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03/25/94 PEOPLE STATE ILLINOIS v. LUJACK

March 25, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, EX RE. GEORGE RYAN, SECRETARY OF STATE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT, AND BOB ERICKSEN CHEVROLET-GEO, INC.; GREEN CHEVROLET CHRYSLER; HORST ZIMMERMAN, INC.; KEY BUICK-PONTIAC-AMC, INC.; REYNOLDS MOTOR CO.; AND ILLINOIS NEW CAR AND TRUCK DEALERS, ASSOCIATION, PLAINTIFFS-APPELLANTS,
v.
LUJACK SCHIERBROCK CHEVROLET CO., D/B/A LUJACK AUTO PLAZA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Rock Island County, Illinois. No. 91 CH 43 (Consolidated with 91 MR 186). Honorable John M. Telleen Judge, Presiding

Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

The plaintiffs filed two complaints against defendant Lujack Schierbrock Chevrolet Co., d/b/a Lujack Auto Plaza, alleging, inter alia, that defendant's automobile display at the Quad City Airport violated certain provisions of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 1-100 et seq.). Following a hearing, the trial court granted summary judgment in favor of defendant on all counts. Plaintiffs appeal and we affirm.

The facts of this case are not in dispute. Defendant is a car dealership incorporated in the State of Iowa with its principal place of business in Davenport, Iowa. Since September of 1988, defendant has maintained a display at the Quad City Airport terminal building in Moline, Illinois. The display consists of one automobile under a rectangular arch. "Lujack's Auto Plaza" is printed across the horizontal portion of the arch above the automobile, along with the defendant's business address and phone number. The vertical sides of the arch contain a list of the brands of cars sold by defendant and the phrase, "Your one stop auto shop." Defendant rented the space for its display under a contract with the Metropolitan Airport Authority. Other car dealers have similar displays at the airport. Defendant is not licensed as a new or used vehicle dealer by the State of Illinois.

On April 10, 1991, the Secretary of State of the State of Illinois filed a complaint against defendant on behalf of the people of the State of Illinois. The complaint alleged that defendant's display at the airport was in violation of section 5-101 of the Code because defendant was not licensed as a new car dealer in Illinois. The complaint also alleged that the display violated an Illinois Administrative Code regulation that required Illinois licensed dealers to obtain a permit in order to participate in a trade show or exhibition. (See 92 Ill. Admin. Code 1020.10(c)(1991).) This regulation became a statutory requirement when section 5-102.1 of the Code became effective during the pendency of this case. (See Ill. Rev. Stat. 1991, ch. 95 1/2, par. 5-102.1.) The Secretary requested a permanent injunction prohibiting defendant from displaying a vehicle at the airport without obtaining a license and permit.

On November 5, 1991, five Illinois car dealers and the Illinois New Car Dealers Association (hereinafter collectively referred to as the Car Dealers) filed a two count complaint against defendant. The first count was similar to the Secretary's complaint and alleged the same violations. Count II alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and the Uniform Deceptive Trade Practice Act. The car dealers sought preliminary and permanent injunctions, damages, and attorneys fees and costs.

All parties filed motions for summary judgment. A hearing on the motions was held on February 2, 1993. Also on that date, upon stipulation of the parties, the court entered an order consolidating the Secretary's complaint and count I of the Car Dealers' complaint.

On April 2, 1993, the court entered summary judgment in favor of defendant and against all plaintiffs. The court found that defendant's display was simply an advertisement. Therefore, defendant was not required to obtain a license or permit under the Code in order to maintain its display. The court also ruled in favor of defendant on count II of the Car Dealers' complaint. The Secretary and the Car Dealers filed separate notices of appeal from the trial court's order. The appeals were consolidated by this court.

Concerning the issues relevant to this appeal, the arguments of the Secretary and the Car Dealers are essentially the same. Therefore, for the sake of clarity, we will refer to these parties collectively as plaintiffs unless otherwise noted.

Plaintiffs first argue that the trial court erred in finding that defendant's airport display was not in violation of section 5-101 of the Code. That section provides in relevant part as follows:

"New vehicle dealers must be licensed.

(a) No person shall engage in this State in the business of selling or dealing in * * * new vehicles of any make * * * or represent or advertise that he is so engaged or intends to so engage in such business unless licensed to do so in writing by the Secretary of State under the provisions of this Section." (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 5-101.)

Plaintiffs contend that by maintaining the display at the airport, defendant is engaging in the business of selling or dealing in new cars in the State of Illinois. Therefore, plaintiffs argue, the display is in violation of section ...


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