LMP Services, Inc v. The City of Chicago

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Appellate Court Date: 2018.04.11
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LMP Services, Inc. v. City of Chicago, 2017 IL App (1st) 163390Appellate Court LMP SERVICES, INC., Plaintiff-Appellant, v. THE CITY OF
Caption CHICAGO, Defendant-Appellee.
District & No. First District, First Division
Docket No. 1-16-3390
Filed December 18, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-41235; the
Review Hon. Helen A. Demacopoulos, Judge, presiding.
Judgment Affirmed.
Counsel on Eimer Stahl, LLP, of Chicago (James W. Joseph, of counsel), and
Appeal Institute for Justice, of Arlington, Virginia (Robert Frommer, Robert
Gall, and Erica J. Smith (all pro hac vice), of counsel), for appellant.
Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kasper, and Suzanne M. Loose, Assistant
Corporation Counsel, of counsel), for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Mikva concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff-appellant, LMP Services, Inc. (LMP), filed this lawsuit seeking both declaratory
and injunctive relief against two sections of an ordinance passed by defendant-appellee, City
of Chicago (City). The two challenged ordinances pertained to the operation of mobile food
vehicles (hereinafter food trucks) within Chicago. Under the first challenged ordinance, food
trucks may not, with limited exceptions, locate themselves within 200 feet of the principal
customer entrance of a restaurant located at street level. LMP challenged this ordinance under
the due process and equal protection clauses of the Illinois Constitution. Under the second
challenged provision, food trucks must be equipped with a Global Positioning System (GPS)
that sends real-time data to any service that has a publicly accessible application programming
interface. LMP challenged this provision as a violation of its right under the Illinois
Constitution to be free from unreasonable searches.
¶2 After LMP filed an amended complaint, the City moved to dismiss all of LMP’s claims.
The circuit court granted the motion with respect to the equal protection claim but denied the
motion as to the due process and search claims. The City answered the remaining claims and
the parties proceeded to discovery. At the close of discovery, the parties moved for
cross-summary judgment. As to the 200-foot rule, the circuit court found it rationally related to
(1) the City’s need to balance the interests of both the food trucks and brick-and-mortar
restaurants and (2) the City’s need to balance sidewalk congestion. As to the GPS requirement,
the circuit court found LMP lacked standing because the City had never requested its GPS
information and, therefore, a search had not occurred. The court further concluded that, even if
a search had occurred, the search was reasonable and therefore constitutional.
¶3 LMP now appeals the circuit court’s grant of summary judgment in favor of the City. Upon
this court’s review, we agree with the circuit court’s findings that LMP’s constitutional
challenge to both sections of the ordinance fails. The City has a critical interest in maintaining
a thriving food service industry of which brick-and-mortar establishments are an essential part.
The 200-foot exclusion represents a rational means of ensuring the general welfare of the City
and is neither arbitrary nor unreasonable. The GPS is not a search pursuant to United States v.
Jones, 565 U.S. 400 (2012). The GPS rule represents a method of requiring a licensee to
maintain records as to its operational location in an electronic form as a condition of
conducting business from the city street. Accordingly, the circuit court’s grant of summary
judgment in favor of the City is affirmed.
¶4 JURISDICTION
¶5 On June 13, 2013, the circuit court granted the City’s motion to dismiss LMP’s equal
protection claim. On December 5, 2016, the circuit court granted the City’s motion for
summary judgment on LMP’s due process and illegal search claims. LMP’s cross-motion for
summary judgment was denied the same day. On December 28, 2016, LMP timely filed its
notice of appeal as to the December 5, 2016 order.1 Accordingly, this court has jurisdiction
over this matter pursuant to article VI, section 6, of the Illinois Constitution and Illinois
Supreme Court Rules 301 and 303. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1,
1
LMP does not challenge the order of June 13, 2013, and has therefore forfeited review of its equal
protection claim. Lewanski v. Lewanski, 59 Ill. App. 3d 805, 815-16 (1978).
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1994); R. 303 (eff. May 30, 2008).
¶6 BACKGROUND
¶7 The plaintiff-appellant, LMP is a closely held Illinois corporation in Elmhurst, Illinois. Its
owner, Laura Pekarik, operates the food truck called Cupcakes for Courage. Cupcakes for
Courage is licensed in Chicago as a “mobile food dispenser,” and since June 2011, Pekarik has
sold cupcakes from the food truck.
¶8 On July 25, 2012, the Chicago city council passed an ordinance to expand food truck
operations within the city limits of Chicago. The ordinance allows for food preparation on food
trucks and established a number of regulations governing location, operation, and inspection of
food trucks. The ordinance authorizes the commissioner of transportation for the City to
establish fixed stands where parking space for food trucks is reserved. Chicago Municipal
Code § 7-38-117(c) (added July 25, 2012). The ordinance requires a “minimum of 5 such
stands” in each “community area *** designated in section 1-14-010 of this Code [(Chicago
Municipal Code § 1-14-010 (added Dec. 15, 1993))], that has 300 or more retail food
establishments.” Id. Those community areas are the Loop,2 Near West, Near North, Lincoln
Park, Lakeview, and West Town.
¶9 Beyond food stands, food trucks may park in legal parking spots on the street for up to two
hours. Chicago Municipal Code § 7-38-115(b) (amended July 25, 2012). Food trucks may not
park within 20 feet of a crosswalk, 30 feet of a stop light or stop sign, or adjacent to a bike lane.
