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Friday, August 29, 2014

Rules Would Ban Smoking in Outdoor Patios and Beer Gardens

On August 15, 2014 the Illinois Department of Public Health published proposed regulations implementing the Smoke Free Illinois Act. 410 ILCS 82/1 et seq. The primary focus of the proposed regulations is to restrict smoking in outdoor areas accessory to restaurants and bars. 

Specifically, Section 949.30 provides as follows:
Smoking is prohibited in a restaurant, bar and any area where food, beverages or both are prepared or served by employees, including outdoor areas such as patios, beer gardens, decks or rooftops or concession areas....Smoking may be permitted in a self-service outdoor area where employees do not prepare or serve food or beverages and are not required to enter, leave or pass through during the course of employment. 

The self-service outdoor area must be “at least 15 feet away from entrances, exits, windows or ventilation and shall be designated as a ‘self-service outdoor area where smoking is permitted’ using clear and conspicuous signage.” The proposed regulations also prohibit smoking within 15 feet of, and the drifting of smoke through, entrances, exits, windows that open and ventilation systems that serve enclosed areas where smoking is prohibited under the Act.

Those in opposition to the proposed rules point argue that the Smoke Free Illinois Act was meant to be an indoor smoking ban and that these regulations go beyond that.  Also, some business owners argue they will have to modify their existing outdoor areas to meet the new requirements. Conversely, supporters of the regulations point to the Act’s ban on smoking in places of employment to justify any extension of the ban to outdoor area where employees serve. 

The proposed regulations can be found here

Post Authored by Caitlyn Sharrow & Julie Tappendorf, Ancel Glink

Thursday, August 28, 2014

New Posting Requirement for Elected Officials' Emails

The General Assembly recently amended the Local Records Act to require all units of local government (except Chicago) and school districts to post on their websites a single, uniform email address that members of the public can use to electronically communicate with their elected officials, unless the officials have individual email addresses for that purpose.  P.A. 98-0930.  The posting requirement does not apply to a local government’s social media sites such as Facebook or Twitter, just to the public body’s website. The email address must be "hyperlinked" and easily accessed from the public body's home page.

It is not entirely clear what the law means by the phrase “unless such officials have an individual email address for that purpose.”  Does that mean that a public body is excused from the posting entirely if the elected officials have individual email addresses? Or does it mean that the public body must post links to each of the officials’ individual email addresses on its website if each official has an email address?  

When initially introduced, the law required posting of each individual member's email address; however, that was changed to the current requirement of a single contact email. Because of the change in the language prior to approval, it would seem reasonable for local governments to post a single contact email address.  If a public body chooses that approach, someone should be assigned to monitor the uniform, single email address and make sure the communications are forwarded to the respective elected officials.

Note that the law has a home-rule preemption, so home rule municipalities are not exempt from the new posting requirement.

The new law is effective January 1, 2015, and local governments have 90 days after the effective date to comply with the new posting requirement.

Post Authored by Julie Tappendorf

Wednesday, August 27, 2014

Amendment to Bond Act Affects Local Government Contracts

On August 22, 2014, Governor Quinn signed HB 4769, amending the Public Construction Bond Act. P.A. 98-1018. That Act requires public bodies, including municipalities and other local governments to require contractors to provide security (i.e., letter of credit or surety bond) for any public works project costing over $50,000.  The amendment added the following language to the Act establishing minimum rating standards for surety companies that provide bonds for public projects: 
The surety on the bond shall be a company that is licensed by the Department of Insurance authorizing it to execute surety bonds and the company shall have a financial strength rating of at least A- as rated by A.M. Best Company, Inc., Moody’s Investors Service, Standard & Poor’s Corporation, or a similar rating agency.  
Local governments should make sure that the surety companies that provide bonds to secure public works projects over $50,000 meet these new rating requirements.  It would also be good practice for local governments to include language in any RFP, bid documents, and construction contracts putting contractors on notice of this new legal requirement.

