Illinois Liquor Control Commission v. Calumet City

• Decision Date: 23 April 1975
• Docket Number: No. 60761,60761
• Citation: 28 Ill.App.3d 279,328 N.E.2d 153
• Parties: ILLINOIS LIQUOR CONTROL COMMISSION, Plaintiff-Appellant, v. CALUMET CITY, etc., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 153

328 N.E.2d 153

28 Ill.App.3d 279

ILLINOIS LIQUOR CONTROL COMMISSION, Plaintiff-Appellant, v. CALUMET CITY, etc., et al., Defendants-Appellees.

No. 60761.

Appellate Court of Illinois, First District, Fourth Division.

April 23, 1975.

Thomas J. Murphy, Chicago, for plaintiff-appellant.

Thomas R. Bobak, Calumet City, and Ancel, Glink, Diamond & Murphy, Chicago, for defendants-appellees.

JOHNSON, Justice:

This is an action for declaratory judgment and injunctive relief. The Illinois Liquor Control Commission (hereinafter plaintiff) seeks to declare unconstitutional certain ordinances passed by the City of Calumet City and the City of Berwyn (hereinafter defendants) which limit the sale and consumption of alcoholic beverages to persons of at least 21 years of age. Following a hearing, an order was entered by the Honorable Donald J. O'Brien which granted the motions for summary judgment filed on behalf of the defendants. Plaintiff appeals from that order.

The following issues are dispositive of this appeal:

1. Whether the power to establish the minimum age at which persons may purchase or consume alcoholic beverages is within the 'government and affairs' of a home-rule unit;

2. Whether the terms of the Illinois constitution of 1970 or the enactments of the state legislature have preempted the power of home-rule units to establish a minimum drinking age; and,

3. Whether the establishment of a minimum age for the sale and consumption of alcoholic liquors at 21 is unreasonable or discriminatory.

The facts are undisputed. On October 1, 1973, Illinois House Bill No. 200 (Public Law 78--26) became effective. It provides that 19 and 20 year olds may lawfully purchase and consume beer and wine. ¹ Under the prior state law, the sale, gift and delivery of all alcoholic beverages, including beer and wine, to persons under 21 years of age were prohibited. Ill.Rev.Stat.1971, ch. 43, §§ 131, 134a, 183.

Defendants passed ordinances, pursuant to their authority as home-rule units in October 1973 which in effect adopted the age limitation that had been applicable under the prior state law. The City of Calumet City adopted an ordinance which prohibits the sale or delivery of alcoholic beverages, including beer and wine, to persons 19 and 20 years old and further prohibits the holder of a retail liquor license from allowing any person under 21 years of age from remaining upon premises which are licensed to sell alcoholic beverages at retail. The ordinance adopted by the City of Berwyn prohibits the holder of a retail liquor license from selling, giving or delivering alcoholic beverages, including beer and wine, to persons 19 and 20 years old and prohibits persons 19 and 20 years old from purchasing alcoholic beverages from any retail liquor dealer.

The reasons the state law was modified by defendant Calumet City are set forth in a lengthy preamble to the ordinance in question, a portion of which states:

'* * * WHEREAS, the corporate authorities of the City of Calumet City believe that the public health, safety, morals and welfare of the residents of the City and those persons who enter the territorial jurisdiction of the City would not be served by a lowering of the permissible age at which persons may purchase, receive or consume alcoholic beverages; and,

WHEREAS, the lowering of the legal age for the purchase and consumption of beer and wine would create substantial new problems of police enforcement; and,

WHEREAS, the City of Calumet City is located adjacent to the Illinois-Indiana border and the State of Indiana possesses a liquor law which establishes 21 as the uniform age for the purchase and consumption of intoxicating beverages; and,

WHEREAS, if the City of Calumet City adopted the newly diminished state standard it would receive a large influx of out of state residents desirous of taking advantage of lower drinking age; and,

WHEREAS, it is the public policy of the City of Calumet City to have a uniform minimum drinking age and that the corporate authorities believe that such minimum drinking age should be 21 years; * * *.'

Defendant City of Berwyn likewise indicated in its preamble a belief that allowing persons 19 and 20 years old to purchase wine and beer 'would be deleterious to the health, safety and welfare of our community and cause disturbances among our citizens.'

Plaintiff brought this action, seeking a declaration that the foregoing municipal ordinances were unconstitutional. The defendants filed motions for summary judgment which were granted by the trial court. Thereupon, plaintiff appealed.

