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Nance v. City of Elgin

August 3, 2007

ANTHONY NANCE AND BETTIE NANCE PLAINTIFFS,
v.
CITY OF ELGIN, AN ILLINOIS MUNICIPAL CORPORATION, ED SCHOCK, INDIVIDUALLY, WILLIAM MILL ER, INDIVIDUALLY, AND RICHARD KOZAL, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Blanche M. Manning United States District Judge

Judge Blanche M. Manning

MEMORANDUM AND ORDER

Plaintiffs Anthony and Bettie Nance owned Anthony's Restaurant and Jazz Club in Elgin, Illinois. They sued the city of Elgin, mayor Ed Shock, police chief William Miller, and city attorney Richard Kozal for conspiring to violate their constitutional rights under 42 U.S.C. § 1983. The Nances contend that a series of racially discriminatory actions conducted by the defendants cost them their liquor license and forced them into bankruptcy. Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is denied.

I. Background

The following facts are drawn from the Nance's complaint and are accepted as true for the purposes of the motion to dismiss. See Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

In September 2002, Anthony and Bettie Nance set out to acquire a liquor license for their new jazz club. They met with Elgin mayor Ed Shock, who also happened to be on the city's liquor control commission. Shock told them that the city issued liquor licenses only to those establishments that also served food. At the time, Anthony and Bettie Nance had not planned to serve food at the jazz club because of the added start-up costs.

Nevertheless, the Nances gave a presentation to the Elgin city council detailing their plans to open a jazz club with live music and dancing, as well as a restaurant and banquets. The city subsequently issued a class U liquor license, which required the club to serve food in addition to liquor. Anthony and Bettie Nance contend that similarly-situated business owners who were not African-American were granted liquor licenses that did not require food service.

Anthony and Bettie Nance opened their jazz club on April 3, 2003, investing much time and money into the venture. The Nances allege that at some point after the opening, Shock and city attorney Richard Kozal told them that the club's clientele was not wanted in the city and referred to the club's guests as "those people." They claim that Shock also blamed the jazz club for poor attendance at a new municipal recreation center. Additionally, the Nances state that Kozal said he had advised against the club and drafted the class U liquor license to control the nature of the jazz club's business.

On December 3, 2003, police waited outside the jazz club following a well-attended show. The Nances state that there were no calls to the police, but that about fifteen squad cars waited outside the facility and that several of the jazz club's patrons complained to the Elgin city council. The Nances contend that similarly-situated club owners who are not African-American and do not have a substantial African-American clientele are not subjected to similar displays of police force.

Following the December incident, the Nances contend that the city of Elgin and the Elgin police department acted in collusion to harass them and force the closure of the jazz club. They state that the police department placed undercover officers within the jazz club, sent underage customers to entrap the club into serving liquor to minors, and maintained a continuous police presence near the exterior of the jazz club. The Nances contend that similarly-situated bar owners who were not African-American did not encounter the same level of harassment by the police.

On June 4, 2004, a shooting occurred near the parking lot as patrons exited the club. Though about fifteen police officers were present, they did not assist in clearing the area because they said they had been told not to "interfere" with the jazz club after the December incident. Anthony and Bettie Nance agreed to pay for the expense of an on-site police officer to avoid closure until a police investigation was completed. They claim that they were led to believe that the officer would only need to staff the establishment for a two-week period. After two weeks, the city of Elgin refused to remove the officer and continued to charge the Nances for the officer's presence. The Nances contend that similarly-situated bar owners who are not African-American have not been forced to pay for a police presence at their establishments.

On October 6, 2004, the city of Elgin filed a complaint before the liquor control commission of the city of Elgin to attempt to revoke the jazz club's liquor license for the violation of several municipal ordinances. The alleged violations included: that patrons could sneak alcohol outside the club; that patrons were allowed to enter the club as late as 1:58 a.m. even though the club was supposed to close at 2:00 a.m.; and that there was "mob action" in the parking lot on several occasions.

Just a month later, on November 10, 2004, the city of Elgin filed a complaint in state court in Kane county, alleging that Anthony and Bettie, Inc., the Nances' corporation which owned the restaurant, erected a large sign without obtaining the proper city permit. Immediately following the complaint, Anthony Nance filed an application for a sign permit but received no response. The city of Elgin then sought to level a $500.00 fine for each day of the violation. On February 14, 2005, the city of Elgin and Anthony Nance entered a stipulation and agreed order to pay a fine of $500, plus $75 in costs, on the condition that the Nances' corporation came into compliance with the sign ordinance by March 14, 2005.

In an attempt to seek a resolution with the city over the liquor license dispute, on December 1, 2004, Anthony and Bettie Nance entered into a stipulation and agreed order with the city of Elgin. Under the agreed order, the Nances agreed to pay a fine, to a seven day suspension of the club's liquor license, and to revocation of the club's liquor license if one more violation occurred before April 1, 2005. The Nances contend that Kozal instructed them not to retain an attorney during this process. Several ...


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