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Tuesday, July 23, 2019

7th Circuit Addresses Challenges to Local Alarm System Ordinances

Last week, the Seventh Circuit Court of Appeals decided two cases challenging local ordinance requirements that commercial buildings be equipped with fire-alarm systems. The cases addressed various claims by Alarm Detection Systems (ADS) that these local ordinances violate state and federal laws and the constitution because they require commercial buildings to contract directly with only one alarm system provider. In both cases, the local government bodies had entered into exclusive agreements with Tyco Integrated Security, LLC, a competitor of ADS. With the exception of a Contracts Clause claim, the court rejected ADS' arguments, and dismissed its claims.

In ADS v. Orland Park Fire Protection District, ADS argued that the local requirement that commercial businesses contract with Tyco for alarm services violated the Illinois Fire Protection District Act, the Sherman Act, and the 14th Amendment to the U.S. Constitution. The district court rejected those claims, ruled in favor of the local government, and dismissed the case. On appeal, the Seventh Circuit upheld the dismissal. First, the 7th Circuit held that ADS had no private right of action under the Illinois Fire Protection Act based on its status as a competitor to Tyco. Second, the 7th Circuit rejected ADS' Sherman Act claims because ADS could not show that its own system could comply with the local requirements. Finally, the 7th Circuit found no fundamental right of ADS to support a 14th Amendment claim, and ADS had accepted that the local ordinances were lawful.

In the second case, ADS v. Schaumburg, ADS brought a variety of claims against Schaumburg, including claims of antitrust and state tort claims which the 7th Circuit rejected. However, the 7th Circuit did allow ADS' claim that the Schaumburg ordinance violated the Contracts Clause of the U.S. Constitution to move forward. The Contracts Clause "restricts the power of States to disrupt contractual arrangements" through legislation, which also applies to municipalities. ADS claimed that Schaumburg's ordinance forces ADS customers to either cancel or not renew their contracts with ADS in order to comply with the ordinance requirement that it contract with Tyco. That claim was allowed to move forward for further proceedings.

Monday, July 22, 2019

Podcast: Legal Challenges to Parking Enforcement

Sometimes, you want to "listen" to your news rather than read it, and we have a recommendation for a podcast episode hosted by ELGL. In this episode of ELGL's GovLov Podcast titled "Legal Challenges to Parking Enforcement," Ancel Glink attorneys ShawnTe Raines and Matt DiCianni talk about the recent court ruling about the use of chalk in parking enforcement. They also touch on a few other legal issues at the local level.  

You can access the podcast by clicking on the title below:

Podcast: Legal Challenges to Parking Enforcement

Parking Enforcement GovLove

Friday, July 19, 2019

APA Webinar: Supreme Court Takings Decision in Knick

Planners, lawyers, and land use professionals won't want to miss this upcoming webinar hosted by the American Planning Association's Planning & Law Division on the recent Supreme Court's takings decision in Knick.  See below for details:

What the Supreme Court's Knick Decision Did and Did Not Change

Tuesday, July 30, 2019 
1 p.m. - 2:30 p.m. Eastern Time
noon - 1:30 p.m. Central Time

CM I 1.50 I Law
CLE 1.50 through Illinois State Bar

In June, a divided Supreme Court overturned part of a longstanding precedent that generally required plaintiffs alleging unconstitutional takings to first try and fail to obtain compensation under state law before pursuing a federal takings claim. Property rights activists celebrated their one-vote win, but as a practical matter does the decision really change things for planners? John Baker and Deborah Rosenthal will discuss the case and its impact on municipalities and property owners/developers.

Register Here

Monday, July 15, 2019

Miscellaneous New Laws Signed Into Law

A few miscellaneous new Illinois laws were signed into law last Friday that may affect units of local government, including the following:

P.A. 101-0041 amends the Fire Protection District Act to require a fire protection district to post on its website notices of any proposal to award any contract for work that will exceed $20,000. The amendment also removes a requirement that other notices be published in a daily newspaper.

P.A. 101-0047 amends the non-home rule municipal sales tax statute to extend the time period for non-home rule municipalities to use the local sales tax revenues for municipal operations to July 1, 2030. The previous deadline was December 31, 2020.  

P.A. 101-0058 amends the Park District statute to add new language regarding the staggering of terms of office for members of 7 member park district boards that have approved a change to the term of office from six years to four years. The new statutory language is below:
  (2) On a 7-member board under Section 2-10a, if the terms of only 2 commissioners are scheduled to expire in the year of the second election at which commissioners are elected after the first regular park district election at least 60 days after the date on which the proposition for 4-year terms was approved at referendum or by resolution, then:
  (A) if 3 commissioners are elected at the first regular election, 2 of the commissioners elected shall serve a 2-year term and one shall serve a 4-year term to be determined by lot between persons elected within 30 days after the first election; or 
  (B) if 2 commissioners are elected at the first regular election, those 2 commissioners elected shall serve a 2-year term. 

Thursday, July 11, 2019

Public Body Cannot Assess Fee for Late FOIA Response

Public bodies should be aware of an unreported appellate court case holding that a public body could not impose fees in response to a FOIA request where the public body did not respond to the request in a timely manner.  Varan v. White.

Varan had filed a FOIA request with the Secretary of State's office for various records. The state did not respond to the request until six months later, and informed Varan that he had to pay $19,711.55 for the requested records, which was calculated based on a $25 charge per record. Varan sued, and both the trial and appellate courts ruled in Varan's favor, finding that section 3(d) of FOIA expressly prohibits a public body from imposing a fee when it fails to respond to a FOIA request within the statutory time frames. 

Wednesday, July 10, 2019

Supreme Court Strikes Down 30 Plus Years of Takings Law Precedent and Gives Aggrieved Property Owners an Open Invitation to Federal Courts

You may recall that we briefly reported on this case the day it was issued, with the promise that we would provide more details on the ruling in a future blog post.  So, here it is!

In a dispute that arose over a cemetery, the U.S. Supreme Court recently buried longstanding precedent and held that takings-claim plaintiffs may now sue directly in federal court. The controversial ruling came down in Knickv. Township of Scott, where a cemetery owner claimed that a township ordinance requiring her to keep her land “open and accessible to the general public during daylight hours” constituted an unlawful taking under the Fifth Amendment.

