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Old July 6, 2011, 03:14 PM   #51
Spats McGee
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Some of my favorite quotes:

Quote:
Indeed, the City considers live firing range training so critical to responsible firearm ownership that it mandates this training as a condition of lawful firearm possession. At the same time, however, the City insists in this litigation that range training is categorically outside the scope of the Second Amendment and may be completely prohibited. There is an obvious contradiction here, but we will set it aside for the moment . . . .
Quote:
. . . . this requires us to select an appropriate standard of review. Although the Supreme Court did not do so in either Heller or McDonald, the Court did make it clear that the deferential rational basis standard is out, and with it the presumption of constitutionality. . . . . This necessarily means that the City bears the burden of justifying its action under some heightened standard of judicial review.
Quote:
At the preliminary injunction hearing, the City highlighted an additional public safety concern also limited to mobile ranges: the risk of contamination from lead residue left on range users’ hands after firing a gun. Sergeant Bartoli was asked a series of questions about the importance of hand-washing after shooting; he said that “lucrative amounts of [cold running] water and soap” were required to ensure that lead contaminants were removed. The City argued below that mobile firing ranges might not be sufficiently equipped for this purpose, suggesting that mobile ranges would have inadequate restroom facilities and might have to rely on “port-a-potties.” This sparked a discussion about the adequacy of the water supply available at a standard “port-a-potty". . . . . On appeal the City raised but did not dwell on its concern about lead contamination. For good reason: It cannot be taken seriously as a justification for banishing all firing ranges from the city. To raise it at all suggests pretext.
(Emphasis mine, but . . . OUCH!)

Quote:
Perhaps the City can muster sufficient evidence to justify banning firing ranges everywhere in the city, though that seems quite unlikely.
Here's my favorite, from the concurrence:

Quote:
Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live range training as it was a thumbing of the municipal nose at the Supreme Court.
(Emphasis mine, but, again . . . OUCH!)
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Old July 6, 2011, 03:31 PM   #52
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I've said it more than once. All of the arguments being made at district level, are not directed at that court. They have been and are directed to the Circuit Courts and the Supreme Court. We have just seen the first of this strategy hitting pay-dirt.

I've spent all morning pouring over this decision. Forthwith, here's my take:

Quote:
The City’s confused approach to this case led the district court to make legal errors on several fronts: (1) the organizational plaintiffs’ standing; (2) the nature of the plaintiffs’ harm; (3) the scope of the Second Amendment right as recognized in Heller and applied to the States in McDonald; and (4) the structure and standards for judicial review of laws alleged to infringe Second Amendment rights.
Here is one small nugget that this panel stated, correctly, I might add. In discussing intangible harms, as it relates to 1st amendment challenges, the panel held the same to be true of 2 amendment challenges. The panel also stated this:

Quote:
Heller held that the Amendment’s central component is the right to possess firearms for protection. [citation omitted] Infringements of this right cannot be compensated by damages.
The panel, after discussing the means of achieving fit between the City's' ordnance and the core of the right decides that training and range time is essential to that right and is implicated as being extremely close to the core.

Quote:
Here, in contrast, the plaintiffs are the “law‐abiding, responsible citizens” whose Second Amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City’s firing‐range ban is not merely regulatory; it prohibits the “law‐abiding, responsible citizens” of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self‐defense.
The panel also goes to a great length in discussing the guides given in Heller and McDonald as it respects the form of judicial scrutiny that should be applied to this case. Because of the fit between the challenged activity and the core of the right, the panel recommended “a more rigorous showing than that applied in Skoien, should be required, if not quite ‘strict scrutiny.’”

The panel then took on the matter of the preliminary injunction itself and cautioned the lower court on how it should be implemented.

With that, the panel reversed the lower decision and remanded with instructions to enter the injunction, consistent with their finding. I should also add that nothing the City can do, short of repealing the various ordnances, will now moot this case.

