Accel Entertainment Gaming, LLC v. Village of Elmwood Park , 2015 IL App (1st) 143822 ( 2016 )

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Appellate Court Date: 2016.02.18
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Accel Entertainment Gaming, LLC v. Village of Elmwood Park,
2015 IL App (1st) 143822Appellate Court ACCEL ENTERTAINMENT GAMING, LLC, an Illinois Limited
Caption Liability Company, Plaintiff-Appellant, v. THE VILLAGE OF
ELMWOOD PARK, an Illinois Municipal Corporation; and
ANGELO “SKIP” SAVIANO, President; PAUL VOLPE, Manager;
ALAN T. KAMINSKI, Trustee; JEFF SARGENT, Trustee;
ANGELA STRANGERS, Trustee; JONATHAN L. ZIVOJNOVIC,
Trustee; ANTHONY DEL SANTO, Trustee; and ANGELO J.
LOLLINO, Trustee, in Their Official Capacities, Defendants-
Appellees.
District & No. First District, Fifth Division
Docket No. 1-14-3822
Filed December 11, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CH-7357; the
Review Hon. Kathleen G. Kennedy, Judge, presiding.
Judgment Affirmed.
Counsel on Michael A. Ficaro, William Bogot, and Seth A. Horvath, all of Nixon
Appeal Peabody LLP, of Chicago, for appellant.
Jane M. May and Benjamin M. Jacobi, both of O’Halloran Kosoff
Geitner & Cook, LLC, of Northbrook, for appellees.
Panel JUSTICE GORDON delivered the judgment of the court, with
opinion.
Presiding Justice Reyes and Justice McBride concurred in the
judgment and opinion.
OPINION
¶1 The instant appeal arises from the trial court’s dismissal of the complaint of plaintiff
Accel Entertainment Gaming, LLC, pursuant to section 2-615 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615 (West 2012)). Plaintiff’s complaint challenged the validity of
defendant Village of Elmwood Park’s (Village) Video Gaming Ordinance (Ordinance)
(Village of Elmwood Park Ordinance No. 2013-20 (adopted Sept. 16, 2013)) under the
Illinois Constitution, alleging that (1) the Ordinance imposed an unconstitutional occupation
tax, (2) the Village’s power to tax under the Ordinance had been preempted by the Illinois
legislature, (3) the Ordinance went beyond the scope of the Village’s home rule powers
because it attempted to regulate an area of state concern, and (4) the Ordinance imposed an
unconstitutional license for revenue. The trial court dismissed plaintiff’s claims with
prejudice under section 2-615 of the Code and plaintiff appeals. For the reasons that follow,
we affirm.
¶2 BACKGROUND
¶3 I. The Video Gaming Ordinance
¶4 On September 16, 2013, the Village enacted the Ordinance, which imposed registration,
licensing, and fee requirements on “video gaming operations” within the Village. The
Ordinance’s language largely parroted the existing language of the Video Gaming Act (230
ILCS 40/1 et seq. (West 2012)) and its accompanying regulations (11 Ill. Adm. Code 1800).1
¶5 Under the Ordinance, “Video Gaming Operation[s]” were defined as “the conducting of
video gaming and all related activities.” Village of Elmwood Park Ordinance No. 2013-20,
§ 57-1 (adopted Sept. 16, 2013). A “Video Gaming Terminal” was defined as “[a]ny
electronic video game machine that, upon insertion of cash, is available to play or simulate
the play of a video game, including, but not limited to, video poker, line up, and blackjack, as
authorized by the Illinois Gaming Board utilizing a video display and microprocessors in
which the player may receive free games or credits that can be redeemed for cash. The term
does not include a machine that directly dispenses coins, cash, or tokens or is for amusement
This court’s independent comparison of the language of the Ordinance and the language of the
1
Video Gaming Act and its regulations reveals that approximately 44 of the 48 pages of the Ordinance
are verbatim duplicates of language found in the Video Gaming Act or its regulations, with 4 pages’
worth of content that is unique to the Ordinance. Other than these four pages, the only substantive
difference is that the Ordinance gives to the Village’s liquor commissioner power that the Video
Gaming Act and its regulations gave to the Illinois Gaming Board and its Administrator.
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purposes only.” Village of Elmwood Park Ordinance No. 2013-20, § 57-1 (adopted Sept. 16,
2013).
¶6 The Ordinance required that anyone seeking to operate a video gaming terminal in the
Village was required to obtain a video gaming license from the Village’s liquor
commissioner. Village of Elmwood Park Ordinance No. 2013-20, § 57-15(a)(1) (adopted
Sept. 16, 2013). In order to become licensed, an applicant needed to submit the Village’s
video gaming application, along with accompanying documentation. Village of Elmwood
Park Ordinance No. 2013-20, § 57-16(a) (adopted Sept. 16, 2013). This application required
the applicant to provide information concerning business ownership, taxes, criminal or civil
proceedings, and outstanding contracts, among other information. It also required applicants
to submit their Illinois Gaming Board disclosure forms. In considering whether to issue a
license, the liquor commissioner was allowed to consider a number of factors, including
whether the issuance of the license would lead to an “undue economic concentration” in a
certain area of the Village. Village of Elmwood Park Ordinance No. 2013-20, § 57-10
(adopted Sept. 16, 2013).
¶7 Each video gaming terminal that was licensed by the Village received a Village
registration tag that needed to be affixed to the video gaming terminal. Village of Elmwood
Park Ordinance No. 2013-20, § 57-13(b) (adopted Sept. 16, 2013). The Ordinance gave the
Village the right to seize any video gaming terminal that did not display this registration tag.
Village of Elmwood Park Ordinance No. 2013-20, § 57-13(c) (adopted Sept. 16, 2013). In
addition, each licensee was required to pay an annual $1,000 “license fee[ ]”2 per video
gaming terminal. Village of Elmwood Park Ordinance No. 2013-20, § 57-16(h) (adopted
Sept. 16, 2013); Village of Elmwood Park Ordinance No. 2013-20, § 29-11(d) (adopted Sept.
16, 2013).
¶8 Under the Ordinance, the Village’s liquor commissioner had jurisdiction and supervision
over all video gaming operations within the Village, subject to the jurisdiction of the Illinois
Gaming Board. Village of Elmwood Park Ordinance No. 2013-20, § 57-2 (adopted Sept. 16,
2013). In accordance with this supervisory role, the Ordinance also provided that “[t]he
liquor commissioner and the village’s officers, employees and agents shall have unrestricted
access to enter the premises or motor vehicles of any licensee or applicant where evidence of
compliance or noncompliance with the provisions of the video gaming act, the regulations
promulgated under the video gaming act or this chapter may be found.” Village of Elmwood
Park Ordinance No. 2013-20, § 57-3 (adopted Sept. 16, 2013). The liquor commissioner was
given the power to penalize licensees for any violation of the Video Gaming Act or the
Ordinance through the “imposition of fines, suspension, revocation or restriction of license,
or other disciplinary action.” Village of Elmwood Park Ordinance No. 2013-20, § 57-15(a)
(adopted Sept. 16, 2013).
