DeWoskin v. Loew's Chicago Cinema, Inc., 1-98-1971.

• Decision Date: 08 July 1999
• Docket Number: No. 1-98-1971.,1-98-1971.
• Citation: 714 N.E.2d 1047,306 Ill. App.3d 504,239 Ill.Dec. 750
• Parties: William DeWOSKIN, Plaintiff-Appellant, v. LOEW'S CHICAGO CINEMA, INC., d/b/a Sony Theaters, a corporation; County of Cook; and Barbara Bruno, Director of Revenue of the County of Cook, and Edward J. Rosewell, Treasurer of the County of Cook, solely in their official capacities, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

714 N.E.2d 1047

306 Ill. App.3d 504

239 Ill.Dec. 750

William DeWOSKIN, Plaintiff-Appellant, v. LOEW'S CHICAGO CINEMA, INC., d/b/a Sony Theaters, a corporation; County of Cook; and Barbara Bruno, Director of Revenue of the County of Cook, and Edward J. Rosewell, Treasurer of the County of Cook, solely in their official capacities, Defendants-Appellees.

No. 1-98-1971.

Appellate Court of Illinois, First District, Fourth Division.

July 8, 1999.

Miller Faucher Cafferty & Wexler, Chicago (Melvin A. Miller, Dom J. Rizzi & Lee J. Schwartz, for counsel), for Appellant.

Richard A. Devine, State's Attorney, Chicago (Patricia A. Shymanski, Thomas M. Burnham, Sanjay Tailor & Paul A. Castiglione, of counsel), for Appellees.

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filed the instant class action suit seeking, inter alia, a declaration that the Cook County Amusement Tax Ordinance, as originally enacted and as later amended, is unconstitutional and an injunction prohibiting the County of Cook (County) from collecting the tax imposed thereunder.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:

"SECTION 3 TAX IMPOSED

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 construed to apply to any fees paid or based upon, a per-event or a per-admission basis."

The plaintiff purchased a ticket at a movie theater in Cook County and paid the County amusement tax portion of his admission fee under protest. Thereafter, the plaintiff commenced the instant action.

In count I of his original complaint, the plaintiff alleged that the Ordinance imposed an occupational tax prohibited by Article VII, section 6(e), of the Illinois Constitution (Ill. Const.1970, art. VII, sec. 6(e)). In count II, the plaintiff alleged that, by reason of the exemptions granted, the Ordinance violated the uniformity clause of the Illinois Constitution (Ill. Const.1970, art. IX, sec. 2), constituted special legislation in violation of Article IV, section 13, of the Illinois Constitution (Ill. Const.1970, art. IV, sec. 13), and violated the equal protection clauses of both the Illinois and United States Constitutions (Ill. Const.1970, art. I, sec. 2; U.S. Const., amend. XIV, sec. 1). The County, Barbara Bruno, and Edward Rosewell (hereinafter collectively referred to as the County Defendants) filed a combined motion under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 1996)) seeking, inter alia, a dismissal of the action under section 2-615 of the Code (735 ILCS 5/2-615 (West 1996)) for failure to state a legally cognizable claim under any of the above stated constitutional theories and under section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) by reason of the plaintiff's alleged lack of standing to challenge the constitutionality of the Ordinance.

Before the County Defendants' motion could be ruled upon, the plaintiff filed a four-count amended complaint, separating the three theories contained in count II into individual counts. In the amended complaint, the plaintiffs again alleged that the Ordinance was an unconstitutional occupational tax (Count I), and that, by reason of the exemptions granted, the Ordinance violated the uniformity clause of the Illinois Constitution (Count II), violated the equal protection clauses of both the Illinois and the United States Constitutions (Count III), and constituted special legislation in violation of the Illinois Constitution (Count IV). The County Defendants elected to have their motion to dismiss the plaintiff's original complaint stand as their motion to dismiss his amended complaint.

On May 23, 1997, the trial court entered a memorandum order disposing of the County Defendants' motion. The court found that the plaintiff had standing to challenge the constitutionality of the Ordinance and denied the section 2-619 portion of the motion. As to the section 2-615 portion of the motion, the court: dismissed Count I of the plaintiff's amended complaint "with prejudice," finding that the Ordinance was not an occupational tax; denied the motion with respect to Counts II and III; and dismissed Count IV, the special legislation claim, granting the plaintiff leave to replead that count.

The plaintiff filed a four-count second amended complaint. In order to preserve for appeal the propriety of the May 23, 1997, order dismissing count I of his amended complaint, the plaintiff incorporated that count into his second amended complaint by specific reference. In count II of the second amended complaint, the plaintiff alleged that the Ordinance violated Article IX, section 2, of the Illinois Constitution (Ill. Const.1970, art. IX, sec. 2), contending that "there is no reasonable basis in law or fact supporting the * * * exemptions [granted therein] from a tax on amusements." The plaintiff again alleged that, by reason of the exemptions granted, the Ordinance violated the uniformity clause of the Illinois Constitution (Count III) and the equal protection clauses of both the Illinois and the United States Constitutions (Count IV). He did not replead the special legislation claim which appeared as Count IV of his amended complaint. The County Defendants responded to the second amended complaint with a combined motion to dismiss pursuant to section 2-619.1 of the Code. They again asserted, under section 2-619, that the plaintiff lacked standing to challenge the constitutionality of the Ordinance and, pursuant to section 2-615, attacked the legal...