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SOUTH/SOUTHWEST REALTORS v. VILLAGE OF EVERGREEN

August 9, 2000

SOUTH/SOUTHWEST ASSOCIATION OF REALTORS, INCORPORATED, PLAINTIFF,
V.
THE VILLAGE OF EVERGREEN PARK, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Castillo, District Judge.

MEMORANDUM OPINION AND ORDER

The South/Southwest Association of Realtors, Inc. ("the Association"), seeks a preliminary injunction against enforcement of Evergreen Park's ordinance against residential solicitation. The Association argues that the ordinance violates realtors' First Amendment commercial speech rights by prohibiting all solicitation of owners and occupants of residential real estate at their residence if the owner or occupant has filed a non-solicitation notice and the realtor has received the notice. After careful scrutiny of the ordinance in light of case precedents, we conclude that the Association is not entitled to a preliminary injunction.

THE ORDINANCE

Article VI of Evergreen Park's municipal code is entitled "Non-Solicitation." (R. 2, Mot. for Prelim. Inj. Ex. 1, Evergreen Park Municipal Code Article VI ("Ordinance").) Section 16-181 states,

It shall be unlawful for any person to solicit the owner or occupant of any residential real estate at the residence of the owner or occupant after a non-solicitation notice has been sent by the Village Clerk and received by that person. This is an absolute liability offense.

(Ordinance Art. VI § 16-181.) The Ordinance defines "solicit" as

any communication with any owner or occupant of residential real estate which is carried out by means of (1) in-person contacts at the real estate; or (2) written material mailed or delivered at the real estate, such as direct mail, leaflets or pamphlets; or (3) telephonic contacts at the real estate; or (4) electronic mail or other communications transmitted through telephone lines such as facsimile transmissions and e-mail.

(Ordinance Art. VI § 16-180(e).)*fn1 Finally, § 16-182 details the notice procedures: "Upon the request of any owner or occupant of residential real estate, the Village Clerk shall prepare a non-solicitation notice advising that solicitation at a specific residential real estate is prohibited." Section 16-182 provides for notice by certified, return-receipt mail.

PRELIMINARY INJUNCTION STANDARD

A preliminary injunction is "an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quotation omitted). To succeed on its motion the Association must first show a likelihood of success on the merits, irreparable harm if the preliminary injunction is denied, and the inadequacy of its remedies at law. Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999); Boucher v. School Bd. of the Sch. Dist. of Greenfield, 134 F.3d 821, 823-24 (7th Cir. 1998). Should the Association make this threshold showing, we must then balance the harm to the Association if the injunction is wrongfully denied against the harm to the Village if it is wrongfully granted, and weigh the public's interest in the matter. Cooper, 196 F.3d at 813.

A. The Likelihood of Success on the Association's First Amendment Claim

To determine the Association's likelihood of success in its quest for invalidation of Evergreen Park's anti-solicitation ordinance, we apply the four-part test enunciated in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), for restrictions on commercial speech. We ask (1) whether the speech concerns lawful activity and is not misleading; (2) whether the government's asserted interest is substantial; (3) whether the ordinance directly advances that asserted interest; and (4) whether the ordinance is not more extensive than necessary to serve that interest. Id.; see also Lavey v. City of Two Rivers, 171 F.3d 1110, 1113-14 (7th Cir. 1999); Pearson v. Edgar, 153 F.3d 397, 401 (7th Cir. 1998).

Here, the Association easily satisfies the first two parts of the Central Hudson test. There is no question that the restricted speech is protected by the First Amendment because it is lawful, non-misleading commercial speech. See Lavey, 171 F.3d at 1113 ("[O]nly speech that is truthful and not misleading receives First Amendment protection."). Additionally, Evergreen Park's asserted interest in protecting residential privacy is substantial. See Pearson, 153 F.3d at 405 ("[R]esidential privacy is unquestionably a very substantial interest.").


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