Appeal from the Circuit Court of Du Page County. No. 99--MR--24 Honorable Bonnie M. Wheaton, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp
Plaintiff, American Multi-Cinema, Inc. (AMC), brought an action in the circuit court of Du Page County challenging the constitutionality of an ordinance enacted by defendant, City of Warrenville (City), imposing an amusement tax. AMC appeals from the order of the circuit court granting the City's motion for summary judgment and denying AMC's cross- motion for summary judgment. We affirm.
In March 1997, the City adopted Ordinance No. 1566 (ordinance) entitled "Ordinance Creating an Amusement Tax and Amending the City Code in Accordance Therewith (City of Warrenville, Ordinance No. 1566 (eff. January 1, 1998))." The ordinance was enacted pursuant to section 11-- 42--5 of the Illinois Municipal Code (65 ILCS 5/11--42--5 (West 1996)) and imposes a 2% tax on the gross receipts for admission fees for "amusements," which the ordinance defines as:"Any and all spectator and exhibitive entertainment, including but not necessarily limited to the following activities: any movie; theatrical, dramatic, musical or spectator performance; carnival; circus; rodeo; animal act; amusement ride; amusement attraction; game; or animal show." City of Warrenville, Ordinance No. 1566 (eff. January 1, 1998).
The ordinance took effect in January 1998. Until that time the City did not tax amusements and had no movie theaters. The mayor and members of the city council have, on occasion, referred to the ordinance as the "AMC amusement tax."
In 1996 and early in 1997, prior to adoption of the ordinance, AMC had purchased land and finalized plans to construct a 30-screen theater in the City. AMC's theater, called the AMC Cantera 30, opened in March 1998 and has been in continuous operation since that time. AMC has chosen to pay the tax from gross revenues rather than increasing ticket prices. AMC has paid more than 99% of the taxes collected by the City pursuant to the ordinance.
AMC originally presented this case to the trial court in a two- count complaint brought under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1994)) seeking declaratory and injunctive relief. The trial court dismissed the complaint because it found that an adequate remedy existed under state law.
AMC filed an amended complaint on April 30, 1999. Counts I and II sought declaratory and injunctive relief under state law. Specifically, AMC alleged that the amusement tax violates the first and fourteenth amendments to the United States Constitution (U.S. Const., amends. I, XIV) because it impermissibly targets expressive conduct for special tax treatment but excludes other activities from such taxes. AMC prayed for a declaration that the amusement tax is unconstitutional, for an order enjoining further collection of the amusement tax, and for a refund of previously paid amusement taxes. In counts III and IV, AMC sought the same relief pursuant to sections 1983 and 1988 of the Civil Rights Act (42 U.S.C. §§1983, 1988 (1994)) to the extent that such relief was unavailable under state law.
The parties each sought summary judgment, agreeing that there were no genuine issues of material fact as to the allegations in AMC's complaint. The City argued that the ordinance was enacted pursuant to state law, is content neutral, and has been uniformly applied. With its motion for summary judgment, the City filed the affidavit of Jean McCabe, finance director for the City. According to the affidavit, AMC had paid $188,642.70 since the ordinance was enacted. The City also received payment of amusement tax from four additional entities, including Acorn Coffee Bar of the Folk Lore Center ($211.48); Avalanche II Sports Bar and Grill($323.56); The Corner Cue ($64.44); and Satisfied Frog Sports Bar and Grill ($99.05).
In its cross-motion for summary judgment, AMC argued that it was entitled to summary judgment because the ordinance targets expressive conduct for special tax treatment, the ordinance applies exclusively to AMC, and the City has no compelling governmental interest to justify the tax. AMC pointed to admissions made by the City that Acorn Coffee Bar paid an additional $14.06 and Satisfied Frog an additional $47.30 in April 1999, bringing the amusement tax totals for these two entities to $225.54 and $146.35, respectively.
The parties filed briefs in support of their motions for summary judgment, and the trial court heard oral argument. In granting the City's motion and denying AMC's motion, the trial court stated:
"There is nothing that appears to this Court to require the highest level of scrutiny of the First Amendment tests. The ordinance that has been passed *** is a content-neutral tax. There is no exemption for any type of expression which would promote or suppress any particular type of expression. It is fairly broad in its definition of amusement, and I think that [counsel for the City] is correct that it's simply the forces of the marketplace that make it fall more heavily on one entity than on any other.
However, as [the City's counsel] has said, there are other business entities which are proportionally taxed and affected. But it is the force of the marketplace that makes it fall *** in a more burdensome fashion on AMC. But that fact alone does not render this a violation of the First Amendment.
I believe that Leathers is controlling. And in this particular situation, since there is nothing that appears to regulate the content of any of the motion pictures that are exhibited or would even threaten to regulate the content in any realistic and meaningful fashion, that the specific legislation *** is not violative of any Constitutional protection, specifically does not violate the First amendment."
AMC filed a timely notice of appeal.
We begin by noting that, although AMC's notice of appeal references the order dismissing counts I and II of the complaint, which were realleged in the amended complaint as counts III and IV, AMC makes no argument concerning these counts on appeal. Accordingly, these counts have been abandoned and any arguments thereunder are waived. ...