Two lower federal courts struck down the plaintiff’s claim following the precedent of Williamson Cty. Reg’l Planning Com. v. Hamilton Bank of Johnson City. The Court in Williamson County held that property owners first had to “exhaust” all available remedies and litigate in state court before the claim could be brought in federal court. Additionally, the Williamson County Court reasoned that the “Fifth Amendment proscribes takings without just compensation,” and thus, no constitutional violation occurs until the compensation is denied to the plaintiff. The Williamson County Court relied heavily on earlier 19th Century precedent where governments may avoid paying compensation at the time of the property deprivation so long as they make a “reasonable, certain, and adequate” mechanism for recovering compensation available. Critics of the Williamson County stated that “Williamson County [has] essentially demoted the Takings Clause to a second-class citizen among the Bill of Rights,” because “no other constitutional right is subjected to a such a legal labyrinth.”

The majority in Knick overruled Williamson County, and reasoned that the “state-litigation requirement imposes an unjustifiable burden on takings plaintiffs.” Further, following the precedent set forth in Jacobs v. United States and First English Evangelical Lutheran Church v. Cty. of L.A., the Court concluded that a constitutional violation originates from the property deprivation itself, not so much from the denial of compensation that arises in state court later down the line. The majority provides some—perhaps cold—assurance that the government will not be hamstrung by injunctions from taking property in the future, when it states “as long as just compensation remedies are available…injunctive relief will be foreclosed.” Lastly, the majority addressed the concerns raised by the dissenters over its break with longstanding precedent, by reasoning that the quality, workability of the current rule established, and its consistency with other decisions.

In summary, the Court’s decision in Knick is a huge break with past precedent and will now allow takings-claim plaintiffs to bring a §1983 civil rights action directly in federal court. In addition, the decision may create an increase in takings-claim litigation over existing land use regulations. If it was not as obvious before, the Knick decision warrants governments carefully considering how existing and new land use regulation potentially create a taking. The further implications on local governments are not yet clear; however, local governments will still most likely be able to move forward in taking property without the hindrance of injunctions, so long as they are prepared to litigate the claim in federal court.

Post Authored by David Silverman and Rain Montero, Ancel Glink

Tuesday, July 9, 2019

BREAKING: Second Circuit Decides Trump Twitter Appeal

We have previously reported on the lawsuit filed against President Trump to challenge his blocking of users from his Twitter account, which the users argued violated their First Amendment rights. The federal district court ruled in their favor, finding (1) that President Trump's @realDonaldTrump account was a public forum subject to the First Amendment and (2) that his actions in blocking users from that account violated the First Amendment rights of those blocked users. 

The President appealed that ruling to the Second Circuit Court of Appeals. This morning, the Second Circuit issued its opinion in this appeal, upholding the district court's ruling that the President's actions in blocking critics from his @realDonaldTrump Twitter account violated the First Amendment. Specifically, the Second Circuit stated as follows:
The President contends that the Account is exclusively a vehicle for his own speech to which the Individual Plaintiffs have no right of access and to which the First Amendment does not apply. Secondarily, he argues that, in any event, the Account is not a public forum and that even if the Account were a public forum blocking the Individual Plaintiffs did not prevent them from accessing the forum. The President further argues that, to the extent the Account is government- controlled, posts on it are government speech to which the First Amendment does not apply. We are not persuaded. We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.
This opinion, like the Fourth Circuit Court of Appeals ruling last year finding a County Commissioner's personal Facebook page to be subject to the First Amendment, is an important one for local government officials who use their personal social media sites to communicate about government business. In certain circumstances, those personal pages and accounts may be so intertwined with government business that they are considered a "public forum," meaning that the government official must be careful not to censor the speech of those who  post on these pages and accounts.

You can read the Second Circuit's decision Knight First Amendment Institute v. Donald J. Trump here.

Social Media Database Catalogs Police Social Media Activities

Coming on the heels of stories in Philadelphia that 76 police officers were placed on leave for allegedly racial social media activities, Dallas announced last week that it was investigating 25 police officers who had allegedly posted or shared racist or other objectionable material on social media. 

News reports cite to a database published by an action group that catalogs thousands of racist or violent posts made by police officers in several states. Reportedly, five states are investigating police officers following release of this database. More than a thousand of the cataloged public posts were made by people identified as current and former Dallas police officers. 

Examples of a few of the following public posts by police officers that were cataloged by the action group:
It's a good day for a choke hold
Death to Islam
If the Confederate flag is racist, then so is Black History Month
Statistics show that criminals commit less crimes after they've been shot
I'm proud to be white
Employee social media activities are increasingly coming under scrutiny, and as we have reported in the past, these activities do not need to be at the workplace or while on duty to subject an employee to discipline, and even termination.

Monday, July 8, 2019

Claims Against School District For Construction Payments Can Move Forward

Restoration Construction Company filed a lawsuit against a school district claiming the district refused to pay for construction and restoration services provided by Restoration after a school building was damaged by fire. The work had been performed under a contract signed by the school district's superintendent. The value of the work under the initial agreement was over $331,000. The contract was not presented to the school district board for approval. Subsequently, the school district board president signed an amended contract with Restore Construction to repair the school. That contract valued the work at over $6.9 million and was also not presented to the school district board for approval.

Restoration moved forward with the work, and the school district made progress payments to Restoration in an amount of approximately $5.8 million, with a balance of approximately $1.4 million under the contracts when the school district ceased payment. At that point, Restoration sued for breach of contract and later added equitable claims. 

The trial court dismissed the case, finding that the two contracts were "void ab initio" because they were not approved by the school district board and because they were not subject to the competitive bidding process. As a result,Restoration could not recover under these void contracts. The court also dismissed the equitable claims, and Restoration appealed.

On appeal, Restoration argued that the trial court should not have dismissed its equitable claims because even if the contracts were void, Restoration should still be able to recover for the work they performed under a "quantum meruit" argument, which argues that there was a contract "implied by law." Although the appellate court agreed that the two contracts were void, the appellate court rejected the trial court's dismissal of Restoration's quantum meruit claim, finding that Restoration should have been able to proceed on that argument. The court specifically found that there was no case that holds that a quantum meruit claim is barred if a contract was determined to be void. 

