Jonathan M. Feinstein

Tuesday, November 24th, 2015

First and 10: Illinois High School Football Gets a Fresh Set of Downs.

The nation’s first class-action lawsuit against a state sports governing body, the Illinois High School Association (“IHSA”), was recently dismissed by Cook County Judge Leroy Martin Jr.  The Plaintiffs in the case, who filed suit on behalf of players, wanted court supervision over how high schools manage football head injuries. The suit also sought the IHSA to pay for medical testing of former high school football players extending as far back as 2002.

Judge Martin stated that it was clear that the IHSA did not have a “direct relationship” to football or to the Plaintiffs and that the IHSA had worked hard to protect student athletes. Furthermore, the judge explained that the potential impact on the sport could be devastating, “[i]mposing broader liability on this defendant would certainly change the sport of football and potentially harm it or cause it to be abandoned.”

Alex Pierscionek, a South Elgin High School lineman from 2010 to 2014 is the lead Plaintiff in the lawsuit. He alleges he still suffers memory loss from concussions he received while playing high school football. One of the concussions led to him being airlifted to an area hospital.

The IHSA oversees approximately 50,000 football players at hundreds of Illinois high schools each year.


Jonathan M. Feinstein

Author: Jonathan M. Feinstein

Wednesday, July 15th, 2015

New Case Discusses a Zoning Board’s Discretion

Recently, an Illinois appellate court affirmed the decision of a zoning board denying a resident’s request to change his property to a planned business district. The resident completed construction of a barn on his parcel of land that he planned to use as storage for his off-site concrete construction business. The zoning board determined that such a use was not within the current agricultural plan for the parcel and denied the resident’s request to change the property to a planned business district.

On appeal, the resident challenged the zoning board’s decision to deny the change as against the manifest weight of the evidence. Specifically, the resident argued that his 10 acre parcel was not suited for agricultural use as it crossed by numerous streams, it contained a 50 foot power line easement, it and was not large enough to support any agricultural use. The resident also argued that the equipment that he planned to store in his barn was “substantially identical” to the machinery found on a farm.

In denying the resident’s appeal, the court noted that there was no evidence suggesting that the property was instead well-suited for commercial development. Such evidence that potentially could have been presented may have been testimony of the need for this business in the vicinity, evidence that community members supported the change, evidence that zoning officials support the change, or evidence that commercial development had already begun encroaching into the agricultural district. Because none of this evidence was submitted by the resident, as it was his burden, the court was unable to say that the zoning board’s decision was against the manifest weight of the evidence.

Further, the court also rejected the resident’s “substantially identical” claim because there was no evidence that the use of the property would have been no more intrusive than the use of similar equipment for agriculture. The court stated that zoning officials have the discretion to determine whether the benefits of each type of use outweigh the negative consequences of that use in the district.

This case serves as a reminder of the broad authority and deference given to local zoning boards in making decisions to change or alter existing plans.


Jonathan M. Feinstein

Author: Jonathan M. Feinstein, Jacob Caudill

Tuesday, November 18th, 2014

Liquor License: A Right or a Privilege?

WISAM 1, Inc. v. Ill. Liquor Control Comm’n, 2014 IL 116173 (2014)

In this recent case, the Illinois Supreme Court affirmed the Appellate Court’s ruling that the decision of the deputy local liquor control commissioner of the City of Peoria (Local Commissioner) to revoke a liquor license did not violate due process rights.

A liquor store held a valid liquor license issued by the City of Peoria (the City). One of the store’s managers was found guilty on five counts of violating or conspiring to violate the Money Laundering Control Act of 1986.

Subsequently, the City charged a violation of section 3-28 of the Peoria Municipal Code (the Code) prohibiting any liquor licensee or its agent or employee from engaging in any activity or conduct in or about the licensed premises that is prohibited by federal law.

