Henry's On Main LLC v. Village of Rochester

weanesday, 19 UCtODer, 4U2% □□□ □□□□

Clerk, U.S. District Court, IL

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

HENRY’S ON MAIN, LLC, )

Plaintiff,

v. } Case No. 24-cv-3040

VILLAGE OF ROCHESTER and

JOSEPH SUERDIECK, )

Defendants.

OPINION

COLLEEN R. LAWLESS, United States District Judge:

Before the Court is Defendants Village of Rochester's and Joseph Suerdieck’s

Motion to Dismiss [Doc. 13].

I. FACTUAL BACKGROUND

In its Complaint, Plaintiff Henry’s on Main, LLC (“Henry’s”) alleges it applied for

a liquor license from Defendant Village of Rochester (“Village” or “Rochester”) in April

2023. (Doc. 1 at 1). Defendant Joseph Suerdieck is the elected Village President and serves

as the Liquor Commissioner of the Village. (Id.) In that capacity, Suerdieck is responsible

for reviewing applications submitted for liquor licenses in Rochester and granting or

denying those licenses. (Id.)

Plaintiff filed an application for a Rochester Class R-G liquor license on or about

April 11, 2023. (Id.) Between April 11, 2023 and May 22, 2023, Plaintiff filed

supplementary documentation related to the review of the application. (Id.) Defendant

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Suerdieck assigned Rochester legal counsel to communicate with Henry’s to collect

application .materials throughout the application process because the principal of

Henry’s, Mark Clemens, was engaged in the eviction of the current license holder,

Suerdieck’s son, at the applicant address. (Id. at 2). Suerdieck stated he assigned the “fact-

finding” of Plaintiff's application to legal counsel to avoid the “perception of

impropriety,” consistent with state law and local ordinances. (Id.)

Upon receipt of the supplementary materials from Plaintiff, Village Attorney

Stephen Hedinger advised Plaintiff that nothing further was needed to complete the

application process. (Id.) At the June 12, 2023 Village Board Meeting, Clemens addressed

the Board concerning his application, stating:

I would like to bring up to the Board and the [Village], this process has been

corrupt from the beginning and the rules and the hooks that you’re allowing

others to bypass and because the situation with the President’s son being kicked

out for not paying his bills, now all of a sudden we are following every letter of

the law all the way through the point you keep tabling it two months in a row.

(Id.) Suerdieck characterized Clemens statements as “disparaging,” “rotten,” and “not

very factual.” (Id.)

On June 13, 2023, Ben Suerdieck, the Village President's son, was evicted from the

applicant address and ordered to pay nearly $8,000 in damages to the owner. (Id.)

Defendant Suerdieck confirmed that his son forfeited possession of the applicant address

on June 13, 2023, and was required to pay damages to Clemens. (Id. at 3).

On June 16, 2023, Clemens and Defendant Suerdieck spoke about Plaintiff's

application at Suerdieck’s place of business. (Id.) The conversation was polite and calm

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according to Suerdieck. (Id.) On June 20, 2023, Defendant Suerdieck drafted a letter to

Plaintiff denying the application for the Class R-G liquor license, stating:

The application you have submitted on behalf of Henry’s on Main LLC for an R-

G Liquor License at 320 E Main St, Rochester, IL 62563 has been reviewed. I have

determined that your application has been denied.

(Id.) The letter did not provide an explanation or basis for the denial. (Id.) Plaintiff

appealed that denial to the Illinois Liquor Control Commission. (Id.) During those

proceedings, Defendant Suerdieck testified that, in May of 2023, after Ben Suerdieck’s

business at the applicant address had been closed for 90 days, a liquor license was

available in Rochester. (Id.) Suerdieck claimed he denied the application for a liquor

license because Plaintiff's principal, Mark Clemens, did not possess the requisite “good

character” to be issued a license. (Id.) The State Liquor Commission unanimously

reversed the denial of the license by Defendant Suerdieck, finding that the evidence

presented by him did not meet the threshold for denial of license. (Id.)

