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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Friday, December 29, 2017

Federal Court Dismisses Challenge to County's Short Term Rental Ban

As short term rentals become more popular, local governments have had to rethink their current residential use restrictions to address this new use. Many local governments have relied on their "exclusionary" zoning ordinances that permit only those uses expressly listed in the zoning district as permitted or special/conditional uses to prohibit short term rentals. Others have adopted amendments to their zoning ordinances to expressly restrict and/or regulate short term rentals. Morgan County's application of its zoning regulations to a short term rental was recently the subject of a legal challenge in May v. Morgan County, (11th Cir. Dec. 21, 2017), which upheld the county's ban on short term rentals in single family dwellings.

In 2010, the county enacted a ban of short term rentals in single family homes, defined as any rental for less than 30 consecutive days. In 2011, the county cited May, the owner of a lakefront single family home for violating that ordinance. She subsequently filed a civil rights lawsuit, arguing that her short term rental use was "grandfathered" under the zoning ordinance since she had started renting her home in 2008, 2 years prior to the county's ban on these rentals. Her first lawsuit (filed in state court) was dismissed because she failed to exhaust her administrative remedies by seeking zoning relief and that her challenge to the short-term rental ban was time-barred because she didn't bring her lawsuit within 30 days of adoption of the ban.

After her first case was dismissed, she filed a rezoning application with the county and a request that the county revoke the ban on short term rentals. After both applications were denied, she filed a second lawsuit, this time in federal court, arguing she had a grandfathered right to rent out her home and that the county violated her "grandfathered constitutional rights," which she claimed were protected civil rights. 

The case made its way to the 11th Circuit Court of Appeals, which dismissed her claims based on the "Rooker-Feldman" doctrine which states that federal courts do not have jurisdiction to review state court decisions. Here, the state court had already decided her claims against enforcement of the county's short-term rental ban and she could not attempt to relitigate those claims in federal court. 

Post Authored by Julie Tappendorf

Thursday, December 28, 2017

New Changes to the Juvenile Court Act

Public bodies should be aware of new changes to the Juvenile Court Act that make some sweeping changes that will affect police departments and employers.  Public Act 100-0285

First, the Act greatly broadens privacy protections for juvenile records, amending Section 1-7 to treat records of municipal ordinance violations as confidential records. This means that municipal ordinance violation records must now be treated with the same sensitivity which applies to criminal arrest records.  The statute further designates juvenile records as “sealed,” meaning they can never be disclosed to the general public or made available unless they meet specific narrow exceptions under the Act or by juvenile court order.  The statute provides that a anyone who violates the confidentiality protections is subject to a Class C misdemeanor, a fine of $1,000, and liability to the minor for damages of $1,000, or actual damages, whichever is greater.

The statute also requires the automatic expungement of certain law enforcement records relating to events occurring before an individual's 18th birthday on or before January 1 of each year, if: 
  1. one year has elapsed since the date of arrest or law enforcement interaction, 
  2. no petition for delinquency or criminal charges was filed, and 
  3. 6 months have elapsed without any subsequent arrest or petition for delinquency or criminal charges.  

The law enforcement agency must also send notice of the expungement within 60 days after doing so. Again, a willful violation of the expungement requirements is now a Class 4 felony and the person intentionally disseminating the record can be personally liable to the juvenile for damages.

The Act has also been amended to prevent the accidental dissemination of confidential juvenile law enforcement record information in employment applications.  Section 5-915(b)(4)(b) provides:

(b) Except with respect to authorized military personnel, an expunged juvenile record may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration. Applications for employment within the State must contain specific language that states that the applicant is not obligated to disclose expunged juvenile records of adjudication or arrest. Employers may not ask, in any format or context, if an applicant has had a juvenile record expunged. Information about an expunged record obtained by a potential employer, even inadvertently, from an employment application that does not contain specific language that states that the applicant is not obligated to disclose expunged juvenile records of adjudication or arrest, shall be treated as dissemination of an expunged record by the employer.

