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Illinois Municipal Law – Police Power


Police Power

I. {7.1} Scope of Chapter

II. {7.2} Municipal Police Power in General

III. Types of Police Power

A. {7.3} Statutory Grants of Power
B. {7.4} Powers Necessarily Implied from Those Expressly Granted
C. {7.5} Special Power Concerning Health Regulation
D. {7.6} Power To Prohibit
E. Power over State Agencies and Other Municipal Corporations and Units of LocalGovernment Within Municipalities’Territorial Jurisdictions
1. {7.7} The State
2. {7.8} Other Units of Government and Regional Agencies
3. {7.9} School District Building Projects
F. {7.10} Power Concerning Intergovernmental Cooperation

IV. {7.11} Municipal Police Power Exercised Concurrently or in Conflict with State Power

A. {7.12} Environmental Regulation
B. {7.13} Penalties for Ordinance Violation

V. {7.14} Territory Encompassed by Power

VI. {7.15} Delegating or Relinquishing Police Power

VII. {7.16} Nuisances

VIII. {7.17} Police Power as It Relates to Permits and Licenses

IX. {7.18} Method of Exercising Police Power

X. {7.19} Constitutional Limitation of Exercising Police Power

XI. {7.20} Reasonableness of Ordinances

A. {7.21} Reasonableness Required When Grant of Power To Regulate Is in General Terms
B. {7.22} Tests of Reasonableness

XII. {7.23} Discrimination

XIII. {7.24} Use of Police Power To Solve Contemporary Problems

A. {7.25} Massage Parlors
B. {7.26} Tattoo Parlors ‚” AIDS and Hepatitis B
C. {7.27} The Use of Search Warrants
D. {7.28} Parental Responsibility for Juvenile Vandalism
E. {7.29} Video Games and Arcades
F. {7.30} Disorderly Conduct
G. {7.31} Juvenile Street Gangs ‚” Curfews


This chapter covers the police power of an
Illinois non-home rule municipality. It describes,
among other things, the source of police power,
limitations on the power, territory affected by the
power granted, delegation of the power, and use of
police power to solve contemporary problems.


The state possesses the entire police power,
defined as the attribute of sovereignty in every
government by which that government may protect
lives, health, morals, and general welfare.
Chicago National League Ball Club, Inc. v.
Thompson, 108 Ill.2d 357, 483 N.E.2d 1245, 91 Ill.Dec.
610 (1985); Sherman-Reynolds, Inc. v. Mahin, 47
Ill.2d 323, 265 N.E.2d 640 (1970).

When discussing the police power of an Illinois
non-home rule municipality, however, the
definition of the state’s police power does not
apply. An Illinois non-home rule municipality has only
that police power given to it by the state through
the General Assembly and possesses, therefore, no
inherent power. Pesticide Public Policy Foundation
v. Village of Wauconda, 117 Ill.2d 107, 510
N.E.2d 858, 109 Ill.Dec. 790 (1987); People ex
rel. Skokie Town House Builders, Inc. v. Village of
Morton Grove, 16 Ill.2d 183, 157 N.E.2d 33 (1959);
Trust Company of Chicago v. City of Chicago,
408 Ill. 91, 96 N.E.2d 499 (1951); Inland Land
Appreciation Fund, L.P. v. County of Kane, 344
Ill.App.3d 720, 800 N.E.2d 1232, 279 Ill.Dec. 649
(2d Dist. 2003); Village of Forrest v. Norfolk &
Western Ry., 146 Ill.App.3d 20, 496 N.E.2d 257, 99
Ill.Dec. 682 (4th Dist. 1986).


A. {7.3} Statutory Grants of Power

Since a municipality does not have the entire
police power of the state but only what is
specifically delegated to it, it is imperative
that the practitioner carefully examine the statutes to
determine whether a particular power exists. Most
police-type powers are listed in Article 11 of the
Illinois Municipal Code (Code), 65 ILCS 5/1-1-1,
et seq. Other powers may be found in other
portions of the Code and in other statutes. A
careful examination of the index to the Illinois Compiled
Statutes will help locate powers in the Code and
other statutes.

Specific types of common police powers granted by
statute and found in the Code include the
powers to

1. establish a system of administrative
adjudication for violations of ordinances other than
building code and moving motor vehicle violations
(Code ‚§1-2.2-10);

2. declare a curfew (Code ‚§11-1-5);

3. grant emergency powers to the mayor (Code
4. conduct juvenile delinquency prevention
programs (Code ‚§11-1-8);

5. suppress bawdy and disorderly houses, houses of
ill fame, gambling houses, lotteries, and the
sale of obscene materials (Code ‚§11-5-1);

6. prevent or suppress riots, disturbances,
noises, trespasses, and disorderly assemblies in public
or private places (Code ‚§11-5-2);

7. prevent intoxication, fighting, quarreling, dog
fights, cock fights, and all other disorderly
conduct (Code ‚§11-5-3);

8. prevent vagrancy, begging, and prostitution
(Code ‚§11-5-4);

9. prohibit the parking of motor vehicles on
private property without consent of the property’s
owner (Code ‚§11-5-5);

10. prohibit cruelty to animals (Code ‚§11-5-6);

11. regulate mobile homes, house trailers, and
similar portable dwelling structures (Code ‚§11-5-

12. provide youth and senior funding and services
(Code ‚§‚§11-5.2-2 through 11-5.2-4);

13. provide fire departments (Code ‚§11-6-1) and
regulate for fire safety (Code ‚§‚§11-8-1 through
11-8-6; see Code ‚§10-3-3.1, which prohibits
assigning police officers and firefighters the
others’ duties);

14. regulate conditions causing and the abatement
of air pollution (Code ‚§11-19.1-11; see 410
ILCS 80/11 concerning municipal authority
regarding smoking regulations);

15. regulate and establish markets and market
houses (Code ‚§11-20-1);

16. regulate the sale of all beverages and food
for human consumption (Code ‚§11-20-2; see also
410 ILCS 635/4 and 635/19 for state minimum
standards and preemption regarding Grade A
milk and milk products);

17. regulate and inspect all food for human
consumption and tobacco (Code ‚§11-20-3; see also
410 ILCS 635/4 and 635/19 for state minimum
standards and preemption regarding Grade A
milk and milk products);

18. provide for the cleansing and purification of
water and, when necessary to prevent or abate a
nuisance, provide for the draining and filling of
ponds on private property (Code ‚§11-20-4);

19. do acts and make regulations that are
necessary or expedient for promotion of health and
suppression of disease (Code ‚§11-20-5);

20. provide for the destruction of weeds on
private property at the expense of the owners of the
premises and impose a lien for the cost of removal
(Code ‚§‚§11-20-6, 11-20-7);
21. provide for the extermination of rats and
impose a lien on the owners of private property for
the cost of extermination (Code ‚§11-20-8);

22. regulate and prohibit the running at large of
horses, asses, mules, cattle, swine, sheep, goats,
geese, and dogs (Code ‚§11-20-9);

23. regulate the construction, repair, and use of
cisterns, cesspools, hydrants, pumps, culverts,
drains, and sewers and the covering or sealing of
wells and cisterns (Code ‚§11-20-10);

24. provide for the removal of garbage and debris
from private property and impose a lien for the
cost of removal (Code ‚§11-20-13) (see Code
‚§9-2-4.5 regarding a special assessment for
collection of debt);

25. regulate fences and party walls (Code

26. regulate the construction of buildings in
areas that flood (Code ‚§11-30-2);

27. regulate the use and construction of rooming
houses (Code ‚§11-30-3);

28. regulate the strength and manner of
construction of buildings and fire escapes (Code ‚§11-30-
4; see 20 ILCS 3125/20 and 3125/45 for state
minimum standards and preemption
concerning energy-efficient commercial building
standards and Code ‚§1-2-3.1 for the
requirement that 30 days before adopting or
amending a building code the municipality must
provide an identification of the code, by title
and edition, or the amendment to the Illinois
Building Commission for identification on the

29. regulate the grading and draining of lots and
construction of paving for driveways and
parking areas, terraces, and retaining walls (Code

30. regulate private swimming pools (Code
‚§11-30-9); see 210 ILCS 125/1, et seq., for
preemption concerning certain private pools;

31. demolish and repair unsafe buildings and
impose a lien for the cost (Code ‚§‚§11-31-1 through

32. provide for building code hearings and
procedures (Code ‚§‚§11-31.1-1 through 11-31.1-14);

33. regulate the installation and maintenance of
heating, air-conditioning, and refrigeration
systems and contractors (Code ‚§11-32-1);

34. provide for registration of electrical
contractors (Code ‚§11-33-1);

35. regulate steam boilers and elevators and the
licensing of persons having charge of them
(Code ‚§11-34-1);

36. regulate electrical equipment installation,
use, and alteration (Code ‚§11-37-1);

37. regulate motor vehicles on city streets (Code
‚§11-40-1; see 625 ILCS 5/11-207, 5/11-208,
5/11-208.1, 5/11-209, and 5/11-209.1 for

38. declare junk cars to be nuisances (Code

39. regulate certain enumerated businesses and
activities (Code ‚§‚§11-42-1 through 11-42-14);

40. establish and regulate cemeteries (Code

41. regulate the weighing and measuring of certain
enumerated items (Code ‚§11-53-1);

42. provide for inspection and sealing of weights
and measurements (Code ‚§11-53-2);

43. regulate athletic contests (Code ‚§11-54-1);

44. grant permits for carnivals (Code ‚§11-54.1-1);

45. define, prevent, and abate nuisances (Code

46. regulate streets and public ways (Code
‚§11-80-2; see 625 ILCS 5/11-207, 5/11-208, 5/11-
208.1, and 5/11-209 as to preemption);

47. license and regulate street advertising and
adult entertainment advertising (Code ‚§11-80-15);

48. regulate boats and harbors (Code ‚§‚§11-92-3 and
11-104-1 through 11-104-3); and

49. regulate conditions causing and the abatement
of water pollution (Code ‚§‚§11-125-2, 11-125-
3, 11-129-1).

Code ‚§11-1-1 provides that ‚“{t}he corporate
authorities of each municipality may pass and
enforce all necessary police ordinances.‚ While it
may appear that this section of the Code gives the
municipality broad police powers, the cases have
repeatedly held that it gives municipalities no
additional powers and cannot be invoked as an
independent source of power. Code ‚§11-1-1 confers
only the power to pass and enforce police
ordinances necessary to carry out the powers delegated
under other provisions of the statutes. Chicago
Real Estate Board v. City of Chicago, 36 Ill.2d 530,
224 N.E.2d 793 (1967); Ambassador East, Inc. v.
City of Chicago, 399 Ill. 359, 77 N.E.2d 803
(1948); City of Kewanee v. Swanson, 144 Ill.App.3d
1, 493 N.E.2d 1213, 98 Ill.Dec. 192 (3d Dist.
1986). A possible exception to this otherwise
universal rule may be Sunday closing ordinances.
Humphrey Chevrolet, Inc. v. City of Evanston, 7
Ill.2d 402, 131 N.E.2d 70 (1955); Opyt’s Amoco,
Inc. v. Village of South Holland, 149 Ill.2d 265,
595 N.E.2d 1060, 172 Ill.Dec. 390 (1992). One
might argue that Sunday closing ordinances are
really part of health powers or are related to public
peace as intimated in Opyt’s Amoco.