In short, the appellate court sent the case back to the trial court for further proceedings on Restorations quantum meruit claim that the school district must pay them for the value of the work they provided to the district. Restore Construction Co. v. Board of Ed of Proviso Township HS Dist. 209, et al., 2019 IL App (1st) 181580

Monday, July 1, 2019

Quorum Forum Episode 26: Local Gov Legislation Update

After an historic legislative session, Ancel Glink Partner and State Rep. Chris Welch joins Kurt Asprooth for a special meeting of Ancel Glink's podcast, Quorum Forum, to discuss a capital bill bringing new casinos, sports betting, and more video gaming terminals to Illinois communities. We also discuss “Tobacco 21,” a new Open Meetings Act exception, and more important legislation affecting local governments. 

You can access this Podcast Episode 26 here.

Questions about new #localgov legislation? Email us at podcast@ancelglink.com!

Wednesday, June 26, 2019

Illinois Parking Excise Tax Act & Municipal Parking Garages and Lots

The Illinois legislature slipped a little-known provision into House Amendment 3 of Senate Bill 690 (part of the "Leveling the Playing Field for Illinois Retail Act) that would establish a parking excise tax. Beginning January 1, 2020, the Parking Excise Tax Act would impose a state excise tax on the privilege of using a parking space in a parking garage or area at the rate of 6% for hourly, daily, or weekly parking and 9% for parking paid on a monthly or annual basis. The tax would be collected by the "operator" of any parking area or garage, as defined in the proposed legislation. The bill (which also includes changes to the internet sales tax, gaming expansion, and increases to the gas and cigarette taxes, among other provisions) has been approved by the Illinois legislature and has been sent to the Governor. 

The question many local governments have asked is whether parking spaces in a parking garage or lot operated by a municipality or other unit of local government (including a commuter parking lot or garage) would be subject to this new tax. 

The answer to that question may turn on the definitions of "operator" and "person" under the proposed legislation. 

"Operator" is defined as any person who engages in the business of operating a parking area or garage..." 

"Person" is defined as "any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, corporation, limited liability company, or a receiver, trustee, guardian, or other representative appointed by order of any court." 

It is relevant that the definition of person in the proposed legislation does not include any reference to municipalities or other units of local government. Where the state legislature has enacted an excise tax and has defined "person" for purposes of interpreting that tax, it has expressly included in the definition of person a reference to governmental entities where applicable. For example, the Motor Fuel Tax Act includes in the definition of person the following "or any city, town, county, or other political subdivision in this State.” Similar language is also included in the Simplified Municipal Telecommunications Tax Act, the Electricity Excise Tax, and other excise tax statutes. Here, no such language is included, which suggests that the legislature did not intend the tax to apply to parking garages or lots operated by municipalities or other units of local government. Perhaps it would have been clearer if the legislature had expressly exempted municipal and other local government parking areas and garages from the tax as the legislature did for the federal government.

We have reached out to various organizations and agencies to confirm our interpretation, and will update our readers when we have more information. We certainly hope to have more information prior to the proposed legislation being enacted. 

Monday, June 24, 2019

"Ongoing Investigation" Does Not Provide Blanket Exemption to FOIA Request

The Illinois appellate courts don't often decide FOIA cases, so it's always an interesting read when they do (most of our FOIA posts deal with PAC opinions). 

In Kelly v. Village of Kenilworth, et al., 2019 IL App (1st) 170780, an appellate court considered the appeal of a denial of a FOIA request for records relating to a 50 year old investigation into the murder of a 21 year old in her Kenilworth home. Kelly had filed various FOIA requests with the Village, the state police, the Cook County states attorneys office, among other government entities seeking all records pertaining to the murder investigation. The Village and other public bodies denied the request on the basis that the records were for law enforcement purposes and disclosure would interfere with an active or ongoing criminal investigation. 

Subsequently, Kelly filed a lawsuit against the Village and other defendants. After the trial court reviewed some of the requested records "in camera," the court ruled in favor of the Village and other defendants, finding that disclosure could interfere with an ongoing investigation.

On appeal, the appellate court first held that the Village could assert a FOIA exception over records held by the other defendants, including Cook County and the state police. Second, the appellate court held that trial court correctly determined that there was an ongoing investigation into the murder for purposes of the FOIA exemptions contained in 7(1)(d).  

However, the appellate court expressed concerns about the trial court's application of a blanket exemption over the requested records relating to the ongoing investigation. The appellate court determined that section 7(1)(d) requires a public body to redact and release that portion of the investigative records where release would not interfere with an ongoing investigation or obstruct an ongoing criminal investigation. The appellate court did, however, acknowledge that the scope of the requested records was extensive, and that the Village and other defendants may have properly asserted the "unduly burdensome" exception in response to the FOIA request. Although that exception had not been raised in the initial denial, the appellate court remanded the case to provide the defendants with the opportunity to raise that exemption, and work with Kelly to narrow his request to a more manageable proportion, as allowed by the FOIA statute.

Although the appellate court did not preclude the defendants from asserting the "unduly burdensome" exception on remand, this case is still a reminder of the importance of asserting any potential exception at the outset, in the initial response. 

Friday, June 21, 2019

US Supreme Court Overrules Williamson County "State Litigation" Requirement

In a 5-4 decision, the U.S. Supreme Court overruled longstanding precedent in Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), that required property owners to pursue their claims against government in state court before they could bring a federal lawsuit alleging a "taking" in violation of the Fifth Amendment of the U.S. Constitution. See Knick v. Township of Scott (USSCT, June 21, 2019). The Williamson County ripeness doctrine allowed government bodies to defend these property and land use cases in state court, where state court remedies were available. The U.S. Supreme Court's decision in Knick overruling Williamson County's "state-litigation" requirement will certainly affect local governments across the country, including Illinois, as litigants can now initiate their land use and property claims in federal court in a civil rights 1983 action. 

We will report on this case in more detail next week.

Thursday, June 20, 2019

Ancel Glink talks “Law in Plain English” on GovLove Podcast

Check out Ancel Glink partner David Silverman’s appearance on ELGL’s GovLove podcast discussing “Law in Plain English,” as part of their #GovLoveLegal series. A description of the podcast is below and you can listen to the podcast here. 
Writing legalese for residents. GovLove Legal returns with a discussion of how to write about complex legal topics in a way that is understandable for residents and elected officials. Jenny Kosek, Communications Strategist in West Allis, WI, and David Silverman, Partner at Ancel Glink Law Firm, share their perspectives and tips for taking complex legal topics and communicating them clearly.
Post Authored by Dan Bolin, Ancel Glink

Tuesday, June 11, 2019

Court Upholds Termination of Employee for Violating Residency Requirement

The Illinois Appellate Court recently interpreted a municipal ordinance residency requirement to uphold the municipality's termination of a firefighter for failing to comply with that requirement. Cannici v. Village of Melrose Park, 2019 IL App (1st) 181422-U.

