IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

AFFORDABLE RECOVERY HOUSING, ) 

 ) 

 Plaintiff, ) 

 ) Case No. 12-cv-4241 

v. ) 

) Judge Robert M. Dow, Jr. 

THE CITY OF BLUE ISLAND, et al., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

Before the Court are motions for a preliminary injunction [18, 20] filed by Plaintiff 

Affordable Recovery Housing (“Plaintiff” or “ARH”), seeking relief against Defendants the City 

of Blue Island and its Fire Chief, Terry Vrshek, (collectively “Defendants,” “the City,” or “Blue 

Island”). For the reasons stated below, Plaintiff’s motions [18, 20] are respectfully denied. 

I. Background

ARH is a non-profit, faith-based organization which provides recovery and housing 

services to adult men in Blue Island, Illinois. According to ARH, its mission is to “help 

individuals reach their full potential by the power of Grace and God and their active role in 

recovery with guidance, discipline and direction.” In March 2011, ARH moved into a property 

at 13811 S. Western Avenue in Blue Island, Illinois, which it leases from the Mantellate Sisters 

of Mary.1

 The property is presently zoned R-1, Single Family Residential. The site has five 

buildings, several of which are connected. 

 

1

 The property was the site of Mother of Sorrows High School until 1983. In 1989, the Mantellate Sisters 

leased some of the buildings to a local high school district for an alternative school. The school vacated 

the property on January 2, 2009. 
2

In March 2011, when ARH opened its facility, the City allowed ARH to move fourteen 

people—ARH staff and their families—into the facility, at least in part to provide security for the 

Sisters. On March 20, 2011, John Dunleavy, President and CEO of ARH, submitted an 

“Original Phase Plan” to Dave Minderman, the Building Commissioner for Blue Island at the 

time. Minderman told Dunleavy to install a fire alarm/smoke detector system through Buildings 

B, C, D, and E. The Plan also called for ARH to install a sprinkler system at a future date. 

According to Dunleavy, after ARH installed the fire alarm system, Minderman gave Dunleavy 

oral permission to move an additional forty men into the facility. The parties dispute whether 

Dunleavy actually received permission from Minderman or anyone from the City, and Dunleavy 

acknowledges that he did not received anything in writing in regard to housing any additional 

people at the facility (beyond the fourteen who it is undisputed have permission to reside there). 

Plaintiff then moved additional men into the facility, reaching a peak of seventy-two at the time 

that this controversy erupted. According to Plaintiff, the City has conducted five or six fire 

inspections of the ARH property over the last year. 

On February 28, 2012,2

 Blue Island Mayor Donald Peloquin sent Plaintiff a letter 

advising that the City’s building department would not issue additional permits for the property 

at that time and instructing ARH to submit an application to the Blue Island Zoning Board for a 

hearing regarding ARH’s goals and parameters. On May 9, 2012, representatives from the 

Mantellate Sisters and ARH appeared before the City Planning Commission. Plaintiff was 

requesting the Commission to recommend that the Zoning Board of Appeals as well as the City 

Council grant ARH a special use permit. The Plan Commission asked Plaintiff to continue to 

improve the proposal and come back to the Commission in June. On May 29, 2012, Plaintiff 

 

2

 The letter is dated February 28, 2011, but the parties agree that it was actually sent on February, 28, 

2012, and that the date was a typographical error. See [34]. 
3

received a report from its architectural consultant at Yung Architects LLC. Of particular interest 

to the instant dispute, the architect opined that while the Code requires a sprinkler system, other 

steps such as hiring a night watchman, installing hard-wired smoke detectors, and emergency 

escape ladders should be prioritized. As of July 3, 2012, Plaintiff had not returned to the Plan 

Commission to advance its request for a special use permit. 

On May 22, 2012, the Blue Island Fire Chief, Terry Vrshek, received information that 

Plaintiff chained its doors shut at night. According to Vrshek, he went to the facility that same 

night and observed that all exit doors—except for the front door—were chained with locks on 

them. The locks were not in the locked position, but the doors could not be opened without 

removing the locks and chains. Vrshek informed Plaintiff that he had to remove the chains and 

locks for safety reasons. 

On May 23, Vrshek, as well as Retired Fire Chief and Acting Fire Prevention Officer 

Copp, Deputy Police Chief Cornell, and Health Inspector Mailhoit, performed a scheduled 

inspection of ARH’s facility. The inspection revealed that the buildings had been converted into 

sleeping quarters and ARH was now housing more than seventy residents.3

 It also revealed that 

no sprinklers had been installed. 

On May 24, 2012, the City served ARH with a letter ordering Plaintiff to cease 

operations and vacate the premises by June 1, 2012. That letter stated that the City’s “primary 

concern is the sprinkler system” and advised that “the sprinklers should have been installed prior 

to the residential quarters conversion.” The letter also informed Plaintiff that it could appeal the 

decision to the Mayor or City Council. Plaintiff appealed to the City Council on May 28, 2012 

 

3

 As discussed in more detail below, Plaintiff maintains that during various inspections of the premises 

City officials would have learned at an earlier date that more than fourteen individuals had moved into the 

facility – although there is no evidence that anyone at the City would have known or suspected that the 

number was more than seventy. 
4

The City Council heard Plaintiff’s appeal on June 12, 2012, and affirmed the May 24 Order by a 

14-2 vote. 