Chicago Municipal Code § 7-38-115(e) (amended July 25, 2012). In addition, the ordinance
provides:
“No operator of a mobile food vehicle shall park or stand such vehicle within 200 feet
of any principal customer entrance to a restaurant which is located on the street level;
provided, however, the restriction in this subsection shall not apply between 12 a.m.
and 2 a.m.” Chicago Municipal Code § 7-38-115(f) (amended July 25, 2012).
“Restaurant” is defined as:
“[A]ny public place at a fixed location kept, used, maintained, advertised and held out
to the public as a place where food and drink is prepared and served for the public for
consumption on or off the premises pursuant to the required licenses. Such
establishments include, but are not limited to, restaurants, coffee shops, cafeterias,
dining rooms, eating houses, short order cafes, luncheonettes, grills, tearooms, and
sandwich shops.” Id.
There are two exceptions to the 200-foot requirement. The first exception allows food trucks to
park at one of the five established food stands even if that stand is within 200-feet of the
primary entrance of a restaurant. The second exception allows food trucks to park near
construction sites and serve those sites.
¶ 10 Mobile food vendors are also subject to regulations designed to ensure safe food
preparation and sanitary operations, including requirements for storage and plumbing
equipment, food preparation, cleaning products, temperature control, and the presence of
certified food service manager when food is prepared. Chicago Municipal Code §§ 7-38-132;
2
The Loop is geographically defined as the downtown area of Chicago bordered by Lake Michigan
to the east, the Chicago River to the north and west, and Congress Parkway to the south.
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7-38-134 (added July 25, 2012). Each food truck must be linked to a commissary used daily for
supplying, cleaning, and servicing. Chicago Municipal Code § 7-38-138 (added July 25,
2012). The Chicago board of health (board) is authorized to enact rules and regulations to
implement those requirements (Chicago Municipal Code § 7-38-128 (added July 25, 2012))
and the department of public health conducts inspections. Chicago Municipal Code § 7-38-126
(added July 25, 2012).
¶ 11 The ordinance also has a requirement concerning the use of GPS equipment on the food
trucks. The ordinance provides:
“Each mobile food vehicle shall be equipped with a permanently installed functioning
Global-Positioning-System (GPS) device which sends real-time data to any service that
has a publicly-accessible application programming interface (API). For purposes of
enforcing this chapter, a rebuttable presumption shall be created that a mobile food
vehicle is parked at places and times as shown in the data tracked from the vehicle’s
GPS device.” Chicago Municipal Code § 7-38-115(l) (amended July 25, 2012).
The Board subsequently enacted “Rules and Regulations for Mobile Food Vehicles.” Rule 8
provides that the GPS device be permanently installed; be an “ ‘active,’ ” not “ ‘passive,’ ”
device that sends real-time location data to a GPS provider; and be accurate no less than 95%
of the time. Chicago Board of Health, Rules and Regulations for Mobile Food Vehicles, R.
8(A)(1)-(3) (eff. Aug. 7, 2014), https://www.cityofchicago.org/content/dam/city/depts/bacp/
general/MFV_Rules_and_Regulations-8-7-2014.pdf. The City claimed that the GPS
requirement’s purpose was so that it could locate food trucks in order to conduct field
inspections and investigate public health complaints.
¶ 12 The rule further provides that the device must function during business operations and
while at a commissary and transmit GPS coordinates to the GPS service provider at least once
every five minutes. Chicago Board of Health, Rules and Regulations for Mobile Food
Vehicles, R. 8(A)(4)-(5) (eff. Aug. 7, 2014). The rule further provides that the City will not
request GPS information without consent, a warrant, or court authorization unless the
information is needed “to investigate a complaint of unsanitary or unsafe conditions, practices,
or food or other products at the vehicle”; “to investigate a food-related threat to public health”;
to “establish[h] compliance with” the ordinance and regulations; or for “emergency
preparation or response.” Chicago Board of Health, Rules and Regulations for Mobile Food
Vehicles, R. 8(B) (eff. Aug. 7, 2014). Rule 8 also clarified that, while GPS providers must “be
able to provide” an API “that is available to the general public,” licensees need not “provide
the appropriate access information to the API” unless the City establishes a website to display
food truck locations and the licensee chooses to participate. Chicago Board of Health, Rules
and Regulations for Mobile Food Vehicles, R. 8(C)-(D) (eff. Aug. 7, 2014). The food truck “is
not required to provide such information or otherwise allow the City to display the vehicle’s
location.” Chicago Board of Health, Rules and Regulations for Mobile Food Vehicles, R. 8(D)
(eff. Aug. 7, 2014).
¶ 13 LMP filed this lawsuit on November 14, 2012, and later amended it on March 8, 2013,
challenging both the 200-foot exclusion rule and GPS requirement. Its suit alleged that the
200-foot rule violated the due process and equal protection clauses of article I, section 2, of the
Illinois Constitution and the GPS tracking scheme violated the search, seizures, privacy and
interceptions clause of article I, section 6, of the Illinois Constitution. The City moved to
dismiss the complaint in its entirety, and after briefing, the circuit court granted the City’s
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motion with respect to LMP’s equal protection claim but denied it as to the due process and
search claims. The City then answered the amended complaint and the parties proceeded to
discovery. The City set forth three reasons for imposing the 200-foot restriction: (1) balance
the interests of brick-and-mortar restaurants with the food trucks, (2) encourage food trucks to
locate in underserved areas, and (3) manage sidewalk congestion.
