1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AFFORDABLE RECOVERY HOUSING ) 

An Illinois not-for-profit corporation, ) 

 ) Case No. 12-cv-04241 

 Plaintiff, ) 

 ) 

 v. ) Judge Robert M. Dow Jr. 

 ) 

THE CITY OF BLUE ISLAND, a municipal ) 

corporation, and TERRY VRSHEK in his ) 

official capacity as Blue Island Fire Chief ) TRIAL BY JURY DEMANDED

 ) 

Defendants. ) 

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION 

AND DECLARATORY RELIEF AS A MATTER OF LAW WITH RESPECT TO THE 

CITY’S ORDER THAT PLAINTIFF INSTALL A SPRINKLER SYSTEM AND THE 

FIRE CHIEF’S SUMMARY EVICTION AND SHUTDOWN ORDER

Plaintiff Affordable Recovery Housing (“ARH”) seeks a preliminary injunction to 

preserve the status quo against the City of Blue Island to prevent (1) the men in ARH’s 

recovery program from being thrown out onto the streets of Blue Island without resources and 

(2) the destruction of ARH’s religious, charitable operation. ARH also seeks a declaratory 

judgment as a matter of law that ARH is not required to install a sprinkler system and that the 

Fire Chief has no authority to order the summary shutdown of ARH and eviction of its residents. 

Toward this end ARH seeks a preliminary injunction restraining Defendants the City of 

Blue Island, and Terry Vrshek in his official capacity as Blue Island Fire Chief, from removing, 

causing the removal, or threatening to remove ARH or any of its residents from the premises at 

13811 S. Western Avenue in Blue Island; from assessing fines for continuing to use the property 

and for operating transitional housing at its property; and from initiating prosecutions against 

ARH for the use of the property. In addition, ARH seeks a declaratory judgment as a matter of 

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 1 of 10 PageID #:163
2 

law that the 2012 NFPA Life Safety Code (“LSC”), asserted by the City to apply to ARH, does 

not require ARH to install a fire sprinkler system to the buildings occupied and used by ARH at 

13811 S. Western Avenue in Blue Island because ARH’s buildings are considered “existing 

buildings” under the Code. LSC §§ 33.1.1.1, 33.2.3.5.1. For purposes of this motion, ARH does 

not contest application to it of the 2012 LSC, but reserves the right to contest it later in the case. 

1. ARH reincorporates the allegations of its First Amended Complaint. As 

specifically noted therein:

a. On May 24, 2012, the City served upon ARH a letter demanding that ARH vacate 

the premises by June 1, 2012 because ARH had not installed a sprinkler system. 

Amended Complaint ¶ 3 (hereinafter “Compl.).

b. On May 28, 2012 ARH appealed to the City Council. On June 12, 2012, the City 

Council held a meeting at which time ARH presented their appeal from the May 

24, 2012 letter requiring ARH to vacate the property. After the hearing, the City 

Council voted to affirm the May 24 order. Compl. ¶ 4.

c. On June 1, 2012 the Court, by agreement of the parties, entered an order in which, 

inter alia, the City would not force ARH to vacate the premises for at least 30 

days, or until July 2, 2012. Compl. ¶ 5.

d. By the Court’s June 1 order, the City was required to explain the basis for the 

asserted city code violations. On June 5, 2012, Defendants’ counsel sent Plaintiff’s 

counsel a letter which contained a letter dated June 4, 2012 from Chief Terry 

Vrshek. In that letter Vrshek asserts the NFPA 2012 LSC was adopted by the City 

and Section 32.2.3.5 of the 2012 NFPA LSC requires ARH to install a sprinkler 

system. Ex. 5 of Compl.; Compl. ¶¶ 19-20, 25.

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 2 of 10 PageID #:164
3 

e. On June 8, 2012 Plaintiff’s attorney sent Defendants’ attorney a letter requesting, 

inter alia, the statutory basis for Chief Vrshek’s authority to require Affordable 

Recovery Housing to cease operations, including evicting its residents, or closing 

the business within one week. Compl. ¶ 21.

f. On June 10, 2012 Defendants’ attorney responded the Plaintiff’s June 10 letter but 

did not respond to Plaintiff’s request for Chief Vrshek’s authority to require 

Affordable Recovery Housing to cease operations. Compl. ¶ 22.

g. Chapters 32 and 33 of the NFPA 2012 LSC are entitled “New and Existing 

Residential Board and Care Occupancies,” with Chapter 32 providing the 

requirements for new residential board and care facilities and Chapter 33 

providing the requirements for existing residential board and care facilities. 