On May 31, 2012, ARH filed its original complaint along with a motion for a temporary 

restraining order [4]. In the original complaint, ARH alleged that Defendants’ attempt to remove 

Plaintiff’s clients and shutdown the ARH facility for failure to adhere to the City’s Fire Code and 

Life Safety Code violates Plaintiffs First Amendment rights of free exercise of religion and 

freedom of association, Plaintiff’s Fifth Amendment due process rights, and the Illinois 

Religious Freedom Restoration Act (“IRFRA”). 

On June 1, the Court held a hearing after which Plaintiff’s withdrew the TRO motion 

without prejudice and the parties agreed as an interim measure that: (1) Plaintiff would find 

alternative housing arrangements for no fewer than 18 residents within 14 days; (2) Defendants 

would send Plaintiff a letter explaining the basis for the asserted city code violations by 

6/6/2012; (3) Defendants would place Plaintiff’s administrative appeal on the agenda for the 

6/12/2012 city council meeting; (4) Plaintiff would continue to take steps toward obtaining 

pertinent license(s) and permit(s) to operate in compliance with state and local rules and 

regulations; (5) if Plaintiff had not demonstrated a right to lawfully operate, Plaintiff would 

make alternative housing arrangements for all remaining residents–with the exception of the 14 

people allowed to remain on the premises by the City of Blue Island–within 30 days; (6) Plaintiff 

and Defendants would work together cooperatively to resolve legal and administrative issues 

during the pendency of this case. The parties’ agreement was embodied in a minute order [6], 

and the deadline for Plaintiff to demonstrate its right to lawfully operate or make alternative 

housing arrangements for its clients subsequently was extended to July 14, 2012 by agreement of 

the parties [see 25]. At the initial hearing, the Court focused the parties’ attention on Plaintiff’s 
5

due process claim, and especially on the City’s obligation to provide Plaintiff with clear notice of 

the asserted Code violations and how to exercise its appeal rights. Defendants sent 

correspondence to Plaintiff addressing those points and the appeal proceeded. 

After the City Council rejected Plaintiff’s appeal, on June 19, 2012, Plaintiff filed two 

motions for preliminary injunction [18, 20] as well as a motion to file an amended complaint 

[22]. On July 3, the Court granted Plaintiff’s motion to file an amended complaint, which 

contains six counts, alleging that Defendants infringed on ARH’s First Amendment rights of free 

exercise of religion and association, Fifth Amendment Due Process Rights, Plaintiff’s rights 

under the Illinois Religious Freed Restoration Act (“IRFRA”), and its rights under the Religious 

Land Use and Institutionalized Persons Act (“RLUIPA”). In the two preliminary injunction 

motions, Plaintiff argues that (1) the ARH facility at 13811 S. Western Avenue is an existing use 

property, (2) the ARH is not obligated to install a sprinkler system, and (3) the City cannot evict 

Plaintiff’s clients who reside at the facility and shut down its operations. Defendants’ filed 

response briefs [27, 28] and the Court held a preliminary injunction hearing on July 3, 2012 [31], 

at which it took testimony and heard extensive argument from counsel for both sides. 

II. Analysis

Like all forms of injunctive relief, a preliminary injunction is “an extraordinary remedy 

that should not be granted unless the movant, by a clear showing, carries the burden of 

persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also 

Goodman v. Ill. Dep’t of Financial & Professional Reg., 430 F.3d 432, 437 (7th Cir. 2005) 

(same). A party seeking a preliminary injunction must demonstrate as a threshold matter that (1) 

its case has some likelihood of succeeding on the merits; (2) no adequate remedy at law exists; 

and (3) it will suffer irreparable harm if preliminary relief is denied. Abbott Labs. v. Mead 
6

Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). If the moving party meets its initial burden, then 

the court must consider the irreparable harm that the nonmoving party will suffer if preliminary 

relief is granted, balancing such harm against the irreparable harm the moving party will suffer if 

relief is denied. Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994). The 

court also considers the public interest served by granting or denying the relief, including the 

effects of the relief on non-parties. Id. 

A. Likelihood of Success on the Merits 

A party seeking a preliminary injunction must demonstrate “that it has a ‘better than 

negligible’ chance of success on the merits of at least one of its claims.” Girl Scouts of Manitou 

Council, Inc. v. Girl Scouts of U.S.A., 549 F.3d 1079, 1096 (7th Cir. 2008). This is an 

“admittedly low requirement.” Id. However, if a plaintiff fails to demonstrate any likelihood of 

success on the merits, the motion for preliminary injunction must be denied. See, e.g., Cox v. 