This section is of particular importance to employers as it creates criminal and civil liability for disseminating confidential juvenile records, even if the dissemination is inadvertent.  Employers may want to include a disclaimer on job applications stating that applicants are not required to disclose expunged juvenile records.  The Act also provides that employers may not ask if a job application has had a juvenile record expunged.

Post Authored by Erin Pell, Ancel Glink

Wednesday, December 27, 2017

Purpose of FOIA Request Not Basis for Denial

The PAC just issued its 14th opinion for 2017, finding a public body in violation of FOIA. PAC Op. 17-014

A local reporter had filed a FOIA request with a county seeking copies of all FOIA requests filed with the county in the past 8 weeks. The county denied the request on the basis that the request did not meet the purpose and intent of FOIA. The requester appealed to the PAC. In its defense, the county argued that the requester was attempting to use FOIA to obtain information about her fellow citizens and neighbors, and that FOIA was not intended to provide citizens with information about other citizens seeking access to government information.

The PAC disagreed with the county's argument, finding no provision in FOIA that allows a public body to deny a request based on what it believes the underlying purpose of the request to be. As a result, the county was ordered to provide copies of the FOIA requests with only those redactions authorized by express FOIA exemptions.

Post Authored by Julie Tappendorf

Thursday, December 21, 2017

Court Protects Cows in Nuisance Case

The Village of Chadwick is a small community that does not have a zoning or land use ordinance. Instead, the Village relies on its "nuisance" authority to regulate land uses. In July of 2016, the Village adopted an ordinance making it illegal for anyone to keep live cattle, horses, swine, pigs, sheep, goats, and various other farm animals on property in the Village limits. Shortly after adopting the ordinance, the Village issued a citation against the Nelsons for keeping cattle on their property. The circuit court upheld the citation, and the Nelsons appealed.

The Nelsons argued that the Village was preempted from enforcing the nuisance ordinance against them under the Farm Nuisance Act. That statute protects farm owners from nuisance suits after a farm has been in operation for a year. The Nelsons claimed that their property had been used for farm operations for over a year when the nuisance ordinance was adopted. As a result, the Nelsons argued that the Village could not enforce its nuisance ordinance against their property. The Village argued that the Nelsons' cattle operation had only been in operation for four months, so the nuisance ordinance was not preempted by the Act. 

The appellate court reversed the conviction on the basis that the Nelsons had been operating a farm on the property for more than a year. Although the cattle operation had only been ongoing for a few months, the Nelsons had been engaging in other farm activities prior to the cattle operations, including cutting and baling hay. As a result, the Act protected the Nelsons' farm operations, and the Village was precluded from enforcing its nuisance ordinance.  Village of Chadwick v. Nelson, 2017 IL App (2d) 170064.

Post authored by Julie Tappendorf

Wednesday, December 20, 2017

Court Rejects Challenges to City's Food Truck Ordinance

In 2012, the City of Chicago passed an ordinance expanding food truck operations within the City. That ordinance allowed trucks to prepare food on-site (rather than in a commercial kitchen) and established various location, operation, and inspection regulations. The ordinance also authorized the City to establish fixed stands where parking space for food trucks would be reserved. Outside of these "fixed stands," the ordinance allows food trucks to park in street parking for up to 2 hours, but prohibits trucks from parking within 200 feet of any restaurant. Finally, the ordinance requires food trucks to have a permanently installed and functioning GPS device.

Shortly after the ordinance was approved, LMP (the plaintiff) filed a lawsuit challenging two provisions of the food truck ordinance: (1) the 200 foot distance requirement from restaurants and (2) the GPS requirement. LMP claimed the first requirement violated due process and equal protection and the second violated the search, seizure and privacy protections of the Illinois constitution.

The trial court ruled in favor of the City, and LMP appealed. 

With respect to LMP's argument that the distance requirement violated due process, the court first determined that the right to pursue a profession (in this case, operate a food truck) is not a fundamental right for substantive due process. As a result, the City only had to show a rational basis for the restriction. The court concluded that the City satisfied that standard in showing that the restriction was intended to strike a balance between fixed restaurants (which pay real estate taxes and other fees to the City) and food trucks. The court also noted that there is no constitutional right to conduct business from the city street or sidewalk.

