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WEINBERG v. CITY OF CHICAGO

January 14, 2002

MARK WEINBERG, PLAINTIFF,
V.
CITY OF CHICAGO, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Keys, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Currently before the Court is Plaintiff Mark Weinberg's Motion for Summary Judgment. Plaintiff charges that the City's prohibition on peddling within 1000 feet of the United Center (the "peddlers' ordinance") violates his rights under the First Amendment. Plaintiff also attacks the Chicago Municipal Code's licensing ordinance for peddlers ("peddlers' licensing ordinance") as an unconstitutional prior restraint on his First Amendment rights. For the reasons set forth below, the Plaintiff's Motion is Denied. The Court finds that Summary Judgment in favor of the City is warranted.

FACTUAL BACKGROUND

The relevant facts are few and largely uncontested. In December, 2000, Plaintiff began selling Career Misconduct, a book Plaintiff authored criticizing Chicago Blackhawks owner Bill Wirtz, on the sidewalks outside the United Center prior to the start of Chicago Blackhawks home games. On February 14, 2001 Chicago police officers informed Plaintiff that he was not permitted to sell his book within 1,000 feet of the United Center. These officers were enforcing the peddlers' ordinance, found in Chapter 4 of the Chicago Municipal Code, which prohibits peddling on the public walkways in certain areas throughout Chicago, including within 1,000 feet of the United Center. These officers permitted newspaper vendors to continue their sales near and around the United Center, however, because § 10-8-520 of the Chicago Municipal Code specifically exempts newspapers from the scope of the peddlers' ordinance.

Plaintiff's attorney promptly contacted the City of Chicago's Corporation Counsel's office, insisting that the peddlers' ordinance did not apply to Plaintiff's First Amendment activity of selling his book. The City disagreed, and Plaintiff filed suit in federal court seeking a temporary restraining order and preliminary injunction to prevent the City from enforcing its peddlers' ordinance against him. On February 23, 2001, Judge Guzman entered a temporary restraining order against the City, and referred the matter to this Court. The parties subsequently consented to proceed before this Court.

On March 14, 2001, this Court entered an order documenting the parties' agreement that the City would permit Plaintiff to sell his book on the sidewalk surrounding the United Center, pending the resolution of this action.*fn1 Discovery is complete and the Court is currently presented with Plaintiff's Motion for Summary Judgment. Because Plaintiff's Motion for Summary Judgment presents a pure question of law, the Court is empowered to grant summary judgment to Defendant. Inter'l Union of Operating Eng'rs Local 150, AFL-CIO v. Village of Orland Park, 139 F. Supp.2d 950, 957 (N.D. Ill. 2001).

RELEVANT LAW

Chicago's Municipal Code prohibits peddling within 1000 feet of the United Center. Specifically, § 4-244-147 of the Municipal Code provides that:

No person shall peddle merchandise of any type on any portion of the public way within 1,000 feet of the United Center. A person holding a valid peddlers' license may peddle merchandise while on private property within 1,000 feet of the United Center only from a cart, table or temporary stand on private property without obstructing the public way, and pursuant to prior written permission from the property owner to do so. The provisions of this section shall be in addition to any other limitation on or regulation of peddlers. Any person who violates any provision of this section shall be fined not less than $200.00 nor more than $500.00 for each offense, and each day such violation shall continue shall be deemed a separate offense.*fn2

Section 10-8-520 of the Chicago Municipal Code requires peddlers to obtain a license and exempts newspapers from the peddlers' ordinance:

No person, other than a licensed peddler, as by the provisions of Chapter 4-244 of this Code shall sell, offer or expose for sale, or solicit any person to purchase any article or service whatsoever, except newspapers, on any public way.

Section 4-244-040 sets for the requirements for obtaining a peddlers' license:

Every individual who desires a license as a peddler shall make application therefor in conformity with the general requirements of this Code relating to application for licenses, and shall state the class of license sought. Such application shall also state in what commodity or article of merchandise such peddler desires or intends to deal.

Finally, Section 4-244-060 provides that:

The annual fee for peddlers' licenses shall be as set forth in Section 4-5-010.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The moving party has the initial burden of showing that the record contains no genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-movant to show, through specific facts in the record, that there is "a genuine issue for trial." Id;. at 324. The Court examines the record in a light most favorable to the non-movant, but conclusory allegations without evidentiary support will not suffice. Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999)

DISCUSSION

In his Motion for Summary Judgment, Plaintiff raises five arguments. First, Plaintiff claims that the peddlers' ordinance does not apply to the sale of his book because books are not "merchandise" under the Municipal Code. Next, Plaintiff argues that the City's restriction on books directly conflicts with the First Amendment's public forum doctrine and subverts First Amendment values.*fn3 Third, Plaintiff asserts that the peddlers' ordinance is not a reasonable time, place, and manner restriction. Fourth, Plaintiff claims that the peddlers' ordinance is void for vagueness and vests undue discretion in distinguishing between protected and unprotected speech. Finally, Plaintiff characterizes the peddlers' licensing ordinance as an unconstitutional prior restraint because it grants City officials unfettered discretion in awarding peddling licenses. The Court addresses each argument in turn.

