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AYRES v. CITY OF CHICAGO

June 4, 1997

WENDY ALLEN AYRES, individually and on behalf of a class, Plaintiff,
v.
CITY OF CHICAGO, a Municipal Corporation, OFFICER D. BARTHELL and OFFICER JOHN DOE (J. M.), Defendants.



The opinion of the court was delivered by: DENLOW

 This case presents the challenging question of whether the City of Chicago's Peddlers' Ordinance violates the First Amendment to the United States Constitution by barring Plaintiff from selling T-shirts which advocate the legalization of marijuana at City-sponsored festivals in Grant Park.

 This case comes before the Court on plaintiff's motion for a preliminary injunction. The Court conducted a three-day trial on May 21-23 involving six witnesses and numerous exhibits. Closing arguments were held on May 28. The following constitute the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent certain findings may be deemed conclusions of law they shall also be considered conclusions. Similarly, to the extent matters contained in the conclusions of law may be deemed findings of fact, they shall also be considered findings. See, Miller v. Fenton, 474 U.S. 104, 113-14, 106 S. Ct. 445, 451-52, 88 L. Ed. 2d 405 (1985).

 I. THE PARTIES.

 1. Plaintiff Wendy Allen Ayres (hereinafter "Plaintiff") is the founder and a member of the Marijuana Political Action Committee (hereinafter "MPAC"), a not-for-profit unincorporated association of persons who "seek to repeal laws which penalize or prohibit the peaceful, personal, religious, scientific, medical, agricultural, and/or industrial use of cannabis, marijuana and/or hemp." (Px 14). Plaintiff and MPAC "favor laws which permit and/or facilitate such uses." Id. Plaintiff has been actively engaged in efforts to legalize marijuana for over fifteen years. In pursuit of these efforts, she created MPAC, which promotes its message primarily through the sale of T-shirts, lobbies legislators and organizes seminars and festivals promoting the legalization of marijuana.

 2. Defendant City of Chicago ("City") is a municipality incorporated under the laws of the State of Illinois.

 II. JURISDICTION AND VENUE.

 4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201.

 5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).

 FINDINGS OF FACT

 III. BACKGROUND FACTS.

 A. The City of Chicago's Peddlers' Ordinance.

 6. The City of Chicago's Peddlers' Ordinance is encompassed in Chapter 4-244 of the Chicago Municipal Code. (Dx 1b). The Peddlers' Ordinance states that "It shall be unlawful for any person to engage in the business of a peddler without a license so to do; ..." Code § 4-244-030. The Code defines a peddler as "any individual who, going from place to place, shall sell, offer for sale, sell and deliver, barter or exchange any goods, wares, merchandise, wood, fruits, vegetables or produce from a vehicle or otherwise. The word 'peddler' does not include a grower or producer ..." Code § 4-244-010.

 7. Chicago first enacted a Peddlers' Ordinance in 1939. (Dx 1c). Since that time, the City has restricted peddling in certain designated areas. The current Ordinance provides in pertinent part:

 
No one having a peddler's license shall peddle any merchandise or any other article or thing whatsoever, at any time, within districts which have been or shall be hereafter designated by the city council. A description of such districts shall be kept in the office of the city clerk.

 Id. at § 4-244-140. The penalty for violating the Ordinance is a fine of "not less than $ 200.00 nor more than $ 500.00 for each offense, and each day such violation shall continue shall be deemed a distinct and separate offense." Id. at § 4-244-140.

 8. The Peddlers' Ordinance applies to all "goods, wares, merchandise, wood, fruits, vegetables or produce." Id. at § 4-244-010. It does not distinguish between peddling purely commercial merchandise and peddling merchandise containing political or religious ideas. Other than the sale of newspapers, which is allowed under a separate ordinance, Code § 10-8-520 (1996), all peddling is prohibited in the designated district.

 Central District.

 9. On April 13, 1994, the City Council designated the central district of Chicago as a restricted area for peddling. Chicago City Council, Journal of Council Proceedings, April 13, 1994, at 48878-79. (Dx 1a). In general terms, the central district of Chicago encompasses the area from the Chicago River on the North, McCormick Place on the South, Lake Michigan on the East and Ashland Boulevard on the West. The central district includes, inter alia, the Loop, McCormick Place, the Shedd Aquarium, the Field Museum, the Art institute, the renovated State Street, Greektown, Chinatown, major hotels and the near north restaurant and business district. (Dx 25 contains a map depicting the areas in which peddling is prohibited). The central district also includes Grant Park, where the City sponsors the Chicago Blues Festival, Taste of Chicago and other festivals which attract millions of Chicago residents and tourists.

 10. The Peddlers' Ordinance applies to all City-owned property and to property the City temporarily leases, such as Grant Park, for City-sponsored events.

 Peddling License Procedures.

 11. Peddlers are required to obtain a peddling license. Code, § 4-244-030.

 12. A person who desires a peddler's license must complete an application, submit the completed application to the City's Department of Revenue and pay a fee. (See, Dept. of Revenue Peddling Package, Dx 2). The application requires a State of Illinois sales tax number, legal identification and a notarized indebtedness affidavit to the City of Chicago.

 14. Plaintiff has never applied for a peddler's license and does not hold a peddler's license issued by the City of Chicago. Plaintiff does not hold a permit from the Chicago Park District to sell goods and merchandise in the parks.

 15. Even if Plaintiff held a peddler's license, the City would not permit her to sell MPAC T-shirts at City-sponsored festivals because Grant Park is in a designated district.

 General Orders and Law Department Memorandum.