In its three-count complaint, Plaintiff alleges Defendants retaliated following

Clemens’s appearance before the Village Board, in violation of the First Amendment of

the U.S. Constitution, Article I, Section 4 of the Illinois Constitution, and Illinois state law

(Count 1). (Id. at 3-4). Plaintiff further asserts Defendants violated its First Amendment

right to petition the government for the redress of grievances and retaliated by denying

the application for a liquor license (Count 2). (Id. at 4). In Count III, Plaintiff alleges

Defendants denied him the equal protection of the laws guaranteed by the Fourteenth

Amendment by imposing different standards on him than on other applicants and

holders of liquor licenses. (Id. at 5).

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II. DISCUSSION

Defendants contend there are several reasons why the complaint should be

dismissed. First, Defendants allege Counts I and II must be dismissed because Plaintiff

cannot establish a First Amendment retaliation claim and the counts are redundant.

Defendants assert Count IIT must be dismissed because Plaintiff has no equal protection

right to be issued a liquor license. Defendants seek dismissal of the claims against

Defendant Surdieck because he is entitled to absolute immunity and the Village should

be dismissed as a defendant because Plaintiff does not plead any recognized theory of

Monell liability.

In response, Plaintiff alleges Defendant misconstrues its First Amendment claims

as asserting a deprivation of a right to a liquor license when Plaintiff actually alleges “the

denial of the application for a liquor license is a violation of Plaintiff's rights of free

speech” and “right to petition the government for redress of grievances,” when

“Defendants retaliated against Plaintiff[] because of its presentation to the Village Board.”

Plaintiff further contends it has plausibly alleged a “class of one” equal protection claim

because “Defendants subjected Plaintiff to a far different standard and a far different level

of scrutiny than” other liquor license applicants in the Village. Finally, Plaintiff asserts

Suerdieck is not entitled to absolute immunity and Plaintiff has adequately alleged Monell

claims against the Village.

A. Legal Standard

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See

Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). When considering a

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motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most

favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all

reasonable inferences in plaintiff's favor. Id. To state a claim for relief, a plaintiff need

only provide a short and plain statement of the claim showing she is entitled to relief and

giving defendants fair notice of the claims. Maddox v. Love, 655 F.3d 709, 718 (7th Cir.

2011). However, the complaint must set forth facts that plausibly demonstrate a claim for

relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plausible claim is one that

alleges factual content from which the court can reasonably infer that defendants are

liable for the misconduct alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely

reciting the elements of a cause of action or supporting claims with conclusory statements

is insufficient to state a claim. See id. The complaint must do more than assert a right to

relief that is “speculative.” See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

B. Constitutional Rights at Issue

Defendants argue Plaintiff has no right to the issuance of a liquor license simply

because he completed the application. According to Defendant, Plaintiff cannot show the

required deprivation of a right to assert a claim under 42 U.S.C. § 1983 when there is no

constitutionally protected right to sell liquor. However, Plaintiff alleges Defendants

violated its constitutional right of free speech, right to petition the government for the

redress of grievances, and right of equal protection. A violation of the equal protection

clause “does not require proof of a deprivation of life, liberty, or property.” Esmail v.

Macrane, 53 F.3d 176, 180 (7th Cir. 1995). Because none of the constitutional rights asserted

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require Plaintiff to establish the deprivation of a right, Defendants’ Motion to Dismiss on

that basis is denied.

C. Absolute Immunity

Defendants next contend Joseph Suerdieck is entitled to absolute immunity. While

acknowledging that no Seventh Circuit case has specifically addressed whether absolute

immunity applies to a decision not to issue a liquor license in the first instance,

Defendants argue since absolute immunity applies to nearly all decisions made by a local

liquor commissioner, such immunity must apply to the initial decision to deny a liquor

license. Plaintiff contends absolute immunity is inapplicable because Plaintiff has not

asserted a due process claim.

Defendants cite Reed v. Vill. of Shorewood, 704 F.2d 943 (7th Cir. 1983) for the

proposition that a local liquor commissioner is a “type of first-line adjudicator, like a trial

judge or his counterpart in administrative law,” and is, therefore, entitled to absolute

immunity in decisions to renew liquor licenses. Id. at 951-53. Defendants also rely on

Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004), wherein the Seventh Circuit considered a

due process claim based on two relatively brief suspensions of a liquor license and

followed Reed in determining that absolute immunity applied to decisions “to renew or

revoke a liquor license.” Id. at 770.

