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Midwest Petro. Marketers v. City of Chicago





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.


Plaintiffs, Midwest Petroleum Marketers Association and Gas City, Ltd., brought this action in the circuit court of Cook County, challenging the constitutionality of section 100-7.10 of the Municipal Code of Chicago and regulations 2A, 2D and 3B promulgated thereunder by the commissioner of consumer sales, weights and measures to regulate the self-service sale of gasoline. They seek to enjoin defendants from enforcing the regulations against retail gasoline dealers and also seek a declaratory judgment that the ordinance and regulations are unconstitutional. The Illinois Gasoline Dealers Association and Advocates for the Handicapped were allowed to intervene as defendants.

During a bench trial, the court granted defendants' motion for judgment at the close of plaintiffs' case and entered an order dismissing the action. Plaintiffs now appeal.

We view the issues presented for review as: (1) whether a justiciable controversy within the meaning of the declaratory judgment statute is presented with regard to regulation 2D (Ill. Rev. Stat. 1977, ch. 110, par. 57.1); (2) whether regulations 2A, 2D and 3B constitute an arbitrary and unconstitutional exercise of the city's police power; (3) whether the adoption of the split-island requirement in regulation 2A exceeds the grant of legislative authority; (4) whether the city council failed to provide intelligible standards to guide the commissioner in regulating fairness in price; and, (5) whether the city's attempt to regulate pricing in the retail gasoline industry violates the constitutional guarantee of equal protection of the laws.

We affirm the trial court.

On May 4, 1977, the city of Chicago adopted section 100-7.10, which prohibits the dispensing of motor fuels in filling stations by unauthorized individuals except as permitted by regulations issued by the commissioner of consumer sales, weights and measures. The ordinance specifies:

"It shall be unlawful for any person owning or operating a filling station to permit any person other than himself or an employee to dispense flammable and combustible liquids used as motor fuels in a filling station except pursuant to regulations issued by the Commissioner of Consumer Sales, Weights and Measures. Such regulations shall provide for safety in the dispensing of such motor fuels and for fairness in price, and in the disclosure of price and service." (Emphasis added.)

Pursuant to this ordinance, the commissioner issued regulations pertaining to the self-service sale of gasoline. Regulation 2A requires any gasoline station that offers self-service gasoline to also offer full-service gasoline. This has been designated a "split-island" requirement. Under regulation 2D, the price of self-service gasoline must be at least 5% lower than the price of the same grade of gasoline sold at full-service islands at the same station. Regulation 3B requires that at a station providing self-service, as well as full-service, at least one dispensing island must be attended and operated by an authorized attendant. The regulations also provide for the advertising of gasoline prices, installation of safety equipment, and posting of warnings and instructions (Regulations 2B, 2D and 3).

On November 29, 1977, plaintiffs filed a declaratory judgment action against the city, challenging the regulations that require split-island operation and a 5% differential between the price of gasoline dispensed at full-service and self-service islands. The plaintiffs also challenged the constitutionality of the ordinance insofar as it authorizes the commissioner to promulgate regulations providing for fairness in price.

The Illinois Gasoline Dealers Association, representing owners and operators of retail gasoline stations in Chicago, and some of its members were allowed to intervene as defendants. Advocates for the Handicapped and certain handicapped individuals were also granted leave to intervene.

At trial, plaintiffs called several city employees as adverse witnesses pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) James R. Newbold, director of the Chicago bureau of fire prevention, testified that the primary concern of fire officials with respect to safety at self-service gasoline stations is proper supervision of the self-service pumps by a qualified attendant. Newbold stated that an attendant should be near the pumps to insure that no spillage occurs and that people properly dispense the gasoline. He believed that, at a split-island station, one attendant should be near the self-service island and another working the full-service pumps. He admitted that, from the standpoint of fire safety, the split-island requirement would be unnecessary as long as an attendant was stationed at the self-service pumps, but commented that, of course, the presence of two attendants would create a safer atmosphere.

James J. Barret, chief engineer of the Chicago bureau of fire prevention, testified that he participated in making recommendations to the commissioner regarding the safety requirements of self-service gasoline stations. In preparing his recommendations, Barret considered requirements of other communities, where self-service is permitted, and standards published by the National Fire Prevention Association (NFPA), a nationally recognized group that prepares fire safety standards. Barret stated that neither the ordinances from other jurisdictions that he examined, nor the NFPA standards required a split-island operation. He explained that at the typical self-service station a master switch to the pumps is located on the exterior of the building that houses the cash register, and manual shutoff controls are situated on each pump. In his opinion, the split-island requirement insures that at least one attendant will be near the pumps where he can see gasoline spills, rather than in the office near the cash register.

Terry A. Hocin, deputy commissioner of the department of consumer sales, weights and measures, was also called by plaintiffs as a section 60 witness. Hocin participated in preparing the self-service gasoline regulations. Field studies were conducted by members of his department who visited approximately 1600 gasoline stations within the city to observe their operations. He testified that in preparing the regulations he relied upon these studies, as well as records provided by the petroleum industry, a report prepared by the Illinois Legislative Council on the economics and safety aspects of gasoline stations, and the recommendations of city and state fire officials. The mayor's office of senior citizens and handicapped persons and individual consumers, senior citizens and handicapped persons requested that the needs of the handicapped be considered in preparing self-service regulations. He also considered a news poll survey of motorists and ordinances from other jurisdictions.

Hocin testified that the purpose of the split-island requirement, besides insuring adequate supervision of the self-service pumps, is to provide full service for the elderly and the handicapped who cannot pump their own gasoline and to assure that preventative maintenance services are available to the public. When asked whether a self-service attendant could not provide service to the handicapped, Hocin stated that it would be difficult to monitor self-service stations to see that the self-service attendants were assisting the handicapped. He further stated that, based on his observations, the attendant at a self-service station is typically behind a counter in the office and not near the service islands to ...

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