New Liquor Law for 2022

New Liquor Law for 2022

  Friday, December 10, 2021    Julie Tappendorf

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P.A. 101-0668 preempts the authority of home rule and non-home rule units (except for Chicago) to restrict certain state-authorized liquor deliveries effective January 1, 2022. 

“Delivery” means the movement of alcoholic liquor purchased from a licensed retailer and delivered to a consumer through:

1. delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;
2. delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or
3. delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers such as buses or trains. 

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

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New Land Use & Economic Development Laws for 2022

New Land Use & Economic Development Laws for 2022

  Thursday, December 09, 2021    Julie Tappendorf

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Over the next week or so, we will summarize some of the new laws that are taking effect in 2022 that will be of interest to local governments. For those of you who follow our Quorum Forum Podcast, you have already heard about some of these.

Today's post focuses on new laws that affect zoning, land use, and economic development:

P.A. 102-0078, or Hayli’s Law, prohibits local health departments and public health districts from regulating lemonade stand sales by a person under the age of 16. We previously wrote about this new law here.

P.A. 102-0180 permits any person to cultivate vegetable gardens on their own property. The purpose of the Act is to encourage the cultivation of fresh fruit and produce at all levels of production, including on residential property for personal consumption. Under the law, a vegetable garden is any "vegetable garden" means any plot of ground or elevated soil bed on residential property where vegetables, herbs, fruits, flowers, pollinator plants, leafy greens, or other edible plants are cultivated. There is a home-rule restriction that states that home rule units may not regulate vegetable gardens in a manner inconsistent with the Act. Restrictions may still be made on the basis of height, water use, fertilizer use, or other characteristics. We previously reported on this Act here.

P.A. 102-0098 opens at least 50 new state licenses for adult-use cannabis dispensaries over the course of 2022. Five of the licenses will be issued through a social equity program aimed at issuing licenses to a “disproportionately impacted area.” Those areas meet certain statutory criteria such as having 20% of households receiving assistance under the Supplemental Nutrition Assistance Program or an unemployment rate more than 120% the national average. The Act sets January 1, 2022 as the deadline for the Department of Agriculture to publish an application to issue additional Conditional Adult Use Dispensing Organization licenses.

P.A. 102-0108 will expand the Illinois Enterprise Zone Act to authorize 97 (instead of 12) enterprise zones to be certified in a calendar year. The Act also provides that at least 25% of zones available for designation must be awarded to zones in counties with populations under 300,000. For those zones set to expire before 2024, the application process begins five years prior to expiration. Expiring zones may reapply, but other areas may compete for the designation.

The amendment also implements new consequences for zones failing to file reports of any capital investment, job creation or retention, or state tax expenditures for three consecutive years. After the Department of Commerce notifies the chief elected official of the county or municipality that is not compliant, the Department will place the county or municipality on probationary status for at least 6 months. If corrective action is not achieved during the probationary period, the Department will decertify the zone.

P.A. 102-0127 amends TIF reporting requirements. Beginning in FY-2022, municipalities that submit the required TIF reports will also be required to report to the State Comptroller the following: (1) the number of jobs projected to be created for each redevelopment project area at the time of approval of the redevelopment agreement; (2) the number of jobs, if any, created as a result of the development to date for that reporting period under the same guidelines and assumptions as was used for the projections used at the time of approval of the redevelopment agreement; (3) the amount of increment projected to be created at the time of approval of the redevelopment agreement for each redevelopment project area; (4) the amount of increment created as a result of the development to date for that reporting period; and (5) the stated rate of return identified by the developer to the municipality for each redevelopment project area, if any.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

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Court Issues Injunction Against Texas Law Restricting Social Media Platform Moderation

Court Issues Injunction Against Texas Law Restricting Social Media Platform Moderation

  Wednesday, December 08, 2021    Julie Tappendorf

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Many of you may have been following the law adopted by the State of Texas legislature prohibiting censorship by social media companies like Facebook, Twitter, and others which was the subject of a recent federal lawsuit. The court issued an initial ruling in that case recently, which "stayed" enforcement of the law for now.  Netchoice LLC v. Ken Paxton.

HB 20 makes it unlawful for a “social media platform” (like Facebook, Twitter, etc) to censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: 

(1) the viewpoint of the user or another person;

(2) the viewpoint represented in the user’s expression; or

(3) a user’s geographic location in this state or any part of this state. 