Compl. ¶ 27; see Exhibit A, a copy of Chapters 32 and 33 of the 2012 LSC). 

h. Section 32.1.1.1 states that “[t]he requirements of this chapter shall apply to new 

buildings or portions thereof used as residential board and care occupancies.” In 

contrast, Section 33.1.1.1 states that “[t]he requirements of this chapter shall 

apply to existing buildings or portions thereof currently occupied as residential 

board and care occupancies.” Compl. ¶ 28; Exhibit A. 

i. Section 3.3.36.5 of the LSC defines “existing building” to mean: “A building 

erected or officially authorized prior to the effective date of the adoption of this 

edition of the Code by the agency or jurisdiction.” Compl. ¶ 29; Exhibit A.

j. Because ARH operates on property that contains buildings that are existing, and 

because ARH has been operating on the property and in these buildings since at 

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 3 of 10 PageID #:165
4 

least March 2011, Chapter 33 of the LSC applies to ARH, not Chapter 32. 

Compl. ¶ 30.

k. Section 32.2.3.5.1, which applies to new buildings provides: “All facilities, other 

than those meeting the requirements of 32.2.3.5.2, shall be protected throughout 

by an approved automatic sprinkler system . . . .” Compl. ¶ 31; Exhibit A.

l. Section 33.2.3.5.1, which applies to existing buildings, does not provide a 

requirement that existing facilities have sprinkler systems. See LSC p. 1062. 

Because ARH’s facilities are existing, not new, Chapter 33, which does not 

require an automatic sprinkler system, applies, not Chapter 32. Compl. ¶¶ 32-33. 

m. The introductory portion of Chapters 32 and 33 (p. 1037), provides: 

the committee also revised the provisions of Chapter 32 of this Code, 

which addresses new facilities, so they no longer depend on the 

determination of evacuation capability. Chapter 33, which addresses the 

existing facilities, retains the evacuation capability provisions so as to 

avoid unnecessarily placing existing facilities out of compliance. 

LSC p. 1035 (emphasis added); Compl.¶ 34. 

n. Instead of sprinklers, existing facilities can rely upon evacuation capabilities, 

resident buddy systems, “point of safety,” structural fire endurance, types and 

arrangement of means of escape and exits, corridor separation provisions, the 

“defend in place concept” and others. LSC p. 1042-43; Compl.¶ 35.

2. A preliminary injunction should be issued immediately because ARH’s First 

Amendment rights to free exercise of religion and free association, the Fifth Amendment right to 

procedural due process, and the Illinois Religious Freedom Restoration Act (which enforces the 

Free Exercise right) are being violated, and ARH is thus being harmed irreparably. “The loss of 

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 4 of 10 PageID #:166
5 

First Amendment freedoms, for even minimal periods of time, unquestionably constitutes 

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373-74 (1976). 

3. Although the LSC may appear on its face to be neutral and generally applicable, 

the City’s misguided application of it to ARH to require sprinklers and to give the fire chief 

authority to evict ARH and its residents is not neutral and generally applicable, in violation of 

the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 

520, 537 (1993). 

4. In Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) the Court 

set forth the elements necessary to obtain a preliminary injunction:

 To win a preliminary injunction, a party must show that it is reasonably likely 

to succeed on the merits, it is suffering irreparable harm that outweighs any harm 

the nonmoving party will suffer if the injunction is granted, there is no adequate 

remedy at law, and an injunction would not harm the public interest. (Citation.) If 

the moving party meets this threshold burden, the district court weighs the factors 

against one another in a sliding scale analysis, (citation), which is to say the 

district court must exercise its discretion to determine whether the balance of 

harms weighs in favor of the moving party or whether the nonmoving party or 

public interest will be harmed sufficiently that the injunction should be denied. 

