Federal judge says City Hall can't use zoning law 'fortuity' to sidestep shop's lawsuit over gun sale ban

By D.M. Herra | Sep 7, 2017

Chicago’s attempt to squash a suit brought against the city by a gun shop has failed, after a federal judge said City Hall can’t sidestep the lawsuit accusing the city of unconstitutionally barring the shop from opening.

Second Amendment Arms sued the city of Chicago, Mayor Rahm Emanuel, Superintendent of Police Eddie Johnson and City Clerk Anna Valencia for losses it alleges it suffered under the city’s prohibition of gun sales within the city from 2010 and 2014.

Second Amendment, a gun shop owned by R. Joseph Franzese, applied for a business license to open a retail location at 415 W. Armitage Ave. on July 2, 2010, the same day the city enacted a new handgun ordinance that prohibited the sale of firearms in the city. The ordinance was repealed on June 25, 2014.

When the license application was denied, Second Amendment says it was told the denial was because of the city ordinance. The company claims it was not told that, even without the ordinance, the application would have failed because 415 W. Armitage Ave., though advertised as a commercial space for rent, was zoned for residential use. The city maintains the plaintiff was told the application failed on both counts. There is no written record of the denial to settle the dispute.

Because there is no question about the location’s zoning, the city moved for summary judgment, arguing that Franzese did not lose sales due to the handgun ordinance – even without the ordinance in place he would never have been allowed to open a retail store in that location.

Second Amendment argues that if the company had been told the location was an issue, it would have filed a new or amended application with a different address. The plaintiff argues that they did not do so because they didn’t realize the Armitage address was a residential building, and because they thought the point was moot, as the gun ordinance prohibited the sale of guns in the first place.

The court sided with the plaintiff. In a decision issued Aug. 29, U.S. District Judge Robert M. Dow Jr. said the existence of a second, unchallenged ordinance blocking the application is not enough; the city must show the plaintiff was unable or unwilling to comply with the terms of that ordinance to prove the challenged ordinance was not the cause of the lost sales.

In his finding, the judge determined the city’s argument relied too heavily on case law involving an advertising company which wanted to construct a billboard that violated a municipal sign ordinance regulating the size of off-site signage. In that case, there was no indication the company was interested in erecting anything smaller; in this case, Dow wrote, it is not only possible, but probable, that Second Amendment would have submitted an application for a different address if the only thing preventing it from opening a store was its location’s zoning.

“No one argues that there was anything special about operating a gun shop at 415 W. Armitage. Plaintiff simply picked a location advertised as a commercial space,” Dow wrote. “The fact that the particular address that Plaintiff listed on their gun store application was zoned for residential use even though it was advertised as commercial space is simply a fortuity.”

The zoning cases presented as precedent were different, Dow wrote, because “in some of these cases, the permit applications violated a host of unchallenged zoning prohibitions and there was no reasonable prospect that the plaintiff had any intention of rectifying these problems. …A judgment that SAA was improperly precluded from opening a gun store at any commercial location in Chicago solely because of the gun store ban is substantially likely to redress its injuries – whatever their size.”

The case is set for a status hearing on Sept. 28.

Second Amendment Arms is represented in the action by attorneys David G. Sigale, of Glen Ellyn, and Walter Peter Maksym Jr., of Chicago.

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