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Nance v. City of Elgin

November 2, 2009

ANTHONY & BETTIE NANCE, PLAINTIFFS,
v.
CITY OF ELGIN, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiffs Anthony and Bettie Nance used to run a jazz club in downtown Elgin, but allege that they were forced to shut it down because the club drew a predominantly African-American crowd. They have sued the city of Elgin, former police chief William Miller, and city attorney Richard Kozal, for violating their constitutional rights under the Fourteenth Amendment's Equal Protection Clause. See 42 U.S.C. § 1983. The defendants have filed a motion for summary judgment, arguing that the plaintiffs' claims are untimely, lack evidentiary support, and/or that immunity shields the defendants from liability. For the reasons that follow, the motion for summary judgment is granted in part and denied in part.

BACKGROUND

The following facts are undisputed except where noted.

In September 2002, Anthony and Bettie Nance met with Elgin mayor Ed Schock to obtain a liquor license for their new jazz club. Mayor Schock, who also happened to be on the city's liquor control commission, told them that no class A licenses were available, which would have permitted the club to serve only liquor. Instead, major Schock advised the Nances that the easiest way to obtain a liquor license would be to seek a class E liquor license, which required an establishment to generate no less than half of its revenue from the sale of food. At the time, Anthony and Bettie Nance contend that they had not planned to serve food at the jazz club because of the added start-up costs.

The Elgin city council eventually created a new class of liquor license (a class U license) for musical entertainment clubs, which required the club to generate no less 35% of their revenue from the sale of food. The liquor control commission granted the Nances the one and only class U license Elgin has issued to date.

Anthony and Bettie Nance opened their jazz club on April 3, 2003. The club apparently operated without incident until that November, when the city began reporting that criminal activity was occuring there, including disorderly conduct such as fights, as well as patrons leaving the club with open bottles of alcohol. The Nances deny the reports of criminal activity, and allege they were conconcocted by the defendants to force the closure of the jazz club.

On December 3, 2003, Chicago radio legend and renowned steppers artist Herb Kent performed at the club. Kent drew a large crowd of followers to the club and, though there were no reports of incidents or problems, also drew a large police presence. Indeed, fifteen squad cars were positioned around the facility as it closed and patrons left. Some of those patrons attended the next Elgin city council meeting to complain that the large police presence left them feeling like they had been racially profiled.

Following the December incident, the city continued amassing a list of alleged violations of its municipal code by the jazz club. Then on June 4, 2004, a shooting occurred near the jazz club. Following the shooting, the Nances met with mayor Schock, police chief Miller, and city attorney Kozal. According to the Nances, during the meeting Schock stated that he no longer wanted "those people" downtown, and Kozal admitted that he drafted the ordinance creating the U liquor license as part of his effort to control the jazz club. The defendants deny that Schock or Kozal made such statements. The Nances contend that Kozal also told them they must maintain a security detail at the club over the coming weeks or their license would be revoked, although the defendants contend that someone other than Kozal imposed that requirement on the Nances.

On October 6, 2004, the city of Elgin filed a complaint against the jazz club with the Elgin Local Liquor Control Commission based upon ten reports of municipal code violations it had amassed since November 1, 2003. On December 1, 2004, the Nances signed a Stipulation and Agreed Order that settled the matters raised in the October 6, 2004, complaint and called for the city to close the jazz club if one more incident of criminal activity occurred at the club before April 2005. However, the Nances contend that their signatures were coerced by the defendants when Kozal threatened to close the club if the Nances enlisted the help of an attorney or refused to sign the Stipulation and Agreed Order.

Four days after signing the Stipulation and Agreed Order, the defendants contend that a police officer witnessed a fight at the jazz club. As a result, on December 7, 2004, the city filed a second complaint against the club with the Elgin Local Liquor Control Commission, asking that the club's license be suspended or revoked. After viewing a videotape of the fight, the Commission revoked the club's license on December 17, 2004. The Nances appealed the revocation to the Illinois Liquor Control Commission, which on April 5, 2005, reduced it to a thirty-day suspension. However, the Nances' victory came too late to save their jazz club, which was already the subject of bankruptcy proceedings brought on by the loss of business following the December 17, 2004, revocation of their liquor license.

Just shy of two years after the revocation of their liquor license, the Nances sued the city of Elgin, mayor Schock, former chief Miller, and city attorney Kozal on November 30, 2006, for conspiring to violate their rights under the Equal Protection Clause. Specifically, they contend that the defendants engaged in conduct that culminated with the revocation of their liquor license on account of their race. They contend that non-minority bar owners were not subjected to unnecessary shows of force by police officers and did not have their liquor licenses revoked even though their bars had been cited for municipal code violations more frequently than had the jazz club. The Nances previously dropped their claim against mayor Schock. The defendants now seek summary judgment on the § 1983 claims against the remaining defendants the city (Count I), former chief Miller (Count III), and city attorney Kozal (Count IV).

ANALYSIS

I. Summary Judgment ...


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