City of Chicago, 868 F.2d 217, 223 (7th Cir. 1989). 

1. Permitted Use in the R-1 Residential District 

Plaintiff first seeks a declaration that its current use is permissible as a matter of existing 

zoning law. The parties agree that the ARH property is located within an R-1 Residential district 

and that permitted uses in an R-1 zone include: one family detached dwellings; churches, 

rectories, parish houses and convents; libraries, parks and playgrounds; and elementary schools. 

Plaintiff argues that the ARH facility is a permitted use in the R-1 Residential district in which it 

is located and therefore Plaintiff does not need to obtain a special use permit from the City. 

More specifically, Plaintiff argues that under Hazel Wilson Hotel Corp. v. Chicago, 17 Ill. App. 

3d 415 (1st Dist. 1974), ARH’s current use as a transitional housing facility and future use as a 

recovery housing facility are substantially similar and compatible uses to those listed as R-1 
7

Residential uses. Plaintiff also contends that the City’s deprivation of Plaintiff’s right to operate 

for a zoning violation is unconstitutional. 

Plaintiff’s reliance on Hazel Wilson is misplaced. In Hazel Wilson, the plaintiff operated 

a shelter care home in a business district for three years and obtained various licenses and 

permits as required by the city at a time when there were no zoning regulations for such 

facilities. The city then passed a non-cumulative ordinance that allowed shelter care homes in 

certain residential districts, but not the district in which the plaintiff’s home was located. The 

court held that because the original ordinance made no provision for shelter care homes, plaintiff 

was permitted to operate in any zone that was not incompatible with the plaintiff’s current use. 

The court also held that because the plaintiff was operating the shelter in the district and in a 

manner not inimical to the public health, safety, or welfare prior to the amended ordinance, it 

was unconstitutional to retroactively deprive plaintiff of that that use. Id. at 419-20. Here, by 

contrast, the Blue Island Zoning Code is not non-cumulative—where a use is permitted by right 

or special use in a lower district, it may be considered a permitted or special use in a higher 

district. The property in question is an R-1 Residential district. While it is undisputed that 

Plaintiff was given permission to have fourteen staff members in residence at the facility, 

Plaintiff has not made a clear showing of any right to legally operate a transitional housing 

facility or recovery housing facility with seventy-two residents in the R-1 zone. 

Even more significantly, however, Plaintiff also cannot show a likelihood of success on 

the argument that its use is “not incompatible with or significantly different from the uses” 

(Hazel Wilson, 17 Ill. App. 3d at 419) in an R-1 Residential District. Not only does Plaintiff 

admit that it has had up to seventy two residents living in the facility, but it also admits that it has 

job training programs, an auto shop, a wood shop, classrooms, substance abuse programs, a 
8

commercial kitchen, and a banquet facility on site. The nature and scale of these uses goes far 

beyond and thus is not compatible with or similar to the approved R-1 uses of one family 

detached dwellings — churches, rectories, parish houses and convents; libraries, parks and 

playgrounds; and elementary schools. And because it is not compatible or similar to the 

approved R-1 uses, Plaintiff must obtain a special use permit from the City in order to operate in 

that zone. 

Plaintiff admits that it has not obtained such a permit. Nevertheless, it argues that 

requiring ARH to find alternative housing for its clients until a sprinkler is installed violates the 

First Amendment, RLUIPA, and IRFRA because it substantially burdens Plaintiff, and the City 

has no compelling interest in enforcing this requirement. Plaintiff specifically focuses its 

argument on Section 2000cc(a)(1) of RLUIPA, which provides that “[n]o government shall 

impose or implement a land use regulation that imposes a substantial burden on the religious 

exercise of a person, including a religious assembly or institution, unless the government 

demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in 

furtherance of a compelling governmental interest; and (B) is the least restrictive means of 

furthering that compelling governmental interest.” 

But RLUIPA does not provide religious institutions with immunity from land use 

regulation, nor does it relieve religious institutions from applying for variations, special permits, 

or exceptions to land use regulations. See Civil Liberties for Urban Believers v. City of Chicago, 

342 F. 3d 752, 762 (7th Cir. 2003) (denying claim that zoning regulation prohibiting churches in 

certain areas violated RLUPIA and noting that “[o]therwise, the compliance with RLUPIA 

would require municipal governments not merely to treat religious land uses on an equal footing 

with nonreligious land uses, but rather to favor them in the form of an outright exemption from 
9

land-use regulations. Unfortunately for [the churches], no such free pass for religious land uses 

masquerades among the legitimate protections RLUIPA affords to religious exercise.”) 

