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Wednesday, September 30, 2015

Seventh Circuit Tackles Weed Ordinances

Discount Inn, a business owner in Chicago, sued the City after it was cited under the City's weed and fence ordinances. Discount claimed that the two ordinances were unconstitutional on two grounds. 

First, Discount alleged that the ordinances were unconstitutional as they imposed "excessive fines" in violation of the 8th Amendment. The appellate court rejected this argument, finding that the maximum fine ($1,200) was far from an astronomical fine that would be excessive in the sense of the 8th Amendment, and that Chicago has a valid interest in weed control that justifies an ordinance forbidding all weeds.

Second, Discount claimed that the weed ordinance is vague and forbids "expressive activity" protected by the First Amendment.  Discount argued that certain native plants might be mistaken for "weeds" based on the definition of weed as "vegetation that is not managed or maintained by the person who owns or controls the property on which all such vegetation is located and which, on average, exceeds ten inches in height." The court acknowledged that the ordinance might be overly broad in scope - as an example, the court noted that trees could fall under the definition of weed as they are not usually managed or maintained and are generally over ten inches in height.

However, the court did not accept Discount's argument that the free speech clause protects it from the weed ordinance, stating as follows:
But the plaintiff's claim that the free-speech clause insulates all weeds from public control is ridiculous...Its weeds have no expressive dimension. the plaintiff just doesn't want to be bothered with having to have them clipped.
The court expressed its concerns about extending "work of art" to weeds, stating that such an interpretation could lead to the following:
Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven's Fifth Symphony 24 hours a day through outdoor loudspeakers, all in the name of the First Amendment.
Although the court rejected Discount's claims, it did express concerns about enforcement of the City's weed ordinance and the difficulty in defining what is a "weed" and what is a native plant. As a result, municipalities may want to revisit their weed ordinances to make sure the definition is clear enough for property owners to understand and make sure are in compliance. The court provided an example of what it thinks a weed is:  "a wild plant growing where it isn't wanted."

So, in short, the court upheld the City's weed ordinance.  Discount Inn, Inc. v. City of Chicago (7th Cir. September 28, 2015).

The court also provided some pictures of "native plants" for our viewing pleasure:

Post Authored by Julie Tappendorf


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