However, in Brunson v. Murray, 843 F.3d 698 (7th Cir. 2016), the Seventh Circuit

found it “necessary to overrule one holding in Reed v. Village of Shorewood and to

disapprove one phrase of dictum in Killinger v. Johnson” in denying absolute immunity to

local liquor commissioners in decisions to renew licenses due to developments in both

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federal and state law. Id. at 713-14. The plaintiff in Brunson owned a package liquor store

and asserted that city officials violated his rights by refusing to renew his liquor license.

Id. at 700. The mayor, who was also the local liquor commissioner, refused to consider

Brunson’s application for a routine renewal of his liquor license. Id. at 701. The Seventh

Circuit in Brunson determined that the district court had correctly limited its discussion

of immunity to the plaintiff's due process claim because the “absolute immunity defense

does not affect [the plaintiff's] broader equal protection claim because his claim of

harassment extends beyond Schauf’s conduct as local liquor control commissioner to his

nonjudicial, nonlegislative conduct as mayor. As in Reed, when a defendant is both mayor

and local liquor commissioner, we separate out claims that primarily concern the

defendant's actions in the mayoral role.” Brunson, 843 F.3d at 710 n.6 (internal quotation

marks and citation omitted).

The Seventh Circuit observed that “[t]he key holding expressed in Reed based its

grant of absolute immunity for license renewal decisions on a view of Illinois law that is

no longer accurate and on a broad view of absolute immunity that the Supreme Court

has narrowed.” Id. at 710. The court explained that “the action of renewing or not

renewing an Illinois liquor license is a bureaucratic and administrative act—not a judicial

act.” Id. This is in contrast to a local liquor commissioner’s decision to suspend or revoke

a license because of the procedural formalities and protections involved in those

decisions, including requirements of notice, a hearing, a record, and a reasoned decision.

Id. at 710-11. Because such proceedings are akin to a judicial act, the liquor commissioner

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would be entitled to absolute immunity regarding the decision to suspend or revoke a

license. Id. at 710.

The Seventh Circuit noted there are six factors that are “characteristic of the

judicial process” which should be considered in determining the issue of absolute

immunity. Id. at 711. These include “ (a) the need to assure that the individual can perform

his functions without harassment or intimidation; (b) the presence of safeguards that

reduce the need for private damages actions as a means of controlling unconstitutional

conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the

adversary nature of the process; and (f) the correctability of error on appeal.” Id. at 712

(quoting Cleavinger v. Saxner, 474 U.S. 193, 202 (1985)). The court in Brunson determined

that the factors weighed decisively against absolute immunity for a local liquor

commissioner's decision on whether to renew a liquor license. Id. at 712. It found that the

risk of harassment was minimal where the decision to renew is “automatic” and “not

discretionary.” Id.

Moreover, while procedural safeguards exist in cases of license suspensions, those

protections do not apply to actions on license renewals. Id. The Seventh Circuit noted that

the local liquor commissioner in Brunson was an elected mayor and thus not insulated

from political influence. Id. As for the fourth and fifth factors, the court found no

indication that precedent was important in the administrative renewal process nor that

the process was adversarial or even based on a record of evidence. Id. The court

determined that the only factor supporting absolute immunity is that errors could be

corrected on appeal to the state Commission, though that factor was somewhat limited

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based on the standard of review. Id. It concluded that “[t]he Cleavinger factors thus weigh

heavily against extending absolute immunity to an Illinois local liquor commissioner’s

action on whether to renew a license, even while they weigh in favor of absolute

immunity for decisions to revoke or suspend licenses.” Id. at 713.

As previously noted, based on language in Brunson, Plaintiff alleges Suerdieck’s

absolute immunity defense does not apply to Plaintiff's claims under the First and

Fourteenth Amendment. The crux of the equal protection claim in Brunson is that the

mayor, along with other defendants, “harassed Brunson under color of state law in an

attempt to drive him out of business for [the mayor’s] own personal gain or other

illegitimate purposes.” Id. at 705. Here, Plaintiff alleges that First Amendment and equal

protection rights were violated because of Mark Clemens’s presentation to the Village

Board.

