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05/07/87 Chicago Health Clubs, Inc. v. Ronald Picur

May 7, 1987

CHICAGO HEALTH CLUBS, INC., ET AL., PLAINTIFFS-APPELLEES

v.

RONALD PICUR, COMPTROLLER OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

508 N.E.2d 742, 155 Ill. App. 3d 482, 108 Ill. Dec. 431 1987.IL.595

Appeal from the Circuit Court of Cook County; the Hon. George A. Higgins, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. PINCHAM, J., concurs. PRESIDING JUSTICE McMORROW, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiffs, various racquetball, tennis, health, and exercise clubs, and one dues-paying member of such a club, brought an action in the circuit court of Cook County against defendants, Ronald Picur, comptroller of the city of Chicago; Cecil A. Partee, city treasurer; Charles Sawyer, city director of revenue; and the city itself. Plaintiffs alleged that the Chicago Amusement Tax Ordinance (Chicago Municipal Code sec. 104 -- 1 et seq. (1984)), as amended to include health and racquetball clubs within the definition of taxable amusements, was unconstitutional for various reasons.

Plaintiffs sought (1) a declaration that the amusement tax amendment was unconstitutional, and (2) an injunction preventing defendants from enforcing the ordinance. Defendants moved to dismiss the complaint. The trial court denied defendants' motion to dismiss and issued an order declaring the tax amendment unconstitutional and enjoining defendants from enforcing the ordinance. Defendants appeal from this order pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)). Defendants contend that the trial court erred in (1) denying their motion to dismiss the complaint and (2) declaring the amusement tax amendment unconstitutional and issuing the injunction.

We reverse.

The Chicago Amusement Tax Ordinance (Chicago Municipal Code sec. 104 - - 1 et seq. (1984)) provides for a tax upon patrons of amusements located within the city. The city taxes the privilege of witnessing, viewing, or participating in such amusements. The tax rate is 4% of the admission fee or other charge that the patron pays to participate in the amusement. Chicago Municipal Code sec. 104 -- 2A (1984).

The ordinance is limited to amusements in the city. When the admission fee entitles the patron to participate in amusements both within and outside of the city, the city taxes only that portion of the admission fee attributable to the right to use city facilities. Additionally, when a patron's total fee includes the right to participate in activities that are not amusements, the nonamusement charges must be separately stated on the patron's bill and be excluded from the tax base. Chicago Municipal Code sec. 104 -- 2A (1984); Chicago Department of Revenue Ruling No. 86 -- 1.

Under the ordinance, owners, managers, and operators of amusements are trustees for and on behalf of the city. They are responsible for collecting the tax, keeping accurate records of the monies collected, and remitting collected revenues to the city. The ordinance subjects amusement providers to penalties and interest for failing to perform these duties. However, an amusement provider's failure to collect the tax from a patron does not release the patron from his obligation to pay the tax. Chicago Municipal Code sec. 104 -- 3 (1984).

On December 23, 1985, the Chicago city council amended sections 104 - - 1 and 104 -- 2 of the Amusement Tax Ordinance. According to the ordinance, as amended, an amusement includes, inter alia, "any entertainment or recreational activity offered for the public participation or on a membership or other basis." (Chicago Municipal Code sec. 104 -- 1(2) (1984).) The ordinance clarifies this category of amusements by listing several examples, including amusement park rides and games, dancing, bowling, and billiards. The December 23, 1985, amendment added "racquetball or health clubs . . ., tennis, racquetball, swimming, weightlifting, body building or similar activities" to the ordinance's list of amusements. Chicago Municipal Code sec. 104 -- 1(2) (1984).

The record shows that plaintiffs filed their complaint on January 9, 1986. Plaintiffs alleged that the amusement tax amendment was an impermissible occupation tax generally, or a tax specifically on the occupation of providing health club or similar services, that the classifications contained in the tax amendment were unreasonable, that the tax amendment applied extraterritorially, that the amendment was overly broad, that it was vague, and that it violated the constitutional prohibition against special legislation. Plaintiffs sought a declaration that the amusement tax amendment was unconstitutional and an injunction preventing defendants from enforcing the ordinance.

The record further shows that on January 29, 1986, defendants moved to dismiss the complaint for failing to state a cause of action. The trial court granted plaintiffs leave to file an amended complaint. Defendants allowed their motion to dismiss plaintiffs' complaint to stand as their motion to dismiss the amended complaint.