¶9 The Ordinance limited the number of licenses and video game terminals that could be
operated in the Village. Village of Elmwood Park Ordinance No. 2015-01, § 57-22 (adopted
2
Plaintiff refers to this annual cost as a “Terminal Tax.” However, the Ordinance refers to it as a
“license fee,” and we will use the Ordinance’s terminology in discussing it.
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Feb. 2, 2015).3 Licensed video game terminal operators were under a duty to “[n]ot install,
remove or relocate any video gaming terminal in the village without notification and
approval of the liquor commissioner or his or her designee.” Village of Elmwood Park
Ordinance No. 2013-20, § 57-6(r) (adopted Sept. 16, 2013).
¶ 10 II. Complaint
¶ 11 On April 29, 2014, plaintiff filed a verified complaint for declaratory and injunctive
relief; the complaint was amended on June 26, 2014, and it is the amended complaint that
was the subject of defendants’ motion to dismiss and the instant appeal. Plaintiff alleged that
it was an Illinois limited liability company that was licensed and in good standing with the
state’s regulatory gaming authorities. On February 28, 2014, the Illinois Gaming Board
approved plaintiff’s request to transport three video gaming terminals to a bar in Elmwood
Park. Plaintiff requested that the Village waive its requirement that plaintiff provide, as part
of its application for a license from the Village, copies of its video gaming business entity
disclosure form, video gaming institutional investor form, video gaming personal disclosure
form, video gaming terminal operator license application, and video gaming trust disclosure
form. Plaintiff informed the Village that it had already provided these forms to the Illinois
Gaming Board when plaintiff received its current state gaming license.
¶ 12 On March 25, 2014, under supervision of the Illinois Gaming Board, plaintiff’s three
video gaming terminals were installed and activated at the bar. Plaintiff was then required to
immediately deactivate the terminals, as it had not yet paid the $1,000 per terminal license
fee or produced the required documents in order to obtain a license from the Village. On
March 27, 2014, the Village denied plaintiff’s request to waive the production of the required
documents.
¶ 13 Plaintiff then filed its complaint, arguing that the Ordinance was facially unconstitutional
because: (1) the $1,000 per year per terminal license fee was an impermissible “occupation
tax”; (2) the Riverboat Gambling Act (230 ILCS 10/1 et seq. (West 2012)), which was
incorporated into the Video Gaming Act, prohibited such a tax; (3) the Ordinance exceeded
the Village’s home rule authority; and (4) the yearly license fee was a “license for revenue,”
prohibited by the Illinois Constitution. Plaintiff sought a declaratory judgment on all counts,
as well as a “preliminary and permanent injunction prohibiting the Village from enforcing
the Ordinance against [plaintiff] and any licensed establishments where [plaintiff] operates
and maintains licensed [video gaming terminals].”
¶ 14 Count I of the complaint alleged that the Ordinance imposed an impermissible occupation
tax on plaintiff through its $1,000 “license fee.” Count I alleged that the Illinois Constitution
prohibited a home rule unit, such as the Village, from enacting an occupation tax without
express sanction from the General Assembly, and it further alleged that the Riverboat
Gambling Act, which was incorporated into the Video Gaming Act, contained an express
prohibition against occupation taxes. Count I sought a declaration that the Ordinance violated
the Illinois Constitution by imposing an illegal occupation tax and a preliminary and
permanent injunction enjoining the imposition and enforcement of the fee against plaintiff.
3
While the Village has adopted a new version of this section of the Ordinance, the only difference
between the new section and the original section is the number of licenses and video gaming terminals
that are authorized.
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¶ 15 Count II of the complaint alleged that section 21 of the Riverboat Gambling Act (230
ILCS 10/21 (West 2012)), which was incorporated into the Video Gaming Act, prohibited
the Village from imposing its license fee on terminal operators. Count II sought a declaration
that the Riverboat Gambling Act and Video Gaming Act prohibited the Village from
imposing the license fee and a preliminary and permanent injunction prohibiting the Village
from levying or collecting the license fee from plaintiff.
¶ 16 Count III of the complaint alleged that the Village’s home rule authority only extended to
areas of local concern and that the regulation of gambling was not a local concern. Count III
of the complaint alleged that the state had traditionally regulated gambling and that, because
of the state’s regulatory structure, gambling was a statewide concern. Count III sought a
declaration that the Ordinance, as a whole, was facially unconstitutional and a preliminary
and permanent injunction prohibiting the Village from enforcing the Ordinance against
plaintiff.
¶ 17 Count IV of the complaint alleged that the license fee violated the Illinois Constitution
because it was a license for revenue which was impermissible without the explicit approval
of the General Assembly. Count III sought a declaration that the fee violated the Illinois
Constitution as a license for revenue and a preliminary and permanent injunction enjoining
the imposition and enforcement of the fee against plaintiff.
¶ 18 III. Temporary Restraining Order
¶ 19 On June 23, 2014, plaintiff filed an emergency motion for a temporary restraining order
and preliminary injunction on count III of plaintiff’s complaint. In support of its motion,
plaintiff argued that the Village had exceeded its home rule authority in regulating video
gaming through the Ordinance. Plaintiff claimed that it was suffering irreparable harm by not
running its video gaming terminals, whereas the Village would not be harmed by the circuit
court enjoining enforcement of the Ordinance. Specifically, plaintiff requested that the court
prohibit the Village from: (1) charging the $1,000 per video game terminal fee; (2) requiring
plaintiff to produce the aforementioned documentation in order to obtain a Village license;
(3) capping the number of licensed video game terminal operators and video game terminals
in the Village; and (4) interfering with plaintiff’s installation and operation of video game
terminals at the bar or in any other location in the Village. On July 21, 2014, the trial court
denied plaintiff’s motion for a temporary restraining order.
¶ 20 IV. Motion to Dismiss
¶ 21 On July 8, 2014, defendants filed a motion to dismiss plaintiff’s amended complaint
pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)). The motion claimed
that: (1) the Ordinance was a valid exercise of the Village’s home rule authority and (2)
plaintiff failed to allege that the Village’s license fee was not reasonably related to
regulation.
¶ 22 On November 19, 2014, the trial court issued a written opinion granting defendants’
motion to dismiss. With respect to count III of plaintiff’s amended complaint, concerning the
Village’s home rule authority to regulate video gaming within the Village, the trial court
found that “the current test is if a subject pertains to local government and affairs, and the
legislature has not expressly preempted home rule, then municipalities may exercise their
power,” citing to Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 32.
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The trial court noted that the Video Gaming Act lacked express legislative preemption of
local video gaming regulation, making the sole question whether video gaming pertained to
local government and affairs. The court found that because the General Assembly had not
specifically limited home rule authority in relation to gambling, “[w]hen video gambling
takes place within establishments already regulated by a municipality, that video gambling is
related to local governance and enforcement, and as Defendants argue, affects the very fabric
of the local community.” The trial court further found that “[t]he state cannot, consistent with
home-rule jurisprudence, create a ‘system’ which by its nature raises issues of local concern,
and then remove that ‘system’ from local oversight without expressly saying so.” As such,
the trial court dismissed count III of plaintiff’s complaint with prejudice.