¶ 14 The parties engaged in an extensive discovery phase regarding the City’s justification for
the 200-foot rule and the GPS requirement. The City testified that the 200-foot rule applied “as
the crow flies,” radiating out 200 feet in all directions from a restaurant’s front door. This
means a food truck cannot park on the other side of the street or a block over if that position is
within 200 feet of a restaurant’s principal entrance. The rule also applies to a food truck parked
on private property. Pekarik’s testified that the 200-foot rule excluded her from many areas she
would like to conduct business from in the Loop. As to the construction site exception, the City
testified that trucks need only operate within proximity of the construction site, though it could
not give a precise definition of “proximity.”
¶ 15 Plaintiff hired expert witness, Renia Ehrenfeucht, a professor of urban planning and
sidewalk usage, to conduct an observational study of seven different food truck locations
across the northern portion of the Loop. Based on what her team observed, she reached two
conclusions: (1) there was no observed difference in pedestrian congestion impacts based on
the distance between a food truck’s operations and a restaurant’s front door and (2) there was
no difference in the degree of pedestrian congestion at mobile food truck stand locations versus
other public-private locations.
¶ 16 The City explained the need for the GPS requirement because it may be necessary to track
a food truck’s location to conduct a health or administrative investigation. The City admitted
that it had never requested GPS data from any licensed food truck. In the few instances the City
needed to find a truck, the field inspectors utilized social media to determine a food truck’s
location. Since the GPS requirement only applies while the food truck is in operation, the City
admitted the GPS unit may need to be physically turned on by the truck operator.
¶ 17 At the close of discovery, the parties filed cross-motions for summary judgment. The
circuit court ruled that rational-basis review applied to LMP’s due process challenge to the
200-foot rule. Under this review, the circuit court upheld the 200-foot rule based on the City’s
argument that the rule balances the interests of brick-and-mortar restaurants and food trucks.
The circuit court found the rule rationally related to the City’s interest in managing sidewalk
congestion. It rejected the argument that the rule helped spread food truck business to
underserved sections of the city. As to the GPS requirement, the court determined LMP lacked
standing to even challenge the provision because LMP failed to show its data had ever been
requested by the City. The circuit court further explained that even if a search had taken place,
the search was reasonable because the City’s interest in food safety, the GPS data is necessary
to find food trucks for purposes of inspection or notifications, and the rules limit the type of
information and the circumstances under which the City will obtain it.
¶ 18 LMP timely appealed the circuit court’s grant of summary judgment and this appeal now
follows.
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¶ 19 ANALYSIS
¶ 20 On appeal, LMP raises two issues: (1) the circuit court erred in concluding that the
200-foot rule does not violate its substantive due process rights, and (2) the circuit court erred
in concluding the GPS requirement is not a search.
¶ 21 LMP’s appeal arises from an order granting summary judgment in favor of the City
upholding the validity of the 200-foot rule and the GPS requirement, our review is therefore
de novo. Progressive Universal Insurance Co. of Illinois v. Liberty Mutual Fire Insurance Co.,
215 Ill. 2d 121, 128 (2005). De novo review is also the appropriate standard when the appellate
court reviews the constitutionality of a statute. Kanerva v. Weems, 2014 IL 115811, ¶ 33.
¶ 22 LMP alleges the 200-foot restriction violates its due process right under article I, section 2
of the Illinois Constitution, which protects the right of Illinoisans to pursue a legitimate
occupation. In claiming a violation of its due process rights, LMP states in its amended
complaint, “[t]his lawsuit seeks to vindicate the fundamental rights of the Plaintiffs, who own
and operate mobile-vending vehicles, to earn an honest living free from unreasonable and
anticompetitive government restrictions.”
¶ 23 The fourteenth amendment to the United States Constitution and article I, section 2, of the
Illinois Constitution protect individuals from the deprivation of life, liberty, or property
without due process of law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. Case law
pertaining to due process recognizes two distinct due process analyses: substantive due process
and procedural due process. Doe v. City of Lafayette, 377 F.3d 757, 767-68 (7th Cir. 2004);
In re J.R., 341 Ill. App. 3d 784, 791 (2003). “Whereas procedural due process governs the
procedures employed to deny a person’s life, liberty or property interest, substantive due
process limits the state’s ability to act, irrespective of the procedural protections provided.”
In re Marriage of Miller, 227 Ill. 2d 185, 197 (2007) (citing Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992)). In the case before us, LMP raises no argument concerning the
denial of notice or procedure; accordingly, we review LMP’s claim only as it relates to
substantive due process.
¶ 24 When a party claims a due process violation, a court “must first ascertain that a protected
interest has been interfered with by the state. Then and only then does one consider what
process is due.” Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 241
(2005); In re J.W., 204 Ill. 2d 50, 66 (2003). This is a critical step because the “nature of the
right dictates the level of scrutiny a court must employ in determining whether the statute in
question comports with the constitution.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 307
(2008).