Post Authored by Julie Tappendorf

Tuesday, August 26, 2014

The PAC Says...Interpreting the Public Comment Requirement of the OMA

Check out Julie Tappendorf's new article called "The PAC Says: Guidelines on the OMA's Public Comment Requirement" in the September edition of the Illinois Municipal League's monthly magazine, the Review Magazine.  You can read the online version here.  

Here is a sneak preview of the article:

On January 1, 2011, P.A. 96-1473 became effective, amending the Open Meetings Act to add a new section 2.06(g), as follows:
(g) Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.
Only 21 words, yet this law has created quite a flurry of activity in the Public Access Counselor’s office of the Attorney General since it was enacted.  35 PAC opinions, all non-binding, cite to this section of the OMA.  Although advisory only, these opinions do give public bodies a view into how the PAC broadly and expansively interprets and applies this law. 

I read all 35 opinions and categorized them into 10 PAC "words of wisdom":

1.   The PAC says…public comment must be provided at all meetings

Although language in an earlier version of the draft legislation that expressly required public comment at meetings was eliminated in the final version of the bill, in the PAC's view, every meeting must provide public comment.  That would seem to encompass regular, special, and even committee meetings if they fall under the OMA.

2.   The PAC says…the public comment requirement applies to subsidiary bodies

According to the PAC, every public body, including subsidiary bodies like the finance committee of the city council, must provide public comment at every meeting.

3.   The PAC says…each public body (including subsidiary bodies) must establish rules 

Every public body, including subsidiary bodies, must formally adopt rules for public comment.  According to the PAC, relying on "past practices" is not enough to comply with 2.06(g).

4.   The PAC says…a public body can establish time limits for public comment

Time limits on individual public comment and the total time allowed for public comment are acceptable, so long as they are adopted formally in established rules.

5.   The PAC says…a public body can limit comments to topics germane to the agenda

The PAC issued an opinion that public bodies can restrict the content of public comment to matters listed on the agenda of a special meeting.  It's not clear whether the PAC would extend this to regular meetings.

6.   The PAC says…a public body can establish and enforce rules on decorum 

According to the PAC, public bodies can interrupt and even remove members of the public who are violating the public body's rules.

7.   The PAC says…public comment can be provided at any point in the meeting

The PAC does not care when public comment is provided (beginning or end of the meeting) so long as it is provided at every meeting.

8.   The PAC says…public officials are not obligated to respond to comments

The PAC stated in a number of opinions that 2.06(g) is intended to allow the public to address members of a public body and does not require the public body members to answer questions or engage in debate.

9.   The PAC says…section 2.06(g) does not address members of a public body

2.06(g) protects members of the public, not members of the public body who may be silenced by the chair of the public body.

10.  The PAC says…there is no violation if there is no request to speak

A member of the public cannot claim a violation of 2.06(g) unless he or she has been prevented from speaking at a meeting.  So, failing to list public comment on an agenda is not a violation.  

There are two key pieces of advice that all public bodies should take from these opinions, which although advisory do provide some guidance. 

First, the PAC’s position is clear that every meeting of every public body (including subsidiary bodies) must include an opportunity for public comment. Allowing public comment at regular but not special meetings, or excluding public comment at committee meetings, would constitute a violation of section 2.06(g) in the PAC’s opinion.

Second, the PAC interprets section 2.06(g) to impose an affirmative obligation on every public body (including subsidiary bodies) to establish written rules for public comment at meetings. Having a long-standing policy on public comment is not enough to meet this obligation, at least not for the PAC.  A municipality would be well-advised to consult with its municipal attorney to ensure that its governing board and all subsidiary bodies and committees have established written rules to govern public comment at their meetings. 