5. But not all elements are at issue when First Amendment rights are infringed. As 

explained by the Seventh Circuit in Joelner v. Village of Washington Park, Illinois, 378 F.3d 

613, 620 (7th Cir. 2004): 

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. (Citations.) “The loss of First Amendment freedoms, for 

even minimal periods of time, unquestionably constitutes irreparable injury," 

(citation), and money damages are therefore inadequate, (citation). 

Concomitantly, there can be no irreparable harm to a municipality when it is 

prevented from enforcing an unconstitutional statute because “it is always in the 

public interest to protect First Amendment liberties.” (Citations.) ("We believe 

that the public interest is better served by . . . protecting [] core First Amendment 

rights"), (citation) (“Surely, upholding constitutional rights serves the public 

interest.”).

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 5 of 10 PageID #:167
6 

6. In sum, because “[t]he loss of First Amendment freedoms is presumed to 

constitute irreparable injury for which money damages are not adequate, and injunctions 

protecting First Amendment freedoms are always in the public interest” only two elements can 

be at issue here. Christian Legal Society at 859. The first is “the likelihood of success on the 

merits”, Christian Legal Society at 859-67, and the second is balancing of harms, Christian 

Legal Society at 867. 

7. The likelihood of success favors ARH. In determining “the likelihood of success 

on the merits” ARH need demonstrate only a “better than negligible” probability of prevailing. 

Badger v. Boulevard Bancorp, Inc., 1991 U.S. Dist. LEXIS 6071 at *11 (N.D. Ill. 1991) 

(“[a]lthough the [movant] must demonstrate some probability of success on the merits, ‘the 

threshold is low. It is enough that ‘the plaintiff’s chances are better than negligible...’ 

Furthermore, even this low threshold of ‘better than negligible’ decreases ‘the more heavily the 

balance of harms weighs in [the movant's] favor’”); see also Mullis v. Arco Petroleum Corp., 

502 F.2d 290, 293 (7th Cir. 1974) (“[t]he greater the urgency and the greater the extent of the 

impending injury, the more appropriate it may be to retain the status quo temporarily while the 

court appraises the strength of the legal claim . . . .”)

8. As to likelihood of success, there are at least three reasons why the likelihood of 

success favors Plaintiff: 

9. First, despite this Court’s order that Defendant furnish plaintiff with the basis for 

the code violations, and despite Plaintiff’s requests via letter on June 8 and 11, Defendant has not 

furnished to Plaintiff any statutory basis for Chief Vrshek’s authority to require Affordable 

Recovery Housing to cease operations, including evicting its residents, or closing the business 

within one week. Chief Vrshek’s order (and the City’s Council’s June 12 approval of that order) 

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 6 of 10 PageID #:168
7 

exceeded his authority because there is no statutory basis for Defendants to require ARH to cease 

operations and evict its residents. 

10. Second, the 2012 LSC, cited by Defendants as the basis for the requirement that 

ARH install a sprinkler system, specifically and clearly exempts existing buildings from 

installing sprinkler systems and therefore ARH is not required to install a sprinkler system. See

Exhibit A, LSC Section 33.2.3.5.1; see also ¶¶1(g)-(n) above.

11. Finally, a requirement that ARH install a sprinkler system clearly infringes on 

ARH’s hybrid rights to free exercise and freedom of association under the First Amendment of 

the U.S. Constitution. 

12. Because First Amendment freedoms are at issue, the City must demonstrate 

“regulations adopted to serve compelling state interests” which are “significantly less restrictive” 

than throwing 73 men on the streets of Blue Island and completely destroying ARH’s mission 

and use of its property. Christian Legal Society at 861-62; see also IRFRA § 15: (The 

government must prove its actions further “a compelling governmental interest[] and is the least 

restrictive means of furthering that compelling governmental interest.”)

13. The City of Blue Island cannot show a compelling government interest that is 

narrowly tailored because the 2012 LSC makes exceptions that allow similarly situated uses to 

operate without a sprinkler system. See LSC §§ 33.2.3.5.1. Because Blue Island makes 

exceptions for similar uses, it cannot argue that it has a compelling interest in requiring ARH to 

install sprinkler systems. See LSC §§ 33.2.3.5.1. 

