Cheetah Enterprises, Inc. v. Lake County

• Decision Date: 24 September 1974
• Docket Number: No. 73--157,73--157
• Citation: 317 N.E.2d 129,22 Ill.App.3d 306
• Parties: CHEETAH ENTERPRISES, INC., an Illinois corporation, Plaintiff-Appellant, v. COUNTY OF LAKE, a body corporate and politic, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 129

317 N.E.2d 129

22 Ill.App.3d 306

CHEETAH ENTERPRISES, INC., an Illinois corporation Plaintiff-Appellant, v. COUNTY OF LAKE, a body corporate and politic, et al Defendants-Appellees.

No. 73--157.

Appellate Court of Illinois, Second District.

Sept. 24, 1974.

Ray, Glick & Assoc., Libertyville, for plaintiff-appellant.

Jack Hoogasian, State's Atty., Julius Abler, Asst. State's Atty., Waukegan, for defendants-appellees.

SEIDENFELD, Justice:

The plaintiff operates a tavern and night club known as Cheetah II in unincorporated territory of Lake County, Illinois. Its entertainment features nude dancing.

The defendant, the County Board of Lake County, passed a resolution amending its liquor control ordinance, renumbering the former section 30 thereof as section 31 and inserting new material as section 30. The ordinance provides:

'NOW, THEREFORE, BE IT RESOLVED, by this County Board of Lake County, Illinois, that the Lake County Liquor Control Ordinance adopted by the Board of Supervisors October 10, 1961, as amended, be and it is further amended, as follows:

SECTION 30--Delete '30' and insert '31'.

Insert SECTION 30, to read as follows:

'The following kinds of conduct on premises in this County licensed to sell alcoholic liquor, are prohibited:

(1) The performance of acts, or simulated acts, of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.

(2) The actual or simulated touching, caressing or fondling on the breast, buttocks, anus, or genitals.

(3) The actual or simulated displaying of the breasts, pubic hair, anus, vulva or genitals.

(4) The permitting by a license of any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus.

(5) The displaying of films or pictures depicting acts, a live performance of which was prohibited by the regulations quoted above.'

DATED, at Waukegan, Lake County, Illinois, on this 13th day of February, A.D., 1973.'

The plaintiff filed an action for a declaratory judgment, seeking to have the resolution declared void. The County filed a motion to dismiss the complaint which was granted, with the trial court making extensive and specific findings in its order of dismissal. Plaintiff appeals, contending that the resolution was beyond the powers delegated to the County by the State of Illinois. Alternatively, it contends that if the resolution is held to be within the authority of the County, it is unconstitutional under the 1st and 14th amendments to the United States Constitution granting freedom of expression and due process of law, and unconstitutional under similar provisions of the Illinois Constitution of 1970.

Plaintiff first argues that the County has no authority to prohibit nude dancing in dram shops because the enabling statute, section 1 of article IV of the Liquor Control Act (Ill.Rev.Stat.1973, ch. 43, par. 110), specifically limits the type of conduct which the County may proscribe and does not refer to nude dancing.

Section 1 of article IV provides, as pertinent:

* * * 'In counties in respect of territory outside the limits of any such city, village or incorporated town the county board shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor not inconsistent with this Act and the amount of the local licensee fees to be paid for the various kinds of licenses to be issued in their political subdivision * * *; to prohibit any woman or minor, other than a licensee or the wife of a licensee, from drawing, pouring, or mixing any alcoholic liquor as an employee of any retail licensee; and to prohibit any minor from at any time attending any bar and from drawing, pouring or mixing any alcoholic liquor in any licensed retail premises; and to establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require; and to provide penalties for the violation of regulations and restrictions, including those made by county boards, relative to operation under local licenses; provided, however, that in the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in Sections 2, 8, 8a and 21 of Article VI of this Act.'

Sections 2, 8, 8a and 21 of article VI do not prohibit nude dancing. Section 2(7) of article VI (Ill.Rev.Stat.1973, ch. 43, par. 120(7)) prohibits the issuance of liquor licenses to a person whose license has been revoked for cause. Section 5 of article VII (Ill.Rev.Stat.1973, ch. 43, par. 149) provides for the revocation of a liquor license by the local liquor control commissioner if he determines that the licensee has violated any of the provisions of the Act or of any valid ordinance or resolution enacted by a county board or any rules or regulations established by the local liquor control commissioner or the State Liquor Control Commission.