Monday, August 25, 2014

Governor Issues an Amendatory Veto of Water/Sewer Tap-On Bill

Governor Quinn recently issued an amendatory veto of SB 3507.  You might remember that we previously reported on this bill that would have imposed a cap on the amount a township or municipality can charge for water and sewer tap-ons or connections.  The maximum tap-on fee could not exceed 1/6 of the estimated annual charges (or two months) for water and sewer services. The bill had passed both houses, and would have taken effect on January 1, 2015. 

The Governor's veto removes language that would limit municipal authority (the township limits remain in the bill).  This is good news for municipalities many of which were concerned about how the bill would affect special service areas, bond issues, recapture agreements, and various other agreements, besides the significant impact it would have on municipal revenues.

Post Authored by Julie Tappendorf

Police Procedure Changes Needed to Comply with New Sign & Drive Law

Governor Quinn signed into law Public Act 98-0870 (Senate Bill 2583), commonly known as the Illinois Sign & Drive Law, changing Illinois’ long-standing practice of requiring motorists that receive citations for petty offenses to turn over their driver’s licenses to police.  

The Act was introduced as a measure designed to limit the amount of time people spend without their primary form of identification – their driver’s license.  By passing the Act, the General Assembly acknowledged the important role a person’s driver’s license plays in their daily routine, from banking to travel to purchasing goods that cannot be sold to minors. 

The Act amends the Illinois Vehicle Code to eliminate the requirement that a cited motorist hand over his driver’s license as a guarantee that he or she will appear at his court date and/or pay the citation amount.  Instead, cited motorists only need to sign the citation, which serves as a promise that the motorist will pay the fine and/or appear in court.  Notably, the Act applies only to violations classified as petty offenses in the Illinois Vehicle Code or local ordinances, and excludes business violations and citations for violating Illinois’ maximum vehicle weight limits. 

What does that mean for municipalities? Effective January 1, 2015, local police and law enforcement officials will need to stop  requiring motorists cited for petty offenses to turn over their driver’s license.  Instead, police officers should require cited motorists to sign a copy of the citation, which serves as the motorist’s promise to appear in court and/or pay the required fine.  

Post Authored by Greg Jones, Ancel Glink

Friday, August 22, 2014

Ancel Glink to Present at Upcoming Illinois Municipal League Conference

Less than a month to go before the IML hosts its annual conference in Chicago.  A number of Ancel Glink attorneys will be presenting on a variety of topics at this year's conference, which is from September 18-20.  Ancel Glink is also hosting the President's Reception on Saturday, September 20th, from 6:00 p.m. to 7:00 p.m., so don't forget to stop by and say hello! 

The following is a list of the sessions at which  Ancel Glink attorneys will be speaking:  

Steve Mahrt will serve as the moderator of the attorneys’ session on Thursday, September 18, 2013.  To register for this CLE session, visit here.

Darcy Proctor will present “2014 Year in Review:  Illinois Tort Immunity Update” at the attorneys' session on Thursday, September 18, 2013.  To register for the conference, visit here

Derke Price will be presenting on the topic of “Finance:  Lessons from Detroit and Pension Cases” on Thursday, September 18, 2014.  For additional information, visit here

Dan Bolin and Adam Simon will be presenting on the topic, “The Second Amendment and Zoning:  The Other Side of Concealed Carry” on Saturday, September 20, 2014. For additional information, visit here.  

Julie A. Tappendorf and David S. Silverman will be presenting on the topic of “How Much Process is Due Process” on Saturday, September 20, 2014.  For additional information, visit here.    

Keri-Lyn J. Krafthefer and Adam W. Lasker will be presenting “Clerks:  Legislative and Legal Update” at the clerk’s session on Saturday, September 20, 2014.  For additional information, visit here.  

Stewart Diamond, Rob Bush, Keri-Lyn Krafthefer, Derke Price, Julie Tappendorf and Steven Mahrt will be presenting “Council Wars” on Saturday, September 20, 2014.  For additional information, visit here.  