According to Plaintiff, the question is whether the regulation imposes a substantial 

burden that is not in furtherance of a compelling governmental interest and is not the least 

restrictive means of advancing that purpose. In this case, Plaintiff’s attempt to deal with the 

elements of that standard fails at every turn. To begin with, the zoning ordinance does not place 

a substantial burden on Plaintiff. The City has a process by which Plaintiff can apply for and 

obtain the special use permit that is required to operate a facility that does not conform to the 

pre-approved R-1 uses. The Mayor referenced that process in his February 2012 letter, but 

Plaintiff’s efforts in that direction appear to have been sporadic and thus, not surprisingly, the 

process has not yet run its course. But Plaintiff cannot sidestep the process and rules and then 

come to this Court demanding an order that the rules do not apply to it as they do to everyone 

else. As the cases cited above hold, RLUIPA does not mean that religious organizations receive 

special treatment. Plaintiff, therefore, has failed to prove how getting a special use permit—as 

required in the City’s zoning ordinance—is a substantial burden. Nor, for that matter, is 

obtaining the sprinkler itself a substantial burden. While it is a significant expense, it is one that 

under the applicable code is standard for the kind of facility that Plaintiff seeks to operate—and 

with good reason, for “[a]s the number of residents put at risk by fire increases, the requirements 

naturally become more strict.” 2012 LSC Chapters 32/33, page 1037. In short, the ordinances, 

which are neutral on their face and require only that Plaintiff obtain a special use permit and 

install a sprinkler, imposes modest burdens that likely could have been satisfied by now had 

Plaintiff focused on them at the outset of its venture. See World Outreach Conference Center v. 

City of Chicago, 591 F.3d 531, 539 (7th Cir. 2009) (finding that the City’s designation of a 
10

church as a landmark, thereby preventing the plaintiff from demolishing it, was a modest burden 

because the building could still be sold or rented). 

Similarly, the First Amendment rights of freedom of religion and assembly do not give 

religious organizations a pass on zoning regulations. In one of the cases on which Plaintiff 

relies, the Supreme Court stated that in “addressing the constitutional protection for free exercise 

of religion, our cases establish the general proposition that the law that is neutral and of general 

applicability need not be justified by a compelling governmental interest even if the law has the 

incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, 

Inc. v. City of Hialeah, 508 U.S. 530, 531 (1993). The requirement that Plaintiff apply for a 

special use permit to operate in an R-1 Residential zone is neutral and of general applicability. 

Furthermore, making sure that large recovery facilities with work shops and banquet halls obtain 

permits and licenses and comply with applicable codes before operating in R-1 residential zones 

is a narrowly tailored means of advancing a compelling state interest. See Civil Liberties for 

Urban Believers, 342 F. 3d at 765 (finding that zoning regulation affecting churches is neutral 

and generally applicable and in any event “to the extent that the [zoning ordinance] incidentally 

regulates speech or assembly within churches, such regulation is motivated not by any 

disagreement that [the city] may have with the message conveyed by the church speech or 

assembly, but rather by such legitimate, practical considerations as the promotion of harmonious 

and efficient land use.”) There is nothing about enforcing zoning or fire safety codes that 

smacks of religious intolerance, nor is there any suggestion in this record that the City has come 

down hard on Plaintiff while looking the other way as other non-religious entities skirt the 

zoning and fire safety rules. For all of these reasons, the Court respectfully concludes that 

Plaintiff is not likely to succeed on the merits of its request for a declaration that its current use 
11

of its facility is a permitted use in an R-1 residential district or its argument that requiring a 

special use permit interferes with Plaintiff’s First Amendment rights. 

2. Existing Use and Sprinklers 

Plaintiff also seeks a declaration that under the 2012 NFPA Life Safety Code (“LSC”), 

the facility at 13811 S. Western Avenue in Blue Island is an “existing building” and, therefore, 

sprinklers are not required. SC §§ 33.1.1.1, 33.2.3.5.1. But looking at the language of the LSC, 

the Court respectfully disagrees. 

Under the LSC, a residential board and care occupancy (“RBCO”) is either “small” or 

“large” depending on the number of clients in the facility.4

 Facilities that serve sixteen or fewer 

clients are “small” facilities, whereas facilities that have more than sixteen clients are “large” 

facilities. LSC § 32.2-3. In March 2011, when the City gave Plaintiff permission to move 

fourteen people in, Plaintiff was a “small” facility as defined by the Code. But when Plaintiff 

increased the number of residents beyond sixteen, the facility changed from a “small” facility to 

a “large” facility. And according to LSC § 33.1.7, “[a] change in facility size from small to large 

shall be considered a change in occupancy subclassification and shall require compliance with 

the provisions applicable to new construction.” Thus, when Plaintiff increased the occupancy 

from fourteen to seventy-two, the occupancy subclassification changed from an existing small

facility to a new large facility and, consequently, Plaintiff must comply with the requirements for 

new large RBCO in Chapter 32 of the 2012 LSC. Chapter 32.2.2.5 expressly states that “All 

buildings shall be protected throughout by an approved automatic sprinkler system installed in 

accordance with 9.7.1.1(1) and provided with quick response or residential sprinklers 

throughout.” Therefore, under the language of the code, once Plaintiff converted 13811 S. 