The court also rejected LMP's argument that the GPS requirement violated the state constitution, finding no seizure or search where the City did not physically enter the food truck to place the device so the cases involving government installation of a GPS device were not applicable. 

Post Authored by Julie Tappendorf

Tuesday, December 19, 2017

Annexation Dispute Between Villages Decided

Palos Park and Lemont have been involved in an annexation dispute for the past couple of years. Recently, the appellate court ruled in favor of Palos Park, upholding that community's annexation of three private golf courses and other land comprising about 1,500 acres lying between the two communities. In re Petition to Annex, 2017 IL App (1st) 170941.

In 2015, voluntary annexation petitions were filed by the golf courses and owners of other land to annex their properties to Palos Park. While those petitions were pending, on December 14, 2015, Palos Park annexed certain forest preserve property that would create the necessary contiguity to annex the golf courses. Just a few days earlier, residential owners filed a forcible annexation petition with the circuit court to annex their properties, consisting of about 117 acres, to Lemont. According to the court ruling, the purpose of the forcible annexation proceeding was to thwart contiguity for the Palos Park annexations.  

While the forcible annexation proceeding was still ongoing, Palos Park adopted annexation ordinances to annex the golf courses and other land. Palos Park argued that  its annexations have priority over the forcible annexation proceeding involving Lemont. 

The appellate court examined the two annexation proceedings (Palos Park's voluntary process and Lemont's forcible proceeding) to determine which had priority. Lemont argued that the Palos Park process had been "abandoned" because of the time lapse between the filing of the annexation petitions by the owners and the action by Palos Park in approving annexation ordinances. The court rejected that argument, finding that the  parties to the voluntary annexation process had proceeded in a "sustained and consistent action to advance the 2015 voluntary petitions." 

The court also rejected the argument that prompt action by the corporate authorities after the filing of an annexation petition is required, finding that the law only requires "some action" by the corporate authorities or evidence showing why action was delayed. Here, Palos Park's process included an extended negotiation of the terms of an annexation agreement, discussions about water and sewer service, and various other meetings and discussions between the parties, including the annexation of the forest preserve property that established contiguity.  In sum, the court found that Palos Park's voluntary annexation process had not been abandoned, and as a result, it had priority over Lemont's forcible annexation process.

Post Authored by Julie Tappendorf

Monday, December 18, 2017

Requester Not Entitled To Criminal Assault Records

In McGee v. Kelley, a FOIA requester, who had previously been indicted and convicted of aggravated criminal sexual assault, sought documents related to his indictment. The sheriff’s office denied the request under Sections 7(1)(d)(i), (iii), and (iv) as the case was still under appeal and considered an open investigation. The sheriff argued that the records were still exempt because the requester made the same request in 2010, at which time it was denied and reviewed by the PAC based on: 1) the requester had received redacted records in 2009 and never challenged the redactions; 2) the records were exempt from release under Illinois Supreme Court Rule 412(j)(ii), which provides that criminal defendants are not to receive the names of the people providing information against them; 3) the disclosure would constitute an unwarranted invasion of the victim’s privacy as the reports detailed a sexual assault, and 4) certain redacted portions disclosed specialized investigative techniques.

The requester then filed a complaint in circuit court against the sheriff. The circuit court conducted an in camera examination of the requested records and found in favor of the sheriff’s office. The court found that none of the records were releasable under FOIA, the requester’s prior similar requests collaterally estopped him from proceeding with the case, and the documents were exempt under 7(1)(a) and 7(1)(b).

The requester appealed to the appellate court which also ruled in favor of the sheriff’s office.  The appellate court found that the public did not have any interest in the actual details of the assault, whereas the degree of invasion of personal privacy to the victim was substantial.  Further, the court found no evidence that the police reports had previously been made public.

