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NATIONAL PAINT & COATINGS ASSN. v. CITY OF CHICAGO

July 31, 1992

NATIONAL PAINT & COATINGS ASSOCIATION; RUST-OLEUM CORPORATION, an Illinois corporation; THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation; ACE HARDWARE CORPORATION, a Delaware corporation; TRU-TEST MANUFACTURING COMPANY, a Delaware corporation; FMA, INC., d/b/a JIM'S ACE HARDWARE, an Illinois corporation; W.C. SCHAUER HARDWARE CENTER, INC., an Illinois corporation; ELSTON ACE HARDWARE, INC., an Illinois corporation; SMILEY ACE HARDWARE, INC., an Illinois corporation; THE ART & CRAFT MATERIALS INSTITUTE, INC., a New York corporation; BRUDNO ART SUPPLY STORE CO., INC., a Delaware corporation; SAKURA COLOR PRODUCTS OF AMERICA, INC., a California corporation; PETER MICHAEL O'BRIEN, an individual; and KIRBY J. BRISKE, an individual, Plaintiffs,
v.
CITY OF CHICAGO, an Illinois municipal corporation, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 In an effort to combat the growing problem of graffiti, on May 20, 1990, the City Council of the City of Chicago enacted four ordinances, Municipal Code §§ 4-132-150, 8-4-130, 8-16-095 and 8-16-096, regulating the sale and possession of paint in spray cans ("spray paint") and markers containing a non-water soluble fluid and having a writing surface of 3/8 of an inch or greater ("large markers"). Sections 4-132-150 and 8-4-130(a) are the subjects of the instant suit for declaratory and injunctive relief. *fn1" Plaintiffs, who consist of manufacturers, transporters, retail sellers and consumers of spray paint and large markers, contend that the ordinances are facially unconstitutional, *fn2" in that they: (1) unduly interfere with interstate commerce in violation of the United States Constitution; (2) constitute an impermissible use of the police power of the City of Chicago under the Illinois Constitution; (3) deny plaintiffs their rights to equal protection of the laws as guaranteed by the Illinois and United States Constitutions; (4) deny plaintiffs their rights to procedural and substantive due process as guaranteed under the Illinois and United States Constitutions; and (5) violate the protections of due process by being vague and overbroad. Presently before the court is defendant City of Chicago's motion to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the motion is granted in part and denied in part.

 I. Motion to Dismiss Standard

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. E. 2d 574 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).

 II. Background

 A. The Challenged Ordinances

 Section 4-132-150 of the Municipal Code prohibits the retail sale of spray paint and large markers in the City of Chicago. That provision provides:

 It shall be unlawful for any person holding a retail business license to sell paint in spray cans to any person or to sell any marker containing a fluid which is not water soluble and has a point, brush, applicator or other writing surface of three-eights of an inch or greater to any person.

 Municipal Code of Chicago, § 4-132-150. "Any person found in violation of Section 4-132-150 shall be fined not less than nor more than $ 100.00 and/or required to perform reasonable public service for each separate offense." Id. § 4-132-170.

 Section 8-4-130(a) prohibits the possession of spray paint and large markers in Chicago's public buildings, public facilities or on the property of another:

 (a) It shall be unlawful for any person to possess a spray paint container, liquid paint or any marker containing a fluid which is not water soluble and has a point, brush, applicator or other writing surface of three-eighths of an inch or greater, on the property of another or in any public building or upon any public facility. It shall be a defense to an action for violation of this subsection that the owner, manager or other person having control of the property, building or facility consented to the presence of the paint or marker.

 Municipal Code of Chicago, § 8-4-130(a). The penalty for violating this provision is a fine not to exceed $ 200. Id. § 8-4-360.

 2. The Plaintiffs

 . National Paint Coatings Association ("NPCA") is a voluntary, non-profit industry association that represents many of the nation's paint manufacturers. Its members accounting for approximately one-half of the spray paint manufactured and marketed in the United States, NPCA brings this action in its own name and on behalf of its members.

 . Rust-Oleum Corporation ("Rust-Oleum") is an Illinois corporation having its principal offices in Vernan Hills, Illinois. Rust-Oleum manufactures and sells spray paint in Chicago and elsewhere in interstate commerce.

 . Ace Hardware Corporation, a Delaware corporation, maintains its offices for its Paint Division in Matteson, Illinois, and conducts business in Chicago as licensed retail sellers of spray paint.

 . Tru-Test Manufacturing Company ("Tru-Test"), likewise incorporated under the laws of Delaware, maintains its principal offices in Cary, Illinois. Tru-Test manufactures spray paint, and is affiliated with "cooperative members" who transact business in Chicago as licensed retail sellers of spray paint.

 . The following plaintiffs, all of which are Illinois corporations operating as licensed retailers in Chicago, sell spray paint amongst their product lines: FMA Inc., d/b/a Jim's Ace Hardware; W.C. Schauer Hardware Center, Inc.; Elston Ace Hardware, Inc.; and Smiley Ace Hardware, Inc.

 . The Art & Craft Materials Institute ("ACMI") is a New York corporation, having its principal offices in Boston, Massachusetts. ACMI, an international membership association organized in 1936, brings suit in its own name and on behalf ...


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