The first issue argued by the plaintiff is that the state has primary and exclusive power to regulate all aspects of the liquor industry, including the establishment of a uniform minimum drinking age. Conversely, the defendants urge that the power to establish the minimum age at which persons may purchase or consume alcoholic beverages is within the 'government and affairs' of a home-rule unit.

We agree with the defendants. The 1970 Illinois constitution grants to home-rule units the authority to regulate local police powers. Section 6(a) of article VII, S.H.A., provides in pertinent part:

'Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate For the protection of the public health, safety, morals and welfare; * * *.' (Emphasis supplied.)

Section 6(m) of article VII states:

'Powers and functions of home rule units shall be construed liberally.'

There is a long established tradition in this state that municipalities have broad discretion with respect to the control of alcoholic beverages. This tradition has legislative as well as judicial support. Except where specifically limited by statute, municipalities were allowed to determine for themselves the number, kind and classification of liquor licenses to be issued, and the amount of the local license fees to be paid for the various kinds of licenses. (Ill.Rev.Stat.1971, ch. 43, § 110.) The hours of operation of establishments selling liquor, Sunday sales, and the complete prohibition of the sale of intoxicating liquor were left primarily at the local level. (Ill.Rev.Stat.1971, ch. 43, §§ 129, 166 et seq.) The statute also provided that the mayor or president of the local governmental unit shall be the local liquor control commissioner. Ill.Rev.Stat.1971, ch. 43, § 111.

Our courts have consistently held that the regulation of alcoholic beverages is within the purview of the police powers, being intimately related to the public health, safety, comfort and welfare. In Daley v. Berzanskis (1971), 47 Ill.2d 395, 269 N.E.2d 716, the defendant challenged the revocation of his liquor license after a hearing before the local liquor control commission during which evidence seized in a warrantless search was admitted. The Illinois Supreme Court affirmed, stating at 398, 269 N.E.2d at 718:

'The court, in People ex rel. Fitzgerald v. Harrison, 256 Ill. 102, 99 N.E. 903, noted: 'The business of selling intoxicating liquor is attended with danger to the community and is a recognized subject for regulation by the police power of the State. There is no inherent right to carry it on and it may be entirely prohibited. The manner and extent of its regulation, if permitted to be carried on at all, are to be determined by the state, so as to limit, as far as possible, the evils arising from it.' (256 Ill. at 106, 99 N.E. at 904.) Because the business of selling liquor is closely related to certain evils in society, it is subject to any regulation which has any substantial relation to the Public health, comfort, safety or welfare.' (Emphasis supplied.)

Under the 1970 constitution, the power to regulate for the protection of the public health, safety, morals and welfare is granted to home-rule units.

The Third District Appellate Court of Illinois, in the recent case of Illinois Liquor Control Commission v. City of Joliet, Ill.App., 324 N.E.2d 453, arrived at the same result that we have reached. The trial court granted defendant's motion for summary judgment that the ordinance of the city establishing a uniform drinking age of 21 years of age was lawful. The judgment was affirmed, the court concluding that the regulation of alcoholic liquors was within the government and affairs of a home-rule community and that there had been no state preemption of that power.

The result we have reached is not inconsistent with cases from other jurisdictions with similar home-rule provisions. In City of Lafayette v. Elias (1957), 232 La. 700, 95 So.2d 281, the city passed an ordinance, in reliance upon its home-rule charter, which forbade the sale of low alcohol beer to persons under the age of 21, although the statute of the State of Louisiana prohibited the sale of such beer to all persons under the age of 18 years. The city was concerned about the effect of the lowered state drinking age upon the students attending Southwestern Louisiana Institute, a college within the boundaries of the community. The court held the municipal ordinance valid in spite of the less stringent provisions of state law. It found that the ordinance was a regulation appropriate to the necessities of the locality and not in itself unreasonable. The court then stated at 284:

'In view of the provisions of the Charter of the City of Lafayette, hereinafore discussed, reason dictates and justice demands this finding in the instant case and under these circumstances, in order that the public health, morals, safety, peace, and good order of the students at Southwestern Louisiana Institute and of the City of Lafayette shall be insured.'

See also Bodkin v. State (1937), 132 Neb. 535, 272 N.W. 547.

Thus, we find that there has been a long tradition in this state of local regulation of alcoholic beverages where not specifically preempted by the state. Our Supreme Court,...