Post Authored by Erin Pell, Ancel Glink

Wednesday, December 13, 2017

Amendment to Indiana Teacher Tenure Law Violates Contract Rights

The Seventh Circuit Court of Appeals recently struck down an Indiana law that amended the state's teacher tenure law. Elliott v. Board of School Trustees of Madison Consolidated Schools (7th Cir. Dec. 4, 2017).

In 2012, the Indiana legislature amended its teacher tenure law to eliminate a right of tenured teachers to be retained over non-tenured teachers and to require school districts to base layoffs on performance reviews rather than tenure. In reliance on the new law, the Madison School Board laid off Elliot, a teacher who had earned tenure 14 years before the new law took effect. Elliot sued, claiming the new law violated the Contracts Clause of the U.S. Constitution because it affected his contractual rights to tenure under Indiana's teacher tenure law adopted in 1927.

The Seventh Circuit first determined that Indiana's teacher tenure law created certain enforceable contractual rights. Those contractual rights, the court determined, were "substantially impaired" by the 2012 law because it had retroactive affect on teachers who were tenured prior to its enactment. In finding the retroactive impairment to be a violation of contractual rights, the court held that the "impairment is substantial, the contract is an express commitment between the State and the teachers, and the State's self-interest is at state." 

Post Authored by Julie Tappendorf

Tuesday, December 12, 2017

CPD Officer Faces Discharge for Social Media Posts

How bad must off-duty social media behavior be in order for a public employer to justify discharging an employee for their posts? In true lawyer fashion, the answer is probably “it depends”. It depends on the position that the employee holds within the organization and the content of the postings on social media.

Since officers hold a special position of trust in society, police departments rightfully require that their conduct fosters that trust and models law-abiding, respectful behavior. That’s why the Chicago Police Department has moved to discharge a 25 year veteran officer for his off duty social media posts. There is no doubt that policing, especially in urban areas like Chicago, can be challenging and officers can develop jaded views of society, but when an employee takes to social media to disparage groups it can lead to trouble on the job.

The CPD officer facing discharge allegedly posted racist and insensitive remarks on Facebook, including a cartoon of a boy urinating on the word Allah, referring on Facebook to black children as “wild African kids” and displaying a bumper sticker on his vehicle depicting a car driving into a group of protesters with the words “all lives splatter,” to name a few. The officer has also been the subject of 57 citizen complaints of unfair or insensitive treatment.

CPD has a social media policy which includes a prohibition of statements, both on and off duty that vilifies a group based on race, religion, sexual orientation or other protected characteristics. The policy is designed to protect against activity which may interfere with an officer’s ability to discharge their duties in a fair and impartial manner and might diminish the reputation of the department in the community. The results of an investigation of this officer’s postings and actions found 62 separate incidents of social media and vehicle postings which violated the policy.

The officer claims that discharging him for his off-duty conduct and statements violates his First Amendment rights to free speech. As we know, this can be a tricky analysis of balancing an individual’s rights to speech and an employer’s rights to maintain order in its operation.

What CPD has done right is to issue a policy which prohibits social media activity which disparages or defames groups of citizens based on protected characteristics.  The number of separate postings and statements, coupled with the large number of citizen complaints tends to show disruption of the department’s operation due to statements by the officer attacking groups based on those protected characteristics which diminishes or destroys the employee’s First Amendment protections.

Public employers should always conduct a two part analysis before disciplining an employee for off duty social media statements. A sound policy must be in place, coupled with actual evidence that the employee’s statements caused disruption or inefficiencies to the employer’s operations. While private employers do not face First Amendment challenges, in a union setting, the same analysis will show “just cause” to discipline.

Post originally authored by Margaret Kostopulos, Ancel Glink 

Monday, December 11, 2017

City's Administrative Hearing Practice Upheld

Stone Street Partners (SSP) sued the City of Chicago more than 5 years ago to challenge certain practices of the City's Department of Administrative Hearings relating to citations for ordinance violations. SSP was successful in overturning certain citations earlier this year, but the remaining claims continued. Recently, the Illinois appellate court upheld the City's citations against SSP and its administrative hearing process. Stone Street Partners v. City of Chicago, 2017 IL App (1st) 133159. 

