of Health; she was a court liaison who did not inspect in the field. (Pls.' Add'l Facts P 117). Neither Lopez nor Lewis were informed as to who had initiated the complaint against Como's, nor were they informed as to the nature of any of the complaints lodged against any of the business. (Defs.' Facts P 28).

 On an inspection report form, Lopez and Lewis noted, among other things: (1) rodent droppings throughout the cooking and storage area; (2) a cross-connection between a sink in a bathroom and the ice machine; (3) no thermometers in any of the upright coolers; (4) raw hamburger meat on a counter that was an improper temperature; (5) no running water in the exposed hand-bowl (the sink in which food handlers are to wash their hands); (6) an open hole where a window had been taken out; (7) paint peeling from the walls near the three-compartment sink (where dishes are washed); and (8) standing water in the storage room. Additionally, they indicated that there was no certified food handler on the premises and that Como's did not have the food handler's license required by the City. *fn11" (Defs.' Facts P 30).

 During his deposition, Como's owner acknowledged that (1) the refrigerator was not working on the day of the inspection; (2) there was no hot water to the exposed hand-bowl, and that he had previously been warned about this problem by the Health Department; (3) overflow from the ice machine has resulted in standing water in the rear storage room in the past, and Como's had been told previously by the Health Department that the floor needed repair due to water; (4) there were thermometers missing from 2 coolers and that missing thermometers can be a problem because food establishments are required to keep meat at certain temperatures; (5) one month before the DCS inspection, the Department of Health gave Como's 10 days to replace a missing thermometer in the reach-in cooler; also during that prior inspection the Department of Health noted other violations that were to be corrected within 10 days, including greasy conditions, dirty floors, absence of hair nets on food handlers, and the poor repair of a side wall; (6) the window in the rear of the building was completely missing and the screen in poor repair; (7) there was paint peeling from the wall; (8) he had received prior reports from the Department of Health about peeling paint, broken or missing tiles and the dirty condition of the floor; on one prior inspection, the inspector noted that Como's was a "commissary to mobile food trucks (thunderbird)" and instructed Como's manager to label and individually wrap all food; (9) he had previously been warned by Health to clean the walk-in cooler and the interior of the ice machine; (10) at the time of the DCS inspection, no one employed by Como's had a City of Chicago food handler certificate or had even enrolled in the required course to obtain such a certificate; the Department of Health had previously issued Como's a citation for its failure to have a food handler certificate. (Defs.' Facts P 31).

 As a result of the inspection, DCS issued 5 citations to Como's for (1) unsanitary equipment, (2) improper pest control, (3) unsanitary interiors, (4) inadequate temperature of raw meat, and (5) having no food sanitarian certificate on the premises. (Defs.'s Facts P 32). While plaintiffs admit that the citations were issued, they contest the validity of the citations. And, although Clark acknowledged the problems just described, he takes issue with many aspects of the inspectors' report, both as to the existence of various conditions and as to their seriousness, and maintains that even to the extent that violations existed, they did not warrant a shut-down.

 After Lopez and Lewis had conducted their inspection and determined that Como's should be immediately closed because it posed an imminent health hazard, Lopez telephoned her supervisor, pursuant to DCS practice, to obtain authorization to close the restaurant. Both Commissioner Shoenberger and Isabel Esparza, an Assistant Commissioner with over 15 years of experience with DCS, *fn12" authorized the closure and Como's was closed until such time as it could come into compliance. As a courtesy, Lopez called the Department of Health and left a message with Sam Brown to inform him that DCS was closing Como's. (Defs.' Facts P 33). Several hours after the DCS inspection, Brown instructed Robert Henry, a Health Department inspector, to go to Como's to see what was going on. (Henry Dep. at 20-23). Henry testified that, although he did not conduct an inspection, he did not see anything that warranted a closure. (Id. at 32). Henry's inspection report notes "premise had violations, but not warranting close-up." (Pls.' Ex. 16).

 The next day, May 24, 1994, Stephen Mazar, an exterminator hired by Clark after the DCS inspection, inspected Como's. Prior to arriving at Como's, Mazar instructed Clark to vacuum the entire restaurant before the inspection. Mazar testified that Como's was thoroughly vacuumed before he arrived. Mazar stated that he did not find any evidence of a rodent problem but with all the cleaning that had occurred prior to his arrival it might have been eradicated. (Mazar Dep. at 40). Mazar did find a lot of fresh rodent droppings on the bottom window sills of a building across the alley from Como's and he plugged three 2-3 inch holes in the base of Como's building that could potentially have given Como's a rodent problem. ((Defs.' Facts P 34; Mazar Dep. at 35-36).

 On May 25, 1994, two DCS employees, Margie Rivera and Anyce Cullars were dispatched to re-inspect Como's. Margie Rivera testified that in her opinion, at the time of re-inspection, Como's needed more time to comply with the prior inspection orders. (Rivera Dep. at 57, 60). Rivera found that more work was required to rodent-proof a door and that there was a hole in the ceiling that was not rodent proof. (Rivera Dep. at 54). The re-inspection report notes that many corrective measures had been taken (Defs.' Append. Exs. at 53), however several orders had not been complied with to a satisfactory degree. (Id. at 52). In particular, various pieces of equipment still required cleaning or painting, a rear door needed to be repaired to rodent-proof it, excessive amounts of rodent droppings were reported to be present behind the upright freezer, garbage receptacles needed proper lids, water was still leaking from the exposed bowl and three-compartment sink, the ceiling required repair, and the floors were still in the process of being repaired. (Id.). Rivera called DCS and spoke with Pat Jackowiak about whether Como's should remain closed. (Rivera Dep. at 57). Rivera stated that the decision to keep Como's closed was "a judgment call" and that in her opinion Como's needed more time to comply. (Id. at 60).

 After Rivera and Cullars left, Mazar returned and found small dark particles that resembled rodent droppings in the areas referred to in the re-inspection report. (Mazar Dep. at 53-57). The particles turned out not to be rodent droppings at all but rather were mop particles that had become encapsulated by flooring adhesive. (Id. at 55-56). The next day, May 26, 1994, Como's was permitted to reopen. (Defs.' Facts P 38). In October of 1994, Como's closed permanently.

 A significant amount of plaintiffs' evidentiary showing is directed at establishing that the inspection of Como's was highly irregular in the sense that it was conducted by the Department of Consumer Services as opposed to the Department of Health. Indeed, plaintiffs contend that DCS sanitarians are not authorized to inspect or close down a restaurant.

 Chapter 4-8 ("FOOD SANITATION") of the Municipal Code addresses licensing and sanitary requirements of food establishments. Section 4-8-060 provides in pertinent part:

 
The department of health shall inspect all retail food establishments, food-dispensing establishments,...at least once every six months and as often as necessary to determine that the requirements of this Municipal Code are being complied with.

 CHICAGO MUNICIPAL CODE ยง 4-8-060(a). Paragraph (c) of this section provides in relevant part:

 
When the department of health finds a violation of any requirements of this Municipal Code relating to health and sanitation, it may make a second inspection after a lapse of whatever time it deems necessary for the correction of the violations; however, whenever an inspection indicates that the conditions in the food establishment ...

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