After a hearing, the Local Commissioner revoked the liquor store’s license. The liquor store raised three issues before the Illinois Supreme Court: (1) the Local Commissioner denied it due process; (2) the Local Commissioner’s findings were not supported by substantial evidence; and (3) the Local Commissioner’s decision to revoke its license was not supported by the record.

In support of the liquor store’s argument the Supreme Court stated that, “although a liquor license is generally regarded as a privilege, and not a property right under the Liquor Control Act, once issued, it becomes a property right in a functional sense for due process purposes because it is only revocable for cause.”

Yet, the Court held that a liquor license may be revoked where the licensee has violated any valid local ordinance as long as the violation is fairly related to liquor control, and it rejected the liquor store’s argument that the Local Commissioner denied it due process by not allowing it to relitigate the manger’s criminal conviction.

Additionally, the Court agreed with the liquor store that the manager’s conviction alone does not satisfy the necessary elements to support its liability for a violation of section 3-28 of the Code. Section 3-28 requires that the City prove (1) an agency relationship; (2) that the agent committed a violation of federal law; and (3) that the conduct occurred in or about the licensed premises. See Peoria Municipal Code § 3-28 (adopted Apr. 20, 1993). However, prior to any finding on its liability, the liquor store had already stipulated to the agency relationship, as it stipulated that the manager was convicted of the federal offenses as charged in the indictment, and it stipulated that the offenses for which the manager was convicted all related to the financial and business operations of the liquor store. Because of these stipulations, the Court held that the City had met the requirements of Section 3-28.

Lastly, the Court agreed with the liquor store that the City improperly sought to admit the entire transcript of proceedings from the federal trial, because it did not identify the purpose for which it sought to use the testimony, but it declined to decide whether the testimony was inadmissible hearsay because it found that there was sufficient evidence to support the administrative ruling.

Bottom Line: There are two main takeaways from the decision. First, once a liquor license is issued, it becomes a property right for due process purposes and becomes only revocable for cause. Keep in mind that this “property right” may be revocable for violation of any local ordinance. Secondly, be careful what your attorneys stipulate to, as the store’s stipulation may have changed the outcome of the case.


Jonathan M. Feinstein

Author: Jonathan M. Feinstein

Thursday, July 17th, 2014

Phone First: Obtain a Search Warrant Prior to Searching a Defendant’s Cell Phone

The recent Supreme Court decision Riley v. California involved two defendants, in separate incidents, who had their cell phones seized and searched post-arrest.

Defendant Riley was stopped for a traffic violation, and his cell phone was seized from his pants’ pocket on a search incident to his arrest. Photographs and videos were found on the cellphone, which in part resulted in the defendant being charged in connection with a shooting, along with an enhanced gang affiliation charge. Defendant Wurie was arrested after a drug deal, and his cell phone was seized at the police station. While at the station, the defendant received multiple calls from a number that appeared as “my house” on his phone.  The police traced the number to a listed address, obtained a search warrant, and found drugs, a firearm, ammunition, and cash at the residence. The defendant was subsequently charged with the firearm and drug offenses.

In a unanimous decision, the Supreme Court held that a warrantless search for information stored in a cell phone that was seized from the defendant, pursuant to a search incident to arrest, violated the defendant’s Fourth Amendment rights. The Supreme Court carved out exceptions for law enforcement safety and exigent circumstances, but found that in these two cases neither exception existed.  Some examples of circumstances justifying an exception may include the pursuit of a fleeing suspect and assisting persons who are threatened with imminent injury. The Supreme Court also noted that some of the more “extreme hypotheticals” such as a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone, would clearly fall under the exception.


Jonathan M. Feinstein

Author: Jonathan M. Feinstein

Wednesday, May 14th, 2014

Hail to the Chiefs

Congratulations to three of our local police chiefs who are retiring this summer.  Their hard work, dedication, and service has helped keep our communities safe over the years.  While we will miss their exceptional leadership, we look forward to working with the new Chiefs for years to come.

Harvard

Deputy Chief Mark Krause, a 19-year veteran of the force will officially take over as chief this summer.  He replaces retiring Chief Dan Kazy-Garey.

