Pesticide Public Policy Foundation v. Village of Wauconda, 84C8110.

• Decision Date: 19 August 1985
• Docket Number: No. 84C8110.,84C8110.
• Citation: 622 F. Supp. 423
• Parties: PESTICIDE PUBLIC POLICY FOUNDATION, an association incorporated under the laws of the District of Columbia, Plaintiff, v. VILLAGE OF WAUCONDA, ILLINOIS, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

622 F. Supp. 423

PESTICIDE PUBLIC POLICY FOUNDATION, an association incorporated under the laws of the District of Columbia, Plaintiff, v. VILLAGE OF WAUCONDA, ILLINOIS, et al., Defendants.

No. 84C8110.

United States District Court, N.D. Illinois, E.D.

August 19, 1985.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Plaintiff, the Pesticide Public Policy Foundation ("the Foundation"), challenges the validity of Village of Wauconda Ordinance No. 1984-0-31, which regulates the use of pesticides in the Village. The Foundation is a District of Columbia non-profit corporation whose members include professional lawn care, arborculture and pest control operators serving customers within Wauconda. Defendants are the Village of Wauconda, Illinois, Kenneth McGill, the Village President, and Jerry Bunce, Fred Dierker, James Eschenbauch, Steven Gurevitz, James Keagle, and Robert Ogren, Trustees of the Village of Wauconda.

The Wauconda ordinance requires "users of pesticides" to register and obtain a $25 per year permit from the Village. Ordinance No. 1984-0-31, § 7-12-2. "Users of pesticides" are defined as commercial pesticide applicators and landlords and tenants of buildings open to the public who apply pesticides on those building premises. § 7-12-1. The ordinance prohibits pesticide application when the wind velocity is greater than ten miles per hour, § 7-12-4, and requires that warning signs be posted for 72 hours after application. § 7-12-5. The ordinance specifies the type and number of signs to be posted after spraying indoors, outdoors, and on lawns or lakes. For example, where pesticides are applied to a lawn, the applicator must post a sign which states: "This lawn is chemically treated, keep children and pets off for 72 hours." § 7-12-5(B). The ordinance also regulates fogging; when that method of application is used, the user must give prior notice to abutting neighbors. § 7-12-5(C).

The Foundation challenges the Wauconda ordinance on a variety of grounds. Plaintiff first claims that the ordinance is invalid because the Village lacks the authority to regulate pesticides and users of pesticides. Specifically, the complaint alleges that the Village, as a non-home rule unit, lacks the statutory authority to enact the ordinance (Count II), and that the ordinance is preempted by Illinois law (Count III) and federal law (Count I). The Foundation further contends that the ordinance is unconstitutional because it denies plaintiff's members due process and equal protection of the laws as guaranteed by the United States and Illinois Constitutions and because it violates the prohibition against special legislation provided in the Illinois Constitution (Count IV). Finally, the Foundation claims that the Wauconda ordinance violates the Commerce Clause of the United States Constitution (Count V). This Court has both federal question and diversity jurisdiction of this action under 28 U.S.C. §§ 1331, 1332.

Each count in the complaint contains an identical prayer for relief. Plaintiff requests that this Court declare that Ordinance No. 1984-0-31 is invalid under Illinois law or federal law and the United States Constitution and therefore was void ab initio; enjoin defendants from enforcing the ordinance; declare that defendants are liable for costs and expenses incurred in complying with Ordinance No. 1984-0-31; and grant to plaintiff the costs of the instant lawsuit.

Presently before this Court are defendants' motion, pursuant to Fed.R.Civ.P. 12, to dismiss the complaint in its entirety, and plaintiff's motion, pursuant to Fed.R.Civ.P. 56, for summary judgment in its favor on Counts I-IV of the complaint.

For the reasons stated below, defendants' motion to dismiss is granted in part and denied in part, and summary judgment is granted in favor of plaintiff on Count III, with the exception noted below.

Discussion

As noted above, the first three counts of the complaint attack the authority of the Village of Wauconda to regulate pesticides. Count I of the complaint alleges that Ordinance No. 1984-0-31 was preempted by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C.A. §§ 136-136y (1980 & Supp.1984), pursuant to the Supremacy Clause of the United States Constitution, Art. VI, cl. 2. FIFRA regulates the registration, distribution, use and labelling of pesticides and the certification of pesticide applicators throughout the United States. Because federal courts have a "strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration," County Court of Ulster County, New York v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979), this Opinion will turn first to the counts of the complaint that are based on state law.