¶ 23 As to counts I, II, and IV of plaintiff’s complaint, all of which challenged the Village’s
$1,000 license fee by characterizing it as a tax, the trial court noted that a fee was
compensation for services rendered, while a charge having no relation to the services
rendered was properly characterized as a tax. The trial court found that “Accel alleges no
facts to show that the Village’s charge of $1,000 per [video gaming terminal] per year is not
reasonably related to the regulation it has undertaken in the Ordinance it enacted.”
Accordingly, the court found that there was no set of facts showing that the imposition of the
$1,000 annual charge was an unconstitutional tax and dismissed counts I, II, and IV with
prejudice.
¶ 24 This appeal timely followed.
¶ 25 ANALYSIS
¶ 26 On appeal, plaintiff argues that the trial court erred in dismissing plaintiff’s amended
complaint because (1) count III of the complaint sufficiently alleged that the Ordinance
exceeds the Village’s home rule authority and (2) the complaint sufficiently alleged that the
licensing fee was a tax, not a fee, and that the tax was unconstitutional.
¶ 27 A motion to dismiss under section 2-615 of the Code challenges the legal sufficiency of
the complaint by alleging defects on its face. Young v. Bryco Arms, 213 Ill. 2d 433, 440
(2004); Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). The critical inquiry is whether the
allegations in the complaint are sufficient to state a cause of action upon which relief may be
granted. Wakulich, 203 Ill. 2d at 228. In making this determination, all well-pleaded facts in
the complaint, and all reasonable inferences that may be drawn from those facts, are taken as
true. Young, 213 Ill. 2d at 441. In addition, we construe the allegations in the complaint in the
light most favorable to the plaintiff. Young, 213 Ill. 2d at 441. We review de novo an order
granting a section 2-615 motion to dismiss. Young, 213 Ill. 2d at 440; Wakulich, 203 Ill. 2d at
228. De novo consideration means we perform the same analysis that a trial judge would
perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). We may affirm on
any basis appearing in the record, whether or not the trial court relied on that basis or its
reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).
¶ 28 “In construing the validity of a municipal ordinance, the same rules are applied as those
which govern the construction of statutes.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296,
306 (2008). Municipal ordinances are presumed constitutional (Chicago Allis Mfg. Corp. v.
Metropolitan Sanitary District of Greater Chicago, 52 Ill. 2d 320, 327 (1972); Van Harken v.
City of Chicago, 305 Ill. App. 3d 972, 976 (1999) (citing City of Chicago Heights v. Public
Service Co. of Northern Illinois, 408 Ill. 604, 609 (1951)), and the challenging party has the
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burden of establishing a clear constitutional violation (People v. One 1998 GMC, 2011 IL
110236, ¶ 20). A court will affirm the constitutionality of a statute or ordinance if it is
“reasonably capable of such a determination” and “will resolve any doubt as to the statute’s
construction in favor of its validity.” One 1998 GMC, 2011 IL 110236, ¶ 20 (citing People v.
Johnson, 225 Ill. 2d 573, 584 (2007), and People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010)).
¶ 29 We note that plaintiff’s challenge to the Ordinance is a facial constitutional challenge. In
a facial challenge, a court examines whether the statute or ordinance at issue contains “an
inescapable flaw that renders the *** statute unconstitutional under every circumstance.”
One 1998 GMC, 2011 IL 110236, ¶ 58. “[A] challenge to the facial validity of a statute is the
most difficult challenge to mount successfully because an enactment is invalid on its face
only if no set of circumstances exists under which it would be valid.” One 1998 GMC, 2011
IL 110236, ¶ 20 (citing Napleton, 229 Ill. 2d at 305-06); see also In re M.T., 221 Ill. 2d 517,
536 (2006) (“Successfully making a facial challenge to a statute’s constitutionality is
extremely difficult, requiring a showing that the statute would be invalid under any
imaginable set of circumstances.” (Emphasis in original.)). Since a successful facial
challenge will void the statute for all parties in all contexts, “ ‘[f]acial invalidation “is,
manifestly, strong medicine” that “has been employed by the court sparingly and only as a
last resort.” ’ ” Poo-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009)
(quoting National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998), quoting
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). “The invalidity of the statute in one
particular set of circumstances is insufficient to prove its facial invalidity.” In re M.T., 221
Ill. 2d at 536-37. “ ‘ “[S]o long as there exists a situation in which a statute could be validly
applied, a facial challenge must fail.” ’ ” In re M.T., 221 Ill. 2d at 537 (quoting People v.
Huddleston, 212 Ill. 2d 107, 145 (2004), quoting Hill v. Cowan, 202 Ill. 2d 151, 157 (2002)).
¶ 30 I. Home Rule Authority
¶ 31 Plaintiff first argues that the trial court erred in dismissing count III of its complaint
because the Village’s enactment of its Ordinance exceeded its home rule authority under the
Illinois Constitution. We recently considered a similar constitutional challenge in Midwest
Gaming & Entertainment, LLC v. County of Cook, 2015 IL App (1st) 142786, appeal denied,
No. 119883 (Ill. Nov. 25, 2015),4 and our discussion of the law in that case is equally
applicable here. Under the Illinois Constitution, except as limited by article VII, section 6 of
the constitution, a home rule unit such as the Village “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; to license; to
tax; and to incur debt.” Ill. Const. 1970, art. VII, § 6(a). “Section 6(a) was written with the
intention to give home rule units the broadest powers possible.” Palm v. 2800 Lake Shore
Drive Condominium Ass’n, 2013 IL 110505, ¶ 30 (citing Scadron v. City of Des Plaines, 153
Ill. 2d 164, 174 (1992)). Furthermore, the constitution expressly provides that the “[p]owers
4
Our decision in Midwest Gaming was filed after briefing in the instant case had concluded.
However, we granted plaintiff’s motion to cite additional authority concerning the case and, through the
motion and defendants’ response, have the parties’ arguments about the case and its applicability to the
case at bar.
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and functions of home rule units shall be construed liberally.” Ill. Const. 1970, art. VII,
§ 6(m).
¶ 32 Our supreme court has “consistently recognized that the home rule provisions of the
Illinois Constitution are intended to eliminate or at least reduce to a bare minimum the
circumstances under which local home rule powers are preempted by judicial interpretation
of unexpressed legislative intention.” (Internal quotation marks omitted.) Palm, 2013 IL
110505, ¶ 34. “The Illinois approach places almost exclusive reliance on the legislature
rather than the courts to keep home rule units in line.” (Internal quotation marks omitted.)
Palm, 2013 IL 110505, ¶ 34. “[I]f the constitutional design is to be respected, the courts
should step in to compensate for legislative inaction or oversight only in the clearest cases of
oppression, injustice, or interference by local ordinances with vital state policies.” (Emphasis
and internal quotation marks omitted.) Palm, 2013 IL 110505, ¶ 34. “[B]ecause the
legislature can always vindicate state interests by express preemption, only vital state
interests would allow a court to decide that an exercise of home rule power does not pertain
to local government and affairs.” City of Chicago v. StubHub, Inc., 2011 IL 111127, ¶ 22.