¶ 25 LMP frames the 200-foot rule as a means to suppress its economic rights in violation of
article I, section 2, of the Illinois Constitution. The ordinance states in relevant part, “[n]o
operator of a mobile food vehicle shall park or stand such vehicle within 200 feet of any
principal customer entrance *** which is located on the street level.” Chicago Municipal Code
§ 7-38-115(f) (amended July 25, 2012). In arguing that its due process right has been violated,
LMP cites the accepted general principle that “every citizen has the right to pursue a trade,
occupation, business or profession” and this right “constitutes both a property and liberty
interest entitled to the protection of the law as guaranteed by the due process clauses of the
Illinois and Federal constitutions.” Coldwell Banker Residential Real Estate Services of
Illinois, Inc. v. Clayton, 105 Ill. 2d 389, 397 (1985).
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¶ 26 The right to pursue a profession is not a fundamental right for substantive due process
purposes, and the legislature’s, or in this case the Chicago City council’s, infringement on this
right need only be examined using the rational basis test. Potts v. Illinois Department of
Registration & Education, 128 Ill. 2d 322, 329 (1989). The state, in the proper exercise of its
general police powers, may regulate this “economic right,” where the public health, safety, or
general welfare so requires. Id. at 330 (citing Pozner v. Mauck, 73 Ill. 2d 250 (1978)).
¶ 27 The fact that the challenged provisions are part of an ordinance enacted by the City and not
statutes enacted by the Illinois General Assembly is immaterial. Under the Illinois Constitution
of 1970, the City is a home rule unit of local government. Ill. Const. 1970, art. VII, § 6. This
provision of our constitution directly allows the City to “regulate for the protection of the
public health, safety, morals and welfare.” Ill. Const. 1970, art. VII, § 6(a). Local governments
granted home rule act with the same powers as the state unless specifically limited by the
General Assembly. City of Urbana v. Houser, 67 Ill. 2d 268, 273 (1977).
¶ 28 While acknowledging the rational basis standard, LMP argues that under Illinois law, the
rational basis test requires a “definite and reasonable relationship to the end of protecting the
public health, safety and welfare.” Church v. State, 164 Ill. 2d 153, 165 (1995); Krol v. County
of Will, 38 Ill. 2d 587, 590 (1968) (requiring a definite and substantial relation to a recognized
police-power purpose). LMP fails to recognize that this argument concerning a “heightened”
rational basis test was rejected by the Illinois Supreme Court in Napleton, 229 Ill. 2d 296. In
that case, the plaintiff “used the term ‘substantial relationship’ or ‘real and substantial’ to
describe the applicable level of judicial scrutiny” our supreme court should apply in reviewing
her facial challenge to Hinsdale’s zoning law. Id. at 309. In rejecting plaintiff’s argument, the
court stated,
“We clarify that the ‘substantial relation’ language used in cases addressing the validity
of zoning regulations has been simply an alternate statement of the rational basis test
which was tailored to address the specific interests advanced by the enactment of
zoning ordinances, namely, the promotion of the public health, safety, morals, or
general welfare.” Id. at 315.
In accordance with Napleton, we reject LMP’s argument that in order to survive rational basis
scrutiny, the challenged ordinance must have “a definite and substantial” relationship to a
recognized police power. As stated by our supreme court in Napleton, a challenged zoning
ordinance will survive rational basis scrutiny “if it bears a rational relationship to a legitimate
legislative purpose and is neither arbitrary nor unreasonable.” Id. at 319 (citing Village of Lake
Villa v. Stokovich, 211 Ill. 2d 106 (2004)).
¶ 29 When Illinois courts apply the rational basis test, “a court must identify the public interest
that the statute is intended to protect, examine whether the statute bears a reasonable
relationship to that interest, and determine whether the method used to protect or further that
interest is reasonable.” Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 147 (2003). A court’s
review under this standard is “limited” and “ ‘highly deferential.’ ” Id. Furthermore, under this
test “mathematical precision” is not required and “a legislative choice is not subject to
courtroom fact-finding and may be based on rational speculation unsupported by the evidence
or empirical data.” (Internal quotation marks omitted.) Cutinello v. Whitley, 161 Ill. 2d 409,
421-22 (1994). Whether a statute is wise or the best way of achieving a stated end is left to the
determination of the legislature. Arangold Corp., 204 Ill. 2d at 147.
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¶ 30 Like statutes, ordinances are presumed constitutional, and the opposing party bears the
burden of rebutting this presumption. American Federation of State, County, & Municipal
Employees (AFSCME), Council 31 v. State, 2015 IL App (1st) 133454, ¶ 19. This court must,
whenever possible, construe a statute to uphold its constitutionality. Id. A party raising a
challenge that an ordinance is facially unconstitutional bears the burden of establishing a clear
constitutional violation. Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶ 20. Any
doubts are resolved in favor of the challenged regulations. Granite City Division of National
Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 164-65 (1993). Under these
guidelines, a facial challenge represents “the most difficult challenge to mount successfully
because an enactment is invalid on its face only if no set of circumstances exists under which it
would be valid.” People v. One 1998 GMC, 2011 IL 110236, ¶ 20. “The fact that the enactment
could be found unconstitutional under some set of circumstances does not establish its facial
invalidity.” Napleton, 229 Ill. 2d at 306.