Count II of the complaint alleges that the Village of Wauconda, as a non-home rule unit, does not have the authority to regulate the use of pesticides or to license pesticide applicators, and that as a result, Ordinance No. 1984-0-31 is invalid. Where a federal district court confronts questions of Illinois substantive law under diversity jurisdiction, the outcome is, of course, controlled by Illinois law. Gates Rubber Co. v. USM Corp., 508 F.2d 603, 605 (7th Cir.1975).

The scope of an Illinois municipality's power to legislate is determined by its status as either a home rule or a non-home rule unit. Home rule units "may exercise any power and perform any function pertaining to their government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." Ill. Const.1970, art. VII, § 6(a). Non-home rule units, however, "have only those powers expressly granted to them by the General Assembly or those necessarily implied from or incident to power expressly granted...." Appeal Board of the Department of Environmental Control v. United States Steel Corp., 48 Ill.2d 575, 577, 272 N.E.2d 46, 48 (1971).

Defendants maintain that the challenged ordinance is a valid exercise of municipal authority under statutory provisions which allow municipalities to enact regulations to promote health and suppress disease, and to lessen or prevent the discharge of air contaminents. Ill.Rev.Stat. ch. 24, §§ 11-19.1-11, 11-20-5 (1983). Plaintiff claims that in order for the Wauconda ordinance to be valid, it is necessary for an Illinois statute to expressly authorize municipalities to regulate pesticides. In its argument, the Foundation relies in part on the fact that there are two Illinois statutes which deal with pesticide regulation within the State, the Illinois Pesticide Act of 1979, Ill.Rev.Stat. ch. 5, §§ 801-828 (1983), and the Illinois Structural Pest Control Act, Ill.Rev.Stat. ch. 111-½, §§ 2201-2225 (1983), and neither statute mentions local pesticide regulation.

As discussed below, this Court finds that these two Illinois pesticide statutes preempt local governmental regulation in that area. Thus, although it is true that a general police power provision such as section 11-20-5 of the Illinois Municipal Code authorizes municipalities to legislate on a wide range of community health hazards,¹ it is unnecessary for this Court to decide whether, in the absence of the two Acts, the Village would have the authority to regulate pesticide use.

State Preemption

In Count III of the complaint, the Foundation asserts that the Wauconda ordinance is preempted by the Illinois Pesticide Act of 1979, Ill.Rev.Stat. ch. 5, §§ 801-828 (1983), and the Illinois Structural Pest Control Act, Ill.Rev.Stat. ch. 111-½, §§ 2201-2225 (1983). These statutes regulate the registration, distribution and use of pesticides and the licensing of pesticide applicators in the State of Illinois. According to plaintiff, neither Act authorizes or allows Illinois municipalities or units of local government to further regulate pesticides.

The purpose of the Illinois Pesticide Act of 1979 ("IPA") is "to regulate in the public interest the labeling, distribution, use and application of pesticides...." Ill.Rev.Stat. ch. 5, § 802 (1983). The obligations of the Act are enforced by three Illinois State agencies: the Department of Agriculture administers the Act and supervises the registration of pesticides and agricultural uses; the Department of Public Health oversees structural or indoor pest control; and the Environmental Protection Agency enforces those provisions of the Act which protect the air and water. Ill.Rev.Stat. ch. 5, § 803. The Act provides for annual registration of pesticides, annual licensing of commercial applicators, and certification of applicators of restricted pesticides. Ill. Rev.Stat. ch. 5, §§ 806, 810, 811. The Act also prohibits handling or storing pesticides in an unsafe manner and disposing of pesticides or their containers in such a manner as to endanger public health or the environment or to pollute water supplies. Ill.Rev. Stat. ch. 5, § 814. The Director of Agriculture is further authorized to promulgate additional regulations concerning the storage, distribution and disposal of pesticides and their containers, the methods of pesticide application, and packaging. Ill.Rev. Stat. ch. 5, § 808.

The Structural Pest Control Act ("SPCA") similarly protects public health and welfare by extensive regulation of pesticides. As outlined in the general purposes section of the SPCA, the Act establishes minimum standards for selection, formulation and application of restricted pesticides. Ill.Rev.Stat. ch. 111-½, § 2202. It also requires licensing of commercial structural pest control businesses, registration of owners of property where restricted pesticides are used, and certification of pest control technicians. Id.

Defendants maintain that Ordinance No. 1984-0-31 is neither expressly nor impliedly preempted by the Illinois pesticide statutes. Defendants point...