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BIONIC AUTO PARTS AND SALES, INC. v. FAHNER

July 6, 1981

BIONIC AUTO PARTS AND SALES, INC., ET AL., PLAINTIFFS,
v.
TYRONE C. FAHNER, ATTORNEY GENERAL OF ILLINOIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

By their Second Amended Complaint and accompanying emergency motion, Bionic Auto Parts and Sales, Inc. ("Bionic") and its several co-plaintiffs have moved for a preliminary injunction enjoining the defendants from:

    (1) enforcing various provisions of Ill.
  Rev.Stat. ch. 95 1/2, the Illinois Vehicle Code
  (the "Code"), and Rule 5-401A promulgated under
  the Code;
    (2) entering plaintiffs' business premises
  without warrant and making seizures of
  plaintiffs' merchandise or business records; and
    (3) entering plaintiffs' business premises
  without warrant and labeling the plaintiffs'
  merchandise.

This Court has conducted an evidentiary hearing in accordance with Fed.R.Civ.P. 65(a) on plaintiffs' motion. In accordance with Fed.R.Civ.P. 52(a) the Court makes the following findings of fact and states the following conclusions of law:

Findings of Fact

1. This action is brought for declaratory and injunctive relief under 42 U.S.C. § 1983 and the Fourth, Fifth and Fourteenth Amendments to the Constitution. This Court has jurisdiction of the action.

2. Plaintiffs are corporations and individuals engaged or formerly engaged in the business of acquiring, wrecking, recycling, rebuilding and selling automotive parts. Plaintiffs are licensed by the State of Illinois for that purpose under Code § 5-301.

3. Defendants are the Illinois Attorney General, the Illinois Secretary of State (who is also its Motor Vehicle Administrator), the Cook County State's Attorney and the Chicago Superintendent of Police. Collectively defendants comprise the persons responsible for enforcing the statute and regulations at issue in this action.

4. Code § 5-401 prescribes certain records and information that must be maintained by licensees such as plalintiffs. It also empowers the Illinois Secretary of State to prescribe the forms of records to be maintained by licensees. Approximately August 8, 1978 then Secretary of State Alan Dixon promulgated such a rule ("Rule 5-401A"), which was thereafter held valid by the Illinois Supreme Court in Northern Illinois Automobile Wreckers and Rebuilders Ass'n v. Dixon, 75 Ill.2d 53, 25 Ill.Dec. 664, 387 N.E.2d 320 (1979). All the plaintiffs other than Bionic were members of the plaintiff trade association in that case.

5. At the time of the Northern Illinois Automobile Wreckers decision Code § 5-401 provided in part:

  Every record required to be maintained under this
  Section shall be opened to inspection by the
  Secretary of State or his authorized
  representative or any peace officer for
  inspection at any reasonable time during the
  night or day.

After the Illinois Supreme Court decision the same provision (now Code § 5-401(e)) was amended to add the following sentence:

  Such inspection may include examination of the
  premises of the licensee's established place of
  business for the purpose of determining the
  accuracy of required records.

Both such provisions permit warrantless inspections, the first relating to a licensee's records and the second ...


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