Defendants cite Gianessi v. City of Pekin, 52 F. App’x 265 (7th Cir. 2002) in arguing

it is irrelevant to the issue of absolute immunity if the mayor-liquor commissioner acted

with improper motives. The plaintiff in Gianessi claimed the mayor was motivated by the

applicant’s relationship with the mayor’s ex-wife and his support of the mayor’s political

opponent. Id. at 267-68 (“As Reed established, Tebben’s actions as liquor commissioner in

deciding upon liquor applications (irrespective of the fact that he was also mayor) were

judicial, and thus entitled to absolute immunity regardless of whether his actions were

improperly motivated.”). The Court is not persuaded by Defendants’ reliance on Gianessi,

which predates Brunson and relies on Reed.

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While the Court recognizes there are differences between a local liquor

commissioner’s act of determining whether to issue a liquor license in this case versus

the decision whether to renew a liquor license in Brunson, the Brunson factors weigh

against absolute immunity in both cases. The risk of harassment appears to be minimal

in what is normally a routine decision to issue a liquor license. In considering whether a

liquor commissioner is insulated from politics, Suerdieck testified that he serves as liquor

commissioner by virtue of his election as Village President. While it may seem obvious

that Suerdieck was acting in the capacity of Rochester’s liquor commissioner in denying

Plaintiff's liquor license, the complaint can be plausibly interpreted as alleging Suerdieck

was also acting is his role as Village President. Suerdieck is referred to as the “Village

President” or “President Suerdieck” throughout the hearing and in the Illinois Liquor

Control Commission’s Order reversing the Rochester Commissioner’s decision. There are

limited procedural safeguards as to the issuance of liquor licenses and precedent does

not appear to be important when, as here, an application can be denied in a terse letter

with no reason provided. Based on that denial, the process is not adversarial or based on

record evidence. As in Brunson, the sole factor that supports absolute immunity is that

errors can be corrected on appeal to the state Commission. Thus, the foregoing factors

‘The Court is considering the administrative record of the Illinois Liquor Control Commission in

ruling on the motion to dismiss. A motion to dismiss under Rule 12(b)(6) can be based on only

“the complaint itself, documents attached to the complaint, documents that are critical to the

complaint and referred to in it, and information that is subject to proper judicial notice.” Kuebler

v. Vectren Corp., 13 F.Ath 631, 636 (7th Cir. 2021). Plaintiff intended to attach the Final

Administrative Decision to its complaint but did not do so due to an apparent oversight. (Doc. 1

at 3). The administrative record is attached to Defendants’ motion to dismiss and is critical to the

complaint and referred to in it.

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weigh decisively against absolute immunity for a local liquor commissioner's action on

whether to issue a liquor license.

Additionally, Suerdieck’s decision could also be interpreted as being motivated by

personal considerations given that Plaintiff's principal, Mark Clemens, evicted the prior

license holder, Surdieck’s son, from the applicant address one week before Suerdieck

denied the application. While addressing the Village Board meeting eight days before

Suerdieck’s decision, Clemens alleged that the process was “corrupt from the beginning.”

Suerdieck later described Clemens’s statements as “disparaging,” “rotten,” and “not very

factual.” Four months later, Suerdieck testified at the hearing that Clemens lacked the

character to have a liquor license. When the allegations are viewed in a light most

favorable to Plaintiff, the Court finds Suerdieck’s act of denying Plaintiff’s application for

a liquor license is analogous to the assertion in Brunson that defendant harassed the

plaintiff to drive him out of business for illegitimate purposes such as the mayor's

personal gain. Viewed through that lens and to the extent that absolute immunity is even

potentially applicable to Plaintiff's claims, the Court finds absolute immunity does not

apply because Suerdieck’s actions “do not involve acts that are analogous to those

performed by judges.” See Brunson, 843 F.3d at 712. Plaintiff's First and Fourteenth

Amendment claims can plausibly be construed as alleging Suerdieck was solely

motivated by personal animus or revenge in denying Plaintiff's application for a liquor

license. Therefore, Defendants’ Motion to Dismiss is denied.

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D. Village of Rochester and Monell Liability

Defendants next contend that the Village should be dismissed as a party because

Plaintiff does not plead any recognized theory of Monell liability. Plaintiff neither alleges

the existence of a written policy nor the existence of any widespread practice.