It should be remembered that an ordinance’s
validity does not necessarily depend on a single
clause or section of a statute but may derive its
validity from several different statutory sections.
Village of Algonquin v. Tiedel, 345 Ill.App.3d
229, 802 N.E.2d 418, 280 Ill.Dec. 493 (2d Dist. 2003);
Mister Softee of Illinois, Inc. v. City of
Chicago, 42 Ill.App.2d 414, 192 N.E.2d 424 (1st Dist. 1963).
In Alarm Detection Systems, Inc. v. Village of
Hinsdale, 326 Ill.App.3d 372, 761 N.E.2d 782, 260
Ill.Dec. 599 (2d Dist. 2001), the court looked to
Code ‚§‚§11-8-2 and 11-30-4 to determine that the
village had authority to enact its own code that
required fire alarm systems in commercial buildings
to be connected to the village’s fire alarm board.
However, it still is necessary that the various
sections relied on contain a sufficient grant of
power. In Two Hundred Nine Lake Shore Drive
Building Corp. v. City of Chicago, 3 Ill.App.3d
46, 278 N.E.2d 216 (1st Dist. 1971), the court held
that the power to abate nuisances or to regulate
food, water, and disease control could not be read
together so as to allow the City of Chicago to
regulate private owners who engage in unfair housing
practices. Accord City of Chicago v. Santor, 30
Ill.App.3d 792, 334 N.E.2d 176 (1st Dist. 1975)
(power to regulate use and construction of garages
does not allow regulation of private garages).

B. {7.4} Powers Necessarily Implied from Those
Expressly Granted

Powers that are said to be ‚“implied‚ are strictly
those powers that are necessarily implied or
incident from those specifically granted. As
stated in ‚§7.2 above, a municipality possesses no
inherent power. People ex rel. Skokie Town House
Builders, Inc. v. Village of Morton Grove, 16
Ill.2d 183, 157 N.E.2d 33, 36 (1959). Accord
Exchange National Bank of Chicago v. Village of
Skokie, 86 Ill.App.2d 12, 229 N.E.2d 552 (1st
Dist. 1967). Examples of powers implied from those
specifically granted are the necessarily implied
power to impose reasonable conditions for the use of
streets from the express grant of power to
regulate streets, such as an ordinance establishing parking
meters to promote the orderly flow of traffic
(City of Bloomington v. Wirrick, 381 Ill. 347, 45 N.E.2d
852 (1942), cert. denied, 63 S.Ct. 1175 (1943))
and the implied authority to procure and execute
search warrants as part of the express grant of
power concerning zoning and administrative
enforcement of such ordinances (People ex rel.
Foreman v. Sojourners Motorcycle Club, Ltd., 134
Ill.App.3d 448, 480 N.E.2d 840, 89 Ill.Dec. 358
(2d Dist. 1985)). But see Op. Att’y Gen. (Ill.) No.
94-024, concluding that non-home rule
municipalities have no implied powers to require building
code inspections and fees in connection with
transfers of ownership of real estate since they have no
express authority to limit alienability of
property or to tax real estate transfers.

Examples of powers necessarily implied from those
expressly granted are the powers to guard
against fire and to regulate the storage of
combustible materials resulting in the necessarily implied
powers of licensing and regulation of

1. dry cleaners (Klever Shampay Karpet Kleaners,
Inc. v. City of Chicago, 323 Ill. 368, 154
N.E. 131 (1926));

2. manufacturers of cosmetics (Chicago Cosmetic
Co. v. City of Chicago, 374 Ill. 384, 29
N.E.2d 495 (1940));

3. gas stations operators (Fligelman v. City of
Chicago, 348 Ill. 294, 180 N.E. 797 (1932)); and

4. installers of heating plants (City of Chicago
v. Wonder Heating & Ventilating Systems, Inc.,
345 Ill. 496, 178 N.E. 192 (1931)).

Regarding necessarily implied power to license in
order to regulate, it has been held in Father Basil’s
Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65
N.E.2d 805, 812 (1946):

If the regulation of certain conditions affecting
the public safety has been delegated to a
city and the efficient regulation of such
conditions requires the conduct of a business
peculiarly affected by them to be controlled by
the limitations of a licensing ordinance,
the power of the city to adopt such an ordinance
will be necessarily implied.

C. {7.5} Special Power Concerning Health

The state has granted to municipalities broad
power to regulate in the area of health. See Code

The courts appear to construe health ordinances
more liberally than other police ordinances.
Thus, communicable or epidemic diseases need not
be involved. Schuringa v. City of Chicago, 30
Ill.2d 504, 198 N.E.2d 326 (1964) (fluoridation of
water supply within city’s police power); Biffer v.
City of Chicago, 278 Ill. 562, 116 N.E. 182
(1917). In Greyhound Lines, Inc. v. City of Chicago, 24
Ill.App.3d 718, 321 N.E.2d 293 (1st Dist. 1974),
the court upheld a Chicago ordinance banning pay
toilets in municipal buildings or buildings open
to accommodate the public. The court reasoned that
the city was regulating plumbing and waste
disposal systems, which is implicit in its express power to
protect public health.

Contrary to the general rule stated in ‚§‚§7.2 and
7.4 above, it appears that in the area of a
municipality’s power over health, the courts have
found inherent power in a municipality. It has been
stated that the preservation of the public health
is indispensable to the existence of municipal
corporations, and the policy of the law is to
favor such legislation since caring for the health and
safety of the community is the most important of
the police powers. Village of Spillertown v. Prewitt,
21 Ill.2d 228, 171 N.E.2d 582 (1961). See the home
rule cases Village of Glenview v. Ramaker, 282
Ill.App.3d 368, 668 N.E.2d 106, 217 Ill.Dec. 921
(1st Dist. 1996), and People ex rel. Slutzkin v.
Village of Lincolnwood, 346 Ill.App. 469, 105
N.E.2d 331 (1st Dist. 1952) (abst.).

It is not necessary for a municipal government to
wait until the public health is actually put in
jeopardy. To protect the public health and promote
public safety, it may adopt the most conservative
course available. City of Nokomis v. Sullivan, 14
Ill.2d 417, 153 N.E.2d 48 (1958).

The use of estoppel as a defense has been denied
when it would defeat the operation of a policy
adopted to protect the public’s right to a healthy
environment. Dean Foods Co. v. Illinois Pollution
Control Board, 143 Ill.App.3d 322, 492 N.E.2d
1344, 97 Ill.Dec. 471 (2d Dist. 1986).

The state’s preemption, such as in the field of
environmental protection, however, may limit the
municipality’s power in regulating health as
described in ‚§‚§7.11 ‚”œ 7.13 below.

D. {7.6} Power To Prohibit

The power to prohibit a business or activity must
be expressly granted to a municipality or
necessarily implied from those powers expressly
granted. Illinois Cigarette Service Co. v. City of
Chicago, 89 F.2d 610 (7th Cir. 1937); Greyhound
Lines, Inc. v. City of Chicago, 24 Ill.App.3d 718,
321 N.E.2d 293 (1st Dist. 1974); Village of Fox
River Grove v. Aluminum Coil Anodizing Corp., 114
Ill.App.2d 226, 252 N.E.2d 225 (2d Dist. 1969).
Thus, the power to regulate does not carry with it,
inherently, the power to prohibit. City of Sparta
v. Brenning, 45 Ill.2d 359, 259 N.E.2d 30 (1970);
City of Chicago v. Chicago & Oak Park Elevated
R.R., 250 Ill. 486, 95 N.E. 456 (1911).

The power to restrict or prohibit a business or
activity also must be exercised in a reasonable
manner. Lou Owen, Inc. v. Village of Schaumburg,
279 Ill.App.3d 976, 665 N.E.2d 456, 216 Ill.Dec.
396 (1st Dist. 1996). In that case, the Village of
Schaumburg (a home rule unit), responding to a
shooting death outside a commercial teenage dance
club, enacted an ordinance prohibiting all teenage
dances held or conducted by for-profit
organizations but permitting teenage dances held by certain
not-for-profit organizations on premises having no
liquor licenses or at hotels with ballrooms separate
from areas where liquor was served. The appellate
court upheld the trial court’s ruling that the
ordinance was unconstitutional, concluding that
there was no rational basis for either the distinction
between hotels and other facilities or the
distinction between commercial and noncommercial
sponsorship in light of the evidence presented.
See also Illinois Sporting Goods Ass’n v. County of
Cook, 845 F.Supp. 582 (N.D.Ill. 1994), granting a
preliminary injunction against enforcement of an
ordinance prohibiting gun shops located within
one-half mile of a park or school but unreasonably
exempting gun dealers who owned their own shops
and retailers whose primary business was not gun
sales. (The case against the amended ordinance was
dismissed on other grounds in Illinois Sporting
Goods Ass’n v. County of Cook, 884 F.Supp. 275
(N.D.Ill. 1995).) See ‚§‚§7.20 ‚”œ 7.22 below for a
discussion of the requirement of reasonableness of

E. Power over State Agencies and Other Municipal
Corporations and Units of Local
Government Within Municipalities’ Territorial

1. {7.7} The State

A municipal corporation generally has no power
over state agencies or state institutions located
within its territorial jurisdiction. City of
Joliet v. Snyder, 317 Ill.App.3d 940, 741 N.E.2d 1051, 251
Ill.Dec. 873 (3d Dist. 2000). For example, in
Board of Trustees of University of Illinois v. City of
Chicago, 317 Ill.App.3d 569, 740 N.E.2d 515, 251
Ill.Dec. 434 (1st Dist. 2000), the court found that
the City of Chicago could not impose its building
and safety ordinances on the state’s university.