Thursday, August 21, 2014

Water Contract Void Because it Exceeded 40 Year Term

In 2004, the Village of Chandlerville entered into a contract with a rural water district (CWRD) for CWRD to supply water to Chandlerville that it would purchase from the City of Virginia.  4 years later, while Virginia was constructing a new water-treatment facility needed to supply Chandlerville with water, Chandlerville informed CWRD that it no longer intended to purchase water through CWRD.  Virginia sued, claiming that Chandlerville breached its water contract.  The trial court dismissed the case, finding among other things, that the contract was void ab initio (at the outset)because it exceeded the 40 year statutory term. 

In an unpublished opinion, the appellate court agreed with the trial court that the contract was void for exceeding a 40 year term.  City of Virginia v. Village of Chandlerville, 2014 IL App (4th 130851-U).  Although the contract provided for a 40 year water-delivery provision, that provision would not commence until after Virginia finished its construction project, which was expected to take at least 5 years.  The Illinois Municipal Code states that a contract for a water supply is “not to exceed 40” years.  65 ILCS 5/11-124-1(a).  Because the contract would exceed the 40 year term by at least 5 years (counting both the construction phase and the water-delivery phase), it was void because Chandlerville lacked the authority to enter into the contract.

Municipalities should be careful in drafting contract terms to avoid violating any statutory contract terms.  Even if the stated term of the contract is within the statutory limitations, if the contract could exceed the term because of any pre-requisites (like the construction phase in the Chandlerville contract), it could be void and unenforceable.   

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, August 20, 2014

Defending Sexual Harassment, Abuse & Molestation Claims

Ancel Glink Partners Darcy Proctor and Lucy Bednarek co-authored the article "Defending Sexual Harassment, Abuse, and Molestation Claims" recently published in the July edition of DRI's "For the Defense" publication.  The article provides a background of Title IX, the federal law prohibiting sex-based discrimination in education" and summarizes the standards for proving a Title IX harassment or abuse claim.  The article also provides guidelines for school districts in defending against these claims, and more importantly, in preventing them. 

You can read the article on DRI's website here (starting on page 71).

Tuesday, August 19, 2014

Firing Range is Permitted By-Right in Business District

An appellate court recently overturned a municipal decision to deny a permit to allow a firing range on property located in a business district.  Platform I LLC v. Village of Lincolnwood Zoning Board of Appeals2014 IL App (1st) 133923.  The owner of the proposed firing range applied for a building permit to construct a shooting range on the second floor of the building above an existing gun shop, relying on the "health clubs and recreation" uses that were permitted by-right in the business district.  The village's zoning officer denied the application, stating that a firing range did not fall within the "recreation" use.  The owner appealed to the ZBA, which agreed with the zoning officer's interpretation.  The owner then appealed to the circuit court, which also upheld the zoning officer's interpretation, holding that the court was required to defer to the village’s interpretation of its own ordinance.  

On appeal, the appellate court reviewed the village's zoning ordinance, and specifically the use list in the business district that expressly allowed "health club or recreation facility, private" as a permitted by-right use.  The court that the “plain meaning” of “recreation” includes activities for entertainment and amusement, and the zoning ordinance includes “sports” as an aspect of recreation.  The court also said that “common sense dictates that target shooting is also considered a sport as it is an Olympic sporting event and a recognized sporting activity within our national college associations and 4-H clubs.” As a result, the court held that the proposed shooting range was permitted in the business district and the permit should have been issued.