Cannici, a firefighter in Melrose Park, purchased a duplex in Melrose Park in 2000, about the same time he began working at the Village. He continued to live there with his wife and two children until 2008, when he purchased a home in Orland Park. His wife and two children moved into the new home, and he claims he stayed in the Melrose Park duplex and visited his family in Orland Park on the weekends. For a couple of years, he attempted to sell the Melrose Park house but a sale never happened. Instead, he entered into a lease to rent out the home in 2013 to another family who stayed until 2016.

In 2016, the Village sought to terminate Cannici for violating the residency requirement. The Board of Fire and Police Commission held a hearing, heard testimony from Cannici, and at the conclusion of the hearing, voted to terminate Cannici, finding that he had abandoned the Melrose Park residency when he leased the home in 2013. Cannici sued to challenge the Board's decision. The circuit court upheld the Board's decision to terminate, and he appealed to the First District Appellate Court. 

On appeal, the Appellate Court first reviewed the municipal ordinance requirement and held that the ordinance clearly defined "residency" for purposes of the employment residency requirement to require a village employee to occupy a dwelling place used as a home as the employee's principal place of residence and abode. In this case, the court found that Cannici did not occupy the Melrose Park home for three years while it was being rented out, and his primary residency and abode was in the Orland Park home where his family lived.  The court rejected Cannici's argument that the court should have applied the residency test used by the Appellate Court in the Maksym case involving the challenge to former Chicago Mayor Emanuel's residency, which examined the person's intent to return to the home. The court acknowledged that the court in the Maksym case had to craft a definition of residency because the statute at issue in that case (residency for purposes of eligibility for municipal office) did not define "residency." Here, however, the court noted that Melrose Park's ordinance at issue did, in fact, define residency, and that definition required actual occupancy rather than intent.

Municipalities with residency requirements may want to look at their own ordinances to determine whether they have a clear definition of residency, as that could be helpful in defending any challenge to the application of the ordinance.

Monday, June 10, 2019

Quorum Forum Podcast 25: Recreational Cannabis

There is a lot of information available in news articles, blogs, and social media about the recreational cannabis legislation recently passed by Illinois, which is awaiting the Governor's signature. For those of you who want to learn more, or just prefer to "hear" your news, we've put together a Quorum Forum podcast episode on the legislation.  More information below:

The Illinois General Assembly recently approved recreational cannabis and, with the Governor’s expected signature, the new law will bring sweeping changes for local governments and employers. Ancel Glink’s Adam Simon and Matt DiCianni discuss questions local governments will have about cannabis business regulations, personal use, possession, home cultivation, state and local taxes, prosecutions, expungements, and more! We also discuss how recreational cannabis will affect employers and employees in the workplace. 

Questions about the new law? Do you know who might have climbed in to our podcast studio? Email us at podcast@ancelglink.com.

Disclaimer: This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer.

Thursday, June 6, 2019

Illinois Levels the Playing Field for Internet Sales Taxes

Last June, we posted about a Supreme Court decision that eliminated the requirement that a retailer have a physical presence in a state for it to be subject to the assessment of sales taxes. After the Wayfair decision, Illinois adopted Public Act 100-0587 amending the Use Tax Act and Service Use Tax Act to incorporate language to tax Internet transactions. Unfortunately for municipalities, the Use Tax and Service Use Tax is not distributed to municipalities based on the point of sale or point of delivery, but on a per capita basis. So, while Illinois has been taxing Internet transactions, this was not the golden goose many communities had hoped for when the Wayfair case was decided.

Now, Illinois municipalities can truly celebrate. In the flurry of legislative activity over the weekend, monumental changes to Illinois’ sales tax laws were adopted (pending the Governor’s approval) in SB 690, including a new law called “Leveling the Playing Field for Illinois Retail Act.” As its name indicates, the purpose of the law is to facilitate the payment and collection of sales taxes from “remote retailers,” including Internet sales.

Significant to municipalities, the bill would now require the payment of the Retailers’ Occupation Tax and eliminate the payment of Use Tax or Service Use Tax on such sales, effective July 1, 2020. That means these sales taxes will now include the 1% local share. Not all Internet sales are subject to a tax under the law. A remote retailer is only responsible for paying a tax (and therefore collecting it from purchasers) if (1) the cumulative gross receipts from sales to purchasers in Illinois are $100,000 or more; or (2) the retailer enters into 200 or more separate transactions with purchasers in Illinois.

Another change worth noting is that the taxing jurisdiction that will receive the local tax is determined based on where the purchase is shipped or delivered. This is a “point of delivery” rule, which is different from the “point of sale” rule that applies to in-state transaction.

In addition to the changes described above, the bill directs the Illinois Department of Revenue to designate certified service providers who will perform the tax collection function for remote retailers and to create automated software systems to simplify the tax collection process. Part of the software system will include an electronic, downloadable database which (1) classifies the taxability of each type of personal property, (2) defines the tax rates for each jurisdiction in the State, and (3) assigns delivery addresses to each taxing jurisdiction. With any luck, this should create a turnkey solution to help remote retailers comply with the obligation to pay sales tax on transactions with Illinois residents.

As we continue to review the legislation, and any Department rules to implement these changes, we will provide updates on whether municipalities need to amend their local tax ordinances to capture their local sales taxes on remote transactions in addition to the local share of the State sales tax.

Post authored by Adam Simon

Wednesday, June 5, 2019

Police Scheduling Calendar Subject to FOIA

The PAC issued its fifth binding opinion in 2019 last week in PAC Op. 19-005. In this opinion, the PAC found the Chicago Police Department in violation of FOIA for denying a request for release of "extradition calendars." 

CPD personnel who work in the field services section on prisoner extradition matters put together a working schedule calendar containing various assignments to assist the officers and their supervisors in keeping track of court dates and related activities in the department. In response to a FOIA request for a copy of the calendar, the CPD denied the request, citing 7(1)(f), which exempts draft or predecisional documents from release.  The CPD argued that the calendar was created by the officers, not the CPD itself, and that the calendar was constantly updated based on evolving schedules. The requester filed an appeal with the PAC, which rejected the CPD's basis for denial, finding the extradition calendar to be releasable under FOIA. Specifically, the PAC stated that because the calendar was purely factual in nature, it did not fall under the "deliberative process" exemption under 7(1)(f).

