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Discount Inn, Inc. v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

November 5, 2014

DISCOUNT INN, INC., Plaintiff,
v.
CITY OF CHICAGO, Defendant

Page 931

For Discount Inn, Inc., on behalf of its' self and all others similarly situated, Plaintiff: Ilia Usharovich, 1st, LEAD ATTORNEY, Ilia Usharovich, Attorney At Law, Wheeling, IL; Sheldon M. Sorosky, LEAD ATTORNEY, Kaplan & Sorosky, Chicago, IL; David N. Schaffer, Schaffer Family Law, LTD., Naperville, IL; William V. Saracco, Attorney at Law, Chicago, IL.

For City of Chicago, a Municipal Corporation, Defendant: Andrew W Worseck, Michael J. Dolesh, LEAD ATTORNEYS, City of Chicago, Department of Law, Chicago, IL; David Michael Baron, City of Chicago (30 N LS), Chicago, IL.

Page 932

OPINION AND ORDER

CHARLES RONALD NORGLE, United States District Judge.

Plaintiff Discount Inn, Inc. ('Plaintiff') sues Defendant City of Chicago (the " City" ), challenging the constitutionality of the City's ordinances governing weed control (the " weed control ordinance" ), Mun. Code of Chi. 7-28-120, and the fencing of vacant lots (the " vacant lot ordinance" ), Mun. Code of Chi. 7-28-750. Before the Court is the City's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is granted.

I. BACKGROUND

Plaintiff initiated this putative class action against the City on October 6, 2013.

Page 933

On April 25, 2014, Plaintiff filed its First Amended Complaint. Plaintiff alleges that it is a property owner in the City and has been subject to fines for violations of the weed control and vacant lot ordinances. Under the weed control ordinance, property owners in the City can be subject to a fine of " not less than $600 nor more than $1,200" for failure to cut or otherwise control weeds that exceed a height of ten inches. Mun. Code of Chi. 7-28-120(a). Pursuant to the vacant lot ordinance, property owners in the City must surround their open lots with fencing or be subject to a fine of " not less than $300 nor more than $600 for each offense." Mun. Code of Chi. 7-28-750(d).

Plaintiff challenges the constitutionality of the ordinances on their face. Plaintiff alleges that: (1) the ordinances violate its civil rights by subjecting it to excessive fines in violation of the Eighth Amendment (Count 1); (2) the weed control ordinance burdens expressive rights under the First Amendment--namely, gardening--and is otherwise vague, and overbroad and violates Plaintiff's Due Process rights under the Fourteenth Amendment (Counts 2 and 8); (3) the vacant lot ordinance is vague, overbroad, and in violation of Plaintiff's Due Process rights under the Fourteenth Amendment (Counts 3 and 9); (4) the ordinances violate the Proportionate Penalties Clause of the Illinois Constitution, Ill. Const. of 1970, art. I, $11 (2014)(Count 4); (5) the City's ordinances are preempted by Illinois state law (Count 5); (6) the use of hearsay during the administrative hearings for alleged violations of the ordinances violates Plaintiffs Due Process rights under both the United States and Illinois state constitutions (Count 6); and (7) the ordinances violate Plaintiff's Due Process rights because the ordinances do not expressly state that there is no statute of limitations defense available to violators (Count 7).

II. DISCUSSION

A. Standard of Decision

Pursuant to Rule 12(b)(6), a complaint must allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint " must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Indep. Trust Corp. v. Stewart Info. Servs. Corp.,665 F.3d 930, 935 (7th Cir. 2012) (internal quotation marks and citation omitted). The Court accepts " all well-pleaded allegations of the complaint as true and view[s] them in the light most favorable to the plaintiff." Id. at 934 (internal quotation marks and citation omitted). " A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555). " Dismissal is proper if ...


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