Kanne, Rovner, and Sykes were the Judges. You might remember Judge Sykes. She was the original writer of the Skoien decision that was later removed upon en banc (she does make one brief mention of this in the above decision - yes, that means she wrote this one).

Judge Rovner writes a nine page concurring opinion. While he concurs with the decision, he writes to oppose the method of scrutiny. Although, rather weak in arguments, he does end his opinion on a positive note:

Quote:
The ordinance admittedly was designed to make gun ownership as difficult as possible. The City has legitimate, indeed overwhelming, concerns about the prevalence of gun violence within City limits. But the Supreme Court has now spoken in Heller and McDonald on the Second Amendment right to possess a gun in the home for self‐defense and the City must come to terms with that reality. Any regulation on firearms ownership must respect that right. For that reason, I respectfully concur in the judgment.
This is not just a win but an important win. There is much within this decision, albeit dicta, that will prove invaluable in several other cases.

This decision, if Chicago doesn't appeal, is very broad and very wide. Sykes has gone after the flag here.

After serious study on this decision, it does now create a split in the Circuits (9th - the Nordyke opinion).
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Old July 6, 2011, 03:58 PM   #53
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I say wow also, now the only question is how many hours before Chicago enacts some other ordinance to the same or similar effect.

I hope they (the city of Chicago) have learned from this that Guns are a Right, I doubt they will learn but we shall see..
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Old July 6, 2011, 04:01 PM   #54
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It is a big win I think - and I also think it is encouraging to see the Seventh Circuit continue to get into the details of scope and standard of scrutiny questions. I'll have to go back and read Nordyke and Skoien again to compare how they reached their standards of scrutiny; but I'm liking the Seventh Circuit approach here - as well as the clear guidance to the lower courts to stop passing the buck along with an appropriately highlighted copy of the Heller and McDonald decisions.
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Old July 6, 2011, 04:04 PM   #55
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The city council has already passed a new ordinance allowing ranges, but with rather onerous restrictions.

http://onlygunsandmoney.blogspot.com...ordinance.html
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Old July 6, 2011, 04:17 PM   #56
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Well, that was quick.
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Old July 6, 2011, 04:43 PM   #57
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They had to be quick. With this injunction in place anyone could open a shooting range this afternoon with no licensing, oversight, restrictions, etc from the city. They couldn't have that.
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Old July 6, 2011, 05:37 PM   #58
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Word is that the city administration wanted to avoid the ruling it heard was coming down and thought passing the ordinance would do so. Nice try but no such luck.
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Old July 6, 2011, 05:44 PM   #59
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Josh Blackman has his analysis, here. And another over at the Volokh Conspiracy.
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Old July 6, 2011, 05:44 PM   #60
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Obviously this is a great decision, but remember, it is only an order granting an injunction.

This decision merely says that Chicago can't ban gun ranges while the litigation is pending. It certainly looks favorable, but don't count your chickens...
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Old July 6, 2011, 06:42 PM   #61
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Quote:
Obviously this is a great decision, but remember, it is only an order granting an injunction.
Right. That we got such a clear view into the minds of the Circuit court is a huge bonus going forward. We now know in considerably more detail the way in which the principles laid out out in Heller and McDonald are going to be applied. Also, the court teeters on announcing strict scrutiny for the lawful by inference, if not by deduction.

That district court judge is going to need therapy. That was quite a smack-down, cutting at the core of her judicial acumen. That has got to be an experience that I can't imagine she would wish to repeat.
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Old July 6, 2011, 06:54 PM   #62
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From the link to the article about the new ordnance:

Quote:
The move to introduce, pass, and implement this ordinance is a rush job as the City of Chicago freely admits. Jeff Levine of the City of Chicago's Law Department had this to say:

But Levine said the 7th Circuit Court of Appeals could rule on the lawsuits at any time, making it important for the city to get its own firing range rules on the books. The city hopes the appellate judges will opt not to intervene if Chicago has a firing range law in place, Levine said.