¶ 31 When LMP challenged the 200-foot rule, the City responded with three government
objectives the rule is meant to further (1) strike a balance between brick-and-mortar restaurants
and food trucks, (2) spread retail food options to underserved areas of the City, and (3) control
sidewalk congestion in the applicable areas. If any one of these justifications is found to be
sufficient, the ordinance will be upheld as constitutional. In arguing for reversal before this
court, LMP asserts the 200-foot rule is unconstitutional because it is blatant protectionism and
protecting brick-and-mortar restaurants from food truck competition is not a legitimate
government interest.
¶ 32 We reject LMP’s assertion that the City may not protect brick-and-mortar restaurants and
uphold the 200-foot rule as a rational means of promoting the general welfare of the City of
Chicago. Both the City and its expert testified that brick-and-mortar restaurants bring critical
economic benefits to communities, including the payment of property taxes. Unlike
brick-and-mortar restaurants, LMP and all food trucks do not pay property taxes or other
assorted fees to the City that would be associated with the operation of a brick-and-mortar
restaurant occupying real property in the City. Property taxes represent a key source of revenue
for the City. The 200-foot rule seeks to protect those in the food service industry who pay and
support the City’s property tax base from those food businesses that do not. Moreover,
brick-and-mortar restaurants also pay utility taxes, lease taxes, and, yes, even restaurant taxes.
Chicago Municipal Code §§ 3-30-030 (added Nov. 19, 2003) (restaurant tax); 3-32-030
(amended Oct. 28, 2015) (lease tax); 3-53-020 (added June 10, 1998) (electricity use tax); and
3-80-040 (added Sept. 14, 2016) (water and sewer tax).
¶ 33 Illinois courts have previously found that it is completely rational for an Illinois
municipality to favor businesses generating tax dollars over businesses that do not. In
Napleton, a challenged zoning change prohibited “new depository or nondepository credit
institutions from being located on the first floor of any building in the B-1 or B-3 zoning
district.” 229 Ill. 2d at 302. In upholding the validity of the ordinance, our supreme court
stated:
“[i]t was reasonable and legitimate for Hinsdale to conclude that the continued vitality
of its business districts required an appropriate balance between businesses that
provide sales tax revenue and those that do not, and its passage of the challenged
amendments precluding new banks and financial institutions from locating on the
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ground floors of buildings in the designated districts because they impose an
opportunity cost in forgone tax revenue is rationally related to that purpose.” Id. at 321.
In the same line of reasoning, it is reasonable and legitimate for the City to conclude that
continued receipt of property taxes and other city fees associated with running a
brick-and-mortar restaurant “required an appropriate balance” with those food businesses that
do not.
¶ 34 This proposition is not new and has been accepted as a legitimate and reasonable
government action by previous courts. In City of New Orleans v. Dukes, the United States
Supreme Court acknowledged that the City of New Orleans may ban pushcart food vendors
from the city’s historic French Quarter. 427 U.S. 297, 303 (1976). In upholding the ban under a
rational basis review, the Court recognized the ban as a legitimate way for the city of New
Orleans “to preserve the appearance and custom valued by the Quarter’s residents and
attractive to tourists.” (Internal quotation marks omitted.) Id. at 304.
¶ 35 In Vaden v. Village of Maywood, the Seventh Circuit, applying Illinois law, upheld as a
legitimate and rational exercise of municipal authority, a Village of Maywood ordinance,
which restricted mobile food vending near schools. 809 F.2d 361 (7th Cir. 1987). As the
Seventh Circuit pointed out, “distinctions between street vendors and merchants with a fixed
place of business have been accepted by other courts in upholding similar ordinances against
equal protection challenges.”3 Id. at 366. Cases like Dukes, Napleton, and Vaden establish that
courts have long upheld city ordinances favoring one business over another under rational
basis review.
¶ 36 As LMP admits, it seeks to overturn the 200-foot rule because its main affect is to prevent
it from parking in areas close to a restaurant’s front door where large amounts of potential
customers gather. Notwithstanding LMP’s license, which granted them the privilege to
conduct business on the City’s streets and sidewalks, LMP fails to recognize that while one has
a constitutional right to pursue a profession (Rios v. Jones, 63 Ill. 2d 488, 496-97 (1976)),
Illinois courts have long recognized that no individual or business has the constitutional right
to conduct business from the city street or sidewalk. City of Chicago v. Rhine, 363 Ill. 619(1936). The Rhine court dealt with a City ordinance that completely prohibited a person from
selling newspapers in the Loop or Wilson Avenue districts. Id. at 620. In upholding the
complete prohibition against the sale of newspapers in those areas, the court stated, “[Rhine]
had no property right in the use of any of the streets of Chicago for the location and
maintenance of his business.” Id. at 625. Tellingly, LMP does not address Rhine or its progeny
in either its opening or reply brief to this court.
¶ 37 The proposition that no individual has the constitutional property right to conduct business
from the streets or sidewalks located within the state of Illinois has been reaffirmed several
times since Rhine. In Good Humor Corp. v. Village of Mundelein, 33 Ill. 2d 252, 253-54
(1965), the Illinois Supreme Court upheld an ordinance, which prohibited all vending from the
streets or sidewalks in the Village of Mundelein. Relying on Rhine, the court upheld the
ordinance and found no due process violation because, “[t]he assumed property right upon
3
While the court discusses this in terms of equal protection, the court had previously noted that
whether framed as a due process or equal protection challenge, rational basis review applied. Vaden,
809 F.2d at 365.
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which the plaintiff’s case against the validity of the ordinance is based is nonexistent.” Id. at
259 (citing Rhine, 363 Ill. at 625).
