La Playita Cicero, Inc. v. Town of Cicero

LA PLAYITA CICERO, INC., d/b/a SERENATA RESTAURANTAND BAR, and GERARDO MEZA, Plaintiffs, v. THE TOWN OF CICERO, a municipal corporation, LARRY DOMINICK,in his official and individual capacity, PAUL DEMBOWSKI, LARRY POLK,and SERGE ROCHER, in their individual capacities, Defendants.

Case No. 11 CV 1702

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

ENTER: March 11, 2014

Judge John Z. Lee

MEMORANDUM OPINION AND ORDER

Plaintiffs La Playita Cicero, Inc., d/b/a Serenata Restaurant and Bar ("Serenata") and its owner, Gerardo Meza ("Meza"), sued Defendants The Town of Cicero ("Cicero"), Larry Dominick ("Dominick"), Paul Dembowski, Larry Polk, and Serge Rocher under 28 U.S.C. § 1983 and tort theories. Plaintiffs allege Defendants falsely accused Meza of battery and targeted Serenata for liquor and other ordinance violations in an effort to force Meza to close Serenata all because Meza is Hispanic and supported one of Dominick's political rivals. Defendants contend that they did not specifically target Serenata to enforce town ordinances, and instead, they wanted to protect the public from Serenata's long history of violations. Defendants moved for summary judgment, arguing that the applicable statutes of limitations bar Plaintiffs' claims. For the reasons stated herein, the Court grants in part and denies in part Defendants' motion.

Procedural History

The case before this Court ("La Playita I") presents common issues of fact and law with La Playita Cicero, Inc. v. Town of Cicero ("La Playita II"), 11-CV-5561, a case pending beforeJudge Dow in this district. The relevant, rather tortured procedural history of the two cases is as follows.

On January 5, 2007, Cicero filed an emergency motion for an injunction in the Illinois Circuit Court of Cook County, Chancery Division, to shut down the second floor of Serenata, alleging that Meza operated it without a valid building or occupancy permit. In the same suit, Plaintiffs filed a counterclaim against Cicero on April 13, 2007, alleging § 1983 and state law violations based on events that had occurred between July 2006 and April 2007. While the counterclaim against Cicero was approaching trial in state court, Plaintiffs filed a separate complaint on February 11, 2011, in the Circuit Court against Defendants, alleging additional § 1983 and tort causes of action stemming from Defendants' conduct that had occurred between July 2006 and October 2010. On March 11, 2011, Defendants removed that second complaint (spanning the time period from July 2006 to October 2010) to the Northern District of Illinois, which formed the instant lawsuit, La Playita I.

Five months later, on August 11, 2011, Plaintiffs voluntarily dismissed the counterclaim in the first state court action, and an agreed order provided that their claims could be refiled in the Northern District of Illinois. Plaintiffs refiled the counterclaim (spanning the time period from July 2006 to April 2007) as a complaint in the Northern District of Illinois four days later, and that case, La Playita II, was assigned to Judge Dow.

Given the factual and legal similarities of La Playita I and La Playita II, this Court and Judge Dow conducted a joint hearing on February 13, 2013. At the hearing, Plaintiffs asked the Courts to consolidate the two cases. In response, Defendants argued that consolidating the cases would undermine their statute of limitations defense in La Playita I because the claims comprising La Playita I were filed four years after those filed in La Playita II. After muchdiscussion, this Court and Judge Dow instructed the Defendants to file a motion for summary judgment in La Playita I based on the statute of limitations. The Court noted it would be in a better position to determine how to proceed with the two cases once it addressed the merits of the statute of limitations argument in La Playita I. After the hearing, Defendants filed a motion for summary judgment based on the statute of limitations for the claims asserted by Plaintiffs in La Playita I.¹

Factual Background²

Gerardo Meza owned Serenata Restaurant and Bar prior to its closure in December 2009. (Defs.' LR 56.1(a)(3) ¶¶ 1, 33.) Larry Dominick is Town President and Liquor Commissioner of Cicero. (Pls.' LR 56.1(b)(3)(C) ¶¶ 1, 5.) Dominick delegated the authority for issuing liquor violations, fines, and suspension to the Deputy Liquor Commissioner, Paul Dembowski ("Dembowski"). (Id. ¶ 6.) The following events between the parties took place over a four-year period, from November 2006 to October 2010. During this time period, Defendants accused Serenata of numerous ordinance violations. Plaintiffs claim they were unfairly targeted by Defendants because Meza is Hispanic and showed support for Dominick's political rival.Defendants, on the other hand, claim that they had probable cause to issue the citations and were acting to protect Cicero's residents from Plaintiffs' repeated violations.

On November 10, 2006, an alleged disturbance occurred at Serenata in which a security guard was struck in the face. (Defs.' LR 56.1(a)(3) ¶ 13.)³ Defendants issued Serenata a citation for the incident. (Id.)

In December 2006, Dembowski served Plaintiffs with a notice of hearing for allegedly serving alcohol to a minor. (Pls.' LR 56.1(b)(3)(C) ¶ 8.) Plaintiffs deny that Dembowski had probable cause to issue the citation. (Id.)

