The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff, the Pesticide Public Policy Foundation ("the
Foundation"), challenges the validity of Village of Wauconda
Ordinance No. 1984-0-31, which regulates the use of pesticides
in the Village. The Foundation is a District of Columbia
non-profit corporation whose members include professional lawn
care, arborculture and pest control operators serving
customers within Wauconda. Defendants are the Village of
Wauconda, Illinois, Kenneth McGill, the Village President, and
Jerry Bunce, Fred Dierker, James Eschenbauch, Steven Gurevitz,
James Keagle, and Robert Ogren, Trustees of the Village of
The Wauconda ordinance requires "users of pesticides" to
register and obtain a $25 per year permit from the Village.
Ordinance No. 1984-0-31, § 7-12-2. "Users of pesticides" are
defined as commercial pesticide applicators and landlords and
tenants of buildings open to the public who apply pesticides on
those building premises. § 7-12-1. The ordinance prohibits
pesticide application when the wind velocity is greater than
ten miles per hour, § 7-12-4, and requires that warning signs
be posted for 72 hours after application. § 7-12-5. The
ordinance specifies the type and number of signs to be posted
after spraying indoors, outdoors, and on lawns or lakes. For
example, where pesticides are applied to a lawn, the applicator
must post a sign which states: "This lawn is chemically
treated, keep children and pets off for 72 hours." § 7-12-5(B).
The ordinance also regulates fogging; when that method of
application is used, the user must give prior notice to
abutting neighbors. § 7-12-5(C).
Each count in the complaint contains an identical prayer for
relief. Plaintiff requests that this Court declare that
Ordinance No. 1984-0-31 is invalid under Illinois law or
federal law and the United States Constitution and therefore
was void ab initio; enjoin defendants from enforcing the
ordinance; declare that defendants are liable for costs and
expenses incurred in complying with Ordinance No. 1984-0-31;
and grant to plaintiff the costs of the instant lawsuit.
Presently before this Court are defendants' motion, pursuant
to Fed.R.Civ.P. 12, to dismiss the complaint in its entirety,
and plaintiff's motion, pursuant to Fed.R.Civ.P. 56, for
summary judgment in its favor on Counts I-IV of the complaint.
For the reasons stated below, defendants' motion to dismiss
is granted in part and denied in part, and summary judgment is
granted in favor of plaintiff on Count III, with the exception
As noted above, the first three counts of the complaint
attack the authority of the Village of Wauconda to regulate
pesticides. Count I of the complaint alleges that Ordinance
No. 1984-0-31 was preempted by the Federal Insecticide,
Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C.A. §§ 136-136y
(1980 & Supp. 1984), pursuant to the Supremacy Clause of the
United States Constitution, Art. VI, cl. 2. FIFRA regulates the
registration, distribution, use and labelling of pesticides and
the certification of pesticide applicators throughout the
United States. Because federal courts have a "strong duty to
avoid constitutional issues that need not be resolved in order
to determine the rights of the parties to the case under
consideration," County Court of Ulster County, New York v.
Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777
(1979), this Opinion will turn first to the counts of the
complaint that are based on state law.
Count II of the complaint alleges that the Village of
Wauconda, as a non-home rule unit, does not have the authority
to regulate the use of pesticides or to license pesticide
applicators, and that as a result, Ordinance No. 1984-0-31 is
invalid. Where a federal district court confronts questions of
Illinois substantive law under diversity jurisdiction, the
outcome is, of course, controlled by Illinois law. Gates Rubber
Co. v. USM Corp., 508 F.2d 603, 605 (7th Cir. 1975).
The scope of an Illinois municipality's power to legislate
is determined by its status as either a home rule or a
non-home rule unit. Home rule units "may exercise any power
and perform any function pertaining to [their] government and
affairs including, but not limited to, the power to regulate
for the protection of the public health, safety, morals and
welfare; to license; to tax; and to incur debt." Ill. Const.
1970, art. VII, § 6(a). Non-home rule units, however, "have
only those powers expressly granted to them by the General
Assembly or those necessarily implied from or incident to power
expressly granted. . . ." Appeal Board of the Department of
Environmental Control v. United States Steel Corp., 48 Ill.2d 575,
577, 272 N.E.2d 46, 48 (1971).
Defendants maintain that the challenged ordinance is a valid
exercise of municipal authority under statutory provisions
allow municipalities to enact regulations to promote health
and suppress disease, and to lessen or prevent the discharge
of air contaminents. Ill.Rev.Stat. ch. 24, §§ 11-19.1-11,
11-20-5 (1983). Plaintiff claims that in order for the Wauconda
ordinance to be valid, it is necessary for an Illinois statute
to expressly authorize municipalities to regulate pesticides.
