Opyt's Amoco, Inc. v. Village of South Holland, I-80

• Decision Date: 30 January 1991
• Docket Number: O-M,Nos. 1-89-2691,1-89-2908 and 1-89-3049,I-80,s. 1-89-2691
• Citation: 209 Ill.App.3d 473,568 N.E.2d 260
• Parties: , 154 Ill.Dec. 260 OPYT'S AMOCO, INC.;Investments Company, d/b/a Truck-at; Linge, Ltd., d/b/a Calumet Auto Truck Plaza; Kar Kleen Kwick Stop, Inc., d/b/a Kar Kleen Car Wash; and George Graske, d/b/a Quick Six Amoco, Plaintiffs-Appellants, v. VILLAGE OF SOUTH HOLLAND, a municipal corporation, Harold Gouwens, Bert Docter, William McCarthy, Eugene Prystalski, Warren Teichler, Earl Gossett, and Richard Zimmerman, Defendants-Appellees. VILLAGE OF SOUTH HOLLAND, a municipal corporation, Plaintiff-Appellee, v. Robert WHITE, agent for Kar Kleen Car Wash, Defendant-Appellant. VILLAGE OF SOUTH HOLLAND, Plaintiff-Appellee, v. GEORGE'S AMOCO GAS STATION and its agents George and Judy Graske; Calumet Auto Truck Plaza, and its agents Gene Suppelsa and Michael Lavieri; Robert White, agent for Kar Kleen Car Wash; Opyt's Amoco Gas Station and its agent Daniel Opyt, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 260

568 N.E.2d 260

209 Ill.App.3d 473, 154 Ill.Dec. 260

OPYT'S AMOCO, INC.; I-80 Investments Company, d/b/a Truck-O-Mat; Linge, Ltd., d/b/a Calumet Auto Truck Plaza Kar Kleen Kwick Stop, Inc., d/b/a Kar Kleen Car Wash; and George Graske, d/b/a Quick Six Amoco, Plaintiffs-Appellants, v. VILLAGE OF SOUTH HOLLAND, a municipal corporation, Harold Gouwens, Bert Docter, William McCarthy, Eugene Prystalski, Warren Teichler, Earl Gossett, and Richard Zimmerman Defendants-Appellees.

VILLAGE OF SOUTH HOLLAND, a municipal corporation, Plaintiff-Appellee, v. Robert WHITE, agent for Kar Kleen Car Wash, Defendant-Appellant.

VILLAGE OF SOUTH HOLLAND, Plaintiff-Appellee, v. GEORGE'S AMOCO GAS STATION and its agents George and Judy Graske; Calumet Auto Truck Plaza, and its agents Gene Suppelsa and Michael Lavieri; Robert White, agent for Kar Kleen Car Wash; Opyt's Amoco Gas Station and its agent Daniel Opyt, Defendants-Appellants.

Nos. 1-89-2691, 1-89-2908 and 1-89-3049.

Appellate Court of Illinois First District, Third Division.

Jan. 30, 1991.

Bruce M. Bozich, Clifford Lee Gunter, The Law Offices of Bruce M. Bozich, South Holland, for defendants-appellants.

Buikema, Hiskes, Dillner, O'Donnell and Marovich, Ltd., South Holland, Michael J. Marovich, Ronald Buikema, for plaintiff-appellee.

Presiding Justice CERDA delivered the opinion of the court:

This consolidated appeal concerns the constitutionality of the Village of South Holland's ordinance prohibiting certain business activities on Sundays. The ordinance challenged consists of sections 9-3(a), 9-3(b), 9-3(c), 9-3(d), and 9-3(e) of chapter 9 of article I of the Code of the Village of South Holland.

I. No. 1-89-2691

Plaintiffs, Opyt's Amoco, Inc. (Opyt's), I-80 Investments Co., d/b/a Truck-O-Mat (Truckomat), Linge, Ltd., d/b/a Calumet Auto Truck Plaza (Calumet), Kar Kleen Kwick Stop, Inc., d/b/a Kar Kleen Car Wash (Kar Kleen), and George Graske, d/b/a Quick Six Amoco, n/k/a Amoco Food Shop (Amoco), filed a complaint for declaratory judgment on February 1, 1989, for themselves and for others similarly circumstanced against defendants, Village of South Holland, a municipal corporation (the Village), Village Board President Harold Gouwens, and Village Trustees Bert Docter, William McCarthy, Eugene Prystalski, Warren Teichler, Earl Gossett, and Richard Zimmerman.

The complaint alleged the following. Opyt's was in the business of repairing automobiles, renting videocassettes, and selling gasoline, lottery tickets, and takeout food and drinks. Truckomat was in the business of selling truck washes, diesel fuel, retail goods, and takeout food and drinks. Calumet was in the business of selling diesel fuel, gasoline, and retail goods, repairing trucks, and operating a restaurant. Kar Kleen was in the business of selling automatic and manual car washes, gasoline, and takeout food and drinks. Amoco was in the business of selling gasoline, takeout food and drinks, and lottery tickets.

The Village had enforced or threatened to enforce the ordinance against plaintiffs because of Opyt's rental of videocassettes, Amoco's sale of pretzels and cigarettes, Kar Kleen's sale of car washes, Calumet's sale of crackers, potato chips, cinnamon rolls, a license plate sign, and a can of soup, and Truckomat's sale of truck washes.