Tuesday, June 4, 2019

Illinois General Assembly Passes Recreational Marijuana Bill

The Illinois General Assembly was quite busy last week, passing legislation legalizing the recreational use of marijuana, expanding gambling, putting forth a ballot question on modifying the state income tax provisions of the Illinois constitution, passing a budget, among many other bills. It is expected that Governor Pritzker will sign these bills into law. 

Although all of these will have an impact throughout the state, the legalized marijuana bill (HB 1438) may have the most impact on local governments. We had reported previously on an earlier draft of the recreational marijuana bill but the bill that passed both houses was substantively changed from that first bill. 

The bill allows state residents over the age of 21 to possess up to 30 grams of cannabis beginning January 1, 2020. Personal cannabis use will be allowed in most private residences, but not in prohibited areas including any public place or in close physical proximity to underage persons. An earlier proposal allowed households to grow up to five cannabis plants, but this new law would limit home cultivation to medical cannabis patients.

So, how does the bill affect local governments?

Will your Community Allow Cannabis Businesses?
The bill allows local governments to ban or significantly limit cannabis businesses in their jurisdiction, including dispensaries, cultivation centers, craft growers, processing organizations, and transportation organizations. Unlike in earlier proposals, the new law would not impose a time limit or require a referendum to adopt these restrictions.

How will your Community Regulate any Allowed Cannabis Businesses?
The bill allows local governments to adopt (1) reasonable zoning ordinances that do not conflict with the Act; and (2) ordinances and rules governing the time, place, manner, and number of cannabis businesses consistent with the Act.

Will your Community Allow Cannabis Lounges?
The bill grants local governments broad authority to authorize and regulate privately-owned facilities where cannabis and cannabis products may be consumed on-site (i.e., “cannabis lounges”) similar to hookah lounges.

Will Your Community Tax Recreational Cannabis?
Both home rule and non-home rule municipalities can adopt ordinances to impose a local tax on the operation of a cannabis dispensary. The rate of tax cannot exceed 3% of the dispensary's gross receipts from the sale of non-medical cannabis. If imposed, the tax may only be imposed in 0.25% increments. The tax will be collected and enforced by the Department of Revenue, which is entitled to retain 1.5% of the amount distributed to each municipality as an administrative fee.

How will your Community Engage in Crime Prevention?
In a change from prior proposals, the Cannabis Regulation Fund will now transfer 8% of the state tax revenue to the Local Government Distributive Fund (LGDF) to fund crime prevention programs, training, and interdiction efforts, including detection, enforcement, and prevention efforts, relating to the illegal cannabis market and driving under the influence of cannabis.

How will your Community Prosecute Cannabis Use and Possession?
While local ordinances cannot prohibit home cultivation for medical use or unreasonably prohibit personal cannabis use, local governments can regulate these activities consistent with the Act and should consider adopting ordinances enforceable through municipal prosecutions.

What Law Enforcement Records Should be Automatically Expunged?
In a significant change from prior proposals, expungements will now take place in three different processes: petitions (for Class 4 felonies), pardons from the Governor, and automatic expungements (for offenses of simple possession of no more than 30 grams, in certain circumstances). Many of the records will relate to municipal code violations, which will be required to be expunged according to a schedule described in the bill that will give municipalities until January 1, 2025 to expunge records that precede January 1, 2000.

How will you Manage Recreational Cannabis and your Employees?
Employers will likely want to update their personnel policies once the new law becomes effective. Employers will have the authority to adopt zero tolerance policies or other policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace provided that the policy is applied in a nondiscriminatory manner. In addition, employers will have the power to discipline or terminate an employee for violating an employer’s employment policies or workplace drug policy, subject to an appeals process. An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks. Additionally, the law prohibits discrimination against employees for use of “lawful products” like cannabis during nonworking and non-call hours.

Monday, June 3, 2019

City’s Sign Restrictions Not Enforceable

Lawrence Willson, a homeowner in Bel-Nor, Missouri, displayed three free-standing stake-mounted signs in his front yard. One sign stated “Black Lives Matter,” and had been in his yard since 2014.  The other two signs (which had been in place since 2016) stated “Clinton Laine,” and “Jason Kander U.S. Senate.” Each of the signs was approximately 18 by 24 inches in size. In 2017, the City issued a citation for violation of a local law restricting homeowners from displaying more than one “stake-mounted” sign at a time, among other restrictions.

Willson subsequently sued the City, claiming the City’s ordinance violated his free speech and other constitutional protections. The district court ruled in the City’s favor, finding the ordinance was content-neutral and narrowly tailored to address the City’s interests in aesthetics and traffic safety.

On appeal, however, the 8th District Court of Appeals blocked Bel-Nor from enforcing its sign law. Citing the U.S. Supreme Court’s ruling in Reed v. Town of Gilbert, the court noted that “content-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” In this case, the 8th District found a provision in the City’s ordinance that treats signs and flags differently, depending on their content, problematic. Specifically, the court noted that whether a particular “fabric” is a sign or a flag under the City’s ordinance depends on the “topic discussed or the idea or message expressed.” Since the topic or message of the sign/flag determines whether a sign or flag is prohibited by the ordinance, the ordinance is a “content-based” regulation under the Reed case, and the court found that the City could not show a compelling government interest to justify the regulation.

To read Willson v. City of Bel-Nor, click here.

Post Authored by Megan A. Mack and Julie Tappendorf

Thursday, May 30, 2019

Bill Would Modify 90 Day Statute of Limitations for Zoning Lawsuits

Municipalities should be aware of a new bill recently introduced that, if passed, would affect the finality of municipal zoning decisions. The bill was not previously on our radar as it was slipped in as Senate Amendment No. 3 to a water reclamation bill.

Senate Amendment 3 to HB 2862 would amend the Zoning Enabling Act to exempt lawsuits that challenge the facial validity of a municipal zoning decision from the otherwise applicable 90 day statute of limitations. Currently, if someone wants to challenge the validity of a zoning decision, including a special use, variation, rezoning, or zoning text amendment, they must bring their lawsuit within 90 days of the zoning decision. This change would eliminate the 90 day time limitation for facial challenges to zoning decisions, leaving these open to challenge well beyond the 90 day period.

Some municipal organizations are actively opposing this legislation, expressly concerns about how it would eliminate the important finality to zoning decisions that the current 90 day statute of limitations provides.

