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Asma Saad, An Individual, and Tobacco House, Inc., D/B/A Belicoso Cigar Lounge v. Village of Orland Park

July 9, 2012

ASMA SAAD, AN INDIVIDUAL, AND TOBACCO HOUSE, INC., D/B/A BELICOSO CIGAR LOUNGE, PLAINTIFFS,
v.
VILLAGE OF ORLAND PARK, A MUNICIPAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Plaintiffs Asma Saad and Tobacco House, Inc. filed a two-count amended complaint against defendant Village of Orland Park, alleging that the Village violated plaintiffs' rights under the equal protection clause and that the Village's Smoking Ban Ordinance violates due process because it is unconstitutionally vague.*fn1 The Village moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the motion to dismiss [Dkt. #23] will be granted.

BACKGROUND*fn2

Tobacco House is a retail tobacco store that does business as the Belicoso Cigar Lounge in the Village of Orland Park. (Am. Compl. ¶¶ 1, 2.) Tobacco House sells cigars, loose tobacco, and cigarettes. (Id. ¶ 2.) Tobacco House operates under a limited exemption from the Village's Smoking Ban Ordinance, which prohibits smoking in all public places, including commercial establishments. (Id. ¶ 16.) The Ordinance's exemption provides in relevant part:

(1) Smoking shall be permitted within the enclosed business premises known as "BELICOSO CIGAR LOUNGE" located at 15443 S. 94th Avenue wherein only smoking products and smoking equipment is sold at retail, being the only such business in the Village, provided:

(a) The current owner or other person in control of such business and who holds the tobacco dealer license issued by the Village keeps and maintains such license in good standing and continues to operate such business at its present location referred to above; and

(b) No goods, products or services are sold or delivered within the said business premises by the said tobacco dealer licensee, or anyone under said licensee's supervision and control, except for smoking products and smoking equipment.

Vill. Code § 6-2-2-12(3). Prior to September 1, 2011, Tobacco House's former president and owner, Abbas Ghaddar, held the tobacco dealer license and the general business license for Tobacco House. (Am. Compl. ¶¶ 9, 12.)

On September 1, 2011, Ghaddar was sentenced after pleading guilty to federal mail fraud and tax evasion charges which arose from a currency-skimming scheme at Tobacco House. (See Am. Compl. ¶ 10; Plea Agmt. & Judgment in Case No. 09-CR-999, Dkt. #92, 97; United States v. Ghaddar, 678 F.3d 600 (7th Cir. 2012).) The day before, on August 30, 2011, Ghaddar transferred all of his interest, including licenses, in Tobacco House to his wife, Saad, and severed his relationship with the company. (Am. Compl. ¶ 11.) That same day, Saad was appointed president of Tobacco House. (Id.) On September 12, 2011, Saad replaced Ghaddar as the registered agent for Tobacco House. (Id.)

On September 28, 2011, Saad filed an application for a general business license with the Village of Orland Park on behalf of Tobacco House. (Id. ¶ 13.) The Village Code provides that the Building Department shall approve an application for a business license "[i]f, after due consideration of the information contained in the application, [it] . . . determine[s] [that] the application is satisfactory." Vill. Code § 7-1-5.*fn3 On the other hand, "[i]f, after due consideration of the information contained within the application, the Building Department shall determine that matters concerning the application are unsatisfactory, it shall disapprove the application, indicating the reasons therefor." Id. No license or permit may be assigned or transferred. Id. § 7-1-8. A business that sells tobacco products must have a tobacco dealer's license in addition to a business license. Id. § 7-15-2. The Village routinely issues business licenses to applicants who are not in violation of the Village Code so long as the applicants satisfy inspection and zoning criteria. (Am. Compl. ¶ 21.)

A business license may be revoked by the Village Manager for cause, including for violations of the Village Code relating to other permits or licenses, where the licensee is convicted of any felony indicating an inability "to operate a safe, honest and legitimate business," or for failure to pay any "indebtedness, charge, fine or penalty" owed to the Village.

Vill. Code § 7-1-16(B)(2)-(4). Unlike her husband, Saad is not in violation of § 7-1-16(B)(2)-(4). (Am. Compl. ¶ 14.)

On October 5, 2011, the Village notified Ghaddar of its intention to revoke Tobacco House's business license because of Ghaddar's convictions. (See Dkt. #12-10, Notice of Hearing to Revoke Business License.)*fn4 The Village stated that a revocation proceeding had been commenced because (1) Ghaddar had violated the Village's regulations and codes relating to licenses and permits; (2) Ghaddar had been convicted of a felony indicative of his inability to operate an honest and legitimate business in the Village; (3) Ghaddar had failed to pay "any other indebtedness" owed to the Village; and (4) ownership and control of the business had changed, making Tobacco House no longer qualified for an exemption under the Smoking Ban Ordinance. (See id. (citing Vill. Code §§ 7-1-16-B(2)-(4) & 6-2-2-12(3).) The Village cited Ghaddar's plea agreement in support, wherein he stated that he had under-reported Tobacco House's sales and income in his 2002 through 2009 tax returns. (See Plea Agmt. at 4--5.)

On October 25, 2011, the Village held a revocation hearing before the Village Manager regarding Tobacco House's business license. (Am. Compl. ¶ 15.) The Village took the position that Saad does not qualify for a business license because she is not eligible to operate Tobacco House as a smoking lounge under the exemption to the Smoking Ban Ordinance. (Id. ¶¶ 15, 17.) The Village Manager revoked Tobacco House's business license on November 2, 2011, after finding that the Village had demonstrated that Ghaddar had committed material ...


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