APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
A group of plaintiffs brought suit against the mayor of the city of Chicago and various city officials (defendants); seeking a declaratory judgment that a certain city ordinance was unconstitutional and also injunctional relief. Defendants filed a motion to dismiss the complaint supported by suggestions. After hearing argument of counsel and upon consideration of legal matters, the court found the ordinance to be valid under the constitutions of the State of Illinois and of the United States. Defendants' motion was accordingly granted and the suit dismissed. Plaintiffs appeal.
• 1 Since the case was disposed of on the motion to dismiss without hearing evidence, the well-pleaded allegations in the plaintiffs' complaint are deemed admitted and constitute the pertinent facts. (Holiday Magic, Inc. v. Scott, 4 Ill. App.3d 962, 282 N.E.2d 452.) However, conclusions need not be accepted. (Chicago Teachers Union v. Board of Education, 14 Ill. App.3d 154, 156, 301 N.E.2d 833.) The complaint alleged some 13 various individuals doing business under designated names are licensees of the City for sale of alcoholic beverages by the drink at retail. All of them are designated as plaintiffs together with seven additional individuals who are described as employees in the licensed establishments such as bartenders, waitresses or dancers. One plaintiff is an individual who is described as a regular and frequent patron of one of the licensees. The defendants are the mayor of the city of Chicago, who is the local liquor license commissioner of the City, the superintendent of police for the City and the corporation counsel.
The complaint also alleges that an integral part of the business of those plaintiffs who are licensees revolves about a convivial social atmosphere including socializing between patrons and employees and buying drinks for one another. The ordinance in question is described as prohibiting licensees and their employees from asking patrons to purchase alcoholic or nonalcoholic beverages for any employee, except when the patron and employee are related by blood or marriage. A copy of the ordinance is appended to the complaint. The complaint then sets forth a number of reasons for unconstitutionality of the ordinance: it improperly restricts a licensee, their employees and patrons, from exercising first amendment freedom of expression and association; threatens to deprive licensees and their employees of property without due process; exempts without reason activities wherein patron and employee are related by blood or marriage; imposes an impossible burden upon licensees and their employees to screen all drinks served and to check on blood or marital relationships; unconstitutionally prohibits friendly and social mutual purchasing of drinks; and exceeds the City's legitimate police power.
The complaint also alleges that the ordinance is unconstitutional because it has been utilized only to arrest in situations where female employees request and receive drinks so that it is applied in a sexually discriminatory manner. The complaint sets forth the fact that a predecessor ordinance [sic] was held unconstitutional by the United States District Court as being sexually discriminatory. Prior to this holding, defendants had made numerous arrests and had instituted proceedings to revoke liquor licenses because of such alleged violations. From this decision of unconstitutionality to the enactment of the new ordinance, drink solicitation was not prohibited and no ill consequences resulted. Subsequent to passage of the new ordinance, a number of employees of one of the licensees had been arrested for violation thereof and plaintiffs believe that defendants will continue vigorous enforcement of the new ordinance.
Plaintiffs further allege that they will suffer irreparable harm from such enforcement such as economic harm and damage to their first amendment freedoms; threats and actuality of arrest and possible conviction of licensees and employees; threat of revocation of liquor licenses and consequent loss of jobs to employees; disruption of business of the licensees to the alarm and possible loss of patrons; preventing those plaintiffs who are dancers from exercising first amendment freedoms and preventing the licensees from retaining their employees who will take similar jobs in other cities not having such ordinances. The complaint also contains various allegations regarding the inadequacy of plaintiffs' remedy at law together with a prayer for relief.
The ordinance involved is the Municipal Code of Chicago (ch. 147, §§ 147-15, 15.1 and 15.2). Its provisions are:
"147-15. For the purpose of this Section, the following terms shall have the meaning ascribed to them in this subsection:
A. Employee. The term `Employee' means any agent, manager, employee, entertainer, barkeeper, host, hostess, waiter, waitress or other such person employed on any contractual basis by such an establishment, or receiving any remuneration for services in such an establishment;
B. Licensed Establishment. The term `Licensed Establishment' means any place of business which has been issued a city license for the retail sale of alcoholic beverages;
C. Patron. The term `Patron' means any patron, customer, or visitor of a licensed establishment who is not employed by such establishment.
147-15.1. No licensee or any employee of a licensee shall:
(a) Solicit, induce or request any patron of the licensed establishment to purchase any alcoholic or non-alcoholic beverage for himself or any other employee of the licensed establishment; or
(b) Knowingly serve to any employee any alcoholic or non-alcoholic beverage which was purchased by any patron.
147-15.2. No licensee, manager or barkeeper of a licensed establishment shall permit any employee to remain on the premises of the licensed establishment who solicits, induces or requests a patron to purchase an alcoholic or non-alcoholic beverage for any employee.
Nothing in this Section prohibits the above activities where the patron and employee are related by blood or marriage."
In the briefs before us, plaintiffs divide their argument into two general subdivisions: unconstitutionality of the ordinance and the error of the court in refusing to enjoin defendants from enforcement of the ordinance. In the first portion of the argument, plaintiffs contend that the ordinance abridges three basic rights under the Constitution of the United States: first amendment rights of freedom of expression and association; fifth and fourteenth amendment rights to due process ...