“Accordingly, ‘[i]f a subject pertains to local government and affairs, and the legislature has
not expressly preempted home rule, municipalities may exercise their power.’ ” Palm, 2013
IL 110505, ¶ 36 (quoting StubHub, 2011 IL 111127, ¶ 22 n.2).
¶ 33 In the case at bar, plaintiff does not argue that the legislature has expressly preempted the
Village from regulating video gaming within its boundaries. Instead, plaintiff argues that
regulation of video gaming does not pertain to local government or affairs and is a statewide,
not local, issue. We do not find this argument persuasive.
¶ 34 Plaintiff asks us to determine whether a subject pertains to local government and affairs
by applying the factors set forth by our supreme court in Kalodimos v. Village of Morton
Grove, 103 Ill. 2d 483, 501 (1984): “Whether a particular problem is of statewide rather than
local dimension must be decided not on the basis of a specific formula or listing set forth in
the Constitution but with regard for [(1)] the nature and extent of the problem, [(2)] the units
of government which have the most vital interest in its solution, and [(3)] the role
traditionally played by local and statewide authorities in dealing with it.” See StubHub, 2011
IL 111127, ¶ 24. Under this analysis, we agree with defendants that the regulation of video
gaming within the Village’s boundaries is a subject that pertains to the Village’s local
government or affairs because it implicates the Village’s power to regulate for the protection
of the public health, safety, morals and welfare of its residents.
¶ 35 First, with regard to the nature and extent of the problem, plaintiff appears to characterize
the “problem” as video-gaming regulation generally and argues that video-gaming regulation
is a statewide issue, not a local one. However, the Village’s concern is not video-gaming
regulation generally but regulation of video gaming within the boundaries of the Village
itself. The Ordinance at issue in the case at bar applies only to video gaming operations
within the Village boundaries and it does not attempt to regulate video gaming operations
outside of the Village’s boundaries. See, e.g., Village of Elmwood Park Ordinance No.
2013-20, § 57-2 (adopted Sept. 16, 2013) (providing that the Village’s liquor commissioner
shall have jurisdiction over and shall supervise “all video gaming operations in the village,”
subject to the jurisdiction of the Illinois Gaming Board).
¶ 36 Next, we must consider whether the State or the Village has the greater interest in solving
the problem. See StubHub, 2011 IL 111127, ¶ 27. Plaintiff argues that the state’s regulatory
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structure for gambling “furthers vital state interests,” including encouraging tourism,
promoting economic development, raising revenue for education, and generating revenue for
other state initiatives. While the state certainly has an interest in the areas pointed out by
plaintiff, no authority is provided by plaintiff indicating that such interests are “vital”
interests that would justify overriding a home rule unit’s ordinance, and we are unwilling to
apply that label in the absence of such authority. See Palm, 2013 IL 110505, ¶ 24 (while the
supreme court can intervene in cases involving interference with a “vital state interest,” it has
done so “only in cases involving environmental regulations based on specific language in the
Illinois Constitution establishing the state’s supremacy in that field” and declined to find that
the state had a vital state interest in regulating condominiums). But see StubHub, 2011 IL
111127, ¶ 27 (finding that the State had a vital interest “in preserving and regulating the
emerging market for online ticket resales across Illinois”).
¶ 37 Furthermore, it is not clear how the Village’s Ordinance hinders the state’s interests, as
plaintiff charges, other than its claim that the Ordinance “interferes with [the state’s]
regulatory framework.” Under the Video Gaming Act, a municipality can choose to prohibit
video gaming within its boundaries entirely. 230 ILCS 40/27 (West 2012). The state’s
interests cannot possibly be hindered by the choice not to have video gaming within the
municipality at all, as it is an option the state expressly provides to municipalities. Thus, it is
difficult to fathom how the Ordinance, which merely limits the number of video gaming
machines permitted within the Village’s boundaries instead of prohibiting it outright, can
hinder the state’s interests. It cannot be the case that the very existence of the Ordinance
hinders the state’s interests, since the text of the constitution itself recognizes that the state
and the home rule unit will have laws that operate concurrently and sometimes conflict. See
Ill. Const. 1970, art. VII, § 6(i) (“Home rule units may exercise and perform concurrently
with the State any power or function of a home rule unit to the extent that the General
Assembly by law does not specifically limit the concurrent exercise or specifically declare
the State’s exercise to be exclusive.”); Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill.
2d 281, 287-88 (2001) (“Under section 6(i), home rule units can continue regulating
activities in their communities, even if the State also has regulated such activities.”).
Moreover, as defendants point out, “if ‘encouraging tourism,’ ‘promoting economic
development,’ and ‘generating revenue’ are vital state policies such that home rule units
cannot regulate activities that affect them, then any home rule unit’s zoning and licensing
ordinances limiting restaurants, parades, and festivals would be unconstitutional because
such ordinances would interfere with vital state policies and thus would not pertain to a local
concern.” Thus, while the state certainly has an interest in regulation of video gaming
statewide, it is not clear that the state’s interest is greater than the Village’s, as plaintiff
argues.5 Furthermore, plaintiff has not demonstrated that the Village under its Ordinance
will interfere with the interests of the state in the adoption and application of its Ordinance.
¶ 38 In contrast to the state’s interests in regulating video gaming statewide, defendants have
identified a number of the Village’s interests in regulating video gaming within its
5
Plaintiff also argues that the confidential information requested under the Video Gaming Act is
specifically protected from disclosure in legal proceedings or Freedom of Information Act requests and
that the Ordinance has no such safeguards in place. However, it is unclear what relevance this
distinction has in determining which unit of government has the greater interest in solving the problem
addressed by the Ordinance.
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boundaries through the Ordinance. The video gaming terminals authorized by the Video
Gaming Act can be placed in local establishments that are licensed to sell liquor, in fraternal
organizations, and in veterans’ associations (230 ILCS 40/5 (West 2012)), which defendants
argue are all establishments that are already regulated by the Village and are “part of the
fabric of [the Village’s] community.” Defendants argue that the addition of video gaming
terminals in these establishments “compounds the need for regulation of enterprises that
already run a risk of criminality,” claiming that “[i]t is reasonable to conclude that
emergency calls to local police for disturbances, robberies, pick-pocketing, and fighting will
increase as a result of the addition of video gambling to the community. It is also foreseeable
that video gambling could lead to other, illegal gambling, resulting in the need for additional
policing.” See Kalodimos, 103 Ill. 2d at 503 (noting that municipalities “have an obvious
interest not only in reducing premeditated crime within their boundaries but also in
minimizing the effects of domestic violence or spontaneous quarrels”).
¶ 39 Defendants further point to the Village’s interest in ensuring that children and people
under the age of 21 do not gamble and claim that certain establishments within the
community, such as religious or community organizations, might object to video gaming
terminals near their locations for moral reasons. Local regulation permits such local concerns
to be addressed in ways that they would not be under state regulation. See Kalodimos, 103
Ill. 2d at 502 (“Home rule *** is predicated on the assumption that problems in which local
governments have a legitimate and substantial interest should be open to local solution and
reasonable experimentation to meet local needs, free from veto by voters and elected
representatives of other parts of the state who might disagree with the particular approach
advanced by the representatives of the locality involved or fail to appreciate the local
perception of the problem.”). Furthermore, video gaming terminal operators who do not wish
to comply with the Village’s regulations, such as plaintiff in the case at bar, remain free to do
business in other locations within the state, as the Village’s Ordinance only affects those who
seek to do business in the Village.