Later that month, Dembowski served Plaintiffs with another notice of hearing for allegedly violating Serenata's entertainment license by playing live music. (Id. ¶ 9.) Then, on New Year's Eve, Dembowski and Cicero Police Officers ordered all patrons out of Serenata on the basis that the second floor of the restaurant did not have a valid permit. (Id. ¶ 10; Defs.' LR 56.1(a)(3) ¶ 14.)

Four days later, on January 4, 2007, Dembowski served Plaintiffs with an order of closure for seven days and a motion for immediate closure. (Pls.' LR 56.1(b)(3)(C) ¶ 11.)⁴ Inresponse, Plaintiffs' counsel appeared before the Cicero Liquor Commission the next day, and the hearing officer ruled that Serenata could reopen. (Id. ¶ 12.) Later that day, however, Cicero obtained an ex parte Temporary Restraining Order ("TRO") prohibiting Serenata from operating the restaurant after alleging that the second floor of Serenata also violated various building codes. (Id. ¶ 13; Defs.' LR 56.1(a)(3) ¶ 15.) Five days later, the Chancery Court dissolved the TRO. (Pls.' LR 56.1(b)(3)(C) ¶ 14.)

On January 12, 2007, just two days after the Chancery Court had dissolved the TRO, Cicero issued Plaintiffs another citation alleging that Meza had failed to report an altercation at Serenata to the Cicero Police Department. (Defs.' LR 56.1(a)(3) ¶ 17.)

The next month, Dembowski suspended Plaintiffs' liquor license for seven days pursuant to 235 Illinois Compiled Statute § 5/7-5 for the November 10, 2006, and January 12, 2007, incidents. (Pls.' LR 56.1(b)(3)(C) ¶ 15.) Plaintiffs contend that there was no immediate threat to the welfare of the community, which is a required element of the statute, and a hearing was scheduled for February 8. (Id. ¶¶ 15-16.) In response, Serenata filed an emergency motion to vacate the seven-day suspension, but the suspension was upheld because Meza could not appear at the February 8 hearing. (Id. ¶¶ 17-18.)

In late February 2007, Meza learned of a new Cicero Liquor Control Ordinance which required Serenata and other "A" liquor license holders to close at 11:00 p.m. (Id. ¶ 19.) WhenSerenata closed on February 27, 2007, shortly before 11:00 p.m., Cicero Police Officers were waiting outside Serenata to see if Serenata would stay open past 11:00 p.m. (Id. ¶ 20.)

Serenata continued to come under scrutiny. On March 1, 2007, Cicero Police Officers investigated an automobile accident and arrested the driver for driving under the influence of alcohol. (Defs.' LR 56.1(a)(3) ¶ 19.) The driver was under twenty-one years of age, and the Officer alleged that the driver had been served alcohol at Serenata prior to the crash. (Id.)

The following month, Dembowski suspended Serenata's liquor license for another seven days and served Plaintiffs with an additional motion for immediate closure due to the March 1, 2007, incident. (Id. ¶ 20; Pls.' LR 56.1(b)(3)(C) ¶ 21.) A hearing officer sustained the order suspending Serenata's liquor license for seven days. (Pls.' LR 56.1(b)(3)(C) ¶ 22.) In response, Plaintiffs filed an emergency TRO, and the Chancery Court issued a TRO enjoining Cicero from closing Serenata. (Id. ¶ 23.)

On April 13, 2007, Plaintiffs filed a counterclaim in response to Cicero's January 5, 2007, motion for a TRO, claiming that the liquor citations Serenata received between July 2006 and April 2007 were issued by Defendants in retaliation for Meza speaking out publicly against Dominick and because Meza is Hispanic. (Defs.' LR 56.1(a)(3) ¶¶ 21-22; Ex. L to id. ¶ 22.)

Even after Plaintiffs filed their counterclaim, Defendants continued to issue Serenata citations. In July 2007, Cicero charged Serenata with unpaid tickets and posting a sign without a permit; both charges were later dismissed. (Pls.' LR 56.1(b)(3)(C) ¶¶ 23-24.) On September 10, 2007, Cicero sustained three liquor citations that had been issued on September 26, 2006, December 31, 2006, and January 12, 2007, against Serenata and issued an order revoking its liquor license. (Id. ¶ 26.) Serenata's liquor license was confiscated the next day, and on September 12, 2007, the Cicero police ordered Serenata closed. (Id. ¶ 27.)

Less than a month later, the Illinois Liquor Commission ordered that Serenata was entitled to an automatic stay of the revocation of its liquor license. (Id. ¶ 29.) On January 7, 2008, the Illinois Liquor Commission reversed Cicero's revocation of Serenata's liquor license and instead instituted a ten-day suspension. (Id. ¶ 30; Defs.' LR 56.1(a)(3) ¶ 23.) The Illinois Liquor Commission eventually upheld the January 12, 2007, citation (Defs.' LR 56.1(a)(3) ¶...