Judge: ‘If it looks like a duck and walks like a duck, it’s a rodeo.’
By Stuart R. Wahlin
After closing arguments Jan. 13, Judge Richard A. Lucas denied a motion to dismiss, and issued a permanent injunction prohibiting commercial rodeo activities on the property of Enrique Jaime Jr. at 14852 Hauley Road in Shirland Township. (See “Ruling in rodeo case possible in January” in the Dec. 23-29, 2009, issue).
During final arguments, Assistant State’s Attorney Sara Hohe attempted to show, by reiterating evidence exhibits and sworn testimony, that Jaime’s use of the property has not been in compliance with the county’s zoning ordinance, and that he should be enjoined from rodeo-type activities, which are not permitted uses under the agricultural designation.
Although the presence of horses and cattle on Jaime’s ranch is not unusual in an Ag district, Hohe acknowledged, “rodeo-style events” require a special-use permit (SUP).
She recounted testimony by Nicholas Cunningham, a Winnebago County sheriff’s detective who’d visited the property undercover during a June 21, 2008, event. Cunningham testified he and fellow undercover officers paid to get in, witnessed rodeo-style competitions, observed bleachers, an arena, an announcer booth and food being sold.
During a subsequent event July 11, 2009, which Jaime described as his birthday party, Cunningham photographed more than 50 vehicles and horse trailers on the property.
Before he’d arrived, Cunningham testified, two county squad cars were already on the scene in response to a traffic accident for which a charge of driving under the influence had been issued to a partygoer. By the time he arrived after the marked squad cars, Cunningham said, many attendees had already left, but a flier for another event had been recovered from one of the vehicles involved in the accident.
Maintaining the event was a birthday party, Jaime reportedly told Cunningham he knew all of the equestrian competitors on-site, but conceded not knowing all of the spectators.
Pressing the issue that not everyone present qualified as friends and family, Hohe added, “A friend does not leave when police arrive.”
Following the July 11 incident, Jaime met with Cunningham and Deputy Chief Dominic Iasparro July 23, 2009, to discuss the nature of his events. During the meeting, Jaime told Cunningham he accepted $10 donations from spectators, plus entry fees from contestants, and allowed food to be sold on his property.
Referencing three letters issued by the county in 2008, Hohe argued Jaime was aware by that point that such activities were not permitted.
After the first letter advising Jaime of an ordinance violation was issued July 18, 2008, Jaime met with county zoning personnel to discuss a remedy. He was advised he should apply for an SUP for his equestrian events to be in compliance.
The county’s zoning division, namely Planning & Zoning Officer Troy Krup, pointed to a particular portion of the zoning code for activities requiring an SUP: “Private and public recreational facilities and commercial entertainment and tourist establishments, including, but not limited to, picnic and recreational campgrounds…dining and dancing establishments; archery clubs; gun clubs; Par-3 golf courses; automobile, cycle, snowmobile race tracks or courses; commercial stables and riding trails; and commercial fishing ponds or lakes and/or similar tourist facilities.”
This portion of the zoning ordinance would also be the focus of the defense’s motion to dismiss the complaint, alleging the code is too vague and unconstitutional. Hohe, however, noted the code is assumed valid, and that the burden of proof is on the defense to show otherwise.
Under the aforementioned code, Hohe asserted Jaime’s facility is “clearly an arena constructed for entertainment,” and therefore a commercial recreational facility.
Following a Zoning Board of Appeals (ZBA) hearing, the Winnebago County Board unanimously denied Jaime’s SUP application Dec. 11, 2008.
Although Jaime was sent another letter advising him of the denial of his request, Hohe argued he “ignored” the ruling and continued hosting prohibited activities, citing the flier recovered by sheriff’s police as a clear example. She added it is “ridiculous” to suggest Jaime was unaware such activities were in violation.
The defense responds
In his rebuttal, Jaime attorney J.F. Heckinger said his client only wants to be treated equally and fairly under the zoning ordinance.
Heckinger suggested Krup arbitrarily enforced the county’s “overly-broad” zoning code at his own discretion. He added the zoning ordinance is meant to serve as a “shield,” not as a “sword,” alleging Krup chose the latter.
Heckinger suggested his client has been treated unfairly because Jaime and his attendees are Hispanic.
Referencing Cunningham’s testimony indicating many had left the scene July 11, 2009, Heckinger explained, “They don’t get along with police officers,” because law enforcement is very different in their country of origin.
Hohe, however, argued the race of the attendees was never an issue during the trial. She added there is no evidence to suggest Jaime actually lives on the property in question.
Heckinger argued the DUI issue frequently mentioned by the county has nothing to do with the matter at hand, and suggested the “flier” was actually a private “invitation.”
As long as the events are not operated in a commercial manner, Heckinger argued, they should be permitted.
During the December hearing, Heckinger portrayed Jaime’s events as a simulated rodeo intended to train and prepare animals for real rodeo competitions off-site. During the Jan. 13 hearing, he put forth the analogy of a race car driver who must practice on a proper closed course.
Taking aim at the argument Jaime didn’t know every person on his property, Heckinger recounted a recent birthday party in his honor at which he didn’t know everyone in attendance, because some of them were friends of his wife.