¶ 40 Finally, we must consider whether the state or the municipality has a traditional role in
solving the problem. StubHub, 2011 IL 111127, ¶ 35. While the state certainly has the more
traditional role in regulating commercial gambling, video gaming has only been permitted
within the state for less than a decade. See Pub. Act 96-34, § 1 (eff. July 13, 2009) (adding
230 ILCS 40/1 et seq.). The Ordinance was adopted in September 2013, approximately four
years after the passage of the Video Gaming Act. Thus, while the state has a more traditional
role in the general gambling context, this factor is not particularly strong with respect to the
video gaming context specifically.
¶ 41 Thus, in summary, the problem that the Ordinance seeks to resolve is the regulation of
video gaming operations within the boundaries of the Village. The state has a general interest
in regulating video gaming as a uniform whole, as well as interests in such areas as raising
revenue and promoting tourism. The Village has more specific interests concerning
regulating video gaming within the Village, such as increased criminality, protection of
children and those under the age of 21 from gambling, and the concerns of local
organizations, churches, synagogues, and community members concerning morality. Finally,
the state has a more traditional role with respect to gambling as whole, but the Video Gaming
Act has only been in effect for four years longer than the Ordinance. Considering all of these
factors, and bearing in mind that the constitution was written with the intention of giving a
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home rule unit the broadest powers possible in its local area (Palm, 2013 IL 110505, ¶ 30),
we agree with the trial court that the Ordinance promoted the health, safety, and general
welfare of the residents of the Village and pertains to the Village’s local government and
affairs. Accordingly, the Ordinance does not exceed the scope of the Village’s home rule
authority and the trial court properly dismissed count III of plaintiff’s amended complaint.
¶ 42 We do not find plaintiff’s reliance on StubHub and County of Cook v. Village of
Bridgeview, 2014 IL App (1st) 122164, to be persuasive. In StubHub, after applying the
Kalodimos factors, the supreme court concluded that a City of Chicago (City) ordinance
requiring Internet auction listing services to collect and remit the City’s amusement tax did
not pertain to the City’s local government and affairs. StubHub, 2011 IL 111127, ¶ 36. In
reaching this conclusion, the court found that “the state has a vital interest in regulating
online auctioneers and protecting consumers, and consequently a greater interest than any
municipality in local tax collection by internet auction listing services,” and also found that
the state had a more traditional role in addressing the problem of tax collection by Internet
auctioneers. StubHub, 2011 IL 111127, ¶¶ 34-36. The court further noted that the state statute
and the debates that produced it “evince an intent by the legislature to allow internet auction
listing services to opt out of any obligation regarding local tax collection” (StubHub, 2011 IL
111127, ¶ 36), which was “a policy decision this court is ill-advised to ignore” (StubHub,
2011 IL 111127, ¶ 36). Thus, in the StubHub case, there was a conflict between the statute’s
regulation process and that of the city regulation process, whereas in the instant case, the
State has no conflict and has no “vital interest” at stake as a result of the Ordinance, nor is
there any evidence that the legislature expressly rejected any of the Ordinance’s provisions,
as was the case in StubHub.
¶ 43 Similarly, in Village of Bridgeview, the appellate court found that the Village of
Bridgeview exceeded its home rule authority by enacting an ordinance that prohibited
Bridgeview residents from operating feral cat colonies, in conflict with a Cook County
ordinance permitting such colonies. In applying the Kalodimos factors, the court noted that
the problem was the spread of rabies by an overpopulation of feral cats and that Bridgeview’s
ordinance undermined this concern because feral cats were freely roaming animals, finding
that the Bridgeview ordinance affected bordering municipalities. Village of Bridgeview, 2014
IL App (1st) 122164, ¶ 16. The court further noted that the county had a greater interest in
controlling the feral cat population as a whole because counties were better able to address
the issue of freely roaming cats than were municipalities, which could not legislate beyond
their own borders. Village of Bridgeview, 2014 IL App (1st) 122164, ¶ 17. Finally, the court
found that the state and the county had more traditional roles in controlling the spread of
rabies and the feral cat population. Village of Bridgeview, 2014 IL App (1st) 122164,
¶¶ 18-20. By contrast, the Village’s Ordinance in the case at bar does not involve activities
that freely spread across municipal borders such that the Village is not the appropriate
political body to legislate gambling within its borders.
¶ 44 We also do not find persuasive plaintiff’s arguments that the language of the Video
Gaming Act indicates that the legislature did not contemplate concurrent local regulation of
video gaming. We again note that plaintiff is not arguing that the legislature has specifically
preempted home rule authority in this area, but is only arguing that the Ordinance does not
pertain to the Village’s local government and affairs.
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¶ 45 In support of its argument that video gaming regulation is a statewide, not local, issue,
plaintiff points to the provision of the Video Gaming Act permitting a municipality to opt out
of video gaming entirely (230 ILCS 40/27 (West 2012)). Section 27 of the Video Gaming
Act provides, in full:
“A municipality may pass an ordinance prohibiting video gaming within the
corporate limits of the municipality. A county board may, for the unincorporated area
of the county, pass an ordinance prohibiting video gaming within the unincorporated
area of the county.” 230 ILCS 40/27 (West 2012).
From this provision, plaintiff argues that “[t]his *** is an all-or-nothing proposition” and that
“[p]artial participation with local regulation, which the Village attempts here, is not an option
under the [Video Gaming Act].” However, plaintiff provides absolutely no support for this
proposition. This section of the Video Gaming Act says nothing about local regulation or any
“all-or-nothing proposition.” While plaintiff is correct that the Video Gaming Act gives
extensive authority to the Illinois Gaming Board, we will not leap to plaintiff’s conclusion
that this means that “there is no conceivable or intended role for [the Village] or any other
local government to regulate video-gaming licensees.”
¶ 46 In fact, as defendants point out, there is language in the Video Gaming Act that does
contemplate some type of local regulation. Section 65 of the Video Gaming Act provides:
“A non-home rule unit of government may not impose any fee for the operation of a
video gaming terminal in excess of $25 per year.” 230 ILCS 40/65 (West 2012).
The existence of this provision demonstrates that the legislature contemplated some local
regulation in addition to the Video Gaming Act itself.
¶ 47 Plaintiff argues that since section 65 is silent on the powers of home rule units, this
provision supports the argument that home rule authorities have no ability to regulate,6 citing
the general maxim that “[w]hen a statute lists the things to which it refers, there is an
inference that all omissions should be understood as exclusions, despite the lack of any
negative words of limitation.” In re C.C., 2011 IL 111795, ¶ 34. However, section 65 of the
Video Gaming Act does not contain a “list[ ] [of] things to which it refers” (In re C.C., 2011
IL 111795, ¶ 34) but addresses only one subject. Thus, it is not clear that plaintiff’s cited
maxim has any application to section 65. Furthermore, plaintiff’s argument overlooks the
fundamental difference between a home rule and a non-home rule unit. Our supreme court
has explained that “in the case of a non-home-rule unit, it has only those powers expressly
granted by law, powers incidental to those provided by law, and powers which are considered
indispensable to the accomplishment of the purposes of the municipal corporation. [Citation.]