2. {7.8} Other Units of Government and Regional

Municipal corporations or units of local
government within the boundaries of municipalities have
been found susceptible to the power of the
municipalities. County of Cook v. City of Chicago, 311 Ill.
234, 142 N.E. 512 (1924) (buildings belonging to
county and located within city are subject to city’s
power to make them safe); Board of Education of
Community Consolidated School District No. 15,
McHenry & Lake Counties v. City of McHenry, 71
Ill.App.3d 904, 390 N.E.2d 551, 28 Ill.Dec. 384
(2d Dist. 1979) (school district liable for city
motor vehicle license fee pursuant to city’s power to

In Village of Swansea v. County of St. Clair, 45
Ill.App.3d 184, 359 N.E.2d 866, 4 Ill.Dec. 33
(5th Dist. 1977), the court found that the
municipality’s zoning ordinance could not be enforced
against the county in carrying out a statutory
mandate to build a dog pound but also found that the
county had to abide by the municipality’s
building, sewer, electrical, and plumbing ordinances. A
county public building commission, which pursuant
to ‚§14 of the Public Building Commission Act,
50 ILCS 20/1, et seq., is a separate municipal
corporation, is not exempt from building permit fees
and regulations imposed by a host municipality
absent specific language exempting the agency from
complying with the ordinances of its host
municipality or evidence that the regulation would frustrate
the agency’s statutory purpose. Lake County Public
Building Commission v. City of Waukegan, 273
Ill.App.3d 15, 652 N.E.2d 370, 209 Ill.Dec. 830
(2d Dist. 1995). In City of Waukegan v. Illinois
Environmental Protection Agency, 339 Ill.App.3d
963, 791 N.E.2d 635, 274 Ill.Dec. 543 (2d Dist.
2003), the appellate court discussed whether the
city’s moratorium and building regulation frustrated
the purpose of a sanitary district but left the
issue for the trial court to consider on remand. See also
Op. Att’y Gen. (Ill.) No. 86-004 (concluding that
Peoria County’s Health Department could impose
health regulations on school district’s
cafeterias); County of Winnebago v. Davis, 156 Ill.App.3d 535,
509 N.E.2d 143, 108 Ill.Dec. 717 (2d Dist. 1987).

In County of Lake v. Fox Waterway Agency, 326
Ill.App.3d 100, 759 N.E.2d 970, 259 Ill.Dec.
909 (2d Dist. 2001), the court focused on the
nature of the power of the county versus a regional
agency and determined that a specific power in one
would trump the general power in the other. The
Fox Waterway Agency had a specific grant of
authority under the Fox Waterway Agency Act, 615
ILCS 90/1, et seq., to improve and maintain the
Fox River waterway in a two-county area. The Lake
County Stormwater Management Commission was given
power to develop a management plan under
the county code and regulate structures and
buildings within the affected area. The Commission,
pursuant to an agreement with the Illinois
Department of Transportation, had authority to grant
permits for construction within the floodway. The
Agency was found to be exempt from the
Commission’s permit requirement since the Agency
had a particular or specific power, while the
Commission had a general or less particular power.
Thus the county was found to be either equal
with or subordinate to the regional agency.

In Wilmette Park District v. Village of Wilmette,
112 Ill.2d 6, 490 N.E.2d 1282, 96 Ill.Dec. 77
(1986), the court found that (a) both home rule
and non-home rule municipalities possess zoning
powers and park districts possess the power to
install lights to illuminate athletic fields; (b) no statute
exempts park districts from the zoning ordinances
of their host municipalities; (c) park districts do
not have exclusive authority to operate parks; and
(d) intergovernmental cooperation between
independent units of local government having
competing interests cannot be reduced to a rigid
mathematical formula. The court then concluded
that in the narrow issue presented (whether the park
district was exempt from a zoning ordinance that
did not prohibit the use of the land for park
purposes but required a special use permit for the
use of the lights), the park district had to participate
in the special use process. The court admonished
the litigants that the municipality was required to be

3. {7.9} School District Building Projects

The State Board of Education regulates the
construction of school buildings through its
Health/Life Safety Code for Public Schools, 23
Ill.Admin. Code pt. 23, which is the governing code
for all facilities that house public school
students or are otherwise used for public school purposes
under ‚§2-3.12 of the School Code, 105 ILCS 5/1-1,
et seq. Facilities not used to house public school
students or not used for public school purposes
are governed by separate provisions contained within
the Health/Life Safety Code. Id.

Any agency (such as a municipality) having
jurisdiction beyond the scope of the Health/Life
Safety Code may issue a lawful order to a school
board to effectuate recommendations, and the
school board receiving the order must certify to
the regional superintendent (who enforces the
Health/Life Safety Code) and the State
Superintendent when it has complied with the order. Id.

Thus, construction of school buildings under the
school code within a municipality is excepted
from the municipality’s building code. Board of
Education, School District 33, DuPage County,
Illinois v. City of West Chicago, 55 Ill.App.2d
401, 205 N.E.2d 63 (2d Dist. 1965). The court in City
of West Chicago reasoned that ‚§2-3.12 of the
School Code provided the method for approving plans
and specifications for schools, while the
legislature gave only a general power to regulate buildings to
municipalities. A municipality may, however,
register with the regional superintendent of schools and
be entitled to receive, within ten days after the
superintendent receives school plans within the
municipality’s jurisdiction and prior to the
bidding process, written notification that the plans have
been received. If the municipality requests a
review, then the school board shall submit a copy of the
plans and specifications with the right of the
municipality to comment on them to the regional
superintendent concerning discrepancies from the
Health/Life Safety Code. 105 ILCS 5/3-14.20.

School buildings that are no longer used for
school purposes have raised issues of whether local
building regulations become applicable. It appears
that as long as a minimal use is for school
purposes, local regulation will not become
applicable. County of Lake v. Board of Education of Lake
Bluff School District No. 65, Lake County, 325
Ill.App.3d 694, 761 N.E.2d 163, 260 Ill.Dec. 319 (2d
Dist. 2001).

F. {7.10} Power Concerning Intergovernmental

Article VII, ‚§10, of the Illinois Constitution
confers broad powers on all municipalities regarding
intergovernmental agreements:

(a) Units of local government and school districts
may contract or otherwise
associate among themselves, with the State, with
other states and their units of local
government and school districts, and with the
United States to obtain or share services
and to exercise, combine, or transfer any power or
function, in any manner not
prohibited by law or by ordinance. Units of local
government and school districts may
contract and otherwise associate with individuals,
associations, and corporations in any
manner not prohibited by law or by ordinance.
Participating units of government may
use their credit, revenues, and other resources to
pay costs and to service debt related
to intergovernmental activities.

(b) Officers and employees of units of local
government and school districts may
participate in intergovernmental activities
authorized by their units of government
without relinquishing their offices or positions.

(c) The State shall encourage intergovernmental
cooperation and use its technical
and financial resources to assist
intergovernmental activities.

The Intergovernmental Cooperation Act, 5 ILCS
220/1, et seq., provides encouragement from the
General Assembly in this area.
Although the above constitutional grant of power
eliminates the requirement that the power to
enter into such agreements be expressly granted by
the legislature or necessarily implied from those
powers expressly granted (County of Wabash v.
Partee, 241 Ill.App.3d 59, 608 N.E.2d 674, 181
Ill.Dec. 601 (5th Dist. 1993); Village of Sherman
v. Village of Williamsville, 106 Ill.App.3d 174, 435
N.E.2d 548, 61 Ill.Dec. 851 (4th Dist. 1982)),
Illinois courts require that the exercised power or
function be otherwise authorized and not
contravene statutory or common law prohibitions (People v.
Claar, 293 Ill.App.3d 211, 687 N.E.2d 557, 227
Ill.Dec. 307 (3d Dist. 1997); Village of Lisle v.
Village of Woodridge, 192 Ill.App.3d 568, 548
N.E.2d 1337, 139 Ill.Dec. 623 (2d Dist. 1989)).

As to the first issue, the unit of government must
possess the power in order to exercise, combine,
or transfer it. So, for example, when a unit of
government did not possess the power to enter into a
boundary line agreement prohibiting annexation by
another municipality, the constitutional provision
did not independently grant such power. Village of
Lisle, supra. See also Connelly v. County of
Clark, 16 Ill.App.3d 947, 307 N.E.2d 128 (4th
Dist. 1973).

As to the second issue, the agreement must be
accomplished in a manner not prohibited by law.
Article VII, ‚§10, of the Illinois Constitution
cannot validate agreements contrary to other
constitutional provisions such as the doctrine of
separation of powers or the ‚“inherent powers‚ of the
court system. Orenic v. Illinois State Labor
Relations Board, 127 Ill.2d 453, 537 N.E.2d 784, 130
Ill.Dec. 455 (1989). A contract that delegates
power to another that is specifically vested in a school
district or county board is invalid. Board of
Education of School District No. 189 v. Cahokia District
Council No. 58 of Brotherhood of Painters & Allied
Trades, 93 Ill.App.3d 376, 417 N.E.2d 151, 48
Ill.Dec. 749 (5th Dist. 1981); E & E Hauling, Inc.
v. Pollution Control Board, 116 Ill.App.3d 586,
451 N.E.2d 555, 71 Ill.Dec. 587 (2d Dist. 1983),
aff’d, 107 Ill.2d 33 (1985). Even if the subject
matter of the agreement is generally permissible,
a material portion that is otherwise unlawful may
frustrate the entire agreement. Thus, an agreement
that provided that for ten years one taxing district
would levy the maximum tax rate allowed by law and
turn substantially all the money over to another
taxing district was unlawful because it violated
budgeting and appropriation requirements and
rendered the agreement void ab initio and not
subject to estoppel. Elk Grove Township Rural Fire
Protection District v. Village of Mount Prospect,
228 Ill.App.3d 228, 592 N.E.2d 549, 170 Ill.Dec.
113 (1st Dist. 1992).

Relying on Article VII, ‚§10, of the Constitution,
the courts have approved

1. self-insurance pooling by public entities so
that they could combine their resources and
know-how to perform more efficiently governmental
operations that they were too small to
conduct individually (Antiporek v. Village of
Hillside, 114 Ill.2d 246, 499 N.E.2d 1307, 102
Ill.Dec. 294 (1986));

2. authority of a city and a county to enter into
an agreement in which they exchanged
jurisdiction of property to enable the county to
complete a county highway, including the
right to proceed with condemnation (Partee,

3. board of education collaboration with a city to
revitalize an airport (Hall v. Board of
Education of City of Chicago, 48 Ill.App.3d 834,
363 N.E.2d 116, 6 Ill.Dec. 587 (1st Dist.
1977)); and

4. two villages entering into an agreement under
which a commission was to be the exclusive
supplier of water to one village and that village
was to be the exclusive supplier of water to
the other village (Village of Sherman, supra).

Finally, Article VII, ‚§10(b), authorizing officers
of local government to participate in cooperative
activities with other units of local government
without relinquishing their offices, may not, however,
contravene the common law
incompatibility-of-offices doctrine. Claar, supra.

Article VII, ‚§10, of the Illinois Constitution,
may not be used to compel units of local
government to enter into intergovernmental
agreements or to compel them to cooperate. Village of
Elmwood Park v. Forest Preserve District of Cook
County, 21 Ill.App.3d 597, 316 N.E.2d 140 (1st
Dist. 1974). If the law imposes a duty on one
party to perform a specific act (such as the duty of the
county treasurer to collect tax), that party may
not argue that it should be able to charge other units of
government a fee for the performance of that duty
under the letter and spirit of Article VII, ‚§10,
concerning cooperation. City of Joliet v.
Bosworth, 64 Ill.2d 516, 356 N.E.2d 543, 1 Ill.Dec. 355

Recently, the Attorney General has opined in a
comprehensive opinion that an agency created by
an intergovernmental agreement among several home
rule and non-home rule municipalities is bound
by the statutory limitations governing its
non-home rule members. The opinion goes on to state that
home rule members cannot authorize the agency to
exercise home rule powers on behalf of other
contracting members if doing so would contravene
statutory limitations applicable to the non-home
rule members. Op. Att’y Gen. (Ill.) No. 05-010.

