Chicago City Hall
CHICAGO - The owners of a gas station in a neighborhood plagued by gangs, crime and violence on Chicago's West Side can't sue the city for shutting them down for weeks and allegedly costing them as much as $80,000 until the owners agreed to install new security measures after a customer was shot and killed at the station while pumping gas.
On Aug. 18, a three-justice panel upheld the dismissal of the legal action brought against City Hall by the owners of a small business known as Cicero Gas & Food Inc.
According to court documents, Cicero Gas & Food operates a Mobil-branded gas station and convenience store at 4804 West Madison Avenue in Chicago's Austin neighborhood. The business is owned and operated by married couple Syed Aiertaz and Fatima Batool.
According to court documents, the gas station serves as the sole source of income for the couple, and reportedly employs five additional people.
The case centered on a challenge lodged by the couple and Cicero Gas & Food against the city for the city's decision to order the gas station and store closed for more than a month in 2023 following an attack and shooting in which a woman was killed in a car that had stopped to pump gas.
According to court documents, the station had long been plagued by violence and crime. The judges noted the owners and employees had called police to the station to respond to criminal activity more than 550 times.
Additionally, the station's owners and employees have never been accused of criminal activity and the station's manager works with Chicago Police, attending community policing meetings, and had already installed video cameras at the gas station, accessible to police.
However, on March 29, 2023, Chicago Police still ordered the station to shut down, citing a city ordinance allowing them to take action against businesses allowing "public nuisances," including violent crime.
According to court documents, on that date, the station's employees called Chicago Police twice, asking for help in removing people from the property who had refused to leave after being asked by employees.
However, despite those requests, a group of people reportedly had remained on the property, "gambling, drinking from red cups, making purchases inside the gas station, and loitering."
Acording to a narrative in the court ruling, those same people "later 'surrounded' a car that had pulled into the station." After someone from the vehicle went into the station and came back out to the car, someone from the group "pulled out a handgun and began firing into the car, killing the female driver."
That same day, police declared that they believed "it was 'more likely than not that continued operation of the establishment presented a danger to the public," and ordered a "summary closure" of the business, subject to the results of a public hearing.
The police sought to keep the station closed for six months, as allowed under the city ordinance.
City officials, however, negotiated a deal with the owners, under which the station would agree to new security measures.
The station reopened in early May 2023.
In the meantime, however, the station owners said they lost as much as $80,000 in income, causing them to fall behind on loan payments on the business and their mortgage payment on their home.
They lodged a so-called "inverse condemnation" lawsuit against the city, asserting the city's enforcement action amounted to an unconstitutional "regulatory taking" of their property and income.
Those claims, however, failed in both Cook County Circuit Court and at the Illinois First District Appellate Court.
In the ruling, the appellate justices said they believed the city's ordinance and its closure action "was a valid exercise of the City's police powers in abating a public nuisance" and "was clearly an attempt by the City to mitigate the public safety threat that stemmed from the operation of" the gas station, regardless of the financial impact to the business and its owners.
"The municipal ordinance, whose validity the plaintiff does not challenge, explicitly permits summary closures of businesses where the owner does not personally create the safety threat, and instead the threat 'involves acts of ... patrons, or otherwise involves circumstances have a nexus to the operation of the establishment," the justices wrote.
"Here, (the city) found that the safety threat stemmed from the actions of the plaintiff’s patrons, and the plaintiff does not challenge that finding on appeal. Moreover, the United States Supreme Court has instructed that a party’s 'innocence' in creating a public nuisance is irrelevant for purposes of a fifth amendment regulatory taking claim."
The city, the justices said, did not seize or destroy the owners' property, in this case. Instead, they ordered it to close to address a "public safety threat," and allowed it to reopen after city officials determined the threat had been reduced.
They said the closure only caused the owners to suffer "financial hardship stemming from the City's restriction on the use of its property during the five-week" period.
The decision was issued as an unpublished order, which may limit its use as precedent. The order was authored by Justice James Fitzgerald Smith. Justices Terrence J. Lavin and Aurelia Pucinski concurred in the ruling.
Pucinski, however, included a special statement in the ruling, saying she signed on "reluctantly ... because under the law and precedent, I must."
"However, that doesn't mean I think what's the law and what's fair are in synch," Pucinski said.
"The owners of this property, a 'mom and pop' operation, have all their equity tied up in this business. They have been vigilant about calling the police to stop trouble. They cannot control the neighborhood of their business, but their business provides a necessary service: this isn’t a luxury handbag boutique!"
Pucinski said she believed the city could have moved more quickly and offered alternatives to the business to allow it reopen more quickly and reduce the financial harm.
"I hope the city will consider how to add temporary plans to the ordinance involved," Pucinski said.
