Accel Entertainment Gaming, LLC v. Village of Elmwood Park ( 2016 )


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    Appellate Court                          Date: 2016.02.18
    15:43:03 -06'00'
    Accel Entertainment Gaming, LLC v. Village of Elmwood Park,
    
    2015 IL App (1st) 143822
    Appellate 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.
    -2-
    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.
    -3-
    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.
    -4-
    ¶ 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.
    -5-
    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
    -6-
    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.
    -7-
    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
    -8-
    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.
    -9-
    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
    - 10 -
    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.
    - 11 -
    ¶ 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.
    - 12 -
    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.
    - 13 -
    ¶ 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
    - 14 -
    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:
    - 15 -
    “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.
    - 16 -
    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
    - 17 -
    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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