By contrast, the powers of a home rule municipality *** are derived from article VII, section
6(a), of the Illinois Constitution of 1970 ***.” Scadron v. City of Des Plaines, 153 Ill. 2d 164,
174 (1992). Thus, as long as the subject pertains to local government and affairs and it is not
expressly preempted, the home rule unit can exercise its power. Palm, 2013 IL 110505, ¶ 36
(“ ‘[i]f a subject pertains to local government and affairs, and the legislature has not
expressly preempted home rule, municipalities may exercise their power’ ” (quoting
StubHub, 2011 IL 111127, ¶ 22 n.2)). The same cannot be said of a non-home rule
Plaintiff also argues that the legislature’s silence “does not raise the inference that home-rule
6
municipalities have authority to tax under the [Video Gaming Act].” However, this section concerns
imposition of a fee, which is necessarily tied to regulation. It does not address taxation.
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municipality. In other words, the default position for a home rule unit is to be able to legislate
local matters, while the default position of a non-home rule unit is to not be able to legislate.
See Palm, 2013 IL 110505, ¶ 32 (“the Illinois Constitution provides home rule units with the
same powers as the sovereign, except when those powers are limited by the General
Assembly”). Thus, the legislature’s silence on the power of home rule units is actually
evidence of the home rule unit’s power, not the other way around, as plaintiff argues.
¶ 48 In the case at bar, regulation of video gaming within the Village’s boundaries pertains to
the local government and affairs of the Village, and plaintiff makes no argument that such
regulation has been specifically preempted by the legislature. Accordingly, the Village had
the power to enact its Ordinance under its home rule authority and the trial court properly
dismissed count III of plaintiff’s amended complaint.
¶ 49 II. License Fee
¶ 50 Plaintiff also argues that the trial court erred in dismissing counts I, II, and IV of its
complaint, all of which challenged the Village’s $1,000 license fee, without addressing the
merits of plaintiff’s challenges. All three of plaintiff’s challenges to the license fee are based
on the premise that the license fee was actually a tax, not a fee. The trial court dismissed
these three counts after determining that plaintiff had not alleged sufficient facts to
demonstrate that the Village’s charge was a tax and not a fee. Plaintiff argues that the merits
of its arguments should have been addressed prior to determining whether the Village’s
charge was a tax or a fee. We agree with the trial court’s conclusion.
¶ 51 Counts I, II, and IV of plaintiff’s complaint all challenge the Village’s $1,000 license fee.
Count I alleges that the license fee is an impermissible occupation tax, prohibited under
article VII, section 6(e), of the Illinois Constitution. Count II alleges that section 21 of the
Riverboat Gambling Act, incorporated into the Video Gaming Act, prohibited the license fee
through its prohibition against license taxes. Count IV of plaintiff’s complaint alleges that the
license fee is an impermissible license for revenue, prohibited under article VII, section 6(e)
of the Illinois Constitution.
¶ 52 Plaintiff first argues that the fact that the license fee is labeled as a “fee” does not exempt
it from analysis as a tax. We agree with plaintiff that it is the substance of the provision
rather than its title that is important. Our supreme court has explained the difference between
a fee and a tax as such: “A fee is defined as a ‘charge fixed by law for services of public
officers’ [citation] and is regarded as compensation for the services rendered [citation]. Thus,
court charges imposed on a litigant are fees if assessed to defray the expenses of his
litigation. On the other hand, a charge having no relation to the services rendered, assessed to
provide general revenue rather than compensation, is a tax. [Citations.]” Crocker v. Finley, 99
Ill. 2d 444, 452 (1984). See also Friedman v. White, 2015 IL App (2d) 140942, ¶ 12 (“The
parties agree that the surcharges at issue must be analyzed as taxes rather than fees because
the charges are for general revenue purposes rather than compensation for services
rendered.”). In the case at bar, regardless of whether the license fee is characterized as a tax
or a fee, the trial court properly dismissed plaintiff’s complaint because plaintiff’s arguments
fail even if we consider it a tax.
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¶ 53 A. Occupation Tax
¶ 54 As noted, count I of plaintiff’s complaint alleges that the license fee is an impermissible
occupation tax. Under the Illinois Constitution, “[a] home rule unit shall have only the power
that the General Assembly may provide by law *** (2) to license for revenue or impose taxes
upon or measured by income or earnings or upon occupations.” Ill. Const. 1970, art. VII,
§ 6(e). “[A]lthough section 6(e) permits taxes upon the sale or use of tangible items, the
taxation of commercial services constitutes an ‘occupation tax’ which is prohibited unless
sanctioned by the legislature.” Communications & Cable of Chicago, Inc. v. Department of
Revenue, 275 Ill. App. 3d 680, 685 (1995) (citing Commercial National Bank v. City of
Chicago, 89 Ill. 2d 45 (1982)). The term “upon occupations” was not defined by the framers
of the Constitution. Paper Supply Co. v. City of Chicago, 57 Ill. 2d 553, 565 (1974).
However, our supreme court has stated that “ ‘an occupation tax has one of two missions:
either to regulate and control a given business or occupation, or to impose a tax for the
privilege of exercising, undertaking or operating a given occupation, trade or profession.’ ”
Town of Cicero v. Fox Valley Trotting Club, Inc., 65 Ill. 2d 10, 23 (1976) (quoting Reif v.
Barrett, 355 Ill. 104, 109 (1933)).
¶ 55 We recently considered a similar constitutional challenge in our decision in Midwest
Gaming, where the plaintiff argued that the Cook County Gambling Machine Tax Ordinance
(Cook County Ordinance No. 12-O-62 (approved Nov. 9, 2012)) imposed an unconstitutional
occupation tax. We determined that we had no need to resolve the question of whether the
tax at issue was in fact an occupation tax, because we found that even if it was, it was
specifically authorized by the legislature though section 5-1009 of the Counties Code (55
ILCS 5/5-1009 (West 2012)). Midwest Gaming, 2015 IL App (1st) 142786, ¶ 78.