¶ 38 In Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 221-22 (1989), our supreme court was
confronted with a Chicago ordinance that banned mobile food trucks from selling within the
Medical District. After upholding the ordinance under a rational basis review, our supreme
court again reiterated that no individual has the right to use streets or sidewalks for private
gain. Id. at 229. The Triple A Services, Inc., court further recognized that Chicago’s ability to
regulate its streets and sidewalks had become even more evident since the Rhine decision
because of the adoption of the 1970 Constitution and the introduction of “home rule.” Id. at
230 (citing Ill. Const. 1970, art. VII, § 6). Under article VII, section 6, Chicago had the “same
powers as the sovereign, except where such powers are limited by the General Assembly.” Id.
¶ 39 In accord with Rhine, Good Humor Corp., and Triple A Services, Inc., we reiterate that no
individual or business has a constitutional property right to use Chicago’s streets and sidewalks
for private gain. It is only through the issuance of a license that plaintiff may conduct business
on the City streets. The issuance of said license did not create a vested property right but rather
a “revocable privilege to do an act or a series of acts upon the land of another without
possessing any estate or interest in such land.” Grigoleit, Inc. v. Board of Trustees of the
Sanitary District of Decatur, 233 Ill. App. 3d 606, 612 (1992) (citing City of Berwyn v.
Berglund, 255 Ill. 498, 500 (1912)). As plaintiff acknowledged at oral argument, the City could
outright ban all food trucks from operating on the city streets. The issuance of a license to
operate on the city street did not abrogate the City’s power to legislate for the general welfare,
and “[i]t is presumed, absent unequivocal language, that a city, in granting a license, reserves
the ability to exercise its police power and place additional regulatory burdens on license
holders.” (Internal quotation marks omitted.) Triple A Services, Inc., 131 Ill. 2d at 235.
¶ 40 While LMP points out the main thrust of the 200-foot rule is to prohibit street parking, it
also points to at least two instances where the 200-foot rule prohibits it from operating on
private property. Yet this fact does not render the 200-foot restriction unconstitutional. LMP
has raised a facial challenge to the constitutionality of the 200-foot rule, and this court will
only sustain a facial challenge “if no set of circumstances exists under which it would be
valid.” Napleton, 229 Ill. 2d at 306. “The fact that the enactment could be found
unconstitutional under some set of circumstances does not establish its facial invalidity.” Id.(citing Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 504
(1982)). Significantly, courts are to give “wide latitude” to the states “in the regulation of their
local economies under their police powers, and rational distinctions may be made with
substantially less than mathematical exactitude.” Dukes, 427 U.S. at 303. For this reason,
LMP’s argument concerning the incidental effect of the 200-foot rule does not support its
facial invalidity.
¶ 41 We also find all of the cases relied upon by LMP to be readily distinguishable from the
facts of this case and do not support a finding of facial invalidity. In attacking the 200-foot rule,
LMP relies primarily on Chicago Title & Trust Co. v. Village of Lombard, 19 Ill. 2d 98 (1960),
a case involving a proximity restriction between existing and new gas stations. In Chicago
Title, our supreme court invalidated a Village of Lombard ordinance that prevented the
establishment of any new gas station within 650 feet of any existing gas station. Id. at 100.
While proposed on the basis of safety, the reviewing court found the fact that new stations
could be built within 150 feet of schools, hospitals, and churches completely undermined the
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claim of safety. Id. at 104. Additionally, the rule had no effect on those stations within 650 feet
already in existence. Id. at 106-07. Therefore, the court found no rational basis for the safety
concerns. Id. at 107. Unlike Chicago Title, the restriction at issue in this case was not proffered
solely based on safety and does not favor existing food trucks over new truck competitors.
¶ 42 Chicago Title is distinguishable for several other reasons. Chicago Title was decided
before the 1970 Illinois Constitution and the implementation of home rule. As explained in
Triple A Services Inc., the home rule provision dramatically altered Chicago’s authority, and it
can now act with the “same powers as the sovereign.” Triple A Services, Inc., 131 Ill. 2d at 230.
Notably, the court in Triple A Services, Inc., also rejected plaintiff’s attempt to rely on
non-home rule case law. Id. at 231 (citing Rocking H. Stables, Inc. v. Village of Norridge, 106
Ill. App. 2d 179 (1969)). Besides not addressing home rule, Chicago Title is also
distinguishable because the plaintiff in that case sought to use a piece of real property. 19 Ill.
2d at 106-07 (denies to plaintiffs the right to use their property as a gas station). Unlike the
private real property at issue in Chicago Title, LMP seeks to make use of Chicago’s streets and
sidewalks for its own private gain. As previously stated, LMP has no property right to use the
streets and sidewalks for its own private gain. Rhine, 363 Ill. at 625.
¶ 43 LMP claims that Chicago Title stands for the proposition that proximity based restrictions
that “promote monopoly” are inherently suspect. See Chicago Title, 19 Ill. 2d at 107 (“[i]t
exempts from its requirements businesses already established, and, in operation and effect,
tends to promote monopoly”). LMP argues that the 200-foot restriction promotes a monopoly
because it prevents it from “vending in the vast majority of the Loop” and reduces competition.
