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Mr. B's, Inc. v. City of Chicago

December 28, 1998

MR. B'S, INC., AN ILLINOIS CORPORATION; A.B. ASSOCIATES, LTD., AN ILLINOIS CORPORATION; CENTER STAGE TICKET SERVICE, INC., AN ILLINOIS CORPORATION; AND CENTRAL STATES TICKET BROKERS ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION; AND ERNEST R. WISH, DIRECTOR OF THE DEPARTMENT OF REVENUE OF THE CITY OF CHICAGO, IN HIS OFFICIAL CAPACITY ONLY AND NOT INDIVIDUALLY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 96 L 50040 Honorable Alexander P. White, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

The instant appeal is brought under Supreme Court Rule 301 (155 Ill. 2d R. 301) from a grant of summary judgment in favor of defendants-appellees in plaintiffs-appellants' action for declaratory and injunctive relief, holding that the City of Chicago's amended amusement tax ordinance is constitutional. In an order dated August 27, 1997, we granted appellants' motion to consolidate the appeal under docket number 97-2279 with an earlier appeal under docket number 97-2149, which was premature as the circuit court had not yet rendered final judgment.

The amended amusement tax ordinance at issue in this case provides that the price that resellers of tickets receive above the face value of the tickets is subject to the 7% amusement tax. Appellants contend that the amendment to the tax ordinance is an unconstitutional service or occupation tax. Appellants alternatively argue that the city's amended amusement tax is an unconstitutional extraterritorial exercise of its home rule authority when applied to ticket brokers located outside the City of Chicago.

On cross-motions for summary judgment below, the court ruled that the tax was constitutional because there was a specific grant of authority from the legislature. The court below also ruled that there is no unconstitutional extraterritorial application of the tax. For the reasons that follow, we affirm the court's order as to the issue of constitutionality, but reverse and remand on the issue of territoriality.

On November 15, 1995, the City of Chicago passed an ordinance that applied its existing amusement tax to the charges that ticket brokers charge on the resale of sports and entertainment tickets, effective January 1, 1996. Chicago Municipal Code §4-156-020(F)(amended November 15, 1995). Appellants are ticket brokers who are registered with the Secretary of State pursuant to the Illinois Ticket Scalping Act (720 ILCS 375/1 et seq. (West 1994)). Ticket brokers purchase tickets from members of the general public wishing to sell tickets for events, and sell these tickets to travel agents, hotel and club concierges, corporate entertainment departments, and members of the general public.

The only information we can glean from the record regarding the location of each of the appellants is the following. Mr. B's, Inc. (Mr. B's), has its principal place of business in Skokie, Illinois. A.B. Associates, Ltd. (A.B.), operates business under the corporate name of "Tickets & Company," and its principal place of business is in Hoffman Estates, Illinois. Center Stage Ticket Service, Inc. (CSTS), has its principal place of business in Chicago, Illinois. Central States Ticket Brokers Association (CSTB Association) is a not-for-profit organization whose members are business entities engaged in ticket brokering. The evidence in the record regarding where each of the appellants transacts its business is incomplete. However, it is clear that each appellant in this case sells tickets for Chicago events. Appellants do not operate any of the venues where the events take place and are not in contractual privity with any of the venues.

Mr. B.'s, A.B., CSTS, and CSTB Association filed the instant action for declaratory judgment and injunctive relief on January 10, 1996. The parties cross-motioned for summary judgment, and the court granted summary judgment in favor of the city.

A circuit court's grant of summary judgment is reviewed de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment "shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1994). When all parties file cross-motions for summary judgment, the court is invited to decide the issues presented as a question of law. Container Corp. v. Wagner, 293 Ill. App. 3d 1089, 1091 (1997).

Appellants first argue that the amendment to the City of Chicago amusement tax ordinance constitutes an unauthorized occupation tax in violation of article VII, section 6(e), of the Illinois Constitution of 1970, which provides:

"(e) A home rule unit shall have only the power that the General Assembly may provide by law *** to license for revenue or impose taxes upon or measured by income or earnings or upon occupations." Ill. Const. 1970, art. VII, §6(e)(2).

Absent specific authorization from the General Assembly, a home rule unit may not impose a tax upon an occupation or income. Commercial National Bank v. City of Chicago, 89 Ill. 2d 45, 51 (1982).

The amendment to chapter 4-156 of the Chicago Municipal Code added resellers of tickets to the category of people who are subject to the 7% amusement tax under Section 4-156-020:

"F. It is unlawful for any person to produce, present, conduct, or resell tickets to, any amusement without collection of the tax, except as provided in this article." (Underlined language inserted by the amendment.) Chicago ...


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