HB 20 carves out two content-based exceptions to the law's broad prohibition: 

(1) platforms may moderate content that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment,” and 

(2) platforms may moderate content that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” 

The law authorizes a user who believes a platform has improperly “censored” his or her viewpoint to sue the platform and obtain attorney’s fees. In addition, the Attorney General of Texas can “bring an action to enjoin a violation or a potential violation” of HB 20 and recover its attorney’s fees.

Two trade associations with members that operate social media platforms that would be affected by HB 20 sued the Attorney General for the State of Texas claiming the law violates a variety of constitutional protections, including First Amendment free speech rights and the Fourteenth Amendment’s due process and equal protections clauses, among other claims.

The the court ruled that plaintiffs were entitled to a preliminary injunction to "stay" the law from taking effect. The court held that the plaintiffs had demonstrated a likelihood of success on the merits of their First Amendment claim that the law violated their members' free speech rights. Specifically, the court determined that social media platforms have First Amendment rights to moderate content that is posted and disseminated on their own platforms. The court held that HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment. The court noted that these platforms have policies against content that express a viewpoint and that disallowing them from applying their own policies requires platforms to “alter the expressive content of their message.” The court found that because the law would substitute the government's editorial discretion for the private companies over the social media platforms that these companies operate and moderate, it constituted viewpoint discrimination under the First Amendment. The court also found the law to be discriminatory and unconstitutionally vague.

In sum, the court denied the State's motion to dismiss the legal challenge to the Texas law and granted injunctive relief to "stay" enforcement of the law while the challenge proceeded through the court.

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Town Employee's Termination Did Not Violate the First Amendment

Town Employee's Termination Did Not Violate the First Amendment

  Tuesday, December 07, 2021    Julie Tappendorf

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The U.S. Court of Appeals for the Seventh Circuit recently issued a decision in Sweet v. Town of Bargersville and Longstreet. The case involved a customer service employee for the Town of Bargersville who was discharged in January 2018. The employee brought civil rights claims against the Town alleging she was fired in retaliation for exercising her free speech rights under the First Amendment. 

Sweet was employed by the Town of Bargersville for nearly 20 years and claims she performed her job adequately until her primary duty—collecting utility bill payments—was outsourced in 2015. She then transitioned into a general customer service role and her performance reviews then stated she was argumentative, resistant to change, and disorganized. In August 2017, Sweet disconnected a resident’s utility services because the resident failed to pay his bills. Shortly thereafter, the Clerk-Treasurer, Steve Longstreet, reconnected the resident’s utilities, which Sweet claims in her lawsuit was motivated by his personal and business affiliation with the resident and the resident’s prominent status in the community. Sweet shared her criticisms of Longstreet and this perceived inequity with co-workers and confronted Longstreet outright.

Shortly after this reconnection incident, Sweet was prohibited from handling disconnections. In January 2018, Sweet was discharged from the Town. The Town stated that the reason she was terminated was because she was not adequately keeping up with the transition to automated systems.

Sweet filed suit in federal court which ruled in favor of the Town and Longstreet—the court found that Sweet could not establish First Amendment retaliation because she failed to show that the decision to terminate her employment was made with retaliatory motive. On appeal, the Seventh Circuit agreed with the district court's ruling but also held that Sweet’s speech was not protected by the U.S. Constitution as required by a First Amendment retaliation claim. Citing Supreme Court precedent, the Seventh Circuit reasoned that “speech that owes its existence to a public employee’s professional responsibilities,” even if not strictly required by the employer, is not protected under the First Amendment. Since Sweet’s criticism of Longstreet was directly related to her job duties as a utility-collections clerk, any perceived adverse action did not violate her free speech rights but was instead a fair response by her employer to a work-related disagreement. 

The Seventh Circuit also noted that Sweet was terminated for multiple performance deficiencies five months after she complained to Longstreet about perceived misconduct. Since Sweet failed to show that her speech was protected or that she was discharged for exercising her First Amendment rights, her termination was not unconstitutional.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Quorum Forum Podcast: Ep. 59 New Laws for 2022

Quorum Forum Podcast: Ep. 59 New Laws for 2022

  Monday, December 06, 2021    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast has released a new episode, Episode 59: New Laws for 2022! 

In this episode, Ancel Glink attorneys will share information about many of the new laws that are set to take effect in 2022 that will be of interest to local governments. 