 

4

 The Parties agree that ARH is a residential board and care occupancy. The definition of a RBCO is “An 

occupancy used for lodging and boarding of four or more residents, not related by blood or marriage to 

the owners or operators, for the purpose of providing personal care services.” 2012 LCS § 6.1.9. 
12

Western from a small facility to a large facility—which it did when it increased the occupancy 

beyond sixteen—it became a new facility under the code, and Plaintiff was required to install an 

automatic sprinkler system. 

At the preliminary injunction hearing, Plaintiff attempted to argue that there was no 

change from small to large because: (1) the facility was always capable of housing more than 

sixteen residents; and (2) the city gave Plaintiff oral permission to move in forty residents. 

Neither argument is persuasive. First, the fact that the facility was capable of housing more than 

sixteen residents in March, 2011, when the City approved ARH to move in fourteen residents, 

does not make it a large facility. By Plaintiff’s logic, if the facility was an empty warehouse with 

the capacity for 100 residents, there would be no change in status when an occupant converted it 

from an empty warehouse to a RBCO. Indeed, almost any large building has the capacity to 

house more than sixteen people and thus, by definition, would be a large facility under Plaintiff’s 

lights regardless of its prior use. The trigger for the application of Section 33.3 is not occupancy 

alone; rather, that section applies “to residential board and care occupancies providing sleeping 

accommodations to more than 16 residents.” LSC § 33.3.1.1.1. Prior to Plaintiff’s taking over 

the buildings, it was not providing “residential board and care” at all at the Blue Island location. 

And although Plaintiff soon obtained permission to operate as a small facility with fewer than 

sixteen (staff) people in residence, its decision to increase the number of individuals served to 

seventy-two (mostly non-staff) people is exactly the kind of change in facility size that the LSC 

Code accounts for in § 33.1.7. 

Plaintiff’s second argument—that the City knew that Plaintiff had as many as forty 

residents living in ARH as late as September 2011 and in fact approved of that increase—also 

fails. Plaintiff offers as proof the testimony of its President and CEO, John Dunleavy, who 
13

testified that then-Building Commissioner Minderman orally agreed in September 2011 that 

Dunleavy could move up to forty residents into the facility. Defendants, on the other hand, deny 

that Minderman or anyone else from the City ever gave permission to increase the number of 

occupants over fourteen and have submitted an affidavit from Minderman so attesting. The 

record is devoid of any corroboration or contemporaneous written evidence of either side of the 

story or of any details concerning this alleged agreement. With the evidence of the very 

existence of the agreement in equipoise and the details of the agreement sketchy at best, the 

Court concludes that Plaintiff has fallen short of making a “clear showing” sufficient to persuade 

the Court that it has (or ever had) a lawful right to operate a large residential board and care 

facility at its Blue Island location and thus should be classified as an existing large facility, 

instead of a new one. See Mazurek, 520 U.S. at 972. Again, the Court notes that had Plaintiff 

applied for permits and received official written permission from the City to move in more 

people before physically moving them into the facility, it would not be in the current 

predicament. 

Plaintiff also notes that in some circumstances the LSC authorizes an entity to avoid the 

sprinkler requirement based on its evacuation capability and that the City has not yet made the 

relevant determination in regard to Plaintiff’s facility. See LSC §§ 3.3.76.-13, 33.3.1.2. This 

argument also misses the mark. First, the section to which Plaintiff cites deals exclusively with 

existing facilities. As discussed in detail above, when Plaintiff moved more than sixteen people 

into its facility it became a new facility under the LSC. Thus, the exemption does not apply. 

Furthermore, even if this section did apply, Plaintiff could not invoke it in support of a motion 

for preliminary injunctive relief barring the enforcement of the Code’s default rule where the 

record is devoid of any efforts by Plaintiff to present its case in support of the exemption. For 
14

example, Plaintiff does not contend that it submitted an evacuation plan to the City or requested 

from the City the determination required under LSC § 3.3.1.2.1.1. 

Finally, Plaintiff again argues that enforcing the LSC and requiring Plaintiff to install 

sprinklers is a violation of its First Amendment right to free exercise of religion and association, 

RLUIPA, and IRFRA. Plaintiff argues that while the LSC may appear neutral and generally 

applicable on its face, the City’s misguided application requiring ARH to have sprinklers is not 

neutral and generally applicable. But the 2012 LSC, which is a nationally adopted code that 

applies equally to all in Blue Island, is neutral and generally applicable. In any event, enforcing 

the LSC is the least restrictive means to further the compelling state interest of reducing fires and 

protecting life and property in the City, including the lives and property of Plaintiff and its 

clients. See LSC 32/33. (justifying the increase in regulation for small and large facilities—“As 

the number of residents put at risk by fire increases, the requirements naturally become more 

strict.”) Accordingly, the Court concludes that Plaintiff is not likely to succeed in its challenge 

to the City’s classification of Plaintiff as a large new facility that requires sprinklers under the 

2012 LSC. See also Church of the Lukumi Babalu Aye, 508 U.S. at 531. 

3. Authority to Evict 

Plaintiff’s final argument is that even if it is in violation of the Code, Defendants do not 

have the legal authority to evict ARH’s clients from the premises and shut down its business. 