Interestingly, agreements, for example, affecting
disconnection and annexation of territory from
one or more units of government to another or
others not in compliance with statutory law have been
entered into by units of government without proper
procedures or requisite power. Such an
agreement, which had been in effect for 14 years,
was found on a quo warranto suit not to be void ab
initio, and the suit was successfully defended
based on the statute of limitations, laches, and estoppel.
People ex rel. Northfield Park District v.
Glenview Park District, 222 Ill.App.3d 35, 582 N.E.2d
1272, 164 Ill.Dec. 328 (1st Dist. 1991).


A municipality and the state may exercise police
power on the same subject if the state has given
the power over the subject matter to the
municipality. Concrete Contractors’ Association of Greater
Chicago v. Village of La Grange Park, 14 Ill.2d
65, 150 N.E.2d 783 (1958); Village of Sugar Grove
v. Rich, 347 Ill.App.3d 689, 808 N.E.2d 525, 283
Ill.Dec. 559 (2d Dist. 2004). The municipality’s
power may be different from the state’s power as
long as it is not inconsistent, and hence it may,
under a proper case, impose even higher standards
than the state. Treadway v. City of Rockford, 24
Ill.2d 488, 182 N.E.2d 219 (1962). If the
municipal exercise of a given power is inconsistent or in
conflict with a state statute, the state statute
prevails. Arrington v. City of Chicago, 45 Ill.2d 316, 259
N.E.2d 22 (1970); Village of Wauconda v. Hutton,
291 Ill.App.3d 1058, 684 N.E.2d 1364, 226
Ill.Dec. 161 (2d Dist. 1997); Village of Oakwood
Hills v. Diamond, 125 Ill.App.3d 58, 465 N.E.2d
662, 80 Ill.Dec. 550 (2d Dist. 1984).
In determining an inconsistency or conflict, the
question may depend on whether the state has
indicated preemption of the field completely, has
provided a comprehensive regulation of an area that
is of statewide concern, or has rescinded a power
that had been given to a municipality. Hawthorne v.
Village of Olympia Fields, 204 Ill.2d 243, 790
N.E.2d 832, 274 Ill.Dec. 59 (2003); McClaughry v.
Village of Antioch, 296 Ill.App.3d 636, 695 N.E.2d
492, 230 Ill.Dec. 1002 (2d Dist. 1998) (train horn
blowing case); City of Rockford, Illinois v.
Floyd, 104 Ill.App.2d 161, 243 N.E.2d 837 (2d Dist.
1968), cert. denied, 90 S.Ct. 480 (1969); Village
of Mundelein v. Hartnett, 117 Ill.App.3d 1011, 454
N.E.2d 29, 73 Ill.Dec. 285 (2d Dist. 1983);
Hutchcraft Van Service, Inc. v. City of Urbana Human
Relations Commission, 104 Ill.App.3d 817, 433
N.E.2d 329, 60 Ill.Dec. 532 (4th Dist. 1982).

The appellate court in People ex rel. Ryan v.
Village of Hanover Park, 311 Ill.App.3d 515, 724
N.E.2d 132, 243 Ill.Dec. 823 (1st Dist. 1999),
struck down the ‚“P-ticket‚ system used by many
suburban communities as an alternative program in
charging violators under the Illinois Vehicle
Code, 625 ILCS 5/1-100, et seq. The court found
that the alternative system that allowed traffic
offenders to pay a settlement fee in lieu of court
adjudication was inconsistent with the Vehicle
Code’s uniform enforcement scheme. Also, a
municipal zoning ordinance that regulated or affected
construction projects concerning the transmission
of electrical service conflicted with the Public
Utilities Act, 220 ILCS 5/1-101, et seq., when the
Illinois Commerce Commission had issued its
certificate to construct the transmission line.
Commonwealth Edison Co. v. City of Warrenville, 288
Ill.App.3d 373, 680 N.E.2d 465, 223 Ill.Dec. 732
(2d Dist. 1997). The City of Warrenville court held
that the Public Utilities Act sets forth a
comprehensive scheme and regulation of public utilities that
is of statewide concern. Further, in Hawthorne,
supra, the village was preempted by implication from
regulating a day care home under its zoning
ordinance due to a comprehensive state system of
regulation and licensing found in the Child Care
Act of 1969, 225 ILCS 10/1, et seq.

Conversely, the City of Chicago’s gun registration
ordinance was not preempted by nor did it
conflict with the state’s registration by
identification cards of gun owners. Brown v. City of Chicago,
42 Ill.2d 501, 250 N.E.2d 129 (1969), cited with
approval in Kalodimos v. Village of Morton Grove,
103 Ill.2d 483, 470 N.E.2d 266, 277, 83 Ill.Dec.
308 (1984). A home rule ordinance of the City of
Chicago requiring firearm registration and
authorizing destruction of a seized firearm when no longer
needed as evidence was not preempted by state
regulation. City of Chicago v. Taylor, 332 Ill.App.3d
583, 774 N.E.2d 22, 266 Ill.Dec. 244 (1st Dist.
2002). The legislature requires all municipalities to
submit to the Department of State Police a copy of
every ordinance adopted by the municipality that
regulates the acquisition, possession, sale, or
transfer of firearms within the municipality. 430 ILCS
65/13.3. The Department compiles the ordinances
and publishes them. Id.

There was no preemption on the part of the state
or conflict between a state statute regulating
trailer camps and an ordinance regulating the same
subject matter. Town of Cicero v. Weilander, 35
Ill.App.2d 456, 183 N.E.2d 40 (1st Dist. 1962).

There was no preemption of municipalities’
ordinances providing for licensing and inspecting of
food delivery vehicles by the state’s meat and
poultry inspection statute. Chicago-Midwest Meat
Ass’n v. City of Evanston, 96 Ill.App.3d 966, 422
N.E.2d 205, 52 Ill.Dec. 524 (1st Dist. 1981).

There was no conflict between a statewide curfew
and a village’s more restrictive curfew
ordinance. Village of Deerfield v. Greenberg, 193
Ill.App.3d 215, 550 N.E.2d 12, 140 Ill.Dec. 530
(2d Dist. 1990).
In Alarm Detection Systems, Inc. v. Village of
Hinsdale, 326 Ill.App.3d 372, 761 N.E.2d 782, 260
Ill.Dec. 599 (2d Dist. 2001), the court held that
there was no preemption of an ordinance requiring
fire alarm systems in commercial buildings to be
connected to the village’s fire board since the state’s
preemption provision in the former Private
Detective, Private Alarm, Private Security, and Locksmith
Act of 1993, 225 ILCS 446/1, et seq., related to
licensing and regulation of alarm businesses, not
requirements on owners of buildings to connect as
part of a building code. Note that P.A. 93-438 (eff.
Aug. 5, 2003) replaced the 1993 Act with the
Private Detective, Private Alarm, Private Security, and
Locksmith Act of 2004, 225 ILCS 447/5-5, et seq.
Further, the 1993 Act preempted a registration
ordinance as it applied to private detectives.
City of Chicago v. Haworth, 303 Ill.App.3d 451, 708
N.E.2d 425, 236 Ill.Dec. 839 (1st Dist. 1999).

A village noise ordinance was in concert with and
did not contradict the Illinois Environmental
Protection Act (IEPA), 415 ILCS 5/1, et seq., and
the regulations promulgated thereunder regulating
noise, so no preemption was found in Village of
Sugar Grove, supra. For more on conflict concerning
environmental matters, see ‚§7.12 below.

The Department of Transportation’s granting of two
access points on a state highway did not
preempt a city’s authority to enact, through its
zoning regulations, further access limitation as long as
the local regulation was more stringent. State
Bank of Waterloo v. City of Waterloo, Illinois, 339
Ill.App.3d 767, 792 N.E.2d 329, 275 Ill.Dec. 98
(5th Dist. 2003).

Finally, no conflict was found in T & S Signs,
Inc. v. Village of Wadsworth, 261 Ill.App.3d 1080,
634 N.E.2d 306, 199 Ill.Dec. 467 (2d Dist. 1994),
in which the court ruled that the village, a nonhome
rule municipality, could enact and enforce more
stringent regulations in the area of outdoor
advertising than those provided by the Highway
Advertising Control Act of 1971, 225 ILCS 440/1, et

The issue of concurrent or conflicting
jurisdiction may also arise concerning subjects regulated
by federal law. As an example, see Op. Att’y Gen.
(Ill.) No. 94-017, in which the Attorney General
concluded that non-home rule municipalities may
not impose standards other than those set forth by
the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C.
‚§5401, et seq., for manufactured homes produced
after June 15, 1976. Although municipalities may
restrict, but not prohibit, the placement within
their jurisdiction of manufactured homes as an exercise
of their zoning powers, their authority under
state law to enact and enforce reasonable building and
construction standards for manufactured homes is
limited to the extent it is expressly preempted by
federal law. Id. The state recognized the
preemption and enacted the Illinois Manufactured Housing
and Mobile Home Safety Act, 430 ILCS 115/1, et

Two specific areas in which issues of conflict
have been adjudicated are environmental regulation
and penalties under ordinances. See ‚§‚§7.12 and
7.13 below.

A. {7.12} Environmental Regulation

There are numerous examples of municipalities
being preempted from exercising their police
power in the environmental realm. The Supreme
Court has ruled that non-home rule units are
excluded by the Illinois Environmental Protection
Act from exercising concurrent power with the
state in the area of regulating landfills.
O’Connor v. City of Rockford, 52 Ill.2d 360, 288 N.E.2d 432
(1972); Carlson v. Village of Worth, 62 Ill.2d
406, 343 N.E.2d 493 (1975); County of Cook v. John
Sexton Contractors Co., 75 Ill.2d 494, 389 N.E.2d
553, 27 Ill.Dec. 489 (1979); Concerned Boone
Citizens, Inc. v. M.I.G. Investments, Inc., 144
Ill.App.3d 334, 494 N.E.2d 180, 98 Ill.Dec. 253 (2d
Dist. 1986). This preemption for non-home rule
units includes the use of zoning ordinances to
regulate landfills. Village of Hillside v. John
Sexton Sand & Gravel Corp., 105 Ill.App.3d 533, 434
N.E.2d 382, 61 Ill.Dec. 229 (1st Dist. 1982);
County of Kendall v. Avery Gravel Co., 101 Ill.2d 428,
463 N.E.2d 723, 79 Ill.Dec. 169 (1984).