The village has since amended its zoning ordinance to specifically address shooting ranges, to exclude them from the definition of "recreation." However, the court did not address the subsequent amendment, instead applying the zoning ordinance as it existed on the date the owner filed its application for a permit to develop the shooting range.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, August 18, 2014

Court Questions County Board Members' Practice of Leading Prayers at Meetings

Our friends at RLUIPA Defense have been following cases around the country post-Town of Greece v. Galloway - that is the U.S. Supreme Court case that upheld a town board's practice of inviting clergy to lead religious prayer before government meetings.  The most recent case comes out of Virginia, Hudson v. Pittsylvania County, Virginia, (WD VA, Aug. 4, 2014).  This case involved a challenge to county board members' practice of  opening meetings with prayers.  The Hudson court distinguished Town of Greece because the county board members not only chose but also led the prayers at each meeting. Even more troubling to the court is that the county board members often directed the assembled citizens to participate in the prayers by asking them to stand. The court determined that the county “involved itself ‘in religious matters to a far greater degree’ than was the case in Town of Greece.”  The court refused to lift an injunction against the practice.

You can read more about the case here.

Friday, August 15, 2014

PAC Requires "Reasonable Search" for Records for FOIA

A reporter filed a FOIA request with Chicago Public Schools (CPS) seeking various records relating to CPS athletic association records, including contracts, receipts, eligibility sheets, and ticket proceeds.  CPS provided eligibility sheets, but did not respond or address the other requested records. After the reporter contacted CPS about the other records, CPS responded that it had searched its contract records but did not locate any responsive documents. CPS also asserted that it did not have a method for recording ticket sales.  

The reporter filed a request for review with the PAC questioning CPS' response that it did not possess responsive records.  In response, CPS stated that it had no central reporting requirement for ticket sales at athletic events, and no way of tallying that information.  

The PAC first noted that FOIA requires a public body to conduct a "reasonable search tailored to the nature of a particular request."  The PAC cited no provision of the Illinois FOIA or any Illinois case to support its statement, instead relying on three federal cases interpreting the federal statute. In any event, the PAC determined that the CPS violated FOIA by failing to demonstrate that it had conducted an adequate search of the record systems of every one of the individual schools within the CPS system for the responsive documents.  The PAC rejected CPS' argument that to do so would be unduly burdensome because CPS failed to extend an opportunity to the reporter to narrow the request. The PAC ordered CPS to search all recordkeeping systems, both central and for each individual school in the CPS system, for all gate receipts, ticket sale proceeds, bank deposits, and all other records.

You can read the opinion here:  PAC Op. 14-007 (August 14, 2014)

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, August 14, 2014

Employer Could Be Liable for Employee's Murder of Family

Christopher Coleman was convicted of the murder of his wife and two sons in 2009.  At the time of the murder, Coleman was employed as a security officer for Joyce Meyer Ministries (JMM).  In the months leading up to the murders, he used his work computer to email death threats to himself, his family, and his employer.  His family's estate filed a wrongful death action against JMM, alleging that JMM was negligent in not protecting the decedents from threatened harm.  The complaint also alleged a "negligent retention" claim against JMM.  JMM filed a motion to dismiss arguing that the complaint did not state a cause of action, and the trial court agreed, dismissing the entire complaint.  The estate appealed.  Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193.

With respect to the estate's negligent retention claim, the appellate court agreed with the trial court that it should be dismissed.  Although there are reported cases that recognize that an employer may be held liable for the negligent hiring and retention of an employee who intentionally harms someone while acting outside the scope of employment, the appellate court concluded that the estate's complaint did not contain sufficient facts to support this type of a claim.  

However, with respect to the estate's claim that JMM was negligent in not protecting the decedents, the appellate court held that the complaint did state sufficient facts to move this case forward.  First, the appellate court determined that  JMM had an electronic communications policy that prohibited use of its work computers for harassment or abusive materials, among other prohibited activities.  JMM had the right to monitor and inspect communications sent on its equipment, and JMM had the right to take disciplinary action against violators.  The complaint alleged that JMM knew about Coleman's use of his work computer for emailing the death threats, and actually voluntarily undertook to investigate the source of those threats.  The complaint also alleged that JMM knew that the decedents needed protection from Coleman, yet did not provide that protection when it failed to enforce its electronic communication policy and discipline Coleman for the violations.  The case will now go back to the trial court for a trial on the merits of the surviving negligence claim.

