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Robert Fioretti
2nd Ward Alderman

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A federal judge has issued an injunction making it illegal for Ald. Robert Fioretti (2nd) and the city of Chicago to condition issuance of a sidewalk café permit for the Congress Plaza Hotel and Convention Center on the settlement of an ongoing strike there.

Judge Ronald Guzman agreed with the Congress’s allegation that both Fioretti and his predecessor in office, Madeline Haithcock, used “aldermanic prerogative” to deny the hotel a fair hearing of their application for a sidewalk café.

In doing so, Guzman wrote, the aldermen violated the National Labor Relations Act, a federal statute, by interfering in the strike. Around 130 housekeepers at the Congress started striking the hotel in the summer of 2003.

Guzman wrote that when the hotel first tried to obtain a permit for the café, in 2006 when Haithcock was still in office, rather than considering the hotel’s application on its merits, the city’s Department of Business Affairs and Consumer Protection and the council’s Committee on Transportation and Public Way instead moved “lock-step” with the former alderman’s wishes to deny.

A similar process was seen by Guzman after Fioretti took office in 2007, with the sum result of focusing power over permits with a single entity.

“[T]he credible evidence clearly establishes that the City Council delegated its final policy-making authority with respect to the Hotel’s 2006-2009 sidewalk café permit applications to the Alderman of the Second Ward,” Guzman wrote in his opinion.

Aldermanic prerogative, an informal city council tradition, is said to give council members a wide berth of decision-making power on ward-level issues like zoning changes. Council members generally respect the calls colleagues make for their wards, and cast their votes accordingly.

Fioretti, however, continued to reject the powers of aldermanic prerogative ascribed to him by the Congress’s legal team, and now, Judge Guzman, calling the term “nebulous.” Anyone can apply for a sidewalk café permit without aldermanic approval, he said, and let members of the Committee of Transportation and Public Way decide the matter.

Fioretti also rejected Guzman’s finding that he denied the permit because of the hotel workers’ strike of the hotel.

“I consistently made decisions on the Congress on the merits, unrelated to the labor strike. I can understand how my unwavering support of labor may seem to influence my decision. But it did not,” Fioretti said.

Similar arguments Fioretti made during direct and cross examination during the trial this summer did not sway Guzman.

Among those he cited in rebuffing the city’s position that Fioretti did not have sole authority over sidewalk café permits was zoning attorney Bernard Citron, who has worked for the Congress in the past during a 26-year career practicing land-use law in Chicago.

During the suit’s three-day trial this summer, Citron testified that since 1999 he has submitted around 350 sidewalk café permit applications to the city. All passed with the local alderman’s seal of approval. No aldermanic permission means no cafe, Citron told the court.

Guzman referred to the testimony of top Fioretti advisor Hanah Jubeh as well.

“Jubeh, who saw several thousand permit applications during her career with the City, said that, generally, the Alderman of the affected ward must approve a permit application for it to be granted. Asked how she knew this, she responded: ‘It’s common knowledge, I guess,’” Guzman wrote.

The judge scolded Fioretti in the ruling, calling one of the alderman’s answers on the stand “nonsensical” and noting what he termed the alderman’s “spotty” memory.

And Guzman wrote that Fioretti’s claim that he had no idea why the hotel gave him, in 2007, an application for a sidewalk café had no credence when “the application says ‘You must obtain approval from the alderman of the ward where your proposed use of the public way is located’ and contains a line for the ‘alderman’s signature.’”

In addition to the injunction, Guzman ordered only $1 in damages to the hotel for National Labor Relations Act violation. The hotel estimated it lost nearly $200,000 in profits because it was unable operate a sidewalk café in front of its building along Michigan Avenue, south of Congress.

The hotel filed the federal lawsuit against Fioretti in July 2007. Because the suit named Fioretti in his capacity as alderman, he was defended by two city lawyers. A spokeswoman for the Department of Law did not return a call seeking comment.

Congress lawyer Peter Andjelkovich hailed Guzman’s ruling.

“The city and the alderman have been violating the National Labor Relations Act. The judge saw from the evidence that was amply true, and he’s entered an injunction prohibiting this kind of conduct,” Andjelkovich said. “We certainly hope the city and the alderman obey the injunction.”

The mere fact that Judge Guzman found that aldermanic prerogative exists, Andjelkovich said, was significant.

On Sept. 9, the Congress submitted an ordinance seeking a sidewalk café area outside the hotel’s front, at 520 S. Michigan, with room for 52 seats. Fioretti did not sign the application. Andjelkovich thought the ordinance could be heard by the transportation committee in October.

He couldn’t, however, predict the outcome of the new café application. Guzman’s ruling only prohibits conditioning the café on settlement of the strike; it does not mandate the city issue the hotel a permit.

“It’ll be interesting to see what they do,” Andjelkovich said.

Fioretti was not making predictions either.

“I have said I would not sign off on them,” he said, because of alleged physical deficiencies inside and outside the hotel. “They can go forward. They can submit an application and make their case to the transportation committee.”

That body is scheduled to meet Oct. 5 at 9:30 a.m. in city hall.

Contact: mmaidenberg@chicagojournal.com

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