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05/31/88 Diane M. Gross, v. Harold Washington

May 31, 1988

DIANE M. GROSS, PLAINTIFF-APPELLANT

v.

HAROLD WASHINGTON, MAYOR OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

524 N.E.2d 1180, 171 Ill. App. 3d 213, 121 Ill. Dec. 132 1988.IL.851

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff appeals from orders dismissing her complaint and denying her motion for leave to file an amended complaint challenging the City of Chicago's ordinance imposing a 50-cent charge on each booklet of 11 50-cent coupons redeemable for food and beverages at the 1987 Taste of Chicago. On appeal she argues that the June 15, 1987, ordinance violates article VII, section 9(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, § 9(a)).

Plaintiff attended Taste of Chicago, a food festival sponsored by defendants on June 29, 1987. At this festival, vendors sold food and beverages in exchange for coupons, valued at 50 cents each, which could be purchased only from defendant City of Chicago. These coupons were sold in booklets of 11 for a total price of $6, including a 50-cent charge to cover the "cost of amenities."

On April 1, 1987, prior to the commencement of Taste of Chicago, the city council passed an ordinance appropriating $10,021,060 to be spent on various "special events," including Taste of Chicago, from revenues raised by those events. On June 15, 1987, also prior to the commencement of Taste of Chicago, the city council passed an ordinance imposing the 50-cent charge on each booklet of coupons to raise some of the funds appropriated by the April 1, 1987, ordinance. That ordinance provides in part as follows:

"Section 1. A charge of 50 cents is hereby imposed on the purchase of each booklet, sheet or other group of eleven coupons redeemable for food and beverages at the event known as the Taste of Chicago, as authorized by an ordinance passed on April 1, 1987 (C.J.P.p. 40954). The proceeds of the charge shall be applied to the costs incurred by the Department of Cultural Affairs and the Office of Special Events in the presenting, promoting and administering of Taste of Chicago and various other cultural, social and entertainment events."

On July 1, 1987, plaintiff filed this action, alleging that the 50-cent charge was a "tax" imposed without legislative authority; that the "tax" exceeded any amount authorized by the Municipal Retailers' Occupation Tax Act (Act) (Ill. Rev. Stat., 1986 Supp., ch. 24, par. 8-11-1); that the "tax" was not collected in accordance with the requirements of that Act; that the "tax" violated article VII, section 6(e), of the Illinois Constitution; and that the "tax" violated sections 7-8, , and of the Municipal Code of Chicago. The complaint also prayed for injunctive relief in the form of an order requiring defendants to hold the proceeds from the 50-cent charge in a constructive trust, and on July 2, 1987, plaintiff filed a petition for a temporary restraining order , which was granted that same day. At the TRO hearing, she raised two claims that had not been alleged in her complaint: first, that the 50-cent charge had been imposed by ordinance without the prior notice and publication required by the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 1-2-4), and secondly, that the 50-cent charge violated article VII, section 9(a), of the Illinois Constitution.

On July 13, 1987, defendants filed a motion to dissolve the TRO and dismiss the action. Both parties submitted briefs which addressed the claims raised in the complaint and at the TRO hearing. After reviewing these briefs and hearing oral argument from both parties, the trial court issued an order rejecting all of plaintiff's claims, dissolving the TRO and dismissing her action.

On August 18, 1987, plaintiff moved for leave to file an amended complaint which incorporated the claims first raised at the TRO hearing. The trial court denied plaintiff's motion, finding that "the [amended] [complaint] fails to raise any new arguments not previously addressed in the [court's] ruling of July 20, 1987."

Plaintiff appeals both from the order dismissing her action and the order denying her leave to file an amended complaint, arguing that the 50-cent charge violates article ...


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