What is troubling about this case is that the appellate court seemed to skip over the "reasonable foreseeability" prong of the duty analysis for a negligence claim.  The trial court had dismissed this count based on that particular prong, finding that JMM could not have "reasonably foreseen" that Coleman would brutally murder his family based on these emails.  This case would seem to require an employer to be much more active in monitoring the use of its computers and other electronic equipment and investigate and act on violations even where those violations are not work-related in any way.  

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, August 13, 2014

Police Action Triggers Immunity Under Tort Immunity Act

In Payne v. City of Chicago, 2014 ILL App (1st) 123010 (July 16, 2014), relatives of the plaintiff called police for assistance after he took crack cocaine and began hallucinating, destroying property, and causing injuries to himself.  Chicago Police arrived at the scene, and were forced to TASER the plaintiff to calm him.  However, the plaintiff wound up falling out of the second story window, causing him to suffer severe injuries and become paralyzed.  It was unclear whether the plaintiff jumped or fell out of the window.

Plaintiff sued the city for battery, alleging that the willful and wanton conduct exception to the Tort Immunity Act applied.  The city denied any wrongdoing based on Sections 4-102 and 2-202 of the Tort Immunity Act.  Section 4-102 provides the city blanket immunity for failing to provide adequate police protection.  However, section 2-202 provides a willful and wanton exception to immunity during the enforcement of law.    

After review of the Tort Immunity Act, the trial court ruled in favor of the city, finding that the Act provided immunity.  On appeal, the Appellate Court affirmed.  The Appellate Court found that the willful and wanton exception to the Act did not apply as the police were not there to enforce any law.  Rather, they were there to provide a police service after being called by plaintiff’s family to provide assistance.  The Court found that the blanket immunity provided in Section 4-102 applied in this scenario because the officers were providing a police service.  

Post Authored by Erin Baker, Ancel Glink

Tuesday, August 12, 2014

Delay in Acting on Wind Permits Not Unconstitutional

The 7th Circuit Court of Appeals recently dismissed a case challenging a local governmental body's actions regarding an application for permits for a proposed wind farm.  CEnergy-Glenmore Wind Farm #1, LLC v. Town of Glenmore, (7th Cir. August 7, 2014).  

The plaintiff sought building permits from the town to build seven wind turbines.  The project was highly controversial, and angry citizens attend town board meetings to protest the proposed wind farm project.  After months of meetings, the town board did finally approve the building permit applications at a public meeting.  However, after citizens threatened the chair and board members, the board voted to rescind its approval at that same meeting.  Then, a week later, the town board rescinded its decision to rescind approval.  The approvals were never issued, however, because of deficiencies in the applications.  

Since CEnergy failed to obtain the necessary permits by March 1st, it lost its contract rights to build the wind farm project, and it sued the town claiming that the delay in granting the permits violated its due process rights and vested rights.  The district court disagreed, finding that the plaintiff failed to show that its due process rights were violated.  The court also held that plaintiff should have sought state law relief to challenge the local land use decision rather than file a federal court action.

The 7th Circuit agreed with the district court, finding that the plaintiff's due process claims fail because the town board's actions were not arbitrary and because CEnergy failed to seek state law relief.  The court noted that in order to be "arbitrary," a land use decision must "shock the conscience" or be "egregious official conduct."  Here, the town board's decision to delay action on the building permits because of popular opposition to the project was a "rational and legitimate reason for a legislature to delay making a decision."   In any event, plaintiff should have brought its land use case to state court, which offers a variety of remedies, including a writ of mandamus.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, August 11, 2014

Ancel Glink Launches A New Employment Law Blog

Please extend a warm welcome to Ancel Glink's brand new employment-related blog, The Workplace Report, which just came online.  The blog will provide readers with breaking news, insights, and legal analysis on important labor and employment issues.  Public and private employers and employees will want to check in daily to stay current in what affects their workplaces.