The above decisions imply that non-home rule units
are excluded from exercising their power
over the environment when the legislature
indicates a need for a unified state or regional program.
See Pesticide Public Policy Foundation v. Village
of Wauconda, 117 Ill.2d 107, 510 N.E.2d 858, 109
Ill.Dec. 790 (1987); 415 ILCS 60/3(4). However,
compare City of Des Plaines v. Chicago & North
Western Ry., 65 Ill.2d 1, 357 N.E.2d 433, 2
Ill.Dec. 266 (1976), with Village of Sugar Grove v. Rich,
347 Ill.App.3d 689, 808 N.E.2d 525, 283 Ill.Dec.
559 (2d Dist. 2004), and Village of Caseyville v.
Cunningham, 137 Ill.App.3d 186, 484 N.E.2d 499, 91
Ill.Dec. 940 (5th Dist. 1985). In both Sugar
Grove and Caseyville, the appellate courts
distinguished City of Des Plaines and found no preemption
by the IEPA concerning local regulation of noise
pollution within the confines of the city since the
municipal regulations were in concert with and did
not contradict state standards.

The court in Village of Carpentersville v.
Pollution Control Board, 135 Ill.2d 463, 553 N.E.2d
362, 364 ‚”œ 365, 142 Ill.Dec. 848 (1990), reviewed
415 ILCS 5/39(c), which had been amended to
provide as follows:

Except for those facilities owned or operated by
sanitary districts . . ., and except for
new regional pollution control facilities . . .,
and except for fossil fuel mining facilities,
the granting of a permit under this Act shall not
relieve the applicant from meeting and
securing all necessary zoning approvals from the
unit of government having zoning
jurisdiction over the proposed facility. {Emphasis
added by Village of Carpentersville

The court concluded that the plain language of
this amendment clearly indicated that permits
issued by the IEPA no longer preempted local
zoning ordinances. Accord City of Elgin v. County of
Cook, 169 Ill.2d 53, 660 N.E.2d 875, 214 Ill.Dec.
168 (1995), in which the court stated that the
amendment to the IEPA limited the scope of the
court’s prior decision in John Sexton Contractors,
supra, and gave home rule and non-home rule units
concurrent jurisdiction with the IEPA in
approving the siting of pollution control

The court in Village of Carpentersville also found
that the legislature’s amendment to the IEPA
did not violate ‚§1 of Article XI of the Illinois
Constitution, which provides:

The public policy of the State and the duty of
each person is to provide and maintain a
healthful environment for the benefit of this and
future generations. The General
Assembly shall provide by law for the
implementation and enforcement of this public
policy. 553 N.E.2d at 366.

The court specifically found that the General
Assembly does not have a constitutional duty to
adopt uniform, statewide standards for
environmental protection but rather has the duty ‚“to provide
by law for the implementation and enforcement of‚
the state’s public policy ‚“to provide and maintain
a healthful environment.‚ Id. Thus, the General
Assembly can enlist local zoning ordinances in its
pollution plan even if they conflict with uniform,
statewide standards.

See also Lily Lake Road Defenders v. County of
McHenry, 156 Ill.2d 1, 619 N.E.2d 137, 188
Ill.Dec. 773 (1993), in which the Illinois Supreme
Court upheld a non-home rule county’s ordinance
requiring a reclamation plan and bond for
restoring land from gravel pit operations when such
restoration was not required under either the IEPA
or the Surface-Mined Land Conservation and
Reclamation Act (Reclamation Act), now codified at
225 ILCS 715/1, et seq. The court first
determined that the county’s powers under the
County Zoning Act of 1935, which has since been
replaced by Division 5-12 of the Counties Code, 55
ILCS 5/5-12001, et seq., had not been repealed
by implication by either the IEPA or the
Reclamation Act and then decided that even if the IEPA or
the Reclamation Act had originally preempted the
power of municipalities to regulate surface mining
facilities, such preemption was lifted by later
amendments to those Acts specifically permitting local
regulation of such operations. The court therefore
held that the county’s ordinance was valid and
enforceable at least from the time the legislature
amended the statutes.

Preemption does not appear to be a defense,
however, to a common law action for nuisance. In
Village of Wilsonville v. SCA Services, Inc., 86
Ill.2d 1, 426 N.E.2d 824, 55 Ill.Dec. 499 (1981), the
Supreme Court permitted a court of equity to
enjoin the operation of a landfill for which permits had
been issued by the IEPA, which had relied on
erroneous information. But see City of Elgin, supra, in
which the court held that felling trees and
drilling monitoring wells preliminary to the development
and construction of a bale fill could not be
enjoined as a nuisance even though the U.S. Army Corps
of Engineers had twice refused to issue a permit
required under the federal Clean Water Act, 33
U.S.C. ‚§1251, et seq., and as a condition of the
IEPA’s permit for development of the bale fill. That
part of the case, however, involved municipalities
and private citizens from Kane County seeking to
enjoin construction of a bale fill in Cook County
that previously had been approved by both the Cook
County Board and the IEPA. Thus, the underlying
issue was whether third-party municipalities could
challenge siting decisions concerning territory
outside their jurisdictions.

B. {7.13} Penalties for Ordinance Violation

Similar conduct on the part of a defendant may be
punishable by both a state law and a city
ordinance. Village of Winnetka v. Sinnett, 272
Ill.App. 143 (1st Dist. 1933). Double jeopardy issues
arise, however, when a defendant is tried under
both based on the same facts. People v. Stefan, 146
Ill.2d 324, 586 N.E.2d 1239, 166 Ill.Dec. 910
(1992). Generally, a lesser penalty provided by a local
ordinance does not create an inconsistency or
conflict when a statute provides a greater penalty
(Village of Mount Prospect v. Malouf, 103
Ill.App.2d 88, 243 N.E.2d 434 (1st Dist. 1968)), unless, as
in Village of Mundelein v. Hartnett, 117
Ill.App.3d 1011, 454 N.E.2d 29, 73 Ill.Dec. 285 (2d Dist.
1983), a village ordinance is held invalid for
failing to comply with the mandatory sentencing
provision of a state statute. See also Village of
Park Forest v. Thomason, 145 Ill.App.3d 327, 495
N.E.2d 1036, 99 Ill.Dec. 301 (1st Dist. 1986); Op.
Att’y Gen. (Ill.) No. 85-002. If no infringement on
the spirit of the state law exists or if the local
ordinance is not repugnant to the policy of the state, a
higher fine than is provided by the state may also
be imposed. City of De Kalb v. White, 227
Ill.App.3d 328, 591 N.E.2d 522, 169 Ill.Dec. 349
(2d Dist. 1992).


A municipality’s police power extends throughout
its corporate limits or boundaries. A
municipality does not have any extraterritorial
jurisdiction unless expressly granted by the General
Assembly. City of Rockford v. Hey, 366 Ill. 526, 9
N.E.2d 317 (1937); Harris Bank of Roselle v.
Village of Mettawa, 243 Ill.App.3d 103, 611 N.E.2d
550, 183 Ill.Dec. 287 (2d Dist. 1993); Village of
Sauget v. Cohn, 241 Ill.App.3d 640, 610 N.E.2d
104, 182 Ill.Dec. 680 (5th Dist. 1993); Village of
Lisle v. Action Outdoor Advertising Co., 188
Ill.App.3d 751, 544 N.E.2d 836, 136 Ill.Dec. 150 (2d
Dist. 1989); Village of Round Lake Park v. Anest,
4 Ill.App.3d 307, 280 N.E.2d 502 (2d Dist. 1972)
(abst.). Some grants of extraterritorial power
with their geographical limitations are found in the
following sections of the Illinois Municipal Code:

a. health and quarantine ordinances, one-half mile
beyond the corporate limits (Code ‚§7-4-1);

b. all property owned by a municipality that lies
outside the municipality’s limits and does not
lie within the corporate limits of another
municipality (Code ‚§7-4-2);

c. all waters bordering on the municipality, three
miles beyond the corporate limits but not
beyond the limits of the state (Code ‚§7-4-4);

d. police power in two or more adjoining
municipalities (referred to in the statute as a ‚“police
district‚) (Code ‚§‚§7-4-7, 7-4-8);

e. suppression of bawdy or disorderly houses or
houses of prostitution, three miles beyond the
corporate limits (Code ‚§11-5-1);

f. provide firefighting and emergency medical
services outside corporate limits and collect
service fees (Code ‚§11-6-1.1, 11-5-7.2);

g. subdivision and planning jurisdiction when an
official plan is adopted, one and one-half
miles beyond the corporate limits but not within
another city (Code ‚§‚§11-12-4 through 11-
12-12; see also Code ‚§11-13-1, granting
extraterritorial zoning jurisdiction one and one-half
miles beyond the corporate limits but not within
another city and not over land covered by
another municipality’s extraterritorial zoning
ordinance or by a county zoning ordinance);

h. annexation agreements and land capable of being
annexed concerning territory outside
corporate limits (Code ‚§11-15.1-1);

i. acquiring property outside corporate limits for
disposing of garbage, refuse, and ashes (Code
‚§11-19-10); and

j. water pollution (if it affects waterworks), 20
miles beyond the corporate limits and even
within another municipality (Code ‚§‚§11-125-1,
11-125-3, 11-129-1; in City of Springfield,
Illinois v. Hashman, 332 Ill.App.3d 748, 774
N.E.2d 427, 266 Ill.Dec. 321 (4th Dist. 2002),
the appellate court found that the city had the
authority pursuant to Code ‚§11-125-2
(providing for jurisdiction 20 miles beyond
corporate limits) to regulate property outside its
corporate limits to prevent septic systems that
potentially could pollute the city’s water
In Village of Goodfield v. Jamison, 188 Ill.App.3d
851, 544 N.E.2d 1229, 136 Ill.Dec. 454 (4th
Dist. 1989), the court held, without discussing
any previous cases concerning deriving power from
different statutory sections, that municipalities’
authority to declare a nuisance pursuant to Code ‚§11-
60-2 ends at the corporate limits. The court did
not examine Code ‚§11-42-9, authorizing
municipalities to prohibit offensive or
unwholesome businesses ‚“within the distance of one mile
beyond the municipal limits.‚ 544 N.E.2d at 1233.
Compare Higgins v. City of Galesburg, 401 Ill.
87, 81 N.E.2d 520 (1948).

In People v. Vargas, 277 Ill.App.3d 289, 660
N.E.2d 82, 213 Ill.Dec. 825 (1st Dist. 1995), the
court held that the Schaumburg police had the
authority to arrest the defendant in Hoffman Estates
under Code ‚§11-1-2.1 (granting power to enter into
intergovernmental agreements to furnish police
assistance upon request) but not under Code ‚§7-4-8
(extending police power to adjacent
municipalities) since the officers were not
responding to an emergency situation. Code ‚§7-4-8 was
subsequently amended and later reenacted to give
police ‚“full authority and power as peace officers
{to} go into any part of the district to exercise
that authority and power.‚


A city cannot enter into agreements by which it
contracts away its police power. Village of Lake
Bluff v. Dalitsch, 415 Ill. 476, 114 N.E.2d 654
(1953). The legislative power is in the corporate
authorities (city council or board of trustees)
and is not to be delegated. Dean Milk Co. v. City of
Aurora, 404 Ill. 331, 88 N.E.2d 827 (1949);
Drovers Trust & Savings Bank v. City of Chicago, 18
Ill.2d 476, 165 N.E.2d 314 (1960); Lakin v. City
of Peoria, 129 Ill.App.3d 651, 472 N.E.2d 1233, 84
Ill.Dec. 837 (3d Dist. 1984).