Call the Quorum Forum Hotline (312.601.9185) to tell us your new year’s resolution, or email your questions to podcast@ancelglink.com!

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PAC FOIA and OMA Website Mostly Restored

PAC FOIA and OMA Website Mostly Restored

  Thursday, December 02, 2021    Julie Tappendorf

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After months of being mostly inaccessible, the Public Access Counselor's FOIA and OMA webpages are now mostly up and running, including links to the PAC's binding opinions on FOIA and OMA. What has not yet been restored, unfortunately, is the PAC's OMA and FOIA training module, which according to the website, is being updated. 

I know many local government officials have been waiting for the OMA electronic training to be available, so we will keep you posted as to the status of the electronic FOIA/OMA training. The good news is that you can access the PAC's binding opinions, as well as other PAC FAQs, educational materials, and other guidance that can assist government officials and employees in complying with these two statutes.

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Court Finds First Amendment Violation in Facebook Moderation Case

Court Finds First Amendment Violation in Facebook Moderation Case

  Wednesday, December 01, 2021    Julie Tappendorf

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A federal court in Arkansas issued an opinion a few months ago that may be of interest to governments that operate and moderate social media accounts, especially those that supplement Facebook's filtering settings. Tanner v. Ziegenhorn.

The Arkansas State Police operates a public Facebook page where Tanner posted various comments  that are the subject of this lawsuit. 

The first comment made a disparaging remark against a state trooper ("this guy sucks") that was removed by an officer who administered the page. After Tanner complained, the State Police allowed Tanner to repost the comment and the administrator admitted that the comment should not have been deleted. 

Tanner's second comment criticized another state trooper, accusing him of a crime. That comment was not deleted by the State Police but was hidden after the State Police blocked Tanner for his subsequent actions.

Tanner's third comment consisted of private messages sent through the messenger function in Facebook that were not publicly posted. In these private messages, Tanner accused the State Police of removing other messages he had posted that had included profanity. These private messages included profanity. The State Police blocked Tanner from the Facebook page for these private messages. 

Other comments posted by Tanner contained profanity and were screened out by profanity filters established by Facebook and supplemented by the State Police in its account settings. 

Tanner subsequently sued, claiming the State Police violated his First Amendment rights by deleting his comments and blocking him from posting on the State Police Facebook page.

The court first noted that the State Police had created a public forum when it established its Facebook page. As a result, the court held that the comment section of that page was a designated public forum that is protected under the First Amendment, although the private messaging space was not and, therefore, was not subject to the same protections as the public space. 

In considering the various actions of the State Police in moderating its Facebook page, the court found as follows:

As to the first comment, the court found no violation since the removal was only temporary and the State Police allowed him to repost it. 

However, the court did find that the State Police's blocking of Tanner from its page for posting profanity violated Tanner's First Amendment rights. The court also found that the State Police's decision to add words to Facebook's "filtering" program, (including "pig," "copper," and "jerk," among other words) was impermissible viewpoint discrimination under the First Amendment. In addition, the court found that the State Police's decision to set the Facebook filter for its page to "strong" - the setting Facebook uses to filter (and remove) the most profanity - was not narrow enough for a designated public forum. The court did acknowledge that because the State Police could not control Facebook's community standards which filter out some words that might otherwise be protected speech, any removal of comments through Facebook's actions were not imputed to the State Police. 

There are a few good lessons in this case for administrators of government social media accounts. First, administrators should be cautious in choosing among Facebook's filtering settings given this court's ruling that the State Police's choice to set its filter to "strong" was too broad. Administrators should also consider whether it is necessary to add more words to Facebook's filter given the court's ruling that this action could be considered viewpoint discrimination. If a government entity does decide to block an individual from its social media account, it should ensure that the reasons for the blocking do not implicate free speech rights (i.e., don't block someone solely for criticizing the government, which is one of the highest forms of protected speech). Finally, although a reliance solely on Facebook's "community standards" for filtering words on Facebook does not seem to create a First Amendment issue (at least not from this court's view), as noted above, care should be given if a government wants to supplement the base community standards by adding words to the filter or adopting Facebook's "strong" filter setting.

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Village's Assault Weapon Ban Upheld By Illinois Supreme Court

Village's Assault Weapon Ban Upheld By Illinois Supreme Court

  Monday, November 22, 2021    Julie Tappendorf

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We previously reported on Municipal Minute about an Illinois appellate court decision involving a challenge to the Village of Deerfield, Illinois assault weapon ban. The appellate court had ruled in favor of the Village, upholding the Village's assault weapon ban ordinance. That decision was appealed to the Illinois Supreme Court, which issued its ruling last week. As a result of a divided Illinois Supreme Court, the appellate court's ruling in favor of the Village was affirmed. 

The Illinois Supreme Court opinion is set out in full below:

In this case, one Justice of this court has recused himself, and the remaining members of the court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision (see Ill. Const. 1970, art. VI, § 3). Accordingly, the appeal is dismissed. The effect of this dismissal is the same as an affirmance by an equally divided court of the decision under review but is of no precedential value. See Perlman v. First National Bank of Chicago, 60 Ill. 2d 529, 530 (1975). 

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Court Rules in Favor of Federal Agencies in Federal FOIA Lawsuit

Court Rules in Favor of Federal Agencies in Federal FOIA Lawsuit

  Tuesday, November 16, 2021    Julie Tappendorf

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Over several years, a prisoner submitted hundreds of FOIA requests under the federal Freedom of Information Act to the Federal Bureau of Investigation, the United States Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Prisons. The prisoner's FOIA requests centered around a conspiracy theory that a movement he had joined that had white supremacy ties was an elaborate governmental sting operation. After the agencies either provided responsive redacted records, withheld exempt records, or highlighted that their searches failed to identify responsive records, the prisoner filed a lawsuit alleging that the agencies conducted inadequate searches. The district court ruled in favor of the government agencies, finding that each agency submitted an affidavit from agency personnel detailing the FOIA process and how their searches were reasonably calculated to locate responsive records.

On appeal, the 7^th Circuit Court of Appeals in White v. United States Department of Justice also ruled in favor of the government agencies. The Court of Appeals found that the agency affidavits had a presumption of good faith, and in order to overcome this presumption of good faith, the requester had to to provide evidence that the agencies unreasonably overlooked records that would have been responsive to his FOIA requests. Here, the Court of Appeals determined that White’s speculative, conspiracy-based claims of bad faith searches failed to overcome that presumption because FOIA requires more than just speculation that additional documents exist to overcome the good faith presumption in the agency affidavits.

Although this case discusses the obligations of federal agencies to conduct reasonably diligent searches under the federal FOIA statute and the presumption of good faith given to detailed affidavits from agency officials, this case is relevant for Illinois public bodies, because the Illinois FOIA statute is modeled after its federal counterpart, so Illinois courts often look to federal cases as persuasive authority.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Rules in Favor of County Board in Case Challenging Appointment Authority

Court Rules in Favor of County Board in Case Challenging Appointment Authority

  Monday, November 15, 2021    Julie Tappendorf

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Recently, an Illinois Appellate Court ruled in favor of a County Board in a case deciding who has the authority to appoint officials to fill County elected office vacancies. Kloeppel v. Champaign County.

After the voters approved a change in the government structure of Champaign County, the voters elected the County's first County Executive. When the new County Executive took office, there were vacancies on the County Board and in other election positions that needed to be filled. Consistent with past practice, the County Chairman and County Board took action to fill these vacancies. Shortly thereafter, the County Executive filed suit against the County Board claiming that the County Executive and not the County Board had the authority to fill these elected office vacancies.

The case involved an interpretation of two different statutes regarding appointments in County government. The County Executive argued that the Counties Code gave the Executive the authority to appoint all County officers. The County Board argued that the Election Code gave the County Board the authority to fill vacancies in elected positions such as on the County Board. The trial court ruled in the County Executive's favor and the County Board appealed.

The Appellate Court reviewed the two statutes and ruled in favor of the County Board, reversing the trial court. While the Appellate Court acknowledged that the County Executive has the authority under the Counties Code to make appointments in certain County offices (i.e., boards and commissions), that authority does not extend to appointments to elected office, which the Appellate Court determined was reserved to the County Board Chairman and Board under the Election Code. In sum, the Appellate Court found that the Chairman of the County Board, with the advice and consent of the County Board, has the authority to fill vacancies in County elected offices, not the County Executive.

Disclaimer: Ancel Glink represented the Champaign County Board in this appeal.

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Two More Veto Session Bills Sent to the Governor

Two More Veto Session Bills Sent to the Governor

  Friday, November 12, 2021    Julie Tappendorf

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We reported on a few veto session bills yesterday, and today we report on a bill that, if signed by the Governor, could provide relief to businesses in tax increment financing (TIF) districts that were adversely affected by the COVID-19 pandemic and also provides for an exemption from the State’s parking excise tax for parking facilities operated or owned by municipalities. 

SB 217 amends the Illinois Municipal Code to authorize local governments to provide relief to businesses located within redevelopment areas that have experienced business interruptions or other adverse conditions directly or indirectly attributable to the COVID-19 pandemic and experienced during a statewide disaster declaration regarding COVID-19. These costs can be reimbursed in the form of grants, subsidies, or loans distributed prior to December 31, 2022. 

Municipalities can also establish, by ordinance or resolution, procedures for the payment of the funds, including application procedures, grants or loan agreements, certifications, payment methods and other accountability measures that may be imposed upon participating businesses. 

The bill defines eligible costs of business interruption as decreases in revenue caused by closing or limiting access to the business establishment to prevent the spread of COVID-19 or decreases in revenue caused by decreased customer demand as a result of the COVID-19 public health emergency. 

In addition, the bill also includes an exemption from the State’s parking excise tax for parking garages and areas operated or owned by units of local government – the exemption does not apply if the parking facility is operated by a third party. This amendment will address concerns that were raised by municipalities when the parking excise tax was enacted by the State as to whether this tax applied to commuter lots and other public parking lots owned and operated by government entities. The bill also exempts the purchase of a parking space by a unit of local government for use by its employees, provided that the purchase price is paid directly by the municipality. 

Post authored by Rain Montero, Ancel Glink

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Update on Veto Session Bills Sent to the Governor

Update on Veto Session Bills Sent to the Governor

  Thursday, November 11, 2021    Julie Tappendorf

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After a much-needed vacation, Municipal Minute is back. We have a few recent bills to report on today and tomorrow.

General Assembly Passes Several Bills During Fall Veto Session

The Illinois General Assembly met for its annual Fall Veto Session last month. Despite its name, there were no vetoed bills for the General Assembly to attempt to override—instead, members considered and passed several new bills which will be sent to Governor Pritzker for consideration.

SB 1169 Would Amend the Health Care Right of Conscience Act

SB 1169, which started as a bill to provide a technical amendment to the Pyrotechnic Use Act, was passed by both houses of the General Assembly as a completely different bill. The bill passed both houses on October 28th as an amendment to the Health Care Right of Conscience Act (HCRCA), which generally protects an individual’s right to refuse to obtain, receive, or accept medical treatment without facing discrimination based on their medical decisions. The amendment provides an explicit exception to the Act by stating that any person, public official, employer, institution, or other entity may impose requirements that are intended to prevent the contraction or transmission of COVID-19 or “its subsequent iterations." The bill has been formulated as a “declaration of existing law."

HB 3136 Would Create Gaming Omnibus Law

The General Assembly passed HB 3136, the omnibus gaming legislation, on October 28th. While the bill is long and incorporates several different changes to the Illinois Horse Racing Act of 1975, the Illinois Gambling Act, the Raffles and Poker Runs Act, and the Video Gaming Act, we want to provide an update of the legislative changes to video gaming that most greatly impact local government and municipalities’ regulatory authority.

The bill allows non-home-rule units of local government to impose an annual video gaming terminal fee of $250 (previous cap was $25). The bill does not restrict the authority of home rule municipalities to charge terminal fees in excess of the statutory cap, which was previously upheld by an Illinois Appellate Court. The fees imposed by home-rule and non-home-rule units of local government must be shared equally between the gaming terminal operator and the licensed establishment where the terminal is being operated. The bill also curtails the taxing power of units of local government with regard to video gaming—municipalities may not impose taxes on the following entities or persons:

• manufacturers, distributors, terminal operators, licensed technicians, licensed terminal handlers, licensed establishments, licensed veterans establishments, licensed truck stop establishments, licensed fraternal establishments, or their authorized activities under the Video Gaming Act; 
• video gaming terminals;
• users or players of video gaming terminals; or
• other uses, play, or operations of video gaming terminals by any person or entity.

Municipalities that have already adopted an ordinance to impose an amusement tax on any of the above entities can continue to impose those taxes, so long as the ordinance was adopted prior to November 1, 2021. However, a municipality that has adopted that type of tax cannot increase, expand, or extend the tax or enact a new tax on persons participating in video gaming.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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