¶ 56 As we noted in that case, section 5-1009 of the Counties Code is identical in all material
respects to section 8-11-6a of the Illinois Municipal Code (65 ILCS 5/8-11-6a (West 2012)),
which applies to a municipality such as the Village. See 65 ILCS 5/1-1-4 (West 2012)
(providing that the Municipal Code “shall apply generally to all municipalities” incorporated
under the Municipal Code or its predecessor). Section 8-11-6a provides, in relevant part:
“Home rule municipalities; preemption of certain taxes. Except as provided in
Sections 8-11-1, 8-11-5, 8-11-6, 8-11-6b, 8-11-6c, and 11-74.3-6 on and after
September 1, 1990, no home rule municipality has the authority to impose, pursuant
to its home rule authority, a retailer’s occupation tax, service occupation tax, use tax,
sales tax or other tax on the use, sale or purchase of tangible personal property based
on the gross receipts from such sales or the selling or purchase price of said tangible
personal property. Notwithstanding the foregoing, this Section does not preempt any
home rule imposed tax such as the following: (1) a tax on alcoholic beverages,
whether based on gross receipts, volume sold or any other measurement; (2) a tax
based on the number of units of cigarettes or tobacco products (provided, however,
that a home rule municipality that has not imposed a tax based on the number of units
of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after
that date); (3) a tax, however measured, based on the use of a hotel or motel room or
similar facility; (4) a tax, however measured, on the sale or transfer of real property;
(5) a tax, however measured, on lease receipts; (6) a tax on food prepared for
immediate consumption and on alcoholic beverages sold by a business which
provides for on premise consumption of said food or alcoholic beverages; or (7) other
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taxes not based on the selling or purchase price or gross receipts from the use, sale or
purchase of tangible personal property.” 65 ILCS 5/8-11-6a (West 2012).
¶ 57 In Midwest Gaming, we found that the plain language of subsection (7) of section 5-1009
of the Counties Code permitted the tax. Midwest Gaming, 2015 IL App (1st) 142786, ¶ 82.
Similarly, in the case at bar, subsection (7) of section 8-11-6a specifically provides that it
“does not preempt any home rule imposed tax such as the following: *** (7) other taxes not
based on the selling or purchase price or gross receipts from the use, sale or purchase of
tangible personal property.” 65 ILCS 5/8-11-6a (West 2012). As in Midwest Gaming, there is
no argument in the instant case that the Village’s license fee is based on the selling or
purchase price or gross receipts from the use, sale, or purchase of tangible personal property.
As such, the license fee is permitted under subsection (7).
¶ 58 Plaintiff argues that the Village has forfeited any argument concerning section 8-11-6a,
since it did not raise it before the trial court. However, “the waiver doctrine is a limitation on
the parties, not on the reviewing court.” Jackson v. City of Chicago, 2012 IL App (1st)
111044, ¶ 22. Moreover, we will not fault the Village for failing to raise this argument before
when our Midwest Gaming decision was a case of first impression on this issue.
¶ 59 Plaintiff further argues that our decision in Midwest Gaming was erroneous, because we
“failed to consider” section 21 of the Riverboat Gambling Act, “a more specific statute that
expressly bars occupation taxes.” However, as we found in Midwest Gaming and as we will
discuss below, section 21 does not apply to home rule units such as the Village.
¶ 60 Finally, plaintiff argues that even assuming that section 8-11-6a could be deemed to
provide for occupation taxes, our reading of the statute would render it ambiguous by
“creat[ing] an ambiguity between the straightforward ban on occupation taxes in its first
sentence and the non-preemption provision in subsection (7).” However, plaintiff’s argument
fails to recognize that, while Midwest Gaming was the first case to construe section 5-1009 of
the Counties Code in this way, it was not the first case to construe section 8-11-6a in this
way.
¶ 61 In American Beverage Ass’n v. City of Chicago, 404 Ill. App. 3d 682, 683 (2010), we
considered whether a City of Chicago tax of five cents on each bottle of water purchased at
retail was permissible. The plaintiffs’ first argument was that the bottled water tax was an
occupation tax that violated article VII, section 6(e), of the Illinois Constitution, and the
appellate court found that the tax was not an occupation tax under the constitution. American
Beverage Ass’n, 404 Ill. App. 3d at 687. The plaintiffs’ next argument was that the City was
statutorily prohibited from implementing the bottled water tax, an argument that the appellate
court also found meritless. American Beverage Ass’n, 404 Ill. App. 3d at 688. Finally, the
plaintiffs argued that section 8-11-6a of the Municipal Code (65 ILCS 5/8-11-6a (West
2008)) preempted the bottle water tax. American Beverage Ass’n, 404 Ill. App. 3d at 688.
¶ 62 In construing section 8-11-6a, the court found that it did not need to “delve into an
extensive analysis of the first sentence of section 8-11-6a, because the second sentence
clarifies the General Assembly’s intent.” American Beverage Ass’n, 404 Ill. App. 3d at 690.
The court then set forth the second sentence of section 8-11-6a, specifically focusing on
subsection (7), which provided that section 8-11-6a did not preempt “ ‘other taxes not based
on the selling or purchase price or gross receipts from the use, sale or purchase of tangible
personal property.’ ” (Emphasis omitted.) American Beverage Ass’n, 404 Ill. App. 3d at 690
(quoting 65 ILCS 5/8-11-6a (West 2008)). After setting forth this language, the court found:
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“Thus, exception (7) in the second sentence of section 8-11-6a makes clear that
outside the six preceding exceptions, section 8-11-6a does not preempt taxes that are
not based on the selling or purchase price or gross receipts from the use, sale or
purchase of tangible personal property. Exception (7) excepts the bottled water tax
from preemption, as it is a flat tax of five cents per bottle and is not based on the
selling or purchase price or gross receipts from the use, sale or purchase of tangible
personal property.” American Beverage Ass’n, 404 Ill. App. 3d at 690.
Thus, this section has now been read in the same manner three times, and we do not find
persuasive plaintiff’s attempt to characterize our earlier decision as creating an ambiguity in
the statute. Accordingly, we continue to adhere to our decision in Midwest Gaming that, even
if the Ordinance imposed an occupation tax, it was specifically authorized by the legislature.
Thus, the trial court properly dismissed count I of plaintiff’s complaint.
¶ 63 B. Section 21 of the Riverboat Gambling Act
¶ 64 Count II of plaintiff’s complaint alleges that the Village’s licensing fee violates an
express limitation on the Village’s home rule authority because section 21 of the Riverboat
Gambling Act, which was incorporated into the Video Gaming Act, explicitly preempts
home rule units from imposing a license tax. We do not find this argument persuasive.
¶ 65 Section 21 of the Riverboat Gambling Act is entitled “Limitation on taxation of
licensees” and provides, in full:
“Limitation on taxation of licensees. Licensees shall not be subjected to any excise
tax, license tax, permit tax, privilege tax, occupation tax or excursion tax which is
imposed exclusively upon the licensee by the State or any political subdivision
thereof, except as provided in this Act.” 230 ILCS 10/21 (West 2012).
Plaintiff’s arguments concerning the effects of this section are arguments that we expressly
considered in Midwest Gaming, and our reasoning there is equally applicable here.
¶ 66 The General Assembly “may *** preempt the exercise of a municipality’s home rule
powers by expressly limiting that authority.” Palm, 2013 IL 110505, ¶ 31 (citing
Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281, 287 (2001)). Under article
VII, section 6(h), “[t]he General Assembly may provide specifically by law for the exclusive
exercise by the State of any power or function of a home rule unit other than a taxing power.”
Ill. Const. 1970, art. VII, § 6(h). With respect to the power to tax, “[t]he General Assembly
by a law approved by the vote of three-fifths of the members elected to each house may deny
or limit the power to tax and any other power or function of a home rule unit not exercised or
performed by the State.” Ill. Const. 1970, art. VII, § 6(g). “If the legislature intends to limit
or deny the exercise of home rule powers, the statute must contain an express statement to
that effect.” Palm, 2013 IL 110505, ¶ 31 (citing City of Evanston v. Create, Inc., 85 Ill. 2d
101, 108 (1981)).