As Sebastian noted last night, Alan Gura does not think this ordinance should moot Ezell v. Chicago.
Looks like Sebastian (whoever he is) was right ... and Levine was wrong.

One might almost think the Circuit Court didn't like the fact that Chicago tried to thumb its collective, municipal nose at the SCOTUS.


I don't think the ordnance will hold up. Just for starters, they treat the "license fee" like an application fee. You have to pay it up front ($4,000!!!), and if your application is deemed "incomplete" or is denied -- the "license" fee is forfeited, even though you never got the license.

They give the Commissioner authority to deny an application if he deems the business
Quote:
... would have a deleterious impact on the health, safety or welfare of the community in which the shooting range facility is or will be located. A deleterious impact is presumed toexist whenever there have been a substantial number of arrests within 500 feet of the applicant's premises (measured from the nearest exterior wall of the premises) within the previous two years, unless the applicant has adopted a plan of operation that will provide reasonable assurance that the issuance of the license will not have a deleterious impact.
And:

Quote:
There shall be a minimum of 1 rangemaster for every 3 shooting range patrons who are discharge a firearm from the firing line.
Aside from being grammar-challenged ... one safety officer for three shooters? That's onerous.

No one under 18 allowed. God forbid a Chicago resident might want to teach his kids how to, like ... shoot a gun.

Love this part:

Quote:
4-151-160 RangeMasters - Qualifications and duties.
a) Every rangemaster shall:
  1. have - completen a course in firearm safety and instruction;
  2. be familiar with applicable federal, state and local laws and regulations pertaining to firearms;
  3. have experience in range operations and management;
  4. be proficient in firearm utilization and instruction.
And where is this hypothetical rangemaster supposed to have obtained "experience in range operations and management" when Chicago has never had ranges?

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Old July 6, 2011, 07:10 PM   #63
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It is interesting that the decision was issued on the day on which the Chicago City Council was scheduled to vote on their new ordinance.
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Old July 6, 2011, 08:14 PM   #64
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Quote:
All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.” (...) Stated differently, the City must demonstrate that civilian target practice at a firing range creates such genuine and serious risks to public safety that prohibiting range training throughout the city is justified.
Do we have our first rumblings of a strict scrutiny doctrine?

This decision also affirms not just a right to own guns, but to use them as well.
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Old July 6, 2011, 08:48 PM   #65
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In case anyone missed the split circuit decision, I will reprint it in whole, from page 37:

Quote:
The approach outlined here does not undermine Skoien, 614 F.3d at 639‐43, or United States v. Williams, 616 F.3d 685, 691‐93 (7th Cir. 2010), both of which touched on the historical “scope” question before applying a form of intermediate scrutiny. And this general framework has been followed by the Third, Fourth, and Tenth Circuits in other Second Amendment cases.(see footnote 12)


Footnote 12: The Ninth Circuit recently adopted a somewhat different framework for Second Amendment claims. In Nordyke v. King, a divided panel announced a gatekeeping “substantial burden” test before the court will apply heightened scrutiny. No. 07‐15763, 2011 WL 1632063, at *4‐6 (9th Cir. May 2, 2011) (O’Scannlain, J.). Under this approach only laws that substantially burden Second Amendment rights will get some form of heightened judicial review. Id. The Nordyke majority specifically deferred judgment on “what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights.” Id. at *6 n.9. Judge Gould, concurring in Nordyke, would apply heightened scrutiny “only [to] arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country.” Id. at *15. All other firearms laws, he said, should be reviewed for reasonableness, id., although by this he meant the sort of reasonableness review that applies in the First Amendment context, not the deferential rational‐basis review that applies to all laws, id. at *16.
So we have a circuit split. Should the Nordyke case fail at rehearing or en banc, they can go to SCOTUS, which will settle the issue. Patrick, over at MDShooters says it best, here:

Quote:
Both Nordyke and Ezell put forth frameworks to evaluate claims, in general. They outlined the path to make a decision on any 2A topic, not just those before the court. This results in confusion on all topics, not the least of which being public carry.