Incoming Chief Krause has been the deputy chief for three years.  Krause, 42, started his career with the Harvard Police Department in 1995, serving as the department’s first school resource officer shortly thereafter. He was promoted to Sergeant in 2001.  Chief Krause has a bachelor’s degree in general studies and a Master of Science degree in criminal justice administration. He received both from Columbia College in Columbia, Mo., and completed his master’s degree in December 2013.

Chief Kazy-Garey’s last official day as chief is July 3.  He began his career with the department on April 1, 1984.  He was promoted to Sergeant within two years of getting hired and headed the department’s investigation unit before becoming Chief.  Chief Kazy-Garey also received his undergraduate degree from Columbia College in Columbia, Mo.

Lake in the Hills

James Wales, Director of Public Safety and former Chief of Police for Lake in the Hills, retired on April 30, 2014.  Chief Wales served with the Lake in the Hills police department for 35 years.  He took his first police job with the Village after working three years as a public safety officer at Harper College in Palatine.  In the Village’s 62-year history, he was only the second police chief — after Irv Floress.

Incoming Chief David Brey began his career in 1992 as a police officer with Lake in the Hills. In 2001, he was promoted to the rank of Sergeant and was promoted again in 2006 to Deputy Chief of Patrol Services.  Throughout his career Chief Brey has served as a community patrol officer, detective, member of the major investigations, field training officer, patrol shift commander, training manager, and investigations supervisor.

Chief Brey earned his bachelor’s in criminal justice from Illinois State University.  He is a graduate of the FBI National Academy and has attended several police-related managerial training programs.  Chief Brey, his wife, and two children are Village residents.

Lakewood

Chief Larry Howell has served as Chief of Lakewood since 2003.  Prior to that, he served the Village of Lake in the Hills police force, beginning part time and moving up the ranks from Patrol Officer to Sergeant, Administrative Sergeant, and Deputy Chief.  He had also previously served in the City of Crystal Lake’s police force.

Incoming Chief Leigh Rawson is a 20-year veteran with the City of Elgin Police Department, where he moved up the ranks to become Lieutenant and then Patrol Commander. He has wide-ranging experience, having previously been assigned to the Patrol Division, Traffic Investigations Unit, Major Investigations Division, and the Tactical Response Team. Prior to his service to the City of Elgin P.D., Chief Rawson was a practicing attorney.

Chief Rawson will be sworn in at the June 24, 2014, Board of Trustees meeting. He will begin his new assignment on June 30, 2014.


Jonathan M. Feinstein

Author: Jonathan M. Feinstein

 

Wednesday, March 5th, 2014

Reminder on Soccer Goal Safety

With spring approaching (hopefully), another season of soccer is on the horizon. Now is a good time to remind park districts, schools, and municipalities that Illinois passed the Moveable Soccer Goal Safety Act in 2011, nicknamed “Zach’s Law.” The nickname derives from six-year-old Zachary Tran of Vernon Hills who was struck in the head by an improperly secured 184-pound metal soccer goal. The incident later resulted in his death. Zach’s death was the 27th death reported in the United States from a falling goal post since 1979.

Zach’s law bans the manufacture or sale of new soccer goals that are not tip resistant, and provides that older goals must be properly anchored to the field. Zach’s Law also requires organizations that own moveable soccer goals to create soccer goal safety and education policies.

Specifically, Zach’s Law requires that soccer goals with inside measurements from 6.5 to 8 feet in height and 18 to 24 feet in width to conform to tip resistant standards set by the American Society for Testing and Materials. The concern is to prevent goals from toppling on children like Zach.

If your local government (or any other organization) has soccer goals that are not tip resistant, it is imperative that it properly utilize anchors. Avoiding the tragedy of a young person is reason enough to ensure compliance, but it is separately worth noting that the park district in Zach’s case was held jointly liable with other defendants for about $3 million.


 

Jonathan M. Feinstein

Author: Jonathan M. Feinstein