Wednesday, May 29, 2019

County Hotel Tax Bill Introduced

A new bill was introduced yesterday in the Illinois House that would authorize a county with more than 800,000 but less than 3,000,000 residents (DuPage County) to impose a hotel tax within incorporated areas of the county (i.e., in cities and villages) that have also adopted a municipal hotel tax. Currently, counties can only impose a hotel tax in unincorporated areas of the county. HB 3846. So, if this passes, hotels that are located in cities and villages in DuPage County that already impose a hotel tax used for tourism or economic development purposes would be subject to both a municipal and county hotel tax.

Thursday, May 23, 2019

Illinois Supreme Court Upholds Chicago's Food Truck Ordinance

We have reported previously on a lawsuit filed against the City of Chicago challenging its food truck ordinance that prohibits food trucks from being located within 200 feet of a "brick and mortar" restaurant. The trial and appellate courts ruled in favor of the City, upholding the ordinance. The case made its way to the Illinois Supreme Court, which issued its ruling this week also upholding Chicago's food truck ordinance. LMP Services v. City of Chicago, 2019 IL 123123

The City of Chicago adopted its food truck ordinance in 2012. The ordinance imposed a number of restrictions on food trucks, including a prohibition on any food truck being located within 200 feet of "any principal customer entrance to a restaurant which is located on the street level." The ordinance was subsequently amended to add exceptions for food trucks participating in the "mobile food vehicle stands program," where the City reserved certain designated areas on City streets where food trucks are permitted to operate without being subject to the 200 foot rule. The amendment also added a "GPS requirement" that requires food trucks to install a permanent GPS device to send data to a service provider.

LMP, the owner of the "Cupcakes for Courage" food truck, filed a lawsuit to challenge the City's food truck ordinance. Specifically, LMP claimed the 200 foot rule violates the equal protection and due process clauses because it favors traditional restaurants over food trucks. LMP also challenged the GPS requirement as an unreasonable search.

The trial court ruled in favor of the City, finding that it had a legitimate City interest in imposing the 200 foot rule. The court also rejected the challenge to the GPS requirement, finding that it was not unreasonable under the constitution. The appellate court agreed, also noting that the City has a legitimate interest in protecting traditional restaurants and the 200 foot restriction was not unreasonable.

The Illinois Supreme Court first acknowledged that both traditional restaurants and food trucks are important businesses to the City; however, the Court noted a few key differences, including the fact that the traditional restaurants pay property taxes and have a vested interest in the neighborhoods in which they are located. As a result, the City has a legitimate governmental interest in the stability of traditional restaurants and neighborhoods that justifies the differential treatment (i.e., the 200 foot rule). 

The Court also addressed the challenge to the GPS requirement, finding that it did not constitute an unconstitutional "search." The GPS data was not transmitted directly to the City, nor was it publicly accessible. Nor had the City actually requested location data from any of the food truck service providers. The Court noted that even if the GPS requirement was a "search", it was not unreasonable because there is a government interest in knowing a food truck's location, for purposes of regular inspections and in case of public health emergencies. 

In short, the Illinois Supreme Court rejected LMP's challenge to the food truck ordinance, and upheld the ruling in favor of the City.

Court Addresses FOIA Request for Grand Jury Records

In a recent appellate case, a court addressed whether records relating to a grand jury must be disclosed under FOIA. Williams v. Bruscato, 2019 IL App (2d) 170779.

Williams was convicted of first degree murder in a Winnebago county court in 1998. In 2014, he sent a FOIA request to the Winnebago County jail seeking the following records: (1) all "no-bills" and "true bills" of indictment for May 7th and 14th, 1997; (2) the grand jury's deliberation and vote for May 14, 1997 in People v. Williams; and (3) the itinerary sheet for all "no bills" and "true bills" for May 7th and 14th, 1997. the States Attorney denied the FOIA request, citing the Illinois Criminal Code of Procedure as prohibiting release of any records that pertain to grand jury proceedings.

Williams appealed, and his appeal made its way to the Illinois appellate court, which upheld the States Attorney's denial of his FOIA request, with one exception.

With respect to the request for release of "no bills," the appellate court agreed with the States Attorney that those records are exempt, holding that the disclosure of "no bills" would expose innocent persons who had been exonerated by the grand jury. The court noted that these records have never been placed in the public record, so they could not even be properly redacted and are exempt in their entirety.

As to the request for release of "true bills," the appellate court found that true bills are a matter of public record because they are filed in open court. However, the court held that the identities of witness names contained in a true bill would expose matters that occurred before the grand jury, and are exempt from disclosure. As a result, the court ordered release of the requested true bills with the witness names redacted.

Finally, as to the request for the deliberation and vote of the grand jury on Williams' indictment, the court held that state law expressly states that the grand jury deliberations and vote are to be kept secret. Thus, the court upheld the States' Attorney's denial of these records.

In sum, to the extent that records relating to a grand jury proceeding have not been filed in open court, they are likely to be exempt from disclosure under FOIA under the Illinois Criminal Code of Procedure.

Wednesday, May 22, 2019

PAC Says Board Violated "Public Recital" Provision of OMA

Recently, the PAC issued its fourth binding opinion of 2019, finding a public body in violation of the Open Meetings Act for failure to provide an adequate public recital of the business being conducted before taking final action on a resolution. PAC Op. 19-004.

On January 28, 2019, at a Pinckneyville school district board meeting, the board voted on "Resolution 2019-1 authorizing a Notice to Remedy." Shortly thereafter, a newspaper reporter filed a complaint with the PAC arguing that the board did not give any public details about the resolution prior to voting on it. The PAC contacted the school board for a response, and the school board provided copies of the agenda, minutes, closed session recording, resolution, and the "Notice to Remedy." The school board attorney explained to the PAC that the resolution number and title were read aloud prior to the board voting on the resolution, as reflected in the minutes of the meeting. 

In analyzing the complaint, the PAC acknowledged that the Illinois Supreme Court had issued an opinion holding that the "public recital" requirement of the OMA does not require the board to explain the terms or significance of the item being voted on but must announce the nature of the matter. Bd. of Ed. of Springfield Sch. Dist. No. 186 v. Attorney General. You may recall that we reported on that Illinois Supreme Court decision previously. Nevertheless, the PAC found that in this case, the school board violated the OMA because it failed to disclose enough detail about the resolution prior to voting on it, including disclosing the name of the teacher being served with the Notice to Remedy).