Furthermore, Defendants assert that a local liquor commissioner is not a final

policymaker on the issuance of liquor licenses for purposes of Monell liability. Citing

Rasche v. Village of Beecher, 336 F.3d 588 (7th Cir. 2003), Plaintiff claims that a “municipal

action was taken with ‘deliberate indifference’ as to its known or obvious consequences,”

such that “a facially lawful municipal action” has resulted in the violation of Plaintiff's

constitutional rights. Plaintiff contends Defendants did this by denying Plaintiff a liquor

license (a facially lawful municipal action) in a discriminatory, vindictive, and retaliatory

manner (by subjecting Plaintiff to different “character standards” than other applicants

and license-holders following Plaintiff's principal's eviction of the liquor commissioner’s

son). Id. at 599.

While there are multiple types of Monell liability, Plaintiff proceeds on the

allegation that the constitutional injury was caused by an individual with final

policymaking authority. See Orozco v. Dart, 64 F.4th 806, 823 (7th Cir. 2023) (discussing

the requirements to establish a Monell claim). Defendant alleges a local liquor

commissioner is not a final policymaker for purposes of Monell liability. The court in

Brunson appeared to suggest that a mayor-liquor commissioner qualifies as a final

policymaker. See Brunson, 843 F.3d at 715 (“The district court rejected Brunson’s

argument that the city was liable on the due process claim for Schauf’s actions as a final

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policymaker for Bridgeport. The court’s conclusion might well raise an eyebrow, see Reed,

704 F.2d at 953 (official acts of municipal officials are acts of the municipality for purposes

of § 1983 liability, even if official is entitled to immunity from individual liability), but

Brunson has waived the point by not arguing it on appeal.”). While the Seventh Circuit's

statement in Brunson is dicta, the Court agrees and concludes that as Village President

and liquor commissioner, Suerdieck had final policymaking authority for the Village of

Rochester. Indeed, Suerdieck’s decision was the final decision of the Village of Rochester.

Accordingly, the Court denies Defendants’ Motion to Dismiss on this basis.

Defendants next allege that if Plaintiff's claim against Suerdieck was intended as

an official capacity claim, then the Monell claim against the Village should be dismissed

as redundant. While Plaintiff does not specify in its complaint whether it is suing

Suerdieck in his official capacity or his individual capacity, “[a]ctions against individual

defendants in their official capacities are treated as suits brought against the government

entity.” Walker v. Sheahean, 526 F.3d 973, 977 (7th Cir. 2008). Thus, to the extent that

Plaintiff has filed suit against Suerdieck in his official capacity, the Court will construe

any such claims as being brought against the Village.

E. First Amendment Free Speech Retaliation Claim

In Count 1, Plaintiff alleges retaliation by Defendant in violation of the First

Amendment of the United States Constitution and Article 1, Section 4 of the Illinois

Constitution based on Clemens’s presentation to the Village Board. “To prevail on a First

Amendment retaliation claim, a plaintiff must show that (1) he engaged in

constitutionally protected speech; (2) he suffered a deprivation likely to deter his free

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speech, and (3) his protected speech was at least a motivating factor for the deprivation.”

Lavite v. Dunstan, 932 F.3d 1020, 1031 (7th Cir. 2019). Unless there is some indication

otherwise, provisions of the Illinois Constitution are to be construed in harmony with

similar provisions of the United States Constitution. People v. Tisler, 103 Ill.2d 226, 244-46

(1984). Therefore, the Court will utilize a single analysis.

For purposes of this motion, Defendants agree Plaintiff was engaged in a protected

First Amendment activity by speaking at a Village Board meeting. Defendants contend

Plaintiff suffered no deprivation of any recognized right given that it had no right to be

issued a liquor license. Furthermore, Defendants argue Plaintiff cannot plausibly allege a

causal link between Mark Clemens’s statement about a “corrupt” process and the denial

of the liquor license application.

Plaintiff is not claiming it had a constitutional right to be issued a liquor license.