As previously stated, LMP and all food trucks have no constitutional property right to conduct
any private business from the streets or sidewalks of Chicago. Rhine, 363 Ill. at 625. Moreover,
LMP appears to take the position that the 200-foot restriction promotes a monopoly by the
brick-and-mortar restaurants regardless of who actually owns them. Black’s Law Dictionary
defines monopoly as “[c]ontrol or advantage obtained by one supplier or producer over the
commercial market within a given region.” (Emphasis added.) Black’s Law Dictionary (10th
ed. 2014). LMP presents no evidence, nor does this court expect it could, that brick-and-mortar
restaurants are controlled by one supplier or producer. LMP’s claim that the rule supports a
monopoly has neither a basis in law or fact and is rejected by this court.
¶ 44 LMP also argues that Illinois may not discriminate against two different business models
and cites Exchange National Bank of Chicago v. Village of Skokie, 86 Ill. App. 2d 12 (1967). In
Exchange National, plaintiff was denied a special use permit to open an automated car wash.
Id. at 13-14. While the court reversed the denial of the permit as arbitrary and unreasonable, it
stated in dicta that the village did not have the municipal authority to legislate “economic
protection for existing businesses against the normal competitive factors which are basic to our
economic system.” Id. at 21.
¶ 45 Exchange National, like Chicago Title, is a pre-1970 case and does not deal with home rule
authority. This alone undercuts the weight to be given to it. Equally as important, the case
simply does not support LMP’s position. In making its argument, LMP willfully fails to
recognize that it is not the same business as a brick-and-mortar restaurant. Unlike Exchange
National, this is not a case where there are two similar business, one automated and one not,
both seeking to permanently operate from private real property. LMP does not seek to
permanently conduct its bakery business from a brick-and-mortar establishment in Chicago
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using automated techniques, and the 200-foot rule it seeks to invalidate does not prevent it
from so doing. Accordingly, Exchange National does not support LMP’s position.
¶ 46 The other cases relied upon by LMP also involved the use of private real property and are
therefore distinguishable from the case currently before the court. A case relied upon by LMP,
Cosmopolitan National Bank v. Village of Niles, 118 Ill. App. 3d 87 (1983), involved a piece of
real property. See id. at 88-89 (noting the issue before the court was the denial of a special use
permit to operate a McDonald’s restaurant). It is further distinguished by the fact that the
plaintiff in Cosmopolitan National Bank did not seek to invalidate any Niles ordinance. LMP
also relies on Church, but that case involved licensures and whether the legislature could
require practical experience as a prerequisite for issuing a license to become a private alarm
installer. 164 Ill. 2d at 167-68. LMP does not claim it has been denied a license because it lacks
experience in the food truck business, so its reliance on this case is misplaced.
¶ 47 Based on the above, LMP has failed to establish that the 200-foot restriction is arbitrary
and unreasonable as having no relation to the City’s authority to promote its general welfare.
Accordingly, the circuit court’s order granting summary judgment in favor of the City as to the
200-foot restriction is affirmed.4
¶ 48 LMP next argues the requirement that it install a GPS unit in its truck and transmit its
location to a service provider represents a warrantless search in violation of article I, section 6,
of the Illinois Constitution. Under the challenged municipal provision, each food truck “shall
be equipped with a permanently installed functioning [GPS] device which sends real-time data
to any service that has a publicly-accessible application programming interface.” Chicago
Municipal Code § 7-38-115(l) (amended July 25, 2012). An applicable board of health rule
explains that the GPS device need only transmit location data “while the vehicle is vending
food or otherwise open for business to the public, and when the vehicle is being serviced at a
commissary.” Chicago Board of Health, Rules and Regulations for Mobile Food Vehicles, R.
8(A)(4) (eff. Aug. 7, 2014).
¶ 49 Section 6, of article I, of the Illinois Constitution states:
“The people shall have the right to be secure in their persons, houses, papers and
other possessions against unreasonable searches, seizures, invasions of privacy or
interceptions of communications by eavesdropping devices or other means. No warrant
shall issue without probable cause, supported by affidavit particularly describing the
place to be searched and the persons or things to be seized.” Ill. Const. 1970, art. I, § 6.
We note that “the protection against unreasonable searches and seizures under the Illinois
Constitution is measured by the same standards as are used in defining the protections
contained in the fourth amendment to the United States Constitution.” People v. Thomas, 198
Ill. 2d 103, 109 (2001).
¶ 50 LMP contends that the GPS requirement constitutes a “search” pursuant to Jones, 565 U.S.
400. In the Jones case, the FBI suspected the defendant of drug trafficking and obtained a
warrant authorizing the installation of a GPS on defendant’s car within 10 days. Id. at 402-03.
The government installed the GPS device on the eleventh day. Id. at 403. The government
eventually obtained an indictment and was permitted to use the data collected while defendant
4
Because we uphold the 200-foot rule as a reasonable exercise of the City’s power to protect
businesses paying property tax over those that do not, we decline to address whether the other proffered
reasons would also support the constitutionality of the 200-foot restriction.