A police ordinance may delegate to other
authorities those duties that are too cumbersome
(although not impossible) for the corporate
authorities to perform. City of Chicago v. Marriotto, 332
Ill. 44, 163 N.E. 369 (1928).

In drafting an ordinance delegating power, it is
necessary to define the power delegated and to
establish standards for the exercise of any
delegated power. See City of Chicago v. Pennsylvania
R.R., 41 Ill.2d 245, 242 N.E.2d 152 (1968);
International Union of Operating Engineers, Local 150
v. Village of Orland Park, 139 F.Supp.2d 950
(N.D.Ill. 2001). An ordinance that allows another to
define what is to be done when the definition is
not commonly known is an unlawful delegation.
Village of Itasca v. Luehring, 4 Ill.2d 426, 123
N.E.2d 312 (1954). The failure to impose standards
under which discretion could be exercised is also
an unlawful delegation. City of Kankakee v. New
York Central R.R., 387 Ill. 109, 55 N.E.2d 87
(1944); Waterfront Estate Development, Inc. v. City of
Palos Hills, 232 Ill.App.3d 367, 597 N.E.2d 641,
173 Ill.Dec. 667 (1st Dist. 1992); Village of
Arlington Heights v. Schroeder, 28 Ill.App.3d 1,
328 N.E.2d 74 (1st Dist. 1975).

When the terms of the ordinance are so broad that
they give enforcement officials no direction as
to when a violation occurs, the delegation of
power may violate due process as well. City of Aurora v.
Navar, 210 Ill.App.3d 126, 568 N.E.2d 978, 982,
154 Ill.Dec. 757 (2d Dist. 1991) (noise ordinance
prohibiting any ‚“audible‚ commercial activity
after 9:00 p.m. held unconstitutionally broad).
Compare Kromeich v. City of Chicago, 258
Ill.App.3d 606, 630 N.E.2d 913, 196 Ill.Dec. 748 (1st
Dist.) (no unlawful delegation when superintendent
of police given power to determine whether
seized unregistered firearms would be needed as
evidence or should be destroyed), appeal denied,
156 Ill.2d 558 (1994).

It is not necessary, however, to set forth every
minute detail when delegating power. In Brown v.
City of Chicago, 42 Ill.2d 501, 250 N.E.2d 129,
132 (1969), the Illinois Supreme Court said:

Absolute criteria whereby every detail necessary
in the enforcement of a law is
anticipated need not be set forth in the ordinance
itself. While a legislative body cannot
delegate its general power to determine what the
law shall be, it may delegate to others
the authority to do those things which it might
properly do itself but cannot do as
understandingly or advantageously. (Hill v.
Relyea, 34 Ill.2d 552{, 216 N.E.2d 795

Quoting this statement from Brown, the Supreme
Court approved the delegation to the City
Comptroller of the City of Chicago of the limited
discretion to pay up to a five-percent commission to
agents for the purpose of affixing city cigarette
stamps. S. Bloom, Inc. v. Korshak, 52 Ill.2d 56, 284
N.E.2d 257, 265 (1972). Likewise, when ample
detail was provided in an ordinance regulating adult
uses and discretion was limited to specific
criteria, delegation of licensing authority to the decision
maker was authorized. XLP Corp. v. County of Lake,
359 Ill.App.3d 239, 832 N.E.2d 480, 295
Ill.Dec. 329 (2d Dist. 2005).

If reasonable doubt exists as to the discretion
that a city official exercises, the courts will hesitate
to interfere as long as the discretion is
exercised within limits relevant to the purpose of the ordinance
and as long as it is exercised within well-defined
limits. City of Chicago v. Town Underground
Theatre, Inc., 9 Ill.App.3d 930, 293 N.E.2d 367
(1st Dist. 1973), citing MacGregor v. Miller, 324 Ill.
113, 154 N.E. 707 (1926); Brown, supra; and R.G.
Lydy, Inc. v. City of Chicago, 356 Ill. 230, 190
N.E. 273 (1934).


The corporate authorities of each municipality are
granted by statute the power to ‚“define,
prevent, and abate nuisances.‚ Illinois Municipal
Code ‚§11-60-2.

Generally, according to common law, a nuisance is
that which unlawfully annoys or does damage
to another. City of Chicago v. Reuter Brothers
Iron Works, 398 Ill. 202, 75 N.E.2d 355 (1947). In
City of Chicago v. Beretta U.S.A. Corp., 213
Ill.2d 351, 821 N.E.2d 1099, 1111, 290 Ill.Dec. 525
(2004), the court said that the concept of public
nuisance eludes precise definition but acknowledged
that Illinois Courts have adopted the definition
of ‚“public nuisance‚ in RESTATEMENT (SECOND)
OF TORTS ‚§821B (1979): ‚“A public nuisance is an
unreasonable interference with a right common
to the general public.‚

The power of a municipality under Code ‚§11-60-2 is
broad although not unrestricted. Village of
Riverwoods v. Untermyer, 54 Ill.App.3d 816, 369
N.E.2d 1385, 12 Ill.Dec. 371 (2d Dist. 1977);
Village of Caseyville v. Cunningham, 137
Ill.App.3d 186, 484 N.E.2d 499, 91 Ill.Dec. 940 (5th Dist.
1985). Municipalities may prevent and abate
nuisances under both the statute and common law. City
of Chicago v. Festival Theatre Corp., 91 Ill.2d
295, 438 N.E.2d 159, 63 Ill.Dec. 421 (1982); Gilmore
v. Stanmar, Inc., 261 Ill.App.3d 651, 633 N.E.2d
985, 199 Ill.Dec. 189 (1st Dist. 1994); Turpen v.
City of St. Francisville, 145 Ill.App.3d 891, 495
N.E.2d 1351, 99 Ill.Dec. 616 (5th Dist. 1986).
Historically, the Illinois Supreme Court has set
forth three classifications in determining the power of
a municipality to conclusively determine what is a

a. those that in their nature are nuisances per se
or are so denounced by the common law or by
statute (a municipality may conclusively denounce
these as nuisances);

b. those that in their nature are not nuisances
but may become so by reason of their locality,
their surroundings, or the manner in which they
may be conducted, managed, etc. (a
municipality may declare such of them to be
nuisances as are in fact so); and

c. those that in their nature may be nuisances but
as to which there maybe honest differences of
opinion in impartial minds (a municipality may
conclusively denounce these as nuisances).
Laugel v. City of Bushnell, 197 Ill. 20, 63 N.E.
1086, 1088 (1902).

Included in the first classification of per se
nuisances are those that are denounced by the
common law and by statute. Examples of some
Illinois common law nuisances are

a. keeping of diseased animals (Durand v. Dyson,
271 Ill. 382, 111 N.E. 143 (1915));

b. houses of prostitution (People ex rel. Dyer v.
Clark, 268 Ill. 156, 108 N.E. 994 (1915));

c. indecent exhibition (City of Chicago v.
Shaynin, 258 Ill. 69, 101 N.E. 224 (1913); Festival
Theatre Corp., supra);

d. masturbatory massage parlors (City of Chicago
v. Geraci, 30 Ill.App.3d 699, 332 N.E.2d 487
(1st Dist. 1975); Village of Bensenville v. Botu,
Inc., 39 Ill.App.3d 634, 350 N.E.2d 239 (2d
Dist. 1976)); and

e. obstruction or encroachment of highways
(Gilmore, supra).

Statutory nuisances may be found at

a. 740 ILCS 105/1 and 40/2, which provide that
real estate and the contents thereof used for
lewdness, assignation, or prostitution and for the
use or sale of controlled substances and
cannabis as further defined by statute are

b. 720 ILCS 5/47-10 and 5/47-15, which make it
unlawful to dump or place garbage on private
or public property under certain conditions; and

c. 720 ILCS 5/47-5, which provides:

It is a public nuisance:

(1) To cause or allow the carcass of an animal or
offal, filth, or a noisome
substance to be collected, deposited, or to remain
in any place to the prejudice
of others.

(2) To throw or deposit offal or other offensive
matter or the carcass of a
dead animal in a water course, lake, pond, spring,
well, or common sewer,
street, or public highway.

(3) To corrupt or render unwholesome or impure the
water of a spring,
river, stream, pond, or lake to the injury or
prejudice of others.

(4) To obstruct or impede, without legal
authority, the passage of a
navigable river or waters.

(5) To obstruct or encroach upon public highways,
private ways, streets,
alleys, commons, landing places, and ways to
burying places.

(6) To carry on the business of manufacturing
gunpowder, nitroglycerine,
or other highly explosive substances, or mixing or
grinding the materials for
those substances, in a building within 20 rods of
a valuable building erected at
the time the business is commenced.

(7) To establish powder magazines near
incorporated towns, at a point
different from that appointed according to law by
the corporate authorities of
the town, or within 50 rods of an occupied
dwelling house.

(8) To erect, continue, or use a building or other
place for the exercise of a
trade, employment, or manufacture that, by
occasioning noxious exhalations,
offensive smells, or otherwise, is offensive or
dangerous to the health of
individuals or of the public.

(9) To advertise wares or occupation by painting
notices of the wares or
occupation on or affixing them to fences or other
private property, or on rocks
or other natural objects, without the consent of
the owner, or if in the highway
or other public place, without permission of the
proper authorities.

(10) To permit a well drilled for oil, gas, salt
water disposal, or any other
purpose in connection with the production of oil
and gas to remain unplugged
after the well is no longer used for the purpose
for which it was drilled.

(11) To construct or operate a salt water pit or
oil field refuse pit,
commonly called a ‚“burn out pit‚, so that salt
water, brine, or oil field refuse or
other waste liquids may escape from the pit in a
manner except by the
evaporation of the salt water or brine or by the
burning of the oil field waste or

(12) To permit concrete bases, discarded
machinery, and materials to
remain around an oil or gas well, or to fail to
fill holes, cellars, slush pits, and
other excavations made in connection with the well
or to restore the surface of
the lands surrounding the well to its condition
before the drilling of the well,
upon abandonment of the oil or gas well.

(13) To permit salt water, oil, gas, or other
wastes from a well drilled for
oil, gas, or exploratory purposes to escape to the
surface, or into a mine or coal
seam, or into an underground fresh water supply,
or from one underground
stratum to another.

(14) To harass, intimidate, or threaten a person
who is about to sell or lease
or has sold or leased a residence or other real
property or is about to buy or
lease or has bought or leased a residence or other
real property, when the
harassment, intimidation, or threat relates to a
person’s attempt to sell, buy, or
lease a residence, or other real property, or
refers to a person’s sale, purchase,
or lease of a residence or other real property.