Chicago had cited SSP for violating a City ordinance that prohibited overflowing refuse containers. After being found in violation at an administrative hearing and fined for the violation, SSP challenged the entire proceeding in court, claiming that the City was engaging in the unauthorized practice of law because no attorney appeared for the City at the hearing. SSP also claimed that its due process rights were violated. The trial court dismissed most of the claims, and SSP appealed.

On appeal, the appellate court first determined that the City administrative law judge was not engaging in the unauthorized practice of law by overseeing the City's administrative hearings. The court also rejected SSP's argument that SSP's due process rights were violated because the administrative law judge allegedly served as the judge and prosecutor, finding that there was no evidence that the judge was predisposed against SSP. Finally, the court ruled against SSP on its argument that the City's practice of imposing the minimum fine for "plea bargains" but a higher fine for those who chose to move forward with the hearing amounted to a "trial tax." 

Post Authored by Julie Tappendorf

Wednesday, December 6, 2017

Civil Rights Claims Related to Tax Matter Not Proper in Federal Court

Today's case started with a dog bite. A dog bit a township employee on the Cosgriff property. After the employee and the township sued the Cosgriffs, the Cosgriffs started a petition campaign encouraging taxpayers to notify the township that its employees should not trespass on private property. When the township's next property assessment for the Cosgriff property was significantly higher than their last, the Cosgriffs appealed the increased assessment to the county appeals board. The Cosgriff assessment was 47.14%, the highest increase in the township that year. The county appeals board ruled in favor of the Cosgriffs and substantially reduced the new assessment.

Subsequently, the Cosgriffs filed a civil rights lawsuit in federal court against the county and numerous individual defendants. In the lawsuit, the Cosgriffs claimed that the defendants acted unconstitutionally when they increased the Cosgriffs’ property assessment. Specifically, the Cosgriffs claimed the assessment increase was retaliation against the Cosgriffs for speaking out against township employees trespassing on private property. The district court dismissed the case, and the Cosgriffs appealed to the Seventh Circuit Court of Appeals. 

The Seventh Circuit upheld the dismissal, holding that state taxpayers are barred from bringing 1983 claims in federal court. The court rejected the Cosgriffs' argument that they were not challenging the tax, but instead were challenging the defendants' unconstitutional actions against them. That, the court said, was a "distinction without a difference" because if the defendants had acted unconstitutionally, it was only because they increased the Cosgriffs' tax burden through the higher assessment. Because their claims related to taxation, they were precluded from being heard in federal court. The court noted that the Cosgriffs had state law remedies available to them and, in fact, took advantage of those remedies when they appealed their assessment increase to the county appeals board. Cosgriff v. County of Winnebago.

Post Authored by Julie Tappendorf

Tuesday, December 5, 2017

7th Circuit Finds Online Travel Agencies Are Not Subject to Certain Municipal Hotel Taxes

The Seventh Circuit recently issued a decision finding that online travel agencies (Expedia, Priceline, Travelocity, and Orbitz) are not subject to municipal hotel taxes. 

In Village of Bedford Park v. Expedia, Inc.,et al, thirteen Illinois municipalities filed a class action claiming that these online travel agencies (Agencies) were failing to remit taxes on the full price that customers pay to rent a hotel room. The Agencies enter into contractual arrangements with hotels that allow the Agencies to market hotel rooms and directly book reservations through their websites. The hotel sets a wholesale rental price for the room, and the Agency charges the customer a price that includes the hotel rental price, the estimated taxes owed to the municipality, and additional charges for the Agency’s services.

However, the Agencies had only been remitting taxes to the municipalities based on the wholesale rental price set by the hotels, not the full price paid by customers to the Agencies. The court gave the example of a hotel that sets a wholesale rental price for rooms reserved through an Agency at $60, and the total price charged by the Agency to the customer (including the fees for the Agency’s services) is $100. The Agency only pays taxes on the $60 rental rate, instead of the full $100 that is charged to the customer. The municipalities argued that the Agencies needed to remit taxes based on the full $100 amount.