Rather, Plaintiff is alleging Defendants retaliated against Plaintiff because of its

principal’s statements to the Village Board. The denial of Plaintiff's liquor license

occurred one week and one day after Clemens’s statements to the Village Board. The

denial of the liquor license occurred one week after Suerdieck’s son was evicted from the

applicant address. “ Although suspicious timing will rarely be sufficient in and of itself to

create a triable issue, if the employee’s speech and the adverse employment action are

close in time, it may be probative of a casual link between the two events.” Sweet v. Town

of Bargersville, 18 F.4th 273, 279 (7th Cir. 2021) (internal quotation marks and citation

omitted). While there is no set rule, the Seventh Circuit typically allows “no more than a

few days to elapse between the protected activity and the adverse action.” Id. Here,

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Plaintiff's protected speech occurred within “no more than a few days” of the adverse

action. The fact that Suerdieck’s son was evicted within that time frame further bolsters

Plaintiff's claim. While Defendants dispute Plaintiff's assertion based on Suerdieck’s

testimony, the Court cannot accept Defendants’ version of events at this stage of the

litigation. Moreover, the State Liquor Control Commission did not agree that the liquor

license should be denied because Clemens had “bad character.” When the facts are

viewed in a light most favorable to Plaintiff, the Court finds Plaintiff has plausibly alleged

a causal link between its protected activity and the denial of the liquor license application.

Therefore, Defendants’ Motion to Dismiss Count 1 is denied.

F. First Amendment Petition for Redress of Grievances Claim

In Count 2, Plaintiff alleges the denial of the application for a liquor license is a

violation of its right to petition the government for redress of grievances guaranteed by

the First Amendment. In representing Plaintiff, Mark Clemens appeared at a Village

Board meeting to discuss the application for a liquor license and to petition for redress of

his grievance relating to the handling of that application. Plaintiff contends Defendants

retaliated because of that presentation. “As with the free speech claim, to prevail in an

access to the courts or petition for redress of grievances retaliation claim, [plaintiff] must

ultimately show that (1) he engaged in activity protected by the First Amendment; (2) he

suffered a deprivation that would likely deter First Amendment activity in the future;

and (3) the First Amendment activity was ‘at least a motivating factor’ in the Defendants’

decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009).

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Defendants contend Count 2 should be dismissed because Plaintiff has asserted

duplicative claims in that Counts 1 and 2 allege the same facts, the same injury, and same

theory of retaliation. Defendants further argue Count 2 must be dismissed because the

allegations of the complaint confirm that Plaintiff successfully exercised the First

Amendment right to petition the government.

The Court is unable to conclude that Count 2 is redundant of Count 1. The First

Amendment protects freedom of speech and the right to petition the government for a

redress of grievances. Defendants cite no authority for the proposition that Plaintiff must

choose to procced under one right or the other. In Count 1, Plaintiff appears to be alleging

that it was retaliated against because of the content of Clemens’s speech. In Count 2,

Plaintiff appears to be alleging that it was retaliated against based on Clemens’s

petitioning the Village Board for redress of grievances. Those are similar but not

duplicative claims.

The Court also has no basis to dismiss Plaintiff's retaliation claim simply because

Plaintiff successfully exercised its First Amendment right to petition the government.

Defendants cite Shipley v. Chicago Bd. of Election Commissioners, 947 F.3d 1056 (7th Cir.

2020), wherein the plaintiffs alleged their right to petition the government was violated

when they were not permitted to publicly comment about election integrity concerns at

a meeting before the certification of precinct returns. Id. at 1063-64. Shipley is inapposite

because their “only complaint is that they were not able to petition the Board at their

desired time and place, not that they were prohibited from petitioning the government.”

Id. at 1064. Unlike Plaintiff here, the plaintiffs in Shipley did not assert a retaliation claim.

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The fact that Clemens was permitted to speak does not mean Defendants did not retaliate

against him. For these reasons, Defendants’ Motion to Dismiss Count 2 is denied.

G. Equal Protection Claim

In Count 3, Plaintiff alleges Defendants imposed different standards on Clemens

in considering his application for a liquor license than other applicants and holders of

liquor licenses —a “class of one” equal protection claim. The denial of the liquor license

was based on an allegation that Clemens lacked the requisite “character” to hold such a

license, while the Village President’s son was not similarly sanctioned despite failing to

make tax payments to the State of Illinois. Plaintiff asserts it was subjected to a far

different standard and more rigorous scrutiny than the prior applicant for a liquor

license. Defendant contends Count III should be dismissed because Plaintiff has no equal

protection right to be issued a liquor license.