(15) To store, dump, or permit the accumulation of
debris, refuse, garbage,
trash, tires, buckets, cans, wheelbarrows, garbage
cans, or other containers in a
manner that may harbor mosquitoes, flies, insects,
rodents, nuisance birds, or
other animal pests that are offensive, injurious,
or dangerous to the health of
individuals or the public.

(16) To create a condition, through the improper
maintenance of a
swimming pool or wading pool, or by causing an
action that alters the condition
of a natural body of water, so that it harbors
mosquitoes, flies, or other animal
pests that are offensive, injurious, or dangerous
to the health of individuals or
the public.

(17) To operate a tanning facility without a valid
permit under the Tanning
Facility Permit Act.

Nothing in this Section shall be construed to
prevent the corporate
authorities of a city, village, or incorporated
town, or the county board of a
county, from declaring what are nuisances and
abating them within their
limits. Counties have that authority only outside
the corporate limits of a city,
village, or incorporated town.

For other statutory nuisances, see the ILCS index.

An example of the second classification is a
building. In Sings v. City of Joliet, 237 Ill. 300, 86
N.E. 663 (1908), the Supreme Court found that
although a building is not in its nature a nuisance, it
may become so by reason of its locality, its
surroundings, or the manner in which it is managed or
used. The determination that something is a
nuisance in this classification is not conclusive but open
to review as to whether it is a nuisance. People
ex rel. Younger v. City of Chicago, 280 Ill. 576, 117
N.E. 779 (1917); City of Bushnell v. Chicago,
Burlington & Quincy R.R., 259 Ill. 391, 102 N.E. 785
(1913); Turpen, supra; City of Streator v.
Davenport Packing Co., 347 Ill.App. 492, 107 N.E.2d 270
(2d Dist. 1952).

Finally, examples of those falling into the third
classification are the use of billiards and pool
tables (Village of Atwood v. Otter, 296 Ill. 70,
129 N.E. 573 (1920)), slaughterhouses (Harmison v.
City of Lewistown, 153 Ill. 313, 38 N.E. 628
(1894)), noise (Dube v. City of Chicago, 7 Ill.2d 313,
131 N.E.2d 9 (1955), cert. denied, 76 S.Ct. 658
(1956)), and septic tanks and fields (Untermyer,
supra). An example of how the court deals with
this classification is found in Otter, supra. The court,
although not satisfied that pool tables were
necessarily a nuisance, determined that they could be a
nuisance depending on circumstances and that the
decision was for the municipal authorities, whose
decision would be binding on the court. See also
Village of Glenview v. Ramaker, 282 Ill.App.3d
368, 668 N.E.2d 106, 109, 217 Ill.Dec. 921 (1st
Dist. 1996) (holding that ordinance against keeping
swine could be applied to keeping pet Vietnamese
pig), in which the court likewise deferred to the
judgment of local authorities: ‚“{R}esolution of
such honest differences of taste and opinion ‚” of
what we hold amiable and what we find annoying ‚”
is best left to the threshing floor of the local
elected body.‚

Ordinances need not necessarily define the
physical condition that shall constitute a nuisance.
City of Chicago v. Atwood, 269 Ill. 624, 110 N.E.
127 (1915). However, in City of Aurora v. Navar,
210 Ill.App.3d 126, 568 N.E.2d 978, 982, 154
Ill.Dec. 757 (2d Dist. 1991), the term ‚“audible‚ as
used in a noise ordinance was so vague as to
violate due process.

The legal remedies that are available to abate
nuisances are the imposition of a monetary penalty
(Otter, supra), enjoining the continuation of a
nuisance in extreme cases in which redress therefor
cannot be obtained in a court of law (City of
Kankakee v. New York Central R.R., 387 Ill. 109, 55
N.E.2d 87 (1944); City of Highland v. Auer, 235
Ill.App. 327 (4th Dist. 1925)), and, in certain cases,
the seizure and confiscation of property on legal
process after notice and hearing. Sings, supra; King
v. Davenport, 98 Ill. 305 (1881). But see the
emergency cases cited below in this section.

Although the power has been denied a city to
recover the cost of abating a nuisance from the
owner of the property (Village of Forrest v.
Norfolk & Western Ry., 146 Ill.App.3d 20, 496 N.E.2d
257, 99 Ill.Dec. 682 (4th Dist. 1986); Village of
Palmyra v. Warren, 114 Ill.App. 562 (3d Dist.
1904)), certain statutory provisions provide for
recovery of the cost together with a lien on the
property on which the nuisance is found to secure
the payment of abatement. Code ‚§‚§11-20-13
(removal of garbage, debris, and graffiti),
11-31-1 (demolition, repair, enclosure, or removal of
unsafe buildings), 11-20-7 (cutting of weeds).

In a case of emergency, a city may declare a
specific thing or piece of property a nuisance and
provide for its summary abatement provided the
conditions are such that the method ordained is the
only one that could in reason be used and would be
effective. Sings, supra; Turpen supra; Pierce v.
Village of Divernon, Illinois, 17 F.3d 1074 (7th
Cir. 1994). In Pierce, the court dismissed a federal
due process challenge to an ex parte court order
for the demolition of a building that was severely
damaged by water and fire and posed a danger to
neighborhood children. This emergency action met
due process standards only under these
circumstances in which, prior to obtaining the ex parte order,
the village had passed an ordinance declaring the
house a nuisance, had given notice as required
under Code ‚§11-31-1(a) that the owners had to
either repair or demolish the building, gave further
notice almost a month later to the owners’
attorney of the village’s intent to demolish if the owners
failed to act, and received no request from the
owners for additional time or for reconsideration in
response to any of those notices. See also
McCullough v. City of Chicago, 971 F.Supp. 1247 (1997);
McKenzie v. City of Chicago, 118 F.3d 552 (7th
Cir. 1997); McKenzie v. City of Chicago, 973
F.Supp. 815 (N.D.Ill. 1997) (cases concerning
Chicago’s ‚“fast track‚ program to demolish or repair
one or two-story dangerous buildings under Code

In Sings, supra, the owner of the property (a
building believed to be impregnated with smallpox
germs) argued that the city could not summarily
destroy his building without a hearing. The court
held that the building could be summarily
destroyed if, in fact, a delay would cause serious injury to
the public health and other public interests. The
court used the example of summarily pulling down
buildings to prevent the spread of conflagration
or the impending fall of the buildings themselves. In
Turpen, supra, the court recognized the right of
the municipality to take appropriate emergency
measures when a dilapidated building possesses an
immediate danger.

It must be remembered that a city would be liable
for damages if the thing summarily destroyed
was not a nuisance or if the nuisance (if one
existed) could have been obviated by reasonable
measures less drastic than the absolute
destruction of the property. Code ‚§1-4-7 provides liability for
wrongful destruction of unsafe buildings. See
Turpen, supra.


The power to regulate granted to a municipality
carries with it the power to require permits or
licenses. Father Basil’s Lodge, Inc. v. City of
Chicago, 393 Ill. 246, 65 N.E.2d 805, 812 (1946); City
of Chicago v. Wonder Heating & Ventilating
Systems, Inc., 345 Ill. 496, 178 N.E. 192 (1931). The
power also includes authority to exact a fee for
the purpose of defraying all or a part of the cost of
regulation and inspection. Larson v. City of
Rockford, 371 Ill. 441, 21 N.E.2d 396 (1939).


The corporate authorities (boards of trustees in
villages and city councils in cities) are the proper
parties to enact police regulations. See also
Illinois Municipal Code ‚§1-2-1. Although the corporate
authorities may act by ordinance, resolution, or
motion, it appears that when a city prescribes a
general rule of permanence as a law, it should be
done with the formalities and requisites of an
ordinance. City of Tuscola v. D & B Refuse
Service, Inc., 131 Ill.App.3d 168, 475 N.E.2d 633, 86
Ill.Dec. 419 (4th Dist. 1985); Nazworthy v. City
of Sullivan, 55 Ill.App. 48 (3d Dist. 1893). If a
statute requires that the municipality act by
ordinance, a resolution or motion is not sufficient. Village
of Gulfport, Henderson County, Illinois v.
Buettner, 114 Ill.App.2d 1, 251 N.E.2d 905 (1969).


As with statutes, all ordinances enacted by
municipalities must not infringe on the numerous
limitations imposed in the federal or state
Constitutions. City of Blue Island v. Kozul, 379 Ill. 511, 41
N.E.2d 515 (1942).

If the regulation is within the power granted and
if it has a reasonable relation to the subjects that
the legislature has delegated to the municipality,
the ordinance should not be held invalid unless it
violates the federal or state Constitutions.


In determining the validity of a police ordinance,
the process should be (a) to examine whether
the power to enact it existed, (b) to determine
whether it infringes on a constitutional (federal or state)
limitation, and (c) to determine whether the
ordinance is reasonable.

A. {7.21} Reasonableness Required When Grant of
Power To Regulate Is in General Terms

An ordinance must satisfy the same requirements of
reasonableness applicable to statutes enacted
by the General Assembly. Village of Lake Villa v.
Stokovich, 211 Ill.2d 106, 810 N.E.2d 13, 284
Ill.Dec. 360 (2004); Chicago National League Ball
Club, Inc. v. Thompson, 108 Ill.2d 357, 483
N.E.2d 1245, 91 Ill.Dec. 610 (1985); City of
Carbondale v. Brewster, 78 Ill.2d 111, 398 N.E.2d 829,
831, 34 Ill.Dec. 838 (1979). Illinois courts have
long required that when legislative power is
delegated to municipal corporations, that power
must be reasonably exercised. First National Bank &
Trust Co. v. City of Evanston, 30 Ill.2d 479, 197
N.E.2d 705 (1964); Catholic Bishop of Chicago v.
Village of Palos Park, 286 Ill. 400, 121 N.E. 561,
562 (1918). When the legislature has granted
power to a municipality to enact ordinances on any
subject with discretion left to the municipality as
to their provisions, the ordinances must be
reasonable. Dean Milk Co. v. City of Chicago, 385 Ill.
565, 53 N.E.2d 612 (1944).

B. {7.22} Tests of Reasonableness

Although there are no precise tests of
reasonableness of ordinances, the following are some tests
applied by the courts:

1. The discretion of the corporate authorities to
create legislative classifications includes
authority to set permissible boundaries. The
creation of classifications is for the judgment of the
legislature, and its amending or modifying is not
for the courts. Classifications are not required to be
precise, accurate, or harmonious as long as they
accomplish the legislative purpose. Chicago
National League Ball Club, Inc. v. Thompson, 108
Ill.2d 357, 483 N.E.2d 1245, 91 Ill.Dec. 610

2. The validity of an ordinance depends on the
surrounding circumstances and its purpose and
operation. People ex rel. Russell v. Andrews, 339
Ill. 157, 171 N.E. 137 (1930).