The Court respectfully disagrees. 

Plaintiff acknowledges that the City has myriad ways to enforce the LSC (and 

presumably the Fire Code as well). Among those referenced by Plaintiff include fines, penalties, 

and even imprisonment. Plaintiff also recognizes that the City may issue “stop work” orders. 

But Plaintiff contends that the Fire Chief lacks authority to order an eviction of Plaintiff’s 
15

premises absent an “imminent danger,” which according to Plaintiff requires a “confident belief” 

that the absence of sprinklers is “reasonably expected to cause” death, serious physical harm, or 

serious property loss. Absent those circumstances, Plaintiff contends, the City cannot issue an 

eviction order, but instead must impose some lesser penalty and seek any eviction order in a 

court of competent jurisdiction. 

The Court does not read the City’s authority so narrowly. To begin with, the Court notes 

that a key term under both the Fire Code and the LSC is “AHJ” or “authority having 

jurisdiction.” Blue Island has adopted an ordinance specifying that its AHJ is the Fire Chief. 

Plaintiff correctly notes that under both the Codes and the City’s ordinances, remedies short of 

eviction are available. But “[w]here a violation creates an imminent danger, the AHJ is 

authorized to abate such hazard in accordance with [Section] 1.7.15 [of the Fire Code].” Section 

1.7.15, in turn, provides that “[w]hen, in the opinion of the AHJ, an imminent danger exists, the 

AHJ shall be authorized to order the occupants to vacate, or temporarily close for use or 

occupancy, a building, the right-of-way, sidewalks, streets, or adjacent buildings or nearby 

areas.” Fire Code § 1.7.15 (emphasis added). 

The Court cannot accept Plaintiff’s reading of the interplay between Fire Code §§ 1.7.15 

and 3.3.156, the latter of which defines “imminent danger.” Plaintiff would have the Court 

determine judicially whether the current conditions on Plaintiff’s premises create “a condition or 

practice in an occupancy or structure that poses a danger that could reasonably be expected to 

cause death, serious physical harm, or serious property loss.” But the Code itself confers the 

right to make that determination on the AHJ; under the Code, it is “the opinion of the AHJ” that 

matters in assessing imminent danger.5

 

5

 If there were no basis whatsoever for the Fire Chief’s assessment—in other words, that the notion of an 

imminent danger were fanciful—the Court might be persuaded to discount the discretion afforded to the 
16

In any event, if the Court were to independently assess whether an “imminent danger” 

exists within the meaning of the Code, it would agree with the Fire Chief. Plaintiff contends that 

there can be no imminent danger unless the record shows a “confident belief” that serious harm 

“will take place.” If that standard were literally applied, virtually no prophylactic fire safety 

measures could be required. Apart from circumstances like those present in the Colorado 

Springs area a few weeks ago—where a blazing fire covering thousands of acres was bearing 

down on the outskirts of a heavily populated area—one can never have a “confident belief” that a 

fire will cause death, serious physical harm, or serious property loss in any given location. But 

the whole point of all fire safety measures, including fire extinguishers, fire alarms, and sprinkler 

systems, is to prevent serious harm when the unexpected happens—namely, a fire starts. And 

Section 3.3.156 recognizes just that: the condition or practice on the premises (here, the absence 

of a sprinkler) need only “pose[] a danger” that could be reasonably expected to cause death, 

serious physical harm, or serious property loss. The danger posed by the absence of a sprinkler 

on Plaintiff’s leased premises is a fire from which some of the dozens of residents cannot escape 

and/or the damage to property cannot be controlled until its spreads throughout the immediate 

premises and perhaps to neighboring buildings as well. The Fire Chief determined that danger to 

be present on the premises leased by Plaintiff, and neither the Code nor common sense compels 

 

Chief under the Code and proceed directly to the kind of independent analysis of fire safety that Plaintiff 

posits. But in this instance, even Plaintiff’s own architect agrees with the Fire Chief’s assessment that the 

Code requires sprinklers. It also is undisputed that on the date that this lawsuit was filed, Plaintiff had in 

residence more than seventy unrelated men in various states of recovery from prior addictions. This is not 

a situation where no reasonable person could agree with the Fire Chief’s assessment, both as to what the 

Code requires and the imminence of the danger associated with non-compliance. Because the proposition 

that an imminent danger exists is at least arguable and the Code authorizes the AHJ to make the call, the 

Court is not inclined to substitute its judgment for the Chief’s. And the Chief’s call likewise is not 

subject to judicial intervention simply because other city officials, including the Chief’s predecessor, may 

have made a different judgment, or because Plaintiff’s architect believes that the danger caused by the 

absence of a sprinkler is not imminent. 
17

the Court to second guess that determination on the basis that no one can confidently say that the 

danger actually will come to pass. We all certainly hope that it never does. 

