Two Kats, Inc. v. Village of Chicago Ridge

497 N.E.2d 1314, 147 Ill. App. 3d 440, 101 Ill. Dec. 1, 1986 Ill. App. LEXIS 2795
CourtAppellate Court of Illinois
DecidedSeptember 12, 1986
Docket86-1087
StatusPublished
Cited by6 cases

This text of 497 N.E.2d 1314 (Two Kats, Inc. v. Village of Chicago Ridge) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Two Kats, Inc. v. Village of Chicago Ridge, 497 N.E.2d 1314, 147 Ill. App. 3d 440, 101 Ill. Dec. 1, 1986 Ill. App. LEXIS 2795 (Ill. Ct. App. 1986).

Opinion

PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an interlocutory appeal by plaintiffs, who are tavern owners, from an order denying their motion for a temporary restraining order to prevent defendants from enforcing an ordinance which modifies the hours during which liquor licensees may operate their businesses. The ordinance in question became effective on May 1, 1986, the day after the expiration of the previous licenses issued to plaintiffs permitting them to operate until 4 a.m., and requires licensees to close at 2 a.m. Plaintiffs’ motion for a temporary restraining order was denied, and this appeal followed. We have granted a stay of enforcement of the ordinance pending appeal.

Plaintiffs claim that the ordinance unlawfully deprives them of constitutionally protected property rights and that the ordinance violates the Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 93.9 et seq.), because it is not reasonably necessary to enhance the public good. Asserting that they have made substantial expenditures in reliance on the continued availability of 4 a.m. licenses, plaintiffs argue that they will suffer financial hardship if they are not allowed to operate their taverns between 2 a.m. and 4 a.m.

Opinion

To be entitled to temporary injunctive relief, plaintiffs must establish that they possess a clearly ascertained right which needs protection; that they will suffer irreparable harm without the protection of an injunction; that they have no adequate remedy at law and that they are likely to be successful on the merits of their action (Cross Woods Products v. Suter (1981), 97 Ill. App. 3d 282, 284, 422 N.E.2d 953). The denial of a temporary restraining order is a matter within the sound discretion of the trial court, and its decision will not be upset on appeal without a finding of an abuse of that discretion. (Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 147, 427 N.E.2d 1039.) In our judgment, plaintiffs have not shown any abuse of discretion by the trial court as we believe they have failed to establish either that they have a clearly ascertained right which needs protection or that they are likely to be successful on the merits of their action.

Plaintiffs acknowledge that under Illinois law a liquor license is not a property right but a privilege. (Ill. Rev. Stat. 1985, ch. 43, par. 119.) As such, liquor licenses are not subject to the protection of due process under the constitution. (Malito v. Marcin (1973), 14 Ill. App. 3d 658, 662, 303 N.E.2d 262, appeal dismissed for want of a substantial federal question (1974), 417 U.S. 963, 41 L. Ed. 2d 1135, 94 S. Ct. 3165; Huguley v. Marcin (1976), 39 Ill. App. 3d 230, 232, 349 N.E.2d 564; see also Great Atlantic & Pacific Tea Co. v. Mayor & Commissioners of Danville (1937), 367 Ill. 310, 317, 11 N.E.2d 388. Cf. Reed v. Village of Shorewood (7th Cir. 1983), 704 F.2d 943, 948-49.) Plaintiffs maintain, however, that the ordinance represents an arbitrary and unreasonable use of the police power in that it will impair their right to make a living and to own property.

In the exercise of its police power, the legislature may enact laws regulating anything harmful to the public welfare, even though such regulation may interfere with the liberty or property of an individual (People v. Warren (1957), 11 Ill. 2d 420, 424-25, 143 N.E.2d 28), and it is well settled that the State may delegate to municipalities its power to license, regulate or prohibit traffic in intoxicating liquors. Maywood-Proviso State Bank v. City of Oakbrook Terrace (1966), 67 Ill. App. 2d 280, 286, 214 N.E.2d 582.

The Liquor Control Act (Ill. Rev. Stat. 1985, ch. 43, par. 93.9 et seq.) gives the village of Chicago Ridge the authority to regulate tavern hours. The Act provides that in every city, village or incorporated town, the city council or president and board of trustees “shall have the power *** to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor *** and to establish such further regulations and restrictions upon the issuance and operations under local licenses not inconsistent with law as the public good and convenience may require.” (Ill. Rev. Stat. 1985, ch. 43, par. 110.) The Act further provides that a municipality may “restrict the permissible hours for the sale of alcoholic liquors under such licenses in its political subdivision as the public good and convenience may require.” (Ill. Rev. Stat. 1985, ch. 43, par. 129.) Therefore, under the laws of the State, Chicago Ridge was authorized to pass the ordinance. Illinois Liquor Control Com. v. City of Joliet (1975), 26 Ill. App. 3d 27, 30, 324 N.E.2d 453; Liquor Control Com. v. City of Calumet City (1975), 28 Ill. App. 3d 279, 283, 328 N.E.2d 153.

A municipal ordinance, passed pursuant to a legislative grant of power, is presumed to be valid. (City of Decatur v. Chasteen (1960), 19 Ill. 2d 204, 210, 166 N.E.2d 29.) The fact that an ordinance may impose burdens or restrictions on the use of property which would not have existed without the enactment of the ordinance, is not determinative of its validity. (19 Ill. 2d 204, 210-11, 166 N.E.2d 29; see also Pence v. Village of Rantoul (1973), 12 Ill. App. 3d 446, 450, 298 N.E.2d 775.) The tavern owners claim that the ordinance here deprives them of property rights in that the shorter hours will reduce the value of their investments in their businesses, and will result in a reduction of revenues.

Although a licensee may renew his license at the expiration thereof, the renewal privilege may not be construed as a vested right. (Ill. Rev. Stat. 1985, ch. 43, par. 119; Nechi v. Daley (1963), 40 Ill. App. 2d 326, 334, 188 N.E.2d 243.) The municipality may decrease the number of licenses to be issued whether a renewal or an original application for a liquor license is involved. (Oak Park National Bank v. Village of Broadview (1963), 27 Ill. 2d 151, 188 N.E.2d 679

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Bluebook (online)
497 N.E.2d 1314, 147 Ill. App. 3d 440, 101 Ill. Dec. 1, 1986 Ill. App. LEXIS 2795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/two-kats-inc-v-village-of-chicago-ridge-illappct-1986.