Heckinger noted that even Krup had acknowledged the code allows for the raising and training of horses, as well as having friends over.
He argued that when Jaime was issued the first violation letter in 2008, his client promptly met with zoning officials and pursued an SUP at the county’s urging.
“My client did what he was asked to do,” Heckinger asserted, noting Jaime’s efforts to be in compliance.
Because “neighbors raised hell,” Heckinger alleged, the county board voted down Jaime’s petition. He also noted the board had no Hispanic representation at the time of the decision.
In an effort to eliminate the commercial aspect of his events, Jaime stopped charging admission in 2009. He acknowledged, however, that donations were accepted to offset his costs.
Despite elimination of the admission charge, Heckinger alleged, Krup arbitrarily decided there were too many events occurring on the property. Heckinger also noted there are parties held at the neighboring forest preserve.
Heckinger maintained the ordinance is “too general,” which allows for enforcement solely at Krup’s discretion.
Recounting Krup’s December testimony, however, Hohe reiterated that a number of factors led to the determination Jaime’s events were in violation.
Citing the legality of equestrian activities and having friends on his property, Heckinger wondered what the county is seeking an injunction against. He added that if money changing hands is the only sticking point, Jaime has no problem with not accepting donations.
Immediately following closing arguments, and without a recess, Judge Lucas rendered his decisions to deny the motion to dismiss and to issue a permanent injunction.
Lucas indicated the ordinance is meant to protect the enjoyment of one’s property from abuse by one’s neighbors, noting it’s appropriate for the code to remain in “somewhat of a generalized sense.”
The “series of events” and “laundry list” of “factors” presented in the county’s case led Lucas to conclude, “If it looks like a duck and walks like a duck, it’s a rodeo.”
He added that Krup’s determinations were appropriate based on the “various and sundry physical components” described, including the presence of bleachers, announcer’s booth and other elements.
Turning his attention to Cunningham’s testimony of having observed a cash box and food service, Lucas asserted, “I wonder what the IRS would think about that.”
Because the definition of a rodeo was a contested matter in the case, Lucas determined a rodeo could be described as a “series of events,” even if they’re not on the same day.
“It sure sounds pretty commercial to me,” he said. “That duck is a rodeo” and “clearly in violation” of the zoning ordinance.
Lucas acknowledged it is permissible to have friends and family on the property, even if Jaime doesn’t know some of them, and that it’s equally permissible to train horses.
“No one is attempting to restrict or limit your proprietary right to train,” he told Jaime. “I want you to be a good neighbor.”
Lucas, however, rejected the racial component suggested by Heckinger.
“If I were your neighbor, I’d complain,” Lucas said of Jaime’s events, which resulted in primarily noise objections by neighbors.
Stating he expects Jaime to comply with the order, Lucas urged the defendant to work with zoning officials to ensure future events are not in violation of the ordinance.
The order states:
“It is hereby ordered that:
“1) The zoning ordinance of Winnebago County section 90-113(b)(5) is not unconstitutionally vague.
“2) Defendant Jaime’s property on Hauley Road that is the subject of this litigation is enjoined from using or permitting the use of the property for any commercial venture on the property, specifically including rodeos, cattle/horse roping, riding or penning entertainment activities, or any rodeo-type events not in compliance with the zoning ordinance of Winnebago County.”
After the ruling
“I’m surprised it went the way it did,” Jaime told The Rock River Times immediately following the decision. “He said I can have friends and family over, which is all I’ve been wanting to do.”
Maintaining the ordinance is too vague, Jaime said he will meet with Heckinger to discuss whether to pursue the issue further, adding, “I’m planning on looking at possibly suing them in federal court.
“There’s like six or eight arenas—at least six that I know of—in Winnebago County that are doing the same thing I’m doing,” he added. “And they’ve been doing it for longer than I have, and none of those guys get hassled.”
Jaime noted he stopped charging admission in 2009 in an effort to comply, but acknowledged accepting donations.
“That’s no different than when the judges have their campaign parties,” he argued. “They get donations to campaigns for a cost. …If I can’t do it, then the state’s attorney, when he has his campaign stuff, he shouldn’t be allowed donations, campaign money, to help offset his costs.”
Jaime said he plans to continue having events, but that he’ll work with zoning officials to avoid ordinance violations.
“I plan on going in and talking with zoning—sit down and see where they think the parameters are, what I can and cannot do, and take it from there,” he explained.
“The thing I don’t like is he keeps on bringing up ‘rodeo events.’ They’re horse events,” Jaime asserted. “Chasing cows, roping cows with just horses doing different obstacle courses.”
Also taking exception to Lucas’ “if it looks like a duck and walks like a duck” comment, Jaime responded, “If that’s how this judge bases his cases on—just because it looks like something, without proof—that’s pretty bad.
“My arena,” he agreed, “it looks commercial. It’s commercial-grade, because I use my arena six days a week in the summertime, you know, eight to 10 hours a day, so it is a commercial-grade arena.”
As of Dec. 11, 2009, Jaime has been eligible to reapply for an SUP, but said he’s not interested.
“I was denied one time, and I think it’ll be a waste of my time to go again,” he said.
From the Jan. 20-26, 2010 issue
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