101 S. Ct. 1309, 1320, 67 L. Ed. 2d 580 (1981) (Brennan, J., concurring)). As the Seventh Circuit has recently reaffirmed, however, this is not to suggest that legislation neutral on its face and espousing a laudable goal is immune from scrutiny under the Commerce Clause. Government Suppliers Consolidating Serv., 975 F.2d at 1285-86 (invalidating state legislation touching upon health and safety under the Pike balancing test). "'Regulations designed for that salutary purpose nevertheless may further the purposes so marginally, and interfere with commerce so substantially, as to be invalid under the Commerce Clause.'" Id. at 1286 (quoting Kassel, 450 U.S. at 670, 101 S. Ct. at 1316).
5. In the instant case, plaintiffs have clearly demonstrated that the retail ban on the sale of spray paint and large markers will have virtually no deterrent effect whatsoever on those who commit graffiti, taggers and gang members. The only persons likely to forgo the use of spray paint and large markers are the substantial number of adults who will abandon their legitimate projects because no adequate substitute exists and they are not as motivated as the vandals to go to the suburbs to acquire such products otherwise banned in Chicago. As a result, retailers and manufacturers of these goods will suffer losses of potential sales in the tens of millions of dollars. Additionally, Chicago retailers will lose law-abiding customers and, thus, the sales of other products peripheral to spray paint and large markers. Under these circumstances, § 4-132-150 is invalid under the commerce clause of the United States Constitution.
C. Substantive Due Process
6. State ordinances can be said to deny substantive due process only if they do not bear a rational relationship to a legitimate governmental interest. Williamson v. Lee Optical Co. of Oklahoma, Inc., 348 U.S. 483, 487-88, 75 S. Ct. 461, 464, 99 L. Ed. 563 (1955); Nebbia v. New York, 291 U.S. 502, 524-25, 54 S. Ct. 505, 510, 78 L. Ed. 940 (1934); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988); Vaden v. Village of Maywood, 809 F.2d 361, 364 (7th Cir.), cert. denied, 482 U.S. 908, 107 S. Ct. 2489, 96 L. Ed. 2d 381 (1987); Waste Management of Illinois, Inc. v. Metropolitan Water Reclamation Dist. of Greater Chicago, 1989 WL 56917, at *2-3 (N.D. Ill. May 23, 1989). Within this context, the Seventh Circuit has held that legislation does not bear a rational relationship to a legitimate governmental interest only if it is "arbitrary and unreasonable," i.e., "invidious or irrational." Coniston Corp., 844 F.2d at 467; Burrell v. City of Kankakee, 815 F.2d 1127, 1129 (7th Cir. 1987).
7. The ordinance in question, § 4-132-150, is a rarity in that it purports to ban the retail sale of spray paint and large markers simply because a small percentage (estimated at approximately 1%, see R422, 461) of the products are misused by graffiti vandals. The constitutionality of such a blunt approach has been questioned by at least one court. As the court stated in Bambu Sales, Inc. v. Gibson, 474 F. Supp. 1297, 1305 (D.N.J. 1979), it would be unconstitutional "to make it an offense to provide coin or currency to another merely because coin and currency are 'ordinarily used' for gambling," or to prohibit the sale of "such articles as potatoes, barley, corn, sugar, molasses or yeast merely because these articles, as well as any other starch or sugar, can be fermented to manufacture alcoholic beverages. The same applies to vessels and piping, which can be used for distillation." This unfavored approach, when coupled with overwhelming evidence that the legislation will not advance the City's goal of eradicating graffiti, leads the court to conclude that § 4-132-150 is "irrational" and, hence, violates plaintiffs' right to substantive due process as guaranteed under the United States Constitution.
D. The City's Police Power
8. Article VII, § 6(a) of the Illinois Constitution authorizes local governments, such as the City of Chicago, to function as home rule units to "exercise any power and perform any function pertaining to its government and affairs." Pursuant its police power, the City may "'restrict or prohibit the exercise of a legitimate trade where it is necessary for the protection of the public health, morals, safety or welfare.'" Opyt's Amoco, Inc. v. The Village of South Holland, 149 Ill. 2d 265, 269, 595 N.E.2d 1060, 1062, 172 Ill. Dec. 390 (1992) (quoting Figura v. Cummins, 4 Ill. 2d 44, 122 N.E.2d 162 (1954)). To constitute a legitimate exercise of the police power, municipal regulation "must bear a reasonable relationship to the public interest sought to be protected and the means adopted must be a reasonable method of accomplishing the chosen objective." Id. (citing Crocker v. Finley, 99 Ill. 2d 444, 459 N.E.2d 1346, 77 Ill. Dec. 97 (1984)); see also Finish Line Express, Inc. v. City of Chicago, 72 Ill. 2d 131, 138, 379 N.E.2d 290, 292, 19 Ill. Dec. 626 (1978); Midwest Petroleum Marketers v. City of Chicago, 82 Ill. App. 3d 494, 500, 402 N.E.2d 709, 714, 37 Ill. Dec. 707 (1st Dist. 1980). Once the legislative body determines that a problem exists and acts to protect and promote the general welfare of its citizens, the legislation is presumed to be a valid exercise of the City's police power. Opyt's Amoco, 149 Ill. 2d at 269, 595 N.E.2d at 1062; Midwest Petroleum Marketers, 82 Ill. App. 3d at 500, 402 N.E.2d at 714 (citing Union Cemetery Ass'n v. Cooper, 414 Ill. 23, 110 N.E.2d 239 (1953)). The mere fact that the legislature has invoked the police power, however, is not conclusive that the power was lawfully exercised; it remains within the province of the court to determine that issue. Opyt's Amoco, 149 Ill. 2d at 269, 595 N.E.2d at 1062 (citing Figura, 4 Ill. 2d at 49, 122 N.E.2d at 165).
9. As we have previously observed, the standards set forth above involve the same inquiry as those employed in our substantive due process analysis. National Paint & Coatings Ass'n, 803 F. Supp. at 147. Consequently, for the reasons stated supra subsection II(C) of this opinion, we conclude that § 4-132-150 constitutes an illegitimate exercise of the police power afforded the City of Chicago under the Illinois Constitution.
For the reasons set forth above, we hold: (1) plaintiffs lack standing to challenge § 8-4-130(a), the possession ordinance; and (2) § 4-132-150, banning the retail sale of spray paint and large markers (i) imposes an impermissible burden on interstate commerce, (ii) violates plaintiffs' right to substantive due process as guaranteed under the United States Constitution, and (iii) constitutes an illegitimate exercise of the police power afforded the City of Chicago under the Illinois Constitution. Consequently, plaintiffs' prayer for declaratory and injunctive relief is granted as it relates to § 4-132-150 of the Municipal Code of Chicago and denied as to § 8-4-130(a) of the Municipal Code of Chicago. It is so ordered.
MARVIN E. ASPEN
United States District Judge