The opinion of the court was delivered by: Justice Hoffman
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY HONORABLE THOMAS P. QUINN and LESTER A. BONAGURO, JUDGES PRESIDING.
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, William DeWoskin, filed the instant class action suit seeking, inter alia, a declaration that the Cook County Amusement Tax Ordinance, as originally enacted and as later amended, is unconstitutional and an injunction prohibiting the County of Cook (County) from collecting the tax imposed thereunder. By orders entered May 23, 1997, and May 8, 1998, the circuit court denied the plaintiff all requested relief and dismissed the action. The plaintiff has appealed, and for the reasons which follow, we affirm in part and reverse in part.
On November 22, 1996, the Cook County Board of Commissioners approved and adopted the Cook County Amusement Tax Ordinance and, thereafter, amended it on March 18, 1997 (the amended ordinance will hereafter be referred as the Ordinance). The Ordinance imposes a tax upon "patrons of any amusement which takes place within the County, in an amount equal to 3% of the admission fees or other charges paid for the privilege to enter, to witness, or to view such amusement". It defines an "amusement" as:
"any exhibition, performance, presentation or show for entertainment purposes, including, but not limited to, any theatrical, dramatic, musical or spectacular performance, promotional show, motion picture show, flower, poultry or animal show, animal act, circus, rodeo, athletic contest, sport, game or similar exhibition, such as boxing, wrestling, skating, dancing, swimming, riding on animals or vehicles, baseball, basketball, softball, soccer, football, tennis, golf, hockey, track and field games, bowling, or billiard and pool games."
The Ordinance specifically provides that "amusement" shall not mean:
"any recreational activity offered for public participation or on a membership or other basis, including, but not limited to, carnivals, amusement park rides and games, bowling, billiards and pool games, dancing, tennis, golf, racquetball, swimming, weightlifting, body building or similar activities *** [,] raffles, as defined in the Illinois Compiled Statutes, ch. 230, sec. 15/1, as now or hereafter amended, inter-track wagering facilities, as defined in the Illinois Compiled Statutes, ch. 230, sec. 5/3, as now or hereafter amended, or automatic amusement devices."
The Ordinance exempts certain amusements from its application by providing that:
"A. *** this tax shall not be imposed upon the privilege of witnessing or participating in any stock show or business show that is not open to the general public or, except as limited below, be imposed upon the privilege of witnessing or participating in any amusement sponsored or conducted by and the proceeds of which, after payment of reasonable expenses, inure exclusively to the benefit of:
"(1) Religious, educational and charitable institutions, societies or organizations;
"(2) Societies or organizations for the prevention of cruelty to children or animals;
"(3) Societies or organizations conducted for the sole purpose of maintaining symphony orchestras, opera performances and artistic presentations, including, but not limited to, musical presentations, and receiving substantial support from voluntary contributions;
"(4) Societies or organizations conducted and maintained for the purpose of civic improvement;
"(5) Fraternal organizations, legion posts, social and political groups which conduct amusements, sponsored occasionally but not more often than twice yearly for periods not longer than 30 days;
"Provided, however, that the entities described in paragraphs (1) to (5) are not-for-profit institutions, organizations, groups or societies, where no part of the net earnings inure to the benefit of any person;
"(6) Organizations or persons in the armed services of the United States, or National Guard organizations, reserve officers' associations, or organizations or posts of war veterans, or auxiliary units or societies of such posts or organizations, if such posts, organizations, units or societies are organized in the State of Illinois, and if no part of their earnings inure to the benefit of any person;
"(7) Organizations or associations created and maintained for the purpose of benefiting the members, or dependents or heirs of members, of the police or fire departments of any political subdivision of the State of Illinois."
B. The tax imposed in Subsection A of this Section shall not apply to or be imposed upon:
"(1) The admission fees to witness live performances of professional theater companies in any auditorium or theater in the County, whose maximum seating capacity, including all balconies, is not more than 750 persons.
"(2) Initiation fees and membership dues paid to a health club, racquetball club, tennis club or a similar club or organization, when such club or organization is organized and operated on a membership basis and for the recreational purposes of its members and its members' guests, ***. This exemption shall not be ...