 16. On July 3, 1992, the Chicago Police Department issued an addendum to General Order *fn1" 92-1 that it would not take any enforcement action which would prohibit or impede an individual from selling or distributing printed matter on or about the public ways. (Dx 7). P III(B) provides in part:

 
1. Any person on the public way or in any public place has a right to:
 
a. express his views through any form of communication, including distribution or sale of newspapers, magazines, handbills or other printed matter; and
 
b. solicit financial contributions for political or religious causes.
 
2. Persons expressing political or religious views on a public way or in any public place are required to comply with all laws and ordinances prohibiting physical obstruction of the movement of persons and vehicles on the public way or place, damage to public or private property, and any and all other applicable laws or ordinances.
 
3. The sections of the Municipal Code of Chicago . . . delineated below [which includes the Peddlers' Ordinance] do not apply to persons who distribute or sell material containing political or religious ideas on a public way or other public place. (Emphasis in original).

 17. The Mayor's Office of Special Events organizes the City-sponsored festivals in Grant Park. In 1996, the City's Corporation Counsel was requested to clarify the applicability of the Peddlers' Ordinance to the City-sponsored festivals in Grant Park. On June 7, 1996, the Law Department advised the Chicago Police Department that to the extent that "General Order 92-1 and Addendum exempts peddlers from arrest, it is incorrect and must be revised, as it is creating confusion among the police department, the Mayor's Office of Special Events and the general public." (Dx 6). The memorandum stated in part:

 
It is the legal opinion of the Law Department that individuals selling merchandise in the areas prohibited by ordinance are peddling in violation of the ordinance and may be arrested without regard to the police general order and without regard to the message that may be contained on the merchandise that they are distributing or selling. Individuals may not circumvent the peddling ordinance by claiming that their illegal actions are protected by the first amendment. Nor may they use police general orders to acquire rights they do not have.

 This opinion was sought in response to claims by Plaintiff and others that their activities in selling MPAC T-shirts were protected by the First Amendment and General Order 92-1, as amended.

 18. Subsequently, on June 14, 1996, the Chicago Police Department revised General Order 92-1 and issued Addendum 2, which rescinded its application to peddlers. (Dx 7). As a result, Chicago police officers, after first giving a warning, began ticketing Plaintiff and others who sought to sell T-shirts at City-sponsored festivals. (Px 1).

 B. Plaintiff's Activities.

 20. Whether and to what degree marijuana should be legalized is a current topic of debate in our society. See, e.g. Matthew W. Grey, Medical Use of Marijuana: Legal and Ethical Conflicts In the Patient/Physician Relationship, 30 University of Richmond L.Rev. 249 (1996); Erik Grant Luna, Our Vietnam: The Prohibition Apocalypse, 46 DePaul L.Rev. 483 (1997); and Lisa M. Bianculli, The War on Drugs: Fact, Fiction and Controversy, 21 Seton Hall Legis. J. 169 (1997).

 C. Plaintiff is Ticketed in 1996.

 21. While selling the T-shirts at Taste of Chicago during 1996, Plaintiff was approached by a City police officer and warned she could not continue what she was doing.

 22. Plaintiff showed the officer a copy of Chicago Police Department Message No. 92-008351, dated September 4, 1992, from John J. Klein, General Counsel, to the Superintendent ("Klein memo") which states:

 
Pending review by the Department of Law, and until further notice, all members will refrain from taking any enforcement actions which would prohibit or impede an individual from selling or distributing printed matter on or about the ways, including the proximity of Sports Stadiums. (Px 6).

 23. Klein's memo reaffirmed what had been the City's long-standing policy, practice and custom to exempt certain activities from the provisions of the City's peddling ordinances. (See, e.g. Chicago Police Department Special Order 79-24 dated July 24, 1979, Px. 7, Special Order 95-18 dated August 28, 1985, Px. 8, General Order 92-1 and addendums, Dx 7).

 24. Plaintiff was in possession of a copy of Klein's memo. Each year Plaintiff would go to the Chicago Police Department's Legal Affairs Division and the Police Command Post and ask the officers to read and verify that the Order was still in effect. The officer would often sign Plaintiff's copy of Klein's memo. (Px 6). She would give copies to persons who were selling MPAC T-shirts. Then, when an officer approached, they would show the officers the memo in order to prevent an arrest.

 25. On June 28, 1996, at Taste of Chicago, an officer stopped Plaintiff from selling MPAC T-shirts and asked her to go to the Command Post with him. She complied. The Commander provided Plaintiff with a copy of the Corporation Counsel's June 7, 1996 opinion authorizing the arrest of persons selling merchandise "without regard to the message that may be contained." (Dx 6).

 26. Plaintiff then went to another area of the park, the sidewalk on Jackson Blvd., east of Michigan Ave., and sold a T-shirt. She did not believe she was still in the Taste of Chicago festival area. Immediately, two Chicago police officers arrested her, took her to their police car, confiscated approximately thirty (30) T-shirts, and charged her with two ordinance violations: peddling without a license (4-244-030) and peddling in a restricted area (4-244-140). (Px 1).

 27. MCC chapter 4, § 244-140, Prohibited Districts, bans all sales by peddlers in the central district of Chicago. At its longest and widest, this is an area roughly four by three-and-a-half miles. *fn2"

 28. Plaintiff appeared in court on November 4, 1996, and was found guilty of peddling without a license and placed on supervision until April 1, 1997.

 29. Plaintiff was ticketed numerous times prior to June 28, 1996, for distributing her T-shirts at City sponsored festivals. All of Plaintiff's ...


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