A sample of a few of the blog posts you can find on The Workplace Report:

Have you Checked Your COBRA Notices Recently?  

A new requirement of the Affordable Care Act (aka Obamacare) requires employers with 20 or more employees to notify employees and anyone else covered under their health insurance plans of a COBRA eligibility.  Read more here.

Job Opportunities for Qualified Applicants Act

A new state law, effective January 1, 2015, prohibits private employers who employee 15 or more employees from considering or requiring the disclosure of an applicant's criminal record until () it is determined the applicant is qualified for a position and (2) the applicant is selected for an interview. Read more here.

Scrub Your Mouth Out with Soap!  The NLRB Chastises Boss for Firing Foul-Mouthed Employee

A recent NLRB decision found that an employer violated the National Labor Relations Act after it fired an employee for swearing at the boss during a meeting.  The NLRB determined that the employee was engaging in protected activity.  Read more here.

Check out The Workplace Report here

Friday, August 8, 2014

County 1, Bears 0 in Amusement Tax Case

Cook County lost its use tax case earlier this week, but pulled out a win in another tax case involving the county's 3% amusement tax. 

The Chicago Bears Football Club (Bears) had for years calculated the county's amusement tax on the value of a seat, excluding other amenities that come with certain seat purchases such as club access and membership, special parking privileges, and luxury suite access.  So, for example, if a club seat ticket price cost $235, the Bears would separate out the "seat" price of $77.27 for purposes of taxation.  The county challenged this  practice, arguing that the entire seat charge should be subject to taxation.  An administrative law judge agreed, and assessed the Bears delinquent taxes and interest of more than $4 million.  The trial court reversed the ALJ's decision, finding in favor of the Bears.  

On appeal, the appellate court ruled against the Bears, concluding that the "amenities associated with higher priced tickets cannot be separated from the price to enter the venue and view the event and they are, therefore, subject to the County amusement tax."

County 1, Bears 0.

Let's hope the Bears fare a little better against the Eagles tonight in their first 2014 preseason game.

Thursday, August 7, 2014

Cook County's "Use Tax" is an Improper Sales Tax

Cook County's "use tax" was found invalid by an appellate court this week in an unpublished opinion.  Reed Smith LLP v. Zahra Ali, Cook County Dept. of Revenue, 2014 IL App (1st) 132646-U (Aug. 4, 2014).  In 2012, the Cook County Board had enacted an ordinance imposing a tax on the "value" of nontitled personal property that was purchased outside of the county when that property is "first subject to use" in the county.  Cook County residents and businesses would be affected by the tax which would be imposed on property they purpose outside of their resident county.  The 1.25% tax (later reduced to .75%) would apply to any property with a value of more than $3,500.  Taxpayers were required to file monthly returns and remit the appropriate taxes. 

Plaintiffs (business owners and residents of Cook County) filed lawsuits against the county claiming the ordinance violated state statute and the stated and federal constitutions.  The trial court ruled in favor of the plaintiffs and against the county.  On appeal, the appellate court affirmed the trial court, finding that the so-called "use tax" was really a sales tax on the purchase of personal property.  The counties code expressly provides that "no home rule county has the authority to impose, pursuant to its home rule authority, a ... use tax based on...the selling or purchase of said tangible personal property."  The court determined that Cook County's "use tax" fell squarely within this statutory prohibition and was, therefore, is improper and not authorized.

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, August 6, 2014

2 Great Land Use Programs You Shouldn't Miss in August

Our first program is scheduled for August 14th.  Ancel Glink attorneys Dan Bolin and Greg Jones will participate in a webinar titled "Guns, Pot, and Sex:  Regulating Controversial Land Uses" hosted by the International Municipal Lawyers Association (IMLA).