Plaintiffs sought declarations that: 1) the ordinance was arbitrary, capricious, unreasonable, and bore no reasonable relation to the public health, safety, morals, or welfare; 2) plaintiffs' businesses could be used for any lawful activity on Sundays as long as such activities did not tend to disturb the peace or worship of others; and 3) the ordinance was illegal, unconstitutional, void, and in violation of the due process and equal protection clauses of the Illinois and United States Constitutions.

A copy of the amendments to the ordinance was attached to the complaint. The amendments became effective after their adoption by the Village president and the board of trustees on May 2, 1988. The ordinance deleted section 9-3(a) of article I of chapter 9 of the Code of the Village of South Holland (the Code), and inserted in its place:

"(a) Wholesale and retail mercantile and merchandising establishments. It shall be unlawful for any person to engage in the business of selling, dispensing, renting or distributing, at wholesale or retail, goods, wares or merchandise of any kind or description from an established place of business on the first day of the week commonly called Sunday within the village, provided that this subsection shall not be applicable to works of charity or to the sale of drugs or medicine, the sale or dispensing of articles of food and drink for human consumption from vending machines, the sale or dispensing of articles of food and drink for human consumption from premises whose sole purpose is the daily preparation of food and drink for retail sale to the public, the intent being to allow food and drink dispensing from retail establishments that are commonly known as restaurants, provided further that the sale of said food and drink shall not be allowed from a drive-through facility on Sunday and all drive-through facilities dispensing food and drink shall remain closed, the sale and distribution of newspapers and magazines, the sale of milk, ice cream, ice, gasoline, lubricating oil, or the sale of articles and products necessary to meet the emergency needs of the public on Sunday in the village." South Holland, Ill., Code art. I, ch. 9, § 9-3(a).

Section 9-3(b) of article I of chapter 9 of the Code was deleted, and inserted in its place was:

"(b) Manufacturing and construction work. It shall be unlawful for any person to engage in the business of manufacturing, constructing, producing or processing property of any kind or description, from an established place of business, on the first day of the week, commonly called Sunday, within the village; provided, that this subsection shall not be applicable to works of charity or to any manufacturing or construction work necessary to meet the emergency needs of the public on Sunday in the village. Whenever there exists a practical necessity to perform essential testing or emergency maintenance incident to manufacturing, processing or testing, such emergency maintenance or essential testing may be performed on Sundays. Provided, further, that this subsection shall not be applicable to any manufacturing establishment on an industrially-zoned parcel in which a continuous process, as determined by the President of the Board of Trustees of the Village of South Holland that the same is necessary, provided further that said manufacturing establishment does no shipping or receiving on Sunday in the village, provided further that said [sic] manufacturing must be no less than two hundred feet from residentially zoned property." (Emphasis added.) South Holland, Ill., Code art. I, ch. 9, § 9-3(b).

Section 9-3(d) of article I of chapter 9 of the Code was deleted, and inserted in its place was:

"(d) Personal services and ordinary labor. It shall be unlawful for any person to engage in the business of selling, rendering or performing personal services or labor of any kind or description, from an established place of business, on the first day of the week commonly called Sunday, within the village, provided that this subsection shall not be applicable to works of charity, to the conduct of religious services, to services necessary for the dental, medical or hospital care of humans and animals, to ambulance services and services rendered by funeral establishments, to the operation of hotels inns, lodging houses, public transportation facilities, public utility facilities, or public places of amusement and recreation, automatic teller machines, or to any labor or services necessary to meet the emergency needs of the public on Sunday in the village." South Holland, Ill., Code art. I, ch. 9, § 9-3(d).

Plaintiffs were granted leave to file an amended complaint that added count II which alleged that the ordinance was at least in part a zoning ordinance, and, that upon information and belief, plaintiffs' businesses were all located in commercial zones. It was also alleged that the ordinance denied plaintiffs equal protection and violated the Illinois and United States Constitutions because businesses in commercial zones were discriminated against by being prohibited from doing business on Sundays while businesses in manufacturing zones were permitted to remain open without regard to whether the businesses in commercial zones were within 200 feet of residentially zoned property and without any rational basis for any such distinction.

Defendants admitted in their answer that the Village either had threatened to enforce or had enforced the ordinance against plaintiffs. Defendants denied that the ordinance was unconstitutional.

Plaintiffs filed a motion for judgment on the pleadings on the basis that the ordinance was unconstitutional. Although the motion was not captioned as a summary judgment motion, attached were several supporting affidavits. Michael LaVieri, Calumet's general manager, swore that, on information and belief, Calumet was in a commercially zoned area. Robert White swore that: (1) he owned Kar Kleen; (2) the washing procedure was fully automated and was operated by the customers by inserting coins; and (3) no attendant was necessary.

Brian J. Golden swore that: (1) he was a resident of the Village who purchased on Sunday, July 16, 1989, a pair of sunglasses in the gift shop located in the Abe Lincoln Oasis located on Interstate 80 in the Village; (2) the gift shop was separate from the main food service areas of the oasis; (3) he observed various other items being offered for sale including stuffed animals, candy, greeting cards, and souvenirs; and (4) he observed coin operated games and the sale of lottery tickets. Other affidavits were provided by Truckomat, Amoco, and Opyt's....