The Seventh Circuit considered two main categories of municipal hotel taxes: (1) those that impose a room rental tax on owners, operators, and managers of hotels; and (2) those that impose a tax on persons engaged in the business of renting, leasing, or letting hotel rooms based on a percentage of gross rental receipts. 

First, the Seventh Circuit considered whether the Agencies were owners, operators, or managers of hotels, and therefore subject to the first category of municipal hotel taxes.  The Court found that the Agencies clearly are not owners of the hotels, nor are they owners of the hotel rooms themselves.  The Court also found that the Agencies are not hotel managers because they do not supervise the affairs of a hotel. The Court did note that the Agencies are engaged in one hotel function, the making of hotel reservations. However, the Court held that simply engaging in one aspect of running a hotel does not transform the Agencies into hotel operators. Therefore, the Court found that the Agencies are not hotel owners, operators, or managers subject to the first category of municipal hotel taxes.

Next, the Court considered whether the Agencies are subject to taxes imposed on persons engaged in the business of renting hotel rooms. The Court noted that renting implies ownership and the ability to grant possession of property. Since the Agencies do not own hotels or hotel rooms, they cannot independently grant consumers access to hotel rooms. Because the Agencies lack the ability to grant access to hotel rooms, they necessarily lack the power to rent hotel rooms. Accordingly, the Court held that the Agencies are not engaged in the business of renting hotel rooms, and are not subject to the second category of municipal hotel taxes.

This opinion is interesting because a very similar issue was previously addressed in the case of City of Chicago v. Expedia, et al, 2017 IL App (1st) 153402, which we reported on in May of 2017.  In that case, an Illinois Appellate Court found that the Agencies were not subject to the City of Chicago’s hotel tax on substantially similar grounds. However, that opinion was subsequently withdrawn by the appellate court after the City of Chicago and the Agencies reached a multi-million dollar settlement. The City of Chicago subsequently amended its hotel tax to clarify that it applies to the Agencies as well as hotels.

Post Authored by Kurt Asprooth, Ancel Glink

Monday, December 4, 2017

Don't Forget FOIA/OMA Training Obligations

As many Illinois government officials know, both the Illinois Freedom of Information Act and the Illinois Open Meetings Act require certain government officials to comply with training requirements under FOIA and the OMA. The Illinois Attorney General has created electronic training programs to comply with these requirements, although the OMA does allow members of certain public bodies (school and park board members, for example) to take advantage of alternative training programs offered by member organizations, as discussed below in #3.  

It is important to understand each of the training requirements to make sure the appropriate officials or employees are completing the required training in accordance with the OMA and FOIA.

1.  FOIA Officer

Each public body must designate a FOIA officer. The designated FOIA officer must complete annual FOIA training. If a public body has designated multiple FOIA officers, they all must complete annual training. Any time a public body designates a new FOIA officer, that officer must complete the training within 30 days of designation. 5 ILCS 140/3.5(b). 

2.  OMA Officer

Each public body must also designate an OMA officer. The designated OMA officer must complete annual OMA training. If there are more than one designated OMA officer, they all must complete annual training. Any time a public body designates a new OMA officer, that officer must complete the training within 30 days of designation. 5 ILCS 120/1.05(a) 

3.  Members of Public Bodies

Each member of a public body (i.e., member of a City Council or Village Board, Library Board Trustee, etc.) must complete OMA training within 90 days of taking office. 5 ILCS 120/1.05(b). 

While members of most public bodies are required to complete the training program created by the Attorney General, members of certain public bodies are statutorily authorized to complete an alternative training program. For example, a member of a park district park can complete an OMA training  program offered by an organization that represents park districts. Similar provisions apply to members of a school board or drainage district board. For more information about these alternative training programs, consult section 1.05(c), (d), (e), and (f) of the OMA.

You can access each of the Attorney General training programs on the Attorney General's website here.  Make sure you sign up for the correct training program!

Post Authored by Julie Tappendorf