The Ninth laid out a path that makes clear they will probably view RKBA though the lens of a "burden" imposed by the government. Sounds nice until you realize their view of burden is not ours. They gave exceptional latitude to elected bodies to decide just what that burden entails, and also said that public safety arguments are too complex for the courts to analyze - so they just defer to the reasonable legislature instead.

The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed. If the answer to that questions is affirmative, then you move on to the claims the government has in regulating that activity. The government must prove those claims valid, and not just for theoretical pubic safety reasons. There has to be damn good reasons to restrict the right.

Each of those frameworks were designed to apply to more than the instant cases. Each issues instructions for all courts in their circuit to follow when evaluating any 2A claim. Each of those frameworks is incompatible with the other, and that means the people of the Ninth will get a different version of the right than the people of the Seventh. That calls for Supreme Court intervention.
Quote:
Originally Posted by Tom Servo
Do we have our first rumblings of a strict scrutiny doctrine?
I'm not sure if you realize it or not, but this decision was strict scrutiny in all but name. Does that answer your question?

As for the new ordinance, it fails the operation of the preliminary injunction that the District Court will have to issue:

Quote:
They are entitled to a preliminary injunction to that effect. To be effective, however, the injunction must also prevent the City from enforc‐ ing other provisions of the Ordinance that operate indirectly to prohibit range training. The plaintiffs have identified several provisions of the Ordinance that implicate activities integral to range training: CHI. MUN. CODE §§ 8‐20‐020 (prohibiting the possession of handguns outside the home), 8‐20‐030 (prohibiting the possession of long guns outside the home or business), 8‐20‐080 (prohibiting the possession of ammunition without a corresponding permit and registration certificate), 8‐20‐100 (prohibiting the transfer of firearms and ammunition except through inheritance), 8‐24‐010 (prohibiting the discharge of firearms except for self‐defense, defense of another, or hunting). To the extent that these provisions prohibit law‐abiding, responsible citizens from using a firing range in the city, the preliminary injunction should include them as well. Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.

Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense. Accordingly, the preliminary injunction should include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.
Read that highlighted section again. The new ordinance is dead before it can start.
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Old July 6, 2011, 09:22 PM   #66
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Seriously you would think at some point the court system would have some sort of recourse to basically forbid Chicago from continuing on the never ending path of over regulation. Is there anything other than a injunction that a court can do when a city, town or other division of government fails to learn from order after order?
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Old July 6, 2011, 09:31 PM   #67
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Chicago's revised ordinance cleverly includes exemptions from the Chicago Firearms Permit [8-20-110(f)] and Firearms Registration Certificate [8-20-140(f)] requirements, but only for the required one-hour training and only using a range gun.
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Old July 6, 2011, 10:52 PM   #68
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Quote:
I'm not sure if you realize it or not, but this decision was strict scrutiny in all but name.
Oh, I do. I followed the Skoien case closely, and as soon as I saw Judge Sykes up at bat for this one, I gasped, "oh snap!"

I don't often lapse into such banal clichés, but they've handed us a potential circuit split, and I'd like to see the Supreme Court rule on a standard of review while we've still got the Justices we need to get it right.
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Old July 6, 2011, 11:46 PM   #69
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Did you catch that swipe she took at the whole Circuit for vacating her Skoien decision?

Should some unnamed Judge call for en banc on this one, blood will fly, I tell you!
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Old July 7, 2011, 10:41 AM   #70
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Just read the opinion today and said "Wow!" There might be a few nits to pick but I'm not going to do that.

Onto a more mundane but critically important matter. Does the issuance of a preliminary injunction, rather than a final judgment, entitle the plaintiffs to attorney fees? Does the mootness argument play into this? And, to what extent does the exact timing of the passage of the new ordinance play into the attorney fee question? If it was passed a couple of hours before the decision, does this play into the attorney fee question?