In its argument, the Foundation relies in part on the fact that
there are two Illinois statutes which deal with pesticide
regulation within the State, the Illinois Pesticide Act of
1979, Ill.Rev.Stat. ch. 5, §§ 801-828 (1983), and the Illinois
Structural Pest Control Act, Ill.Rev.Stat. ch. 111-1/2, §§
2201-2225 (1983), and neither statute mentions local pesticide
As discussed below, this Court finds that these two Illinois
pesticide statutes preempt local governmental regulation in
that area. Thus, although it is true that a general police
power provision such as section 11-20-5 of the Illinois
Municipal Code authorizes municipalities to legislate on a
wide range of community health hazards,*fn1 it is unnecessary
for this Court to decide whether, in the absence of the two
Acts, the Village would have the authority to regulate
In Count III of the complaint, the Foundation asserts that
the Wauconda ordinance is preempted by the Illinois Pesticide
Act of 1979, Ill.Rev.Stat. ch. 5, §§ 801-828 (1983), and the
Illinois Structural Pest Control Act, Ill.Rev.Stat. ch.
111-1/2, §§ 2201-2225 (1983). These statutes regulate the
registration, distribution and use of pesticides and the
licensing of pesticide applicators in the State of Illinois.
According to plaintiff, neither Act authorizes or allows
Illinois municipalities or units of local government to further
The purpose of the Illinois Pesticide Act of 1979 ("IPA") is
"to regulate in the public interest the labeling,
distribution, use and application of pesticides. . . ."
Ill.Rev.Stat. ch. 5, § 802 (1983). The obligations of the Act
are enforced by three Illinois State agencies: the Department
of Agriculture administers the Act and supervises the
registration of pesticides and agricultural uses; the
Department of Public Health oversees structural or indoor pest
control; and the Environmental Protection Agency enforces those
provisions of the Act which protect the air and water.
Ill.Rev.Stat. ch. 5, § 803. The Act provides for annual
registration of pesticides, annual licensing of commercial
applicators, and certification of applicators of restricted
pesticides. Ill.Rev.Stat. ch. 5, §§ 806, 810, 811. The Act also
prohibits handling or storing pesticides in an unsafe manner
and disposing of pesticides or their containers in such a
manner as to endanger public health or the environment or to
pollute water supplies. Ill.Rev.Stat. ch. 5, § 814. The
Director of Agriculture is further authorized to promulgate
additional regulations concerning the storage, distribution and
disposal of pesticides and their containers, the methods of
pesticide application, and packaging. Ill.Rev.Stat. ch. 5, §
Defendants maintain that Ordinance No. 1984-0-31 is neither
expressly nor impliedly preempted by the Illinois pesticide
statutes. Defendants point out, correctly, that neither Act
contains any language which specifically prohibits local
governmental regulation in the field of pesticide control.
They further argue that the General Assembly's lack of
intent to preempt local pesticide regulation can be seen by
comparing the pesticide acts with two statutes which do
preempt local regulation. Defendants give as an example the
Illinois Environmental Protection Act ("EPA"), which states
that its purpose is "to establish a unified state-wide
program." Ill.Rev.Stat. ch. 111 1/2, §§ 1001, 1002(b) (1983).
They also point to the State Insurance Code, which states that
the powers enumerated in that Code "shall not be exercised
concurrently, either directly or indirectly, by any unit of
local government," as an example of specific intent to preempt.
Ill.Rev.Stat. ch. 73, § 614.1 (1975), quoted in Prudential
Insurance Company of America v. City of Chicago, 66 Ill.2d 437,
6 Ill.Dec. 199, 200, 362 N.E.2d 1021, 1022 (1977).
In addition, defendants observe that the SPCA states that
its purpose is to provide for "the establishment of
minimum standards" for the use of restricted pesticides.
Ill.Rev.Stat. ch. 111 1/2, § 2202 (emphasis added). Defendants
argue that this language demonstrates that the General Assembly
intended only to establish minimum criteria for pesticide use,
which then could be supplemented by other governmental units.
Defendants' arguments are not persuasive to this Court. "As
applied to state action versus local action, preemption means
that where the legislature has adopted a scheme for regulation
of a given subject, local legislative control over such phases
of the subject as are covered by state regulation ceases."
Hutchcraft Van Services, Inc. v. City of Urbana Human Relations
Commission, 104 Ill. App.3d 817, 823, 60 Ill.Dec. 532, 536,
433 N.E.2d 329, 333 (1982).
It is essential to any discussion of state law preemption in
Illinois to recognize that there are two separate preemption
standards for home rule and non-home rule units. In County of
Cook v. John Sexton Contractors Co., 75 Ill.2d 494, 27 Ill.Dec.
