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
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).
Chicago's Municipal Code prohibits peddling within 1000 feet of the
United Center. Specifically, § 4-244-147 of the Municipal Code
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
Section 4-244-040 sets for the requirements for obtaining a peddlers'
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)
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
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'
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 ...