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04/26/96 LOU OWEN v. VILLAGE SCHAUMBURG

April 26, 1996

LOU OWEN, INC., D/B/A TOTO'S AND 1450 EAST, PLAINTIFF-APPELLEE,
v.
VILLAGE OF SCHAUMBURG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Lester Foreman, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

The defendant, Village of Schaumburg, appeals from an order preliminarily enjoining enforcement of a municipal ordinance which bans certain types of entertainment geared toward teenagers.

The plaintiff, Lou Owen, Inc., operates a restaurant, nightclub and ballroom called "1450 East," located within the municipal boundaries of the defendant. Since 1990, the plaintiff has also operated an entirely separate teenage dance club, called Toto's, on the second floor of the 1450 East building. In 1990 the defendant enacted an ordinance which provided that a class D entertainment license could be issued on a daily basis which would entitle the holder of the license to provide entertainment including dances or concerts "wherein the patrons are between the ages of 14 to 20 years." Schaumburg Village Code, sec. 113.02(D) (Oct. 9, 1990). The hours of the class D license were to last no later than one-half hour before curfew unless the event was limited to persons above the age of 17.

In 1992 the Ordinance was amended and provided that the application for a class D license was required to show, among other things, the number of employees and performers to be used for the event; a security plan, and the type of advertising to be used. The license limited the number of tickets to be sold to the capacity of the premises. It also required automatic counters to be used in determining the occupancy of the building; and the parking lot was to be closed when the occupancy limit of the premises was reached.

The license application must have been first approved by the Chief of Police and subsequently by the Village Manager. (According to the defendant, the granting or denial of the license was subject only to the discretion of the Chief and Manager. The Ordinance contains no guidelines for the exercise of the discretion.) No class D license was required for a "not-for-profit or charitable group duly licensed and registered with the State and having a five-year history in the village." Also exempted were units of local government, schools, park districts or "other similar type of governmental agency." Schaumburg Village Code, sec. 113.02(D) (amended April 28, 1992).

Toto's sponsored well over four hundred dances limited to young people ages 17 to 20 pursuant to the existing ordinance between 1990 and 1994. Toto's also hosted a number of private events with teenage guest-lists, such as bar and bat mitzvahs, quincineras (Hispanic coming-of-age celebrations) and dances sponsored by not-for-profit groups, such as a drug awareness program and the American Cancer Society. Toto's is the only place in Schaumburg which regularly offers teen dances and concerts.

Toto's had made advance arrangements with the Schaumburg police department for a scheduled police detail consisting of officers who were paid by Toto's. On November 4, 1994, two of the Schaumburg police officers failed to show up as scheduled. Kevin Toma, a 15-year-old, had come to Toto's with a brother of one of the security officers. He was not a patron of Toto's. While he was using a public phone inside Toto's to call his mother, the security guards at Toto's refused entry to three individuals when the guards noted the smell of alcohol on the breath of one of the individuals. The three individuals drove away. After Kevin Toma left the building, he was fatally shot by one of the group of three young men who had been denied admittance. The man had apparently fired the shot indiscriminately while concealed at a point some distance from Toto's front door.

On November 5, the defendant's Village Manager announced that the police detail failed to appear at Toto's due to a department error but that he had "suspended" Toto's licenses for teen shows. The Village President called for a ban on "commercial" teenage dances.

On November 7, the Village Manager informed Greg Owen, the general manager of Toto's, that the temporary suspension of a request for teenage dances would remain until further notice by the Village Manager. On November 8, the Village Board voted to ban "commercial" teen dances and concerts and directed the Village Attorney to draft an ordinance in accordance with the Board's action.

On November 15, 1994, the Village Board enacted ordinance no. 94-179, (the Ordinance), which states:

"It shall be unlawful for any person, firm, or corporation to offer, provide, procure, make available, allow, suffer or permit entertainment of the following nature, but not limited to: dances, concerts or other activities wherein the patrons are between the ages of 14 through 20 years, or such other similar form of temporary, special events of an entertaining nature; provided, however, that such activities may be permitted for a not-for-profit or charitable group, duly licensed and registered with the State and having a five-year history in the Village, a church, unit of local government, school, park district or other similar type of governmental agency. No such entertainment shall be offered to persons between the ages of 14 through 20 years on premises for which a liquor license has been issued, except for hotels which have ballrooms available separate and apart from any facilities for the dispensing of liquor." Schaumburg Village Code, sec. 113.36 (aff. Nov. 15, 1994).

Because Toto's is in a building which has another facility with a liquor license, Toto's is barred from having any teenage dances or concerts.

After the defendant enacted the Ordinance, the plaintiff filed a complaint which sought a declaratory judgment that (1) the enactment of the Ordinance did not affect vested rights acquired by virtue of the passage in 1992 of the previous licensing scheme; and (2) the Ordinance was facially invalid under the equal protection clauses of both the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Illinois Constitution. The plaintiff claimed that the Ordinance created an unreasonable classification by distinguishing between hotels and Toto's and that its proscription against ...


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