¶ 67 Our constitution requires specificity when denying a home rule unit the use of its powers.
Palm, 2013 IL 110505, ¶ 31; see also Village of Bolingbrook v. Citizens Utilities Co. of
Illinois, 158 Ill. 2d 133, 138 (1994) (“In order to meet the requirements of section 6(h),
legislation must contain express language that the area covered by the legislation is to be
exclusively controlled by the State.”); Mulligan v. Dunne, 61 Ill. 2d 544, 550 (1975) (“a
statute which purports to restrict home-rule powers must be specific”); City of Chicago v.
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Roman, 184 Ill. 2d 504, 520 (1998) (no preemption where “the Corrections Code, although
quite comprehensive, does not expressly limit the concurrent exercise of the City’s home rule
power or require such exercise to conform to or be consistent with the Code”). The
legislature has codified this principle through section 7 of the Statute on Statutes (Palm, 2013
IL 110505, ¶ 32), which provides that “[n]o law enacted after January 12, 1977, denies or
limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or
(k) of Section 6 of Article VII of the Illinois Constitution, unless there is specific language
limiting or denying the power or function and the language specifically sets forth in what
manner and to what extent it is a limitation on or denial of the power or function of a home
rule unit.” 5 ILCS 70/7 (West 2012).
¶ 68 Both in Midwest Gaming and in the instant case, there can be no dispute that section 21 of
the Riverboat Gambling Act does not “specifically set[ ] forth in what manner and to what
extent it is a limitation on or denial of the power or function of a home rule unit.” 5 ILCS
70/7 (West 2012). Accordingly, in Midwest Gaming, we found that “[w]hile we agree that the
term ‘any political subdivision’ can be interpreted to include home rule units in certain
contexts, here, the language of the statute, quite simply, is not specific enough for us to reach
that conclusion.” Midwest Gaming, 2015 IL App (1st) 142786, ¶ 71.
¶ 69 In the instant case, plaintiff cites one case, Des Plaines Firemen’s Ass’n v. City of Des
Plaines, 267 Ill. App. 3d 920 (1994), which it argues supports its argument that section 21
preempts the Village’s home rule authority. Plaintiff argues that in that case, “this Court held
that language substantially similar to the language of Section 21 of the [Riverboat Gambling
Act] preempted home-rule taxation authority.” We do not agree with plaintiff’s interpretation
of that case. In Des Plaines, the court considered section 415 of the Illinois Insurance Code
(215 ILCS 5/415 (West 1992)). However, in doing so, the court first set forth several other
provisions of the Insurance Code. The court first noted:
“In its declaration of public policy underlying the Illinois Insurance Code, the
General Assembly stated:
‘[P]ursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Illinois
Constitution of 1970, *** any power or function set forth in this Act to be
exercised by the State is an exclusive State power or function. Such power or
function shall not be exercised concurrently, either directly or indirectly, by any
unit of local government, including home rule units, except as otherwise provided
in this Act. Provided further that the fees, charges and taxes provided for in this
Act shall, as provided for in Section 415 of this Act, be in lieu of all license fees
or privilege or occupation taxes or other fees levied or assessed by any home rule
unit and said Section 415 of this Act is declared to be a denial and limitation of
the powers of home rule units pursuant to paragraph (g) of Section 6 of Article
VII of the Illinois Constitution of 1970.’ ” Des Plaines, 267 Ill. App. 3d at 925
(quoting 215 ILCS 5/2.1 (West 1992)).
The court then set forth the language of section 415 of the Insurance Code:
“ ‘The fees, charges and taxes provided for by this Article shall be in lieu of all
license fees or privilege or occupation taxes or other fees levied or assessed by any
municipality, county or other political subdivision of this State, and no municipality,
county or other political subdivision of this State shall impose any license fee or
occupation tax or fee upon any domestic, foreign or alien company, or upon any of its
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agents, for the privilege of doing an insurance business therein, except the tax
authorized by Division 10 of Article 11 of the Illinois Municipal Code ***.’ ”
Des Plaines, 267 Ill. App. 3d at 926 (quoting 215 ILCS 5/415 (West 1992)).
The court determined that the language of section 415 was sufficient to deny the power of
home rule units to tax “because the language of section 415 of the Illinois Insurance Code is
quite explicit about both the denial and its extent.” Des Plaines, 267 Ill. App. 3d at 926.
¶ 70 Plaintiff’s argument concerning Des Plaines does not address the important fact that the
legislature expressly provided in the earlier section that the limitations of section 415 of the
Insurance Code would apply to home rule units. Such language is nowhere to be found in the
Riverboat Gambling Act or the Video Gaming Act. Accordingly, we continue to adhere to
our conclusion in Midwest Gaming that the language of section 21 of the Riverboat Gambling
Act is not specific enough to restrict a home rule unit’s authority to tax. Thus, the trial court
properly dismissed count II of plaintiff’s complaint.
¶ 71 C. License for Revenue
¶ 72 Finally, count IV of plaintiff’s complaint alleges that the Village’s license fee was an
unconstitutional license for revenue. As we noted in Midwest Gaming, the Illinois
Constitution provides that “[a] home rule unit shall have only the power that the General
Assembly may provide by law *** (2) to license for revenue or impose taxes upon or
measured by income or earnings or upon occupations.” Ill. Const. 1970, art. VII, § 6(e). Our
supreme court has explained that “ ‘[t]he phrase “to license for revenue” describes those
situations in which a governmental unit that did not have the power to tax attempted to raise
revenue by the exercise of its police power.’ ” Paper Supply Co. v. City of Chicago, 57 Ill. 2d
553, 576 (1974) (quoting Rozner v. Korshak, 55 Ill. 2d 430, 433 (1973)); see also Forsberg v.
City of Chicago, 151 Ill. App. 3d 354, 365 (1986).
¶ 73 Plaintiff argues that the Village’s license fee was an impermissible “license for revenue”
because the Village’s power to tax was inapplicable since the license fee (1) did not pertain
to the Village’s government and affairs, (2) was preempted by section 21 of the Riverboat
Gambling Act, and (3) was an impermissible occupation tax. However, we have considered
all of these arguments above and found them to be nonpersuasive. Thus, the license fee
would, at most, be a tax that the Village was authorized to impose. Accordingly, the trial
court properly dismissed count IV of plaintiff’s complaint.
¶ 74 CONCLUSION
¶ 75 For the reasons set forth above, the trial court did not err in dismissing plaintiff’s
amended complaint. Count III of the amended complaint was properly dismissed because the
Village had the home rule authority to enact its Ordinance regulating video gaming within its
boundaries. Counts I, II, and IV were properly dismissed because, even if the license fee was
a tax and not a fee, the tax was not (1) an impermissible occupation tax, (2) preempted by
section 21 of the Riverboat Gambling Act, or (3) an impermissible license for revenue.
¶ 76 Affirmed.
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