14. Further, strengthening ARH’s First Amendment claim, in the preceding nine 

months ARH passed five or six fire inspections under Fire Chief Copp, the predecessor to 

Chief Vrshek. When John Dunleavy went to City Hall to inspect his file he found that all five or 

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 7 of 10 PageID #:169
8 

six fire inspection reports had been removed from the file, with only the five-year plan 

agreement between ARH and the city left in the file. Exhibit B, Dunleavy Decl. ¶ 35. Plaintiff 

has a copy of one of these inspection reports which Mary Jo Dunleavy, John’s wife, saved at the 

time of the inspection, which is attached as Exhibit C. 

15. As part of the five year plan previously agreed to by the City ARH has installed a 

“state of the art” fire alarm system. Exhibit B, Dunleavy Decl. ¶ 37. Given the presence of this 

alarm system, the May 29, 2012 report of Yung Architects, LLC makes it clear that installation 

of a sprinkler system “may be deferred for an indefinite period of time”. Compl. ¶ 38; Exhibit B.

Dunleavy Decl. ¶ 40. This is further evidence that the City does not have a compelling 

government interest in requiring ARH to install a sprinkler system.

16. ARH also prevails on the balancing of harms: 

a. Throwing 73 men, many without family or resources, out on the streets of Blue 

Island truly is dangerous, draconian and utterly heartless. 

b. Destroying ARH’s religious and charitable mission likewise would be 

devastating.

c. As noted above in ¶¶ 1(g)-(n), 9, the 2012 LSC, cited by Defendants as the basis 

for the requirement that ARH install a sprinkler system, specifically and clearly 

exempts existing buildings from installing sprinkler systems and therefore ARH is 

not required to install a sprinkler system. There is no harm to the City in 

preventing it from enforcing a requirement not in the LSC. 

d. As noted above in ¶ 15, ARH already has installed a “state of the art” alarm 

system which makes sprinklers unnecessary; and installation of sprinklers appears 

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 8 of 10 PageID #:170
9 

not to be required under the Blue Island Building Code, particularly for a building 

which has operated without them as a convent and boarding house for 70 years. 

e. The Fire Chief’s order lacks a statutory basis to require ARH to cease operations 

and evict its residents.

17. The Seventh Circuit has condemned the arbitrary and irrational use of power by 

city officials against religious organizations, and concluded that such constitutes a substantial 

burden under the Religious Land Use and Institutionalized Persons Act. World Outreach 

Conference Center v. City of Chicago, 591 F.3d 531, 537-38 (7th Cir. 2009); Saints Constantine and 

Helen Greek Orthodox Church, Inc., 396 F.3d 895, 900-01 (7th Cir. 2005). The same conclusion 

should be reached as to the constitutional claims, and under IRFRA which has similar wording. 

See, also Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534, 537-38 (1993) 

regarding the abuse of power by city officials when directed at religiously motivated conduct. 

WHEREFORE, Affordable Recovery Housing requests that the Court:

A. Grant a preliminary injunction preserving the status quo by restraining Defendant 

City of Blue Island from removing, causing the removal or threatening to remove 

ARH or any of its residents from the premises at 13811 S. Western Avenue in Blue 

Island; from assessing fines for continuing to use its property and for operating the 

transitional housing program at its property; and from initiating prosecutions against 

ARH for the use of the property; 

B. Enter a declaratory judgment as a matter of law that the City of Blue Island has no 

authority to order ARH to install sprinklers, to shut down its business, or to order an 

eviction of ARH or its residents from the premises at 13811 S. Western Avenue in 

Blue Island; 

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 9 of 10 PageID #:171
10 

C. Grant other just relief.

Respectfully Submitted, 

AFFORDABLE RECOVERY HOUSING

/s/ Andy R. Norman 

Andy R. Norman 

John W. Mauck

Andy R. Norman 

Jeffrey M. Schwab

Mauck & Baker, LLC

1 North LaSalle Street, Suite 600 

Chicago, IL 60602 

(312) 726-1243 

F:\Clients\3065\Motions\Mot_PrelimInj_Sprinklers_final_20120619.docx

Case: 1:12-cv-04241 Document #: 18 Filed: 06/19/12 Page 10 of 10 PageID #:172