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11/26/96 VILLAGE SCHAUMBURG v. JEEP EAGLE SALES

November 26, 1996

THE VILLAGE OF SCHAUMBURG, PLAINTIFF-APPELLANT,
v.
JEEP EAGLE SALES CORPORATION, D/B/A JEEP EAGLE OF SCHAUMBURG, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 93 MC 006408. The Honorable Arthur Janura, Judge Presiding.

Released for Publication January 15, 1997.

The Honorable Justice DiVITO delivered the opinion of the court: Scariano and Burke, JJ., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

Defendant Jeep Eagle Sales Corporation, d/b/a Jeep Eagle of Schaumburg, displayed 13 American flags on two buildings on its lot in Schaumburg, Illinois. Plaintiff Village of Schaumburg (Schaumburg) brought this action, a quasi-criminal complaint, against defendant, alleging violations of its sign ordinance (Village of Schaumburg, Ill., Municipal Code title XV, § 155 (1993)) (the sign ordinance). At issue in this appeal is whether the circuit court erred in determining that certain provisions of the sign ordinance violated the first amendment to the United States Constitution. For the reasons that follow, we affirm.

Defendant is a car dealership located on Golf Road in Schaumburg, Illinois. It has two buildings on its lot, a main showroom for new cars and a smaller, used car salesroom. In September 1993, defendant hung eight American flags from the roof of its main showroom and five flags from the roof of its used car building. The four by six foot flags were attached to flag poles that extended approximately nine feet above the roof.

In October 1993, Schaumburg filed this action, seeking fines and an injunction prohibiting defendant from hanging the flags. Schaumburg alleged that defendant exceeded the maximum length and number of flag poles and the maximum number of flags permitted under the sign ordinance.

Pursuant to section 2-619(a)(9) of the Illinois Civil Practice Law (735 ILCS 5/2-619(a)(9) (West 1992)), defendant moved to dismiss the complaint on the grounds that portions of the sign ordinance were unconstitutional. Although defendant admitted to violating the provisions of the sign ordinance restricting the number of allowable flags, it claimed that the ordinance, in addition to the violated provisions, contained an overbroad, content-based restriction on free speech and expression in violation of the first amendment. The circuit court held that certain provisions of the sign ordinance were unconstitutional and granted the motion to dismiss. Schaumburg appeals.

I

Schaumburg asserts that the circuit court erred in finding that the sign ordinance was unconstitutional. Construction of an ordinance is a question of law, which is subject to de novo review. Village of South Elgin v. City of Elgin, 203 Ill. App. 3d 364, 367, 561 N.E.2d 295, 149 Ill. Dec. 17 (1990).

Defendant was charged with violating sections 155.11.02(4)(A)(2) and 155.11.03(5)(A)(2) of the sign ordinance. Village of Schaumburg, Ill., Municipal Code title XV, §§ 155.11.02(4)(A)(2), 155.11.03(5)(A)(2) (1993). Those sections, which apply to "commercial uses" and "automobile dealerships," respectively, identically provided in relevant part:

"Corporate and Official Flags. The display of corporate flags and official flags of any nation, state or political subdivision shall be permitted subject to the following:

***

2). There shall be a maximum of three (3) flag poles per zoning lot." Village of Schaumburg, Ill., Municipal Code title XV, §§ ...


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