It is difficult to square this opinion with the Illinois Supreme Court's ruling in the Springfield case. In overturning an earlier PAC opinion that a Springfield school district must engage in discussion and disclose the terms and details of a matter prior to voting on it, the Supreme Court made it clear that "public recital" does not require some level of detail or a summary of the events leading up to the vote. Nor does it require the public body to explain the significance of the action. Instead, it requires the public body to "state the essence of the matter under consideration, its character, or its identity." In the case at issue in PAC Op. 19-004, the Pinckneyville board identified the matter being approved (a resolution), and the character or nature of the resolution (to approve a Notice to Remedy). Nowhere in the Supreme Court's ruling does it seem to require disclosure of the employee's name to satisfy the "public recital" requirement of the OMA. The apparent inconsistency between the Illinois Supreme Court's ruling in the Springfield case and the PAC's opinion in PAC Op. 19-004 makes it difficult for public bodies to understand what type of detail the board must go into prior to taking a vote. 

Since this is a binding opinion, it can be appealed by the Pinckneyville school board - we will keep you posted if this case goes any further. 

Thursday, May 16, 2019

Reminder: Prevailing Wage Act Changes Take Effect June 1

About this time each year, Illinois public bodies begin putting together their annual prevailing wage ordinances or resolutions to present to their boards and councils for approval in June so the ordinance or resolution can be filed with the Department of Labor by the July 15th statutory deadline of the Prevailing Wage Act. Not this year, though. As we reported previously, the Illinois General Assembly enacted P.A. 100-1177 to amend the Prevailing Wage Act to eliminate the requirement that public bodies adopt an ordinance or resolution to "ascertain" prevailing wages. That new law takes effect June 1, 2019, just in time to eliminate this year's requirement of adopting an ordinance or resolution.

Moving forward, instead of every public body adopting an ordinance or resolution ascertaining prevailing wages, the Department will ascertain the prevailing wage for them. Of course, the underlying statutory requirement that public bodies pay prevailing wages for work covered by the Act still exists, but the annual obligation to adopt a prevailing wage ordinance or resolution will be eliminated on June 1st.

Tuesday, May 14, 2019

GovLove Podcast on Regulating Public Rights of Ways

Check out Ancel Glink Partner Dan Bolin's appearance on #GovLoveLegal, a GovLove podcast hosted by ELGL and recorded live at the 2019 APA National Planning Conference. A description of the podcast is below and you can listen to the podcast here.  
GovLove was recently at the National Planning Conference for a session all about right-of-way. Local governments hold the public right-of-way in trust for the benefit of the public; but rapid changes in technology, federal policy, and constitutional law are increasing demands for services and challenging local regulatory authority. Experienced local government attorneys, and industry professionals discuss best practices for right-of-way management in the face of emerging challenges. Panelists include: Alan Weinstein, Cleveland State University; Alicia Giudice, San Rafael, CA; Brandon Bordenkircher, Chaddick Institute for Metropolitan Development; Daniel J. Bolin, Ancel Glink; Gail A. Karish, Best Best & Krieger LLP; and Isidro A. Jimenez, San Francisco, CA.

Thursday, May 9, 2019

Village Did Not Breach Contract by Failing to Disclose County Permit Requirements

According to a recent Illinois case, the issuance of a building permit does not create a contract between an applicant and a municipality.  In 2008, Paul and Dana Mosier obtained a building permit from the Village of Holiday Hills to construct a garage, patio, and driveway on their property.  Five years later, the Mosiers were sued by McHenry County for constructing improvements within a regulatory flood-prone area without a County stormwater management permit.  In turn, the Mosiers sued the Village for breach of contract and violations of the Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud Act”). 

Mosiers claimed the Village’s building inspector breached an "oral contract" with them when he advised they undertake certain structural improvements, issued a building permit, but failed to notify them of the County’s permit requirements. In addition, the Mosiers claimed the building official violated the Consumer Fraud Act because he induced them to construct the improvements and knowingly made false statements.

In Mosier v. Village of Holiday Hills, the court ruled in favor of the Village on both claims.  First, it deemed a building permit more similar to a license than a contract because, similar to a license, a municipality has the power to impose restrictions and revoke building permits pursuant to its police powers. Second, when an applicant qualifies for a building permit, a municipality is required to issue it without receiving any “consideration” in return (other than the permit fee which pays for its costs).

The court also found the Consumer Fraud Act inapplicable. The Act is intended to prevent deceptive behavior during a transaction “involving trade or commerce” involving such things as advertising, offers for sale, or distribution of services or property. According to the court, instead of being a private commercial activity, the issuance of a building permit is a municipality’s fulfillment of its regulatory and statutory functions in accordance with state law and local ordinance.

Post Authored by David Warner, Ancel Glink

Wednesday, May 8, 2019

How Will Recreational Marijuana Affect Illinois Local Governments?

On May 4, 2019, Governor Pritzker and key legislators unveiled a long-anticipated proposal to legalize the use of cannabis for adults over the age of 21 under Illinois law (Amendment No. 1 to SB 7). The proposed law would allow residents over the age of 21 to possess up to 30 grams of cannabis and grow up to five plants per household. The Act prohibits the use of cannabis in public places including government buildings. 

While the draft legislation might be amended and still has to be approved by the General Assembly, it is not too early for local governments to prepare for the proposed law's sweeping changes affecting cannabis business establishments, including land use/zoning, tax revenues, employee policies, expungement obligations, among others. We can't possibly go into everything that is in the 533 page bill, but we have provided a brief summary of some of the provisions that affect units of local government below.

One Year to Prohibit Cannabis Business Establishments
The draft legislation contains a provision that will allow local governments to "opt-out" or entirely prohibit cannabis business establishments in their jurisdiction, including dispensaries, cultivation centers, craft growers, processing organizations, and transportation organizations. However, any "measure prohibiting or significantly limiting" the location of cannabis businesses has to be adopted within one year of the effective date of the Act. After this one-year period has expired, local governments will have to seek approval by referendum to adopt any prohibition or significant limitation on cannabis businesses.

Regulate Cannabis Businesses
The current bill allows local governments to regulate cannabis businesses but only to a certain extent. The bill allows local governments to adopt (1) reasonable zoning ordinances that do not conflict with the Act or unreasonably prohibit home cultivation and use of cannabis; (2) ordinances and rules governing the time, place, manner, and number of cannabis businesses; and (3) regulations on the consumption of cannabis in a manner consistent with the Act.