On March 31, 1986, the trial court issued an order denying defendants' motion to dismiss the complaint. In the same order, the trial court declared the tax amendment unconstitutional and granted plaintiffs an injunction preventing defendants from enforcing the ordinance. The trial court found the statute unconstitutional because (1) the tax was an impermissible occupation tax and (2) because the term "recreational activities" was unconstitutionally vague. It is from this order that defendants appeal. I

Defendants first claim that the trial court erred in denying their motion to dismiss the amended complaint. They contend that our review of the injunction properly includes a review of the sufficiency of the complaint. Plaintiffs, however, claim that we cannot review that part of the trial court's order denying defendants' motion to dismiss because it was not final and appealable. Thus, plaintiffs argue, the only issue before us is whether the trial court erred in issuing the injunction. They ask us to dismiss that portion of this appeal challenging the denial of defendants' motion to dismiss.

Plaintiffs are correct that we have jurisdiction over only final orders of the trial court and that the denial of a motion to strike and dismiss is an interlocutory order that does not finally dispose of the proceeding so as to give us jurisdiction on appeal. (Jursich v. Arlington Heights Federal Savings & Loan Association (1980), 83 Ill. App. 3d 352, 403 N.E.2d 1260.) Plaintiffs are also correct that the order to dismiss in the instant case does not fall within the two exceptions to this rule contained in Supreme Court Rules 307 and 308 (87 Ill. 2d Rules 307, 308). Thus, under these circumstances alone, we would dismiss the appeal from the trial court's denial of the motion to dismiss the complaint. Jursich v. Arlington Heights Federal Savings & Loan Association (1980), 83 Ill. App. 3d 352, 403 N.E.2d 1260.

However, in the absence of an answer, it is appropriate for a reviewing court to consider whether a complaint for injunctive relief was sufficient. (Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 150, 358 N.E.2d 61, 63.) Although a court will take all well-pleaded facts as true, the complaint must clearly show that the relief sought is warranted. "Allegations supporting the claim must be positive, certain, and precise. Mere opinion, Conclusion, or belief will not suffice." (McErlean v. Harvey Area Community Organization (1972), 9 Ill. App. 3d 527, 529, 292 N.E.2d 479, 481.) If the face of the complaint does not show sufficient grounds for a court to interfere in the matter, then it is error to grant injunctive relief. Biehn v. Tess (1950), 340 Ill. App. 140, 145, 91 N.E.2d 160, 162.

In the case at bar, defendants did not answer the amended complaint. We conclude, therefore, that we may review its sufficiency. We deny plaintiffs' motion to dismiss that portion of this appeal challenging the trial court's denial of defendants' motion to dismiss the amended complaint. II

After reviewing the record, we find that the December 23, 1985, amusement tax amendment is constitutional in all respects. Consequently, we conclude that the amended complaint failed to show sufficient grounds for the trial court to interfere in the matter or that the relief sought was warranted. We hold, therefore, that the trial court should have dismissed the amended complaint. II-A

The trial court found that the amusement tax amendment was an occupation tax and, therefore, invalid under article VII, section 6(e), of the 1970 Illinois Constitution. That provision states in pertinent part:

"(e) A home rule unit shall have only the power that the General Assembly may provide by law . . . (2) to license for revenue or impose taxes upon or measured by income or earnings or upon occupations." Ill. Const. 1970, art. VII, sec. 6(e).

We hold that the amusement tax amendment does not violate article VII, section 6(e), of the 1970 Illinois Constitution. Defendants first argue that the threshold question presented here is whether the amusement tax amendment is an occupation tax. Defendants contend that they do not impose the tax with regard to plaintiffs' occupational status. Therefore, relying on Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 357 N.E.2d 1118, defendants argue that the tax is not an occupation tax; it is constitutional and the inquiry is at an end. (65 Ill. 2d 10, 24, 357 N.E.2d 1118, 1124.) Plaintiffs contend, in response, that the amusement tax amendment is an occupation tax, relying, inter alia, on Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227.

The definition of an occupation tax was clear from cases such as Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 357 N.E.2d 1118, and Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 317 N.E.2d 3. Our supreme court, however, cast confusion on the definition in Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 81-82, 432 N.E.2d 227, 244 (Underwood, J., Concurring in part and Dissenting in part). We determine the validity of the amusement tax amendment by using a different route. Therefore, we do not reach and express no opinion on whether the amusement tax amendment is an occupation tax.