489, 389 N.E.2d 553 (1979), the Illinois Supreme Court held
that the Illinois Environmental Protection Act did not preempt
a home rule county from regulating sanitary landfills in the
county through its zoning restrictions. In Sexton, the Court
stressed an Illinois constitutional provision which states:
"Home rule units may exercise concurrently with the State any
power of a home rule unit to the extent that the General
Assembly does not specifically limit the concurrent exercise or
specifically declare the State's exercise to be exclusive."
Ill. Const. art. VII, § 6(i) (emphasis added). Under the
Illinois Constitution, in order to preempt a home rule unit's
exercise of legislative power, the General Assembly must
expressly state that it is doing so in the statute. In
contrast, the Illinois Supreme Court had held previously, in
Carlson v. Village of Worth, 62 Ill.2d 406, 343 N.E.2d 493
(1975),*fn2 that the State EPA does
preempt non-home rule units from regulating sanitary
With regard to a non-home rule unit like the Village of
Wauconda, then, legislative intent to preempt may be implied.
"[E]xclusivity may be expressed in other ways, notably by
enactment of a comprehensive regulatory scheme. . . ."
Hutchcraft, 104 Ill. App.3d at 823, 60 Ill.Dec. at 536, 433
N.E.2d at 333, quoting Illinois Liquor Control Commission v.
City of Joliet, 26 Ill. App.3d 27, 32, 324 N.E.2d 453, 456
(1975) (citations omitted). It is well established that
"[w]here the General Assembly has established applicable
standards governing the regulation of certain areas,
municipalities are not generally authorized to enact more
restrictive regulations in the absence of specific authority to
do so." Dolson Outdoor Advertising Co. v. City of Macomb,
46 Ill. App.3d 116, 121, 4 Ill.Dec. 692, 695, 360 N.E.2d 805, 808
(1977), citing American Smelting & Refining Co. v. County of
Knox, 60 Ill.2d 133, 324 N.E.2d 398 (1974).
In Dolson, the court inferred legislative intent to preempt
from a comprehensive regulatory scheme. The plaintiff in Dolson
had obtained a permit to erect off-premise advertising from the
Illinois Department of Transportation, pursuant to the Illinois
Highway Advertising Control Act, Ill.Rev.Stat. ch. 121, §
514.01 (1975). Defendant, the City of Macomb, a non-home rule
municipality, had enacted a zoning ordinance which prohibited
billboards in certain areas. Dolson, 46 Ill. App.3d at 117, 4
Ill.Dec. at 693, 360 N.E.2d at 806. Thus, although the
plaintiff company had obtained a State permit, it was denied
the requisite city permit. The court concluded that the
municipality's ordinance was void in the face of comprehensive
State regulation of highway advertising. Id. 46 Ill. App.3d at
121, 4 Ill.Dec. at 696, 360 N.E.2d at 809.
Similarly, in Union National Bank and Trust Co. v. Board of
Supervisors of Kendall County, 65 Ill. App.3d 1004, 22 Ill.Dec.
627, 382 N.E.2d 1382 (1978), the court noted that "[w]here the
General Assembly provides for `comprehensive regulation' of an
activity, it thereby implies `that municipalities have no power
to regulate this activity.'" Id. at 1008, 22 Ill.Dec. at 630,
382 N.E.2d at 1385 (citation omitted). In Union National,
Kendall County, a non-home rule county, applied its zoning
ordinance to deny plaintiffs' right to stripmine limestone on
their property pursuant to a permit issued by the State under
the Reclamation Act, Ill.Rev.Stat. ch. 96 1/2, § 4501, et seq.
(1977). The court held that the General Assembly, by enacting a
comprehensive regulatory scheme regarding surface mining and
reclamation, implied that non-home rule units of local
government should have no power to regulate this activity.
Union National, 65 Ill. App.3d at 1008, 22 Ill.Dec. at 630, 382
N.E.2d at 1385.*fn3
Furthermore, courts also look to factors other than the
comprehensiveness of a State regulatory scheme to infer State
preemption. "Municipalities cannot . . . adopt ordinances
under a general grant of power which infringe upon the spirit
of the State law. . . ." Village of Mundelein v. Hartnett,
117 Ill. App.3d 1011, 1015, 73 Ill.Dec. 285, 288, 454 N.E.2d 29, 32
(1983). For example, in Carlson v. Village of Worth, 62 Ill.2d
at 409, 343 N.E.2d at 495, where the Illinois Supreme Court
held that the State EPA preempted a non-home rule unit from
regulating sanitary landfills, the court implied ...