3. Reasonableness is what is fairly appropriate in
view of the conditions and not necessarily
what is best. People ex rel. Johns v. Thompson,
341 Ill. 166, 173 N.E. 137 (1930).
4. An ordinance is not reasonable if the same
result might be accomplished by the enactment of
a different type of ordinance or by a less
burdensome ordinance. Jones v. City of Chicago, 348
Ill.App. 310, 108 N.E.2d 802 (1st Dist. 1952).

5. Courts must regard the condition prevailing in
the city or town bearing directly on the subject
matter, the object sought to be attained, and the
need, priority, or desirability of the legislation. City
of Chicago v. Rhine, 363 Ill. 619, 2 N.E.2d 905

6. The ordinance must have a reasonable
relationship to the public health, morals, safety, or
general welfare. Village of Algonquin v. Tiedel,
345 Ill.App.3d 229, 802 N.E.2d 418, 280 Ill.Dec. 493
(2d Dist. 2003); Village of Western Springs v.
Bernhagen, 326 Ill. 100, 156 N.E. 753 (1927).

7. The courts will further determine whether the
means employed by the ordinance to
accomplish the exercise of a power are reasonable.
City of Carbondale v. Brewster, 78 Ill.2d 111, 398
N.E.2d 829, 34 Ill.Dec. 838 (1979); Dunlap v. City
of Woodstock, 405 Ill. 410, 91 N.E.2d 434 (1950).

8. An ordinance must bear a reasonable
relationship to the public interest sought to be
protected, and the means adopted must be a
reasonable method of accomplishing the chosen
objective. Opyt’s Amoco, Inc. v. Village of South
Holland, 149 Ill.2d 265, 595 N.E.2d 1060, 172
Ill.Dec. 390 (1992).

9. An ordinance is not reasonable if it prohibits
activities or businesses that would have no
effect on the relevant object of the police power.
Lou Owen, Inc. v. Village of Schaumburg, 279
Ill.App.3d 976, 665 N.E.2d 456, 216 Ill.Dec. 396
(1st Dist. 1996).

These tests of reasonableness, as well as other
tests and illustrations of reasonableness, may be
found in 5 Eugene McQuillin, THE LAW OF MUNICIPAL
CORPORATIONS, Ch. 18 (3d ed. rev.

The wisdom of a political ordinance is not of
concern to the courts. Chicago Cosmetic Co. v. City
of Chicago, 374 Ill. 384, 29 N.E.2d 495 (1940).
The courts will presume an ordinance is valid and
place the burden on the person attacking an
ordinance if the regulation is within the grant of power.
Keig Stevens Baking Co. v. City of Savanna, 380
Ill. 303, 44 N.E.2d 23 (1942). Compare City of
Evanston v. City of Chicago, 279 Ill.App.3d 255,
664 N.E.2d 291, 215 Ill.Dec. 894 (1st Dist. 1996),
in which the City of Evanston successfully
attacked the City of Chicago’s resolution to erect a traffic
barrier on the boundary street between the two
cities by demonstrating that it was unreasonable and
would not promote the safety and welfare of the
public, with Village of Algonquin v. Village of
Barrington Hills, 254 Ill.App.3d 324, 626 N.E.2d
329, 193 Ill.Dec. 296 (2d Dist. 1993), appeal
denied, 155 Ill.2d 561 (1994), in which the court
held that Algonquin failed to sustain its burden of
showing that Barrington Hills’ resolution closing
a street at their border was unreasonable and
unrelated to public safety and welfare.


Ordinances that regulate must not unlawfully
discriminate; they must be uniform, general, fair,
and impartial in their operation. Thus, although
there may be reasonable discrimination, there can be
no discrimination against those of the same class.
One of the more instructive cases in the area of
discrimination in ordinances is Father Basil’s
Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d
805, 813 (1946), in which the court synthesized
the then-existing law:

{A}n ordinance is not void because it
discriminates against an individual or group, or
because it affects one class and not another.
(Hansen v. Raleigh, 391 Ill. 536{, 63 N.E.2d
851 (1945)}.). Every legislative act is
discriminatory in the sense that it is inclusive as to
some class or group or as to some human
relationships, transactions or functions, and
exclusive as to the remainder. A classification
contained in a statute or ordinance is
never unreasonable or arbitrary when there is some
basis for the differentiation
between the classes or subject matters included as
compared to those excluded from its
operation, provided such differentiation bears a
reasonable relation to the purposes to
be accomplished by the act. It is only where some
persons or transactions excluded
from the operation of the law are, as to the
subject matter thereof, in no differentiable
class from those included in its operation or
where there is no fair reason for the law
which would not require with equal force its
extension to others whom it leaves
untouched, that a law can be declared
discriminatory in the sense of being arbitrary
and unconstitutional. (Hansen v. Raleigh, 391 Ill.
536.) A legislative classification may
rest on narrow distinctions. (German Alliance Ins.
Co. v. Lewis, 233 U.S. 389{, 58 L.Ed.
1011, 34 S.Ct. 612 (1914)}.) It is not required to
be scientific, logical or consistent.
(Hansen v. Raleigh, 391 Ill. 536.) But the
distinction must always have a reasonable
basis when considered with reference to the
purposes of the legislation. (Marallis v. City
of Chicago, 349 Ill. 422{, 182 N.E. 394 (1932)}.)
The differences upon which
classification may be exercised depend necessarily
upon the object in view; and what
would serve for a classification for some purposes
may furnish no reason whatever for
a classification for other purposes. (12 Am.Jur.
157, sec. 482.) A city, under its police
power to provide for the protection of the health,
lives and safety of its inhabitants, may
enact legislation affecting only one particular
class of inhabitants, and such
classification is not discriminatory if there is
some fair reason for the application of the
law to the class affected which does not also
require with equal force its application to
others whom it leaves untouched.

The court went on to sustain an ordinance
affecting only a particular class of inhabitants as it
complied with the rules set forth above.

Ordinances must operate equally on all persons of
the same class. Chicago Title & Trust Co. v.
Village of Lombard, 19 Ill.2d 98, 166 N.E.2d 41
(1960). In Chicago Title, the court struck down an
ordinance requiring filling stations to be at
least 650 feet apart while requiring an intervening
distance of only 150 feet between filling stations
and a hospital, church, or school. In McHenry State
Bank v. City of McHenry, 113 Ill.App.3d 82, 446
N.E.2d 521, 68 Ill.Dec. 615 (2d Dist. 1983), the
court found no real difference between condominium
owners and apartment owners when the
condominium owners were discriminated against
because under the ordinance they could build only
in condominium-zoned areas and could not convert
existing apartment buildings not in those zones.
The court could find no basis for the distinction
since the use of the property would remain the same.


Although ‚§‚§7.2 ‚”œ 7.23 above are primarily
concerned with offering the reader general principles
of law relative to municipal police power, ‚§‚§7.25
‚”œ 7.31 below demonstrate some practical methods
municipalities have used (or may consider) in
dealing with contemporary problems, namely massage
parlors, tattoo parlors, use of searches to gather
evidence and determine compliance with regulations,
parental responsibility for juvenile vandalism,
video arcades, and juvenile street gangs. Also, more
traditional disorderly conduct provisions are

A. {7.25} Massage Parlors

The Massage Licensing Act, 225 ILCS 57/1, et seq.,
which became effective June 1, 2003,
requires persons engaged in massage for
compensation to be licensed by the Illinois Department of
Financial and Professional Regulation. 225 ILCS
57/15. The Act preempts local authorities,
including home rule units, from regulating or
licensing massage therapists effective January 1, 2005.
225 ILCS 57/55.

Prior to the passage of the Act, however, various
municipalities’ methods of dealing with
massage parlors had been litigated.

In City of Chicago v. Cecola, 75 Ill.2d 423, 389
N.E.2d 526, 27 Ill.Dec. 462 (1979), the City of
Chicago successfully enjoined the operation of a
‚“spa‚ in which nude women committed acts of
masturbation on customers of the spa. The court
found that a masturbatory massage parlor was a
house of prostitution not necessarily under the
criminal law but the common law, and since houses of
prostitution were common law nuisances, they could
be enjoined as such. See also City of Chicago v.
Geraci, 30 Ill.App.3d 699, 332 N.E.2d 487 (1st
Dist. 1975); Village of Bensenville v. Botu, Inc., 39
Ill.App.3d 634, 350 N.E.2d 239 (2d Dist. 1976).

In Wes Ward Enterprises, Ltd. v. Andrews, 42
Ill.App.3d 458, 355 N.E.2d 131 (3d Dist. 1976),
the City of Peoria successfully regulated massage
parlors by licensing them under its police power.
The court in Wes Ward approved the following
provisions of the Peoria ordinance: an annual fee of
$100 plus $25 per masseur; a prohibition of nudity
in the presence of an employee; and a prohibition
of touching or massaging a sexual or genital area
of any other person.

The Illinois appellate court held that an
ordinance that prohibited persons of one sex from giving
a massage to persons of the other sex violated the
equal protection clause since there was not a
compelling state interest in such a regulation
when there were less intrusive means available under
existing law. Wheeler v. City of Rockford, 69
Ill.App.3d 220, 387 N.E.2d 358, 25 Ill.Dec. 702 (2d
Dist. 1979). But see Oriental Health Spa v. City
of Fort Wayne, 864 F.2d 486 (7th Cir. 1988), and
Gora v. City of Ferndale, 456 Mich. 704, 576
N.W.2d 141 (1998), for a different result. The court in
Wheeler did approve a portion of the ordinance
that regulated false or misleading advertisements but
struck down as violative of the Fourth Amendment a
provision requiring that at least twice per year
the police inspect without a warrant each massage
parlor’s nonpublic areas. The issue of warrantless
searches in such establishments has been approved,
however, in other jurisdictions. See Clampitt v.
City of Fort Wayne, 682 F.Supp. 401 (N.D.Ind.
1988); Gora, supra.
Finally, in Oriental Health Spa, supra, the U.S.
Court of Appeals for the Seventh Circuit found
that the Fort Wayne ordinance regulating massage
and nude modeling establishments rationally
related to curtailing illegal sexual conduct so as
to satisfy the equal protection clause. The court also
approved a $500 annual licensing fee, a
prohibition on locks for studio doors, limitation on operating
hours, mandatory employee information, and
cleanliness standards.

B. {7.26} Tattoo Parlors ‚” AIDS and Hepatitis B

The appeal of tattooing was once limited to a
small number of people, but now it apparently
appeals to a broader group. Because tattooing
involves punctures of the skin and exposure to blood
and because infectious diseases such as hepatitis
B and human immunodeficiency virus (which
develops into AIDS) are transmitted through
contaminated needles or syringes or exposure to
contaminated blood, some municipalities are
concerned with the risk tattooing carries of transmitting
such diseases. It is a Class A misdemeanor to
pierce a minor’s body or oral cavity without parental
consent (720 ILCS 5/12-10.1) and for anyone not
licensed to practice medicine to tattoo or offer to
tattoo a person under