This language would permit local governments to impose distance restrictions between cannabis businesses and other sensitive uses and locations, limit the hours of operation of cannabis businesses, or set a cap on the number of cannabis businesses allowed within the jurisdiction. The current bill also expressly allows local governments to regulate cannabis businesses through the use of conditional (special) use permits. While the bill allows local governments some regulatory authority, the bill prohibits local governments from regulating cannabis businesses in a more restrictive manner than allowed under the Act. Importantly, this prohibition includes an express home rule preemption. 

Employment Policies and Workplace Drug Policies
Under the current bill, employers will have the authority to adopt reasonable and nondiscriminatory employment policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace. In addition, employers will have the power to discipline or terminate employment of an employee for violating an employer's employment policies or workplace drug policy. The Act also establishes when an employer may consider an employee to be under the influence of cannabis. 

Municipal Cannabis Sales Tax
Under the current bill, both home rule and non-home rule municipalities can adopt ordinances to impose a local tax on the operation of a cannabis dispensary. The rate of tax cannot exceed 3% of the dispensary's gross receipts from the sale of non-medical cannabis. If imposed, the tax may only be imposed in 0.25% increments.

Expungement of Local Records and Offenses
The initial procedure for expunging criminal records will be handled by the Illinois State Police (ISP) as well as the State's Attorneys Office. However, local law enforcement will have to automatically expunge records pertaining to arrests for minor violations identified by the Department of State Police within 60 days of notice from ISP. 

SB 7 is only a proposal at this time and still needs to pass both the Illinois House and Senate and be signed by the Governor before it becomes law. However, it is important to note that the current draft state budget includes cannabis revenue, so, it is expected that the General Assembly will move fairly quickly to consider passing legislation. 

Monday, May 6, 2019

PAC Releases Annual OMA/FOIA Report of 2018 Activities

"Sunshine Week" came and went this year without any fanfare from the Illinois Attorney General's office. Typically, that is when the Public Access Counselor (PAC) publishes its annual report on OMA and FOIA complaints and training sessions. Although I didn't see any press about the release of the 2018 annual report, it was issued and you can find a copy of the report on the AG's website here.  

As we have in the past, we've highlighted some of the findings and summaries here in case you don't want to read through 39 pages of the full report.

Complaints filed in 2018

  • In 2018, the PAC received 3,748 "requests for review" of OMA and FOIA matters.  
  • 3,372 of these were related to FOIA
  • 376 relating to the Open Meetings Act

Training sessions conducted in 2018

The PAC conducted 32 training sessions on OMA/FOIA

Binding opinions issued in 2018

The PAC issued 18 binding opinions in 2018.  Regular readers know that we summarize the binding opinions on Municipal Minute. You can find summaries of the first 16 binding opinions issued in 2018 here and the last 2 binding opinions for 2018 here. They are also posted on the AG's website here.

Non-binding opinions issued in 2018

Interestingly, this year's annual report does not identity how many advisory opinions were issued in 2018.  Given that there over 3700 complaints filed in 2018, and only 18 binding opinions issued in 2018, one can guess that there were hundreds, if not thousands, of advisory opinions issued - either that, or a significant number of these complaints remain unresolved. 

So, where can one find all of these advisory opinions?

Well, as regular readers know, the PAC does not post the non-binding or advisory opinions on the AG's website. The only way to get access to these opinions is to file a FOIA request with the PAC or AG. The problem, of course, is that there are just so many advisory opinions. How does a requester narrow the request sufficiently to avoid an "unduly burdensome" claim by the PAC, a task that can prove very difficult if a requester doesn't have an idea of the topics addressed in these opinions since the PAC hasn't posted an index of these opinions. 

A handful of these advisory opinions are summarized in the annual report, so that is a helpful resource. But, I still remain hopeful that at the very least, the PAC will put together and post on its website an index of these advisory opinions to make it easier for the public and public bodies to request copies of opinions of interest. It would be a step in the right direction by the office tasked with ensuring government operates transparently.  And, it would offer a lot in the way of helpful guidance to public bodies in ensuring compliance with FOIA and OMA, particularly because there are so very few binding opinions issued each year (only 3 so far in 2019).

Thursday, May 2, 2019

Happy Birthday Quorum Forum! Podcast Episode 24 - Local Government Procurement

It’s Quorum Forum podcast’s first birthday party! We’re celebrating with the release of a new episode Episode 24: Local Government Procurement.

In this episode, Ancel Glink attorney David Warner will summarize recent annexation cases from Municipal Minute. Then, Ancel Glink attorney Derke Price reviews what newly (and not-so-newly) elected officials need to know about local government procurement. 

Questions about purchasing goods and services? Happy birthday wishes? Email us at podcast@ancelglink.com!

Tuesday, April 30, 2019

Follow Up on New Human Trafficking Notice Law

As we recently reported, amendments to the Human Trafficking Resource Notice Act require organizers of a public gatherings or special events on property open to the public that require the “issuance of a permit” from a unit of local government to post required notices to assist victims of human trafficking.

It's important to note that this new law also comes with new enforcement powers for local governments. While the Department of Labor was previously responsible for enforcement of the Act, now enforcement is up to the “governmental entity regulating a business or establishment and local law enforcement agency having jurisdiction...” In most cases, the enforcing authority will be a municipality or other unit of local government.

These new enforcement powers come with some practical problems. 

First, the phrase “public gathering or special event that is conducted on property open to the public and requires the issuance of a permit” is somewhat ambiguous. Based on the Act's emphasis on “public gathering” and “open to the public,” it seems that the law would only apply to events open to the general public, and not to private events such as a family celebration in a park district pavilion.

Second, although the Act specifically refers to events that require a "permit," it isn't clear whether that also extends to events that simply require local government approval or permission without the formality of a permit process.

Finally, the law requires local governments to give reasonable notice of a violation and a 30-day cure period before the Attorney General or State’s Attorney can prosecute violations and seek fines under the Act. But, it's likely the event will be over long before the 30-day cure period expires.

As a result, local governments interested in enforcing the notice requirement may wish to address these practical issues by ensuring that organizers of these events are on notice of the new requirements. That might include incorporating language into permit applications about the new notice requirements, and even requiring applicants to acknowledge when the Act applies to their events and that failure to post required notices will be subject to enforcement.

Post Authored by John Reding & Julie Tappendorf, Ancel Glink