The Supreme Court has recognized that a plaintiff may bring an equal protection

claim alleging he has suffered discrimination as a “class of one” — that is, regardless of

his membership in any protected class. Village of Willowbrook v. Olech, 528 U.S, 562, 563-

64 (2000). To survive a motion to dismiss on a class-of-one claim, a plaintiff must allege

he was “intentionally treated differently from others similarly situated and that there is

no rational basis for the difference in treatment.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d

681, 685-86 (7th Cir. 2013) (quoting Village of Willowbrook, 528 U.S. at 564).

Additionally, in class-of-one claims challenging the government's execution of

alleged discretionary functions, plaintiffs must ordinarily point to evidence that

individuals similarly situated to themselves received different treatment; in most cases,

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this is necessary to “distinguish between unfortunate mistakes and actionable, deliberate

discrimination.” See Geinosky v. City of Chi., 675 F.3d 743, 747-48 (7th Cir. 2012). However,

as the court in Geinosky explained, there are circumstances where comparators are

unnecessary —instances of official misconduct whose deviation from the benign

application of discretion is readily apparent standing alone. Id. at 748. In Geinosky, the

court found that where a plaintiff had received 24 dubious parking tickets over a two-

year period, requiring him to point to other citizens with similar driving habits who had

not been so treated would be both unrealistic and unhelpful. Id.

In both Brunson and Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), the Seventh

Circuit determined that an equal protection “class-of-one” claim should proceed against

the liquor commissioner and municipality after plaintiffs demonstrated the liquor

commissioner showed “substantial animus” and “sheer vindictiveness” towards the

liquor license applicants. Brunson, 843 F.3d at 708; Esmail, 53 F.3d at 178.

In its Order, the Illinois Liquor Control Commission stated the following:

The subjectivity of a “character without reputation analysis” is particularly acute

in the comparison of Clemens’ and Ben Suerdieck’s business related behavior.

Again, Ben Suerdieck is President Suerdieck’s son and was the prior license holder

at the Applicant Address. President Suerdieck negatively assessed Clemens’

character based on Clemens’ eviction and application related behavior. Clemens,

however, does not have a disqualifying criminal record and there is no evidence

about his reputation in the community. In contrast, President Suerdieck ignored a

character analysis of his son, a liquor license holder, even though President

Suerdieck knew his son’s liquor license was suspended twice by the State for

failing to remit retail sales taxes. State Commission Transcript, ILCC at p. 208. Failing

to remit the payment of taxes is the collection of taxes from customers but keeping

the payments for one’s own purposes. This example is not an attempt to portray

Ben Suerdieck as lacking character but merely to demonstrate how President

Suerdieck’s assessment of bad character was, at a minimum, inconsistent and

required a balance of a more objective assessment of a person’s reputation within

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the community. Without such a balance, President Suerdieck’s determination of

character, especially under the facts of this record, is subjectively clouded and

arbitrary.

(Doc. 13-1 at 12). Upon accepting the allegations of the complaint as true and drawing all

reasonable inferences in favor of Plaintiff, the Court finds Plaintiff has plausibly alleged

Clemens was treated differently than any other potential applicant because of Clemens’s

eviction of Plaintiff's son and his public airing of grievances before the Village Board.

This could plausibly be viewed as evincing “sheer vindictiveness” and “substantial

animus” towards Plaintiff. Therefore, the Court denies Defendants’ Motion to Dismiss

Count 3.

Ill. CONCLUSION

For all of these reasons, the Court concludes Plaintiff has plausibly alleged First

Amendment claims in Counts 1 and 2 and a Fourteenth Amendment Equal Protection

claim in Count 3. Defendants Village of Rochester and Joseph Surdieck’s Motion to

Dismiss Plaintiff's Complaint under Rule 12(b)(6) [Doc. 13] is DENIED.

Defendants shall file an answer or responsive pleading within 14 days of the entry

of this Order.

ENTER: October 15, 2024 /

COLL . LAWLESS

NITED SPATES DISTRICT JUDGE

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