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moved about the city streets. Id. The United States Court of Appeals for the District of
Columbia reversed the conviction because the use of the GPS device violated the fourth
amendment. Id. at 404. On appeal, the United States Supreme Court concluded that “the
Government’s installation of a GPS device on a target’s vehicle, and its use of that device to
monitor the vehicle’s movements, constitutes a ‘search.’ ” Id. In reaching this conclusion, the
Court stated “[t]he Government physically occupied private property for the purpose of
obtaining information. We have no doubt that such a physical intrusion would have been
considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id.at 404-05 (citing Entick v. Carrington (1765) 95 Eng. Rep. 807).
¶ 51 The Court reaffirmed this holing in Florida v. Jardines, 569 U.S. 1, 5-7 (2013). In
Jardines, the Court held that having a drug-sniffing dog nose around a suspect’s front porch
was a search because the police had “gathered information by physically entering and
occupying the [curtilage of the house] to engage in conduct not explicitly or implicitly
permitted by the homeowner.” Id. at 6. Then in Grady v. North Carolina, 575 U.S. ___, 135 S.
Ct. 1368 (2015), the Court found that North Carolina’s program of attaching GPS devices to
recidivist sex offenders implicated the fourth amendment. Following on Jones and Jardines,
the Court stated, “it follows that a State also conducts a search when it attaches a device to a
person’s body.” Id. at ___, 135 S. Ct. at 1370.
¶ 52 Based upon Jones, Jardines, and Grady, we reject LMP’s claim that the GPS requirement
at issue constitutes a search. No search occurred because the City has not physically trespassed
on LMP’s property. The key issue in the Court’s finding that a search had occurred in the
above cases was the state’s physical occupation of property (Jones, 565 U.S. at 404; Jardines,
569 U.S. at 6) or the state’s physical intrusion on the subject’s body (Grady, 575 U.S. at ___,
135 S. Ct. at 1371). LMP never alleged the City physically entered its mobile food truck to
place the device, nor does it allege the device is City property. Because there is no trespass, no
search occurred within the context of Jones.
¶ 53 Normally, our inquiry would not end with the above. Pursuant to Katz v. United States, a
search may also occur when the government intrudes on an individual’s “reasonable-
expectation-of-privacy.” Jones, 565 U.S. at 409 (citing Katz v. United States, 389 U.S. 347(1967)). However, LMP makes no argument concerning its “reasonable expectation of
privacy” and we decline to engage in any analysis absent a properly raised argument by
appellant. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (points not argued are waived and shall not
be raised in the reply brief, in oral argument, or on petition for rehearing).
¶ 54 This case resembles Grigoleit, 233 Ill. App. 3d 606 (1992). Grigoleit discharged its
industrial wastewater into the sanitary district’s publicly owned water pipes. Id. at 608. The
ordinance under which this was allowed also required Grigoleit to allow the district access to
all discharge locations. Id. at 609. Grigoleit refused all such requests for inspection, and the
district revoked Grigoleit’s license to discharge. Id. at 610. The circuit court reinstated the
permit, and the district appealed to this court. We reversed the circuit court and reinstated the
board’s decision to revoke Grigoleit’s license. Id. at 610-11. In so doing, this court stated,
“Grigoleit is not in this instance subject to a regulatory scheme purporting to regulate the
internal conduct of its business activities.” Id. at 611. “Grigoleit instead is subject to regulation
which controls the external disposal of wastewater it has generated onto property in which it
possesses no interest.” Id. at 612. We continued “[i]t has long been settled that a license in
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respect of real property, either oral or written, is a revocable privilege to do an act or a series of
acts upon the land of another without possessing any estate or interest.” Id.
¶ 55 We concluded that Grigoleit had no “constitutionally protected interest in the sewer
connection and may not accept the privileges afforded by the license while simultaneously
raising the fourth amendment as a bar to enforcement of the very conditions upon which
extension of the license is predicated.” Id. at 613. As the court succinctly concluded, “[i]f
Grigoleit chooses to withhold consent to inspection (as it did here), the permit may be revoked
and no inspection takes place—there is no entry of Grigoleit’s facility and there is no search
implicating the fourth amendment.” Id. at 614.
¶ 56 The same logic applied by this court in Grigoleit applies equally well here. Grigoleit and
all other dischargers had no constitutional right to discharge waste into the district’s water
network. Id. at 613. Similarly, LMP and all food trucks have no constitutionally protected
property right in conducting business from Chicago’s streets or sidewalks. Rhine, 363 Ill. at
625. Like the conditions surrounding the district’s issuance of discharge licenses, the GPS
requirement at issue is a condition precedent that LMP and all food trucks must comply with to
obtain a license to sell on the City streets or sidewalks. Like the ordinance in Grigoleit, the
ordinance at issue here does not regulate the internal conduct of LMP’s business activities. Id.at 611-12 (citing New York v. Burger, 482 U.S. 691, 702 (1987)). LMP makes no argument that
the GPS requirement affects or regulates the internal operations of its bakery business. In
accepting a license to conduct business from the City street, LMP cannot raise a fourth
amendment challenge to “bar *** enforcement of the very conditions upon which extension of
the license is predicated.” Id. at 613.
¶ 57 In view of the above, we affirm the circuit court’s finding that the GPS requirement does
not constitute a search within the meaning of the Illinois Constitution or the fourth amendment
to the United States Constitution.
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, both the 200-foot restriction and the GPS requirement are
constitutionally valid. The decision of the circuit court is affirmed.
¶ 60 Affirmed.
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