I. The Ordinance Properly Applies to Plaintiff's Booksales.

Plaintiff invites the Court to resolve this dispute on the narrowest of grounds; Plaintiff asserts that the sale of his book does not fall within the Code's definition of merchandise, and, therefore, the peddlers' ordinance does not apply to him. Plaintiff claims that a constitutional interpretation of the ordinance requires the exclusion of books from the scope of the peddling ordinance because; 1) Chicago Police Order 92-1 protected the rights of speakers to engage in protected speech on public walkways until 1996, and interpreting the peddling ordinance to encompass sales of books would conflict with this Police Order; 2) the City may not "lump together" protected First Amendment activities and unprotected activities; 3) no court has ever distinguished between different types of printed materials for First Amendment purposes in a public forum; and 4) persuasive authority reasons that First Amendment activities should be exempted from peddling ordinances.

Clearly, the terms of the peddling ordinance encompass the sale of merchandise of any type, including books. See generally, United States v. Hayward, 6 F.3d 1241, 1245 (7th Cir. 1993) ("when the language of a statute is clear and unambiguous the court must give effect to the plain meaning of the statute.") The Court is not persuaded by Plaintiff's assertion that a superceded Chicago Police Order, which exempted the sale of certain First Amendment goods from enforcement of the peddlers' ordinance, alters the plain and unambiguous language of the peddlers' ordinance.*fn4 Moreover, Plaintiff provides no support for his position that the Chicago Police Department has the authority to offer binding interpretations of City ordinances.

The Court further finds that Plaintiff's attempts to circumvent the plain language of the ordinance miss the mark. First, there is no prohibition against an ordinance restricting constitutionally protected and non-protected activity equally, as Plaintiff suggests. See Ayres v. City of Chicago, 125 F.3d 1010, 1016 (7th Cir. 1997) (noting that the City could ban both unprotected and First Amendment peddlers from selling goods in certain areas); One World One Family Now v. City of Honolulu, 76 F.3d 1009, 1012 (9th Cir. 1997) (ban on sales of all goods on city sidewalks is content neutral, even though the ordinance banned the sale of items containing expressive messages.) "The First Amendment does not guarantee the right to communicate one's view at all times and places or in any manner that may be desired." Heffron v Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).

Cities may enact ordinances restricting speech, as long as the ordinances "are justified without reference to the content of the regulated speech, are narrowly tailored to serve a significant government interest, and (leave) open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). Recently, the United States Supreme Court upheld an ordinance prohibiting persons from knowingly attempting to protest, educate, or counsel another within eight feet of a health care facility. Hill v. Colorado, 530 U.S. 703 (2000). The Court found that the ordinance satisfied the Ward content-neutral test because it did not regulate the content of the prohibited speech, it applied equally to all demonstrators without regard to their message, and it was not enacted "because of disagreement with the message." Id. at 719-20.

Similarly, this Court rejects Plaintiff's claim that the Court must construe the peddling ordinance to exclude book sales (or other First Amendment activity) to achieve a constitutional interpretation of the peddling ordinance. The peddlers' ordinance does not restrict the content of speech, but merely limits when and where merchandise, including expressive materials, may be sold. In addition, Plaintiff has produced no evidence that the ordinance was enacted because of disagreement with a particular message. Plaintiff claims, however, that the City's distinction between newspapers and other First Amendment goods renders the ordinance content based, and asserts that no court has ever made a distinction between different types of printed materials for First Amendment purposes.

The Court disagrees. In Graff v. City of Chicago, 9 F.3d 1309, 1320-21 (7th Cir. 1993), the Seventh Circuit held that "the City can recognize that people impulsively or routinely purchase newspapers in seconds. The more time-consuming purchase of books or videotapes, in contrast, would cause congregation and impede the flow of others." Similarly, in City of Cincinnati v. Discovery Network, Inc., the Supreme Court recognized that a city may properly distinguish between newspapers and other printed material if the selected ban is justified, or furthers a legitimate government interest. 507 U.S. 410, 429-30 (1993) (holding that Cincinnati failed to establish that its selective ban on newsstands selling commercial handbills furthered its legitimate interest). Accordingly, the Court finds that the City's distinction between newspapers and all other First Amendment items does not, in and or itself, render the peddlers' ordinance unconstitutional.

Finally, Plaintiff claims that New York caselaw and legislation, which exempt speech and/or books from peddling restrictions, favor a similar interpretation of Chicago's peddlers' ordinance. However, the Seventh Circuit has already commented on the propriety of the peddlers' ordinance's ban on certain First Amendment activities, as it applied to the central district of downtown Chicago: "What is questionable about the Peddlers' Ordinance is not the ordinance itself but rather the size of the district that the city council has designated as a no-peddling zone. . . . It is one thing to ban peddlers, including . . . `First Amendment' peddlers, from Grant Park; it is another to ban the latter from the surrounding streets as well." Ayers, 125 F.3d at 1015-16 (noting that the "case would be in a different posture if the designation had been limited to Grant Park.") The Ayers' court indicated that, while the peddlers' ordinance was not a reasonable restriction as it applied to the entire central downtown Chicago ...


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