A summary of the session is below:
The title says it all. IMLA shamelessly plays to your interests in sensational and prurient subjects -- the only thing that might be done to get a better turnout for this teleconference would be to have Channing Tatum and Miley Cyrus on the panel. Guns, cannabis, sexually oriented businesses are hot button issues and often have blighting effects. Learn how to deal with them in this teleconference.
The webinar is scheduled for noon to 1:00 pm (central time).  You can learn more about it on IMLA's website here and register here.

Our second program will be on August 21st. Ancel Glink attorney Dan Bolin will participate in the panel presentation "Realizing Potential:  Land Banks, Demolition & Planning for Vacant Land" hosted by the American Planning Association - Chicago Metro Section.  

A summary of the session is below:
The Great Recession has shown us that no community is immune to blight, leaving municipalities throughout the country in need of strategies to stabilize neighborhoods and commercial districts stressed by high rates of vacancy.  In some cases, communities are repurposing vacant properties for entirely different uses.  In other instances, properties with no clearly defined future are being repositioned for a variety of potential uses.  Come learn how other communities are using new and innovative tools to win the fight against blight and vacancy.
Details about the seminar are below:

WHEN: Thursday, August 21, 2014, 9:00 am to 12:00 pm
WHERE: Metcalfe Federal Building, Lake Michigan Room, 12th Floor, 77 W. Jackson Blvd, Chicago IL 60604
COST: $15 paid at the door ($5 for students); checks payable to APA-CMS
RSVP: To RSVP, please email cms@ilapa.org by August 19th

Tuesday, August 5, 2014

Road Remains Public Until Vacated or Abandoned

A public roadway will not be deemed "abandoned" simply because a public body stops maintaining it for decades, even if the road falls into disrepair.  Chamness v. Union County, 2014 IL 5th 130381 (Aug. 4, 2014)

In this case, the county and two property owners adjacent to a roadway disputed whether the roadway was a public roadway or had been abandoned by the county.  The plaintiff, one of the adjacent property owners argued that the county had abandoned the road when it stopped maintaining it 50 years ago and that title should be vested with plaintiff.  The county and the other adjacent property owner disagreed, arguing that the road remained a public roadway even though the county had stopped maintaining the roadway almost 50 years ago.  

The trial court agreed with the county and defendant owner, holding that abandonment of a public roadway will only be found when the public has waived the right to the road or where the necessity for the road ceases to exist.  On appeal, the appellate court agreed with the trial court, finding that an established public road "does not lose its character as a public road unless it is either vacated by the authorities in the manner prescribed by statute or abandoned."  In this case, the defendant owner's property was landlocked, and there was no other road that would provide access. There was also no evidence that the county had formally vacated the road.  The fact that the county had not maintained the road in decades and the road had fallen into disrepair did not change the fact that the road was necessary for access.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, August 4, 2014

Malicious Prosecution Claim Not Proper in Federal Court

Plaintiff filed a federal lawsuit against two Chicago police officers and the City for malicious prosecution after he was acquitted in a state court of aggravated battery.  He claimed that the officers had prepared false police reports for the prosecutor to use to charge him with aggravated battery.  The district court had dismissed his case, however, because federal lawsuits for malicious prosecution are allowed only if the state in which the plaintiff is prosecuted does not provide an adequate remedy.  Because Illinois does, the plaintiff could not bring a federal case against the City or the police officers.  The plaintiff appealed to the Seventh Circuit, which upheld the dismissal of the case in Llovet v. City of Chicago (7th Cir. August 1, 2014).  

The Seventh Circuit acknowledged that other federal courts of appeals do authorize federal claims of malicious prosecution regardless of whether a state remedy exists.  The Court also acknowledged that a federal claim of malicious prosecution may even be permissible in Illinois under certain circumstances (i.e., the claim is based on an unlawful seizure).  Here, however, the plaintiff's initial "seizure" was supported by probable cause, and the court rejected the plaintiff's alternative "continuing seizure" theory.  Therefore, plaintiff's malicious prosecution claim was properly dismissed.

Post Authored by Julie Tappendorf, Ancel Glink