1

Article VII, section 6(e), of the Illinois Constitution prohibits a home rule unit from imposing an occupation tax absent approval from the General Assembly. Pointing to this provision, defendants argue that if the legislature authorizes a home rule unit to impose a tax, then it does not matter if the tax is or is not an occupation tax. Defendants further argue that the legislature authorizes any municipality to tax amusements under section 11 -- 42 -- 5 of the Municipal Code, which provides in part:

"The corporate authorities of each municipality may license, tax, . . . theatricals and other exhibitions, shows, and amusements . . .." (Ill. Rev. Stat. 1985, ch. 24, par. 11-42 - - 5.)

Defendants note that Justice Schaefer of the Illinois Supreme Court held this view in Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 24-25, 357 N.E.2d 1118, 1124-25 (Schaefer, J., Concurring).

Plaintiffs claim that section 11 -- 42 -- 5 of the Municipal Code is no longer effective because it predates the adoption of the 1970 Constitution, relying on the Dissent in Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 25, 357 N.E.2d 1118, 1125 (Kluczynski, J., Concurring in part and Dissenting in part). Plaintiffs, however, acknowledge that we, relying on Justice Schaefer's Concurring opinion in Town of Cicero, have twice held that section 11 -- 42 -- 5 survived the adoption of the 1970 Constitution and authorizes municipalities to tax amusements. (Wellington v. City of Chicago (1986), 144 Ill. App. 3d 774, 780-82, 494 N.E.2d 603, 608-09, appeal denied (1986), 112 Ill. 2d 598; Isberian v. Village of Gurnee (1983), 116 Ill. App. 3d 146, 150, 452 N.E.2d 10, 13-14, appeal denied (1983), 96 Ill. 2d 540.) We hold, therefore, that section 11 -- 42 -- 5 of the Municipal Code authorizes defendants to tax amusements.

2

After reviewing the record, we further conclude that plaintiffs are amusements within the meaning of section 11-42-5 of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 11-42-5). Plaintiffs claim that an amusement suggests "an activity that is pleasant or diverting and of short or contained duration." Pointing to affidavits submitted with their complaint, plaintiffs contend that "obtaining results from the service of a health club is not a matter of 'pleasant diversion.' It requires initiative and motivation to spend hundreds of dollars for health club services, and commitment and hard work over time to obtain the benefits."

Our supreme court has held that amusements include participatory as well as exhibitory entertainment. Further, a court must determine whether an entertainment is an amusement under section 11 -- 42 -- 5 of the Municipal Code based on the particular facts of each case. (Stiska v. City of Chicago (1950), 405 Ill. 374, 383, 90 N.E.2d 742, 747.) As a result, this court has held that a tennis club was an amusement under section 11 -- 42 -- 5 of the Municipal Code (Greater Chicago Indoor Tennis Clubs, Inc. v. Village of Willowbrook (1975), 30 Ill. App. 3d 134, 138, 332 N.E.2d 199, 203); the supreme court agreed (63 Ill. 2d 400, 406, 349 N.E.2d 3, 7).

Plaintiffs' attempt to remove themselves from the definition of an amusement under section 11 -- 42 -- 5 fails. A patron of a tennis club devotes as much initiative, motivation, commitment, hard work, and money as a patron of a health or racquetball club. If a tennis club is an amusement under section 11 -- 42 -- 5, so then is a health or racquetball club. We hold, therefore, that health and racquetball clubs are amusements within the meaning of section 11 - - 42 -- 5 of the Municipal Code. We further hold that since the legislature authorizes municipalities to tax amusements, then the amusement tax amendment does not violate article VII, section 6(e), of the 1970 Illinois Constitution. II-B

The trial court also found that the amusement tax amendment was unconstitutionally vague. Plaintiffs additionally argue that the amendment is unconstitutionally overbroad. Each defect violates due process under both the Federal and Illinois constitutions. The United States Supreme Court has stated that "[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and . . . should uphold the challenge only if the enactment is impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369, 102 S. Ct. 1186, 1191.

1

Plaintiffs alleged in the complaint that the amusement tax amendment was overbroad because (a) the enactment inadequately defines the term "amusement," (b) the base upon which defendants impose the tax includes fees for nonamusements, and (c) the amendment ...


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