I'm sure Chicago had been drafting some sort of ordinance for awhile but does anybody find it just a bit too coincidental they passed a new ordinance the very day the opinion came out? Some might wonder if they had a bit of a heads up on this.
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Old July 7, 2011, 10:46 AM   #71
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Methinks a birdy whispered in someone's ear. Now which Judge would do such a thing? Hmmm.
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Old July 7, 2011, 01:45 PM   #72
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fixed broken link to Bensen

The "new" ordinance wouldn't have taken effect for ten days. Now add to this that the injunction (as used by the circuit court) will prohibit much that the ordinance was designed to do. So the case is not mooted. Expect Alan Gura to read that ordinance and apply for an injunction that would make it null and void. Strictly according to the opinion of the appeal, mind you.

The injunction is a preliminary injunction, not a temporary restraining order, as was first applied for. Gura will prevail on the merits and the injunction will become permanent. As these things go, if a prelim is ordered, it almost always means that the plaintiffs will prevail. In the same sense, a prelim is almost always permanent.

This SAF/Gura case has won. Even if Chicago now revises its Range Ordinance, to be compliant with the injunction, it is after the the win at Circuit. There is nothing that the District Judge can do to change this. Gura gets his fees.

ETA:

With this case, it just gave a big boost to the NRA case, Bensen v. Chicago.

Plus, there are two other cases in Illinois that will be helped: Moore v. Madigan and Sheppard v. Madigan. These cases are carry cases. With the current ruling of Ezell, it just became much easier to show that carry for self defense is a central component of the core right.

Last edited by Al Norris; July 7, 2011 at 01:53 PM. Reason: Added insights
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Old July 9, 2011, 09:50 AM   #73
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I had to tag this thread. Very interesting discussion and I would like to thank everyone who has been involved in keeping us all informed.

Some of it is heavy reading for a country boy like me, but I am learning to understand it.
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Old July 10, 2011, 12:09 AM   #74
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Remember that what is truly important here is the circuit split, not the reasoning of the 7th Circuit's holding.

A circuit split helps assure that the Supreme Court will hear the case and if they do, nothing the 7th Circuit said will matter.
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Old July 31, 2011, 09:41 AM   #75
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The City of Chicago feels so good about it's new ordinance that on Friday (29 July), they filed a motion to moot the case.

In doing this, they also filed a separate document containing Exhibit A (the new range ordinance) and Exhibit B (the decision by the 7th Circuit). Since that decision was certified in the Mandate #112 and a certified copy was also sent (#113 - not downloaded) to the court, I am left wondering why the City deemed it necessary to include it as an exhibit in their motion?

Oh, and this extra document #114.1 is 85 PDF pages in length, but weighs in at a hefty 4.4MB (good thing I was only charged for the first 30 pages!). Normally, such a PDF would be a photocopy of the pages, to account for its size. Not in this case. It is all text. That can only mean that the person who compiled it, intentionally did so without any of the normal compression that PDF's are compiled with (you have to manually turn off the normal compression, before the document is compiled).

Now why do you suppose that they did this? This has got to be one of the most juvenile acts I've ever seen.

Those of you, familiar with normal business licensing and permitting procedures, may want to take a look at the actual ordinance, as passed. It is in that 4.4MB document.

I note with awe that the requirements just to file the application amount to the expenditures of 10's of thousands of dollars in capital. Even then, you are not guaranteed acceptance. The commissioner has extensive (and arbitrary) discretion to deny your application, before you even begin to lay the foundation stones or modify an existing structure.

Add to this, that failure to adhere to even the most minute details of operation (assuming you get the permit) will cause your permit to be revoked and you can be fined and jailed.

I don't know of any business that would be willing to take these kind of risks.

Of course, that's the whole purpose of this new ordinance, isn't it?
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