The power of a municipality to control the traffic in intoxicating liquors is derived entirely from the State and the municipality has only that power delegated to it and no other. (Maywood-Proviso State Bank v. City of Oakbrook Ter. (1966), 67 Ill.App.2d 280, 286, 214 N.E.2d 582.) The Liquor Control Act contains the delegation of this power to municipalities and prescribes the limits beyond which a municipality may not act; any ordinance or act of a municipality beyond the legislative authorization of the Liquor Control Act is without legal force or validity. Maywood-Proviso State Bank v. City of Oakbrook Ter., 67 Ill.App.2d 280, 286, 214 N.E.2d 582.

From this, plaintiff reasons that since the statute provides 'the issuance of such licenses shall not be prohibited except for reasons specifically enumerated * * *' (Ill.Rev.Stat.1973, ch. 43, par. 110), the county may not prohibit activities not specifically authorized to be prohibited by the Liquor Control Act. Plaintiff cites and relies upon Heidenreich v. Ronske (1962), 26 Ill.2d 360, 187 N.E.2d 261, and Emm v. Sopher (1961), 23 Ill.2d 376, 178 N.E.2d 289, in support of its argument.

The County responds that the proviso relied upon by the plaintiff refers only to the prohibition of the issuance of licenses rather than the regulation of the on-going operation of dram shops; and that the legislative intention expressed in the language of section 1 of article IV which permits the city to 'establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require * * *' (Ill.Rev.Stat.1973, ch. 43, par. 110) authorizes the County to pass the ordinance here in question.

In Heidenreich, the Supreme Court held that a County could not regulate retail liquor establishments by licensing bartenders since this authority was not specifically within the powers stated in article IV of the Illinois Liquor Control Act to prohibit certain conduct, e.g., the employment of women and minors, nor justified as a regulation which was reasonably necessary to effectuate the prohibition stated in the Act. In Emm, the court held that a county could not legislate that no liquor license should be granted to any person 'whose principal business is the sale at retail of groceries, meat products and/or drugs.'

It does not necessarily follow, however, that plaintiff is correct in extending the reasoning of these cases to equate the lack of power in a county to deny the issuance of a liquor license to one in the retail grocery, meat or drug store business, or the lack of power to license bartenders, with a similar lack of power to deny a license or the right to continue to operate under a license to a tavern which offers nude dancing as entertainment. To reconcile and give meaning to the statutory scheme as a whole, it is necessary to conclude that the legislature intended to confer upon local authorities within their jurisdiction, the power to regulate liquor licensees beyond the few specific options mentioned when such regulation is reasonably necessary to make effective the delegated power to regulate retail liquor establishments by nondiscriminatory provisions consistent with the public good and convenience. Any other reasoning would give no meaning to the language which gives local authorities power to regulate such establishments for the public good and convenience.

The necessity for giving effect to the language relied upon by the County is illustrated by the case of Picco v. Simon (1967), 80 Ill.App.2d 277, 280--281, 225 N.E.2d 389. The court held that a municipality could impose frontage consents as a requirement for the issuance of a liquor license under the 'further regulations' language referred to in section 1 of article IV of the Liquor Control Act, since the regulation did not prohibit any person or class from obtaining a license and was uniform in its operation and required for the public good and convenience. Similarly here the regulation does not deny a license to any person or class not specified in the enabling statute (Emm v. Sopher (operators of a grocery store)) but rather is aimed at the regulation of conduct; and it does not seek to establish a new system of licensing employees parallel to the provisions of the Illinois Liquor Control Act (e.g. Heidenreich v. Ronske (separate licensing of bartenders)).

The regulation must be further examined, however, to determine whether the county resolution is reasonably necessary to make effective the power granted to make 'further regulations * * * as the public good and convenience may require'.

The type of conduct prohibited by the resolution, if constitutionally permissible, is consistent with the public good as that term is used in the statute. The enabling section...