Plaintiff’s other arguments with regard to the Fire Chief’s authority also fail. Plaintiff 

first references Section Fifteen of the City’s March 2012 ordinance, which is entitled “FinesPenalties-Costs.” That section discusses fines that may be levied for ordinance violations and 

also states that “[n]othing herein contained shall prevent the City from pursuing such other 

lawful action as is necessary for the restraint, correction, and abatement of any violations.” 

According to Plaintiff, that section allows the City to “seek restraining and mandatory injunction 

orders from a Court.” The Court agrees that the language of Section Fifteen encompasses court 

action, but disagrees with Plaintiff’s suggestion that the City is powerless to impose eviction 

orders on the authority of the Fire Chief without prior judicial approval. 

Plaintiff next argues that the number of persons living at the facility does not bear on the 

“imminent danger” analysis. The Court disagrees. A central premise of the distinction between 

“small” and “large” facilities is that “[a]s the number of residents put at risk by fire increase, the 

requirements naturally become more strict.” 2012 LSC Chapter 32/33, page 1037. Plainly, the 

risk associated with seventy-two people, many of whom are temporarily on the premises and in 

various stages of recovery, is greater than those associated with fourteen staff members who are 

presumably very familiar with the premises. 

Plaintiff’s focus on the lack of guidance from the City in regard to implementing the socalled “five-year phased plan” and the absence of responses from the City to Plaintiff’s requests 

for movement on permits remain also is unpersuasive. First, the plan is not a contract that 

creates formal, binding obligations on either side. Thus, even if “[t]he question of sprinklers 

under the plan is premature,” as Plaintiff contends, the question of sprinklers under the City 
18

ordinance is not. Second, to the extent that Plaintiff claims obstruction on the part of the City, 

the absence of any documentary evidence of Plaintiff’s requests and the City’s responses (or lack 

thereof) in the record seriously undermines Plaintiff’s contentions. 

 Finally, because the Court concludes that Plaintiff is unlikely to succeed on its challenge 

to the Fire Chief’s asserted authority to evict Plaintiff under Section 1.7.15 the Code, it need not 

address in detail whether the Fire Chief also has the authority under Section 1.7.14—the work 

stop order provision. Briefly, however, it does appear that the Fire Chief may also have 

authority under this section as well. Section 1.7.14 grants the Fire Chief the authority to “order 

an operation, construction, or use stopped when any of the following conditions exists: (1) Work 

is being done contrary to provision of this Code; (2) Work is occurring without a permit required 

by Section 1.12; (3) An imminent danger has been created.” Fire Code § 1.7.14. Plaintiff’s 

action of operating a facility housing more than seventy men without a sprinkler could be 

considered work “contrary to the provision” of the Code, allowing the Fire Chief to stop 

Plaintiff’s operation and use of the facility in that manner. 

 In sum, Plaintiff has also failed to show a likelihood of success on its claim that 

Defendant does not have a right to evict Plaintiff’s clients from the facility at 13811 S. Western 

Avenue as long as Plaintiff operates the facility without a sprinkler. 

B. Adequate Remedy at Law and Irreparable Harm 

Because the Court concludes that Plaintiff failed to demonstrate any likelihood of success 

on the merits of any of its claims, the motion for preliminary injunction must be denied. See,

e.g., Cox v. City of Chicago, 868 F.2d 217, 223 (7th Cir. 1989). But in the interest of 

completeness, the Court will briefly address the other elements of a preliminary injunction. 
19

The other two threshold elements that ARH must prove to support the issuance of a 

preliminary injunction are that it (1) has no adequate remedy at law and (2) will suffer 

irreparable harm if the injunction is not issued. These two requirements—irreparable harm and 

no adequate remedy at law—tend to merge. See Roland Machinery Co. v. Dresser Indus., Inc., 

749 F.2d 380, 387 (7th Cir. 1984). “The question is then whether the plaintiff will be made 

whole if he prevails on the merits and is awarded damages.” Id. An injury is “irreparable” when 

it is of such a nature that the injured party cannot be adequately compensated in damages or 

when damages cannot be measured by any pecuniary standard. Meridian Mut. Ins. Co. v. 

Meridian Ins. Group, Inc., 128 F.3d 1111, 1120 (7th Cir. 1997); see also Gateway Eastern Ry. 

Co. v. Terminal R.R. Ass’n of St. Louis, 35 F.3d 1134, 1140 (7th Cir. 1994) (“showing injury to 

goodwill can constitute irreparable harm that is not compensable by an award of money 

damages”). 

In Joelner v. Village of Washington Park, Illinois, 378 F.3d 613, 620 (7th Cir 2004) the 

Seventh Circuit also noted that: 

When a party seeks a preliminary injunction on the basis of a 

potential First Amendment violation, the likelihood of success on 

the merits will often be the determinative factor. Connection 

Distrib. Co., 154 F.3d at 288, cited in ACLU of Ken. v. McCreary,

354 F.3d 438, 445 (6th Cir.2003); see, e.g., Brownsburg Area 

Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th 

Cir.1998). “The loss of First Amendment freedoms, for even 

minimal periods of time, unquestionably constitutes irreparable 

injury,” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 

L.Ed.2d 547 (1976), and money damages are therefore inadequate, 

Nat'l People's Action, 914 F.2d at 1013. 

Because Plaintiff asserts primarily First Amendment claims, the determinative factor at least as 

to those claims is the success on the merits. As discussed above, Plaintiff has failed to carry its 

burden of proving it has even a negligible likelihood of success on the merits of any of the claims 
20

advanced in its motion. But because not all of Plaintiff’s claims are First Amendment claims, the 

Court will address whether Plaintiff has established the inadequacy of its available remedies at 

law. Plaintiff has not. In fact, Plaintiff had, and continues to have, an opportunity to appear 

before the Zoning Board in pursuit of the required licenses to operate. Having declined to fully 

avail itself of that available process, Plaintiff cannot persuasively argue that it lacks a remedy at 

law. 

 Finally, Plaintiff also has failed to meet its burden as to irreparable injury. Plaintiff’s 

claim is that City’s order to vacate will result in seventy-two men being thrown to the streets and 

will prevent them from exercising their First Amendment rights. But Plaintiff chose to put the 

proverbial cart before the horse when it moved those men into the building without ensuring that 

it had complied with the applicable City codes and permit schemes. Plaintiff cannot now claim it 

is being harmed by the City’s actions to reduce the occupancy of the facility, at least temporarily 

in the interest of public safety, until the sprinkler is in place and the permit has been issued. In 

the meantime, nothing prevents Plaintiff from advancing its religious mission and other salutary 

purposes in any fashion that it can do so consistent with the applicable laws. 

C. Balancing the Harms and Public Interest 

Finally, balancing the irreparable harm to the moving party if an injunction is not entered 

against the harm to the non-moving party if an injunction is granted requires the court to use a 

“sliding-scale approach; the more likely the plaintiff will succeed on the merits, the less the 

balance of irreparable harms need favor the plaintiff’s position.” In re Aimster Copyright 

Litigation, 252 F. Supp. 2d 634, 648 (N.D. Ill. 2002). Here, ARH has failed to show that it is 

likely to succeed on the merits and thus the balance of harms must tilt heavily in favor of 

Plaintiff in order to justify relief. It does not. In fact, the public interest in enforcing the LSC is 
21

great. The City must be able to enforce facially neutral codes that are aimed to protect the lives 

of its citizens, including Plaintiff’s clients. Granting the requested injunction would prevent the 

City from enforcing the LSC and protecting people and property from danger. It also could 

expose the City to liability for failing to enforce its own Code in the event that a fire did break 

out at Plaintiff’s facility. 

The Court of course is cognizant that moving Plaintiff’s clients to other locations for their 

overnight housing is a hardship and the Court is not unsympathetic to Plaintiff’s predicament. 

This is why the Court has endeavored from day one of this litigation to work with the parties on 

a transitional scheme and has set deadlines that allowed time not only for the parties and the 

Court to work through the legal issues raised in the pleadings, but also for Plaintiff to help its 

clients make alternative arrangements if that became necessary. It has now been six weeks since 

the original date on which the City first ordered Plaintiff’s clients to leave the premises; the 

Court appreciates the parties’ cooperation in setting and extending the dates reflected in the prior 

orders and hopes that Plaintiff, its clients, and indeed the City as well have been successful in 

locating safe, alternative temporary sleeping accommodations for the men who will be affected. 

But at the end of the day, the Court concludes that the harm to Plaintiff and its clients associated 

with moving out of the premises at least until the sprinklers are installed is not nearly enough to 

overcome the harm to the City of not being able to enforce its safety codes. 

Ultimately, the Court cannot help but echo the comments that it made at the end of the 

hearing suggesting that this situation was likely avoidable. Had Plaintiff focused more on 

securing, preferably in writing, the City’s views on the requirements for Plaintiff’s planned uses 

and applied for and received all of the appropriate permits and licenses from the city and state 

before it started moving in clients, its operations would have moved along more slowly, but 
22

ultimately more smoothly and successfully. This is not to say that the City has been without 

fault in this process. For example, Defendant Vrshek admitted to the City Council that he may 

have acted too hastily in proposing to evict Plaintiffs with one week notice and the City might 

have reduced its litigation costs by being clearer with Plaintiff—again, preferably in writing—at 

various stages of the parties’ relationship over the past two years. While the result of this order 

is no doubt a setback for Plaintiff, it has plans to install a sprinkler (which it may wish to 

expedite) and now has legal counsel as well who may be in position to assist in moving the 

permit process forward. At this time, however, the Court can see no basis for judicial 

intervention in the form of the entry of preliminary injunctive relief as Plaintiff has requested. 

III. Conclusion 

 For the foregoing reasons, Plaintiff’s motions for preliminary injunction [18, 20] are 

respectfully denied. 

 

Dated: July 13, 2012 ______________________________ 

 Robert M. Dow, Jr. 

 United States District Judge