Bar 1, City 0

Pro’s Sports Bar & Grill is not happy with the City of Country Club Hills.

When Pro’s applied to the City for a liquor license, the City claims, it was given a license that allows it to operate, but only with more restricted hours than is typical. (The City says it conditioned a license on Pro’s closing at 12:30 a.m., almost 3 hours earlier than (generic) liquor licensees of that class, i.e., the competition.) The license initially given to Pro’s, however, did not mention an hours restriction. After the City reissued the license with the restricted hours and began enforcing them—without a hearing or a vote by the city council—Pro’s brought a claim against the City under 42 U.S.C. § 1983, alleging a violation of its procedural due process rights.

Given the confusion that sometimes surrounds Robert’s Rules of Order in city council settings, I’ve little doubt that some of the City’s councilmembers thought that an hours-of-operation condition was imposed on Pro’s. As it turns out, Pro’s had the same liquor license that every other bar did. So it could operate after 12:30 a.m., like every other bar did. 

The City was not content with that. Rather than holding a hearing or vote on the ordinance supporting the license, Pro’s alleges, the City’s police began enforcing the time limitations, “resulting in several citations, arrests of management, and frequent visits by the police to Pro’s at or shortly before the new closing time. [The owner] testified that this resulted in lost business and revenues, identifying in particular the refund of fees to those who had booked private parties that were terminated early by police and lost bookings to other bars in the City that could remain open later.”

The Seventh Circuit Court of Appeals affirmed the preliminary injunction order stopping the City’s enforcement effort.

In my experience, a municipal defendant in this scenario will invariably argue that “due process” is satisfied so long as the business (i.e., property holder) can go to the State court and file a “petition for writ of certiorari” or, as in this case, a “petition for writ of mandamus.” The theory is that “unless and until” the State fails to provide a remedy for the city’s deprivation of property, no federal due-process problem exists. It’s a nice theory. In practice it doesn’t always work so well. As Judge Flaum writes:

But mandamus would be an incomplete remedy here. Pro’s is asking for more than an injunction compelling the City to issue an unrestricted liquor license. Cf. Schwartz, 330 F.3d at 941 (holding that plaintiffs, who sought injunctive relief under 42 U.S.C. § 1983, could get same relief in a state court mandamus action). The owners of Pro’s seek damages to compensate them for the period of time in which the restricted hours were enforced against them. They allege these damages were substantial, resulting in lost business in excess of $50,000. Because no state remedy exists to compensate plaintiffs for these damages, Pro’s is not foreclosed from bringing a due process claim.

The City of Country Club Hills is not happy with Pro’s Sports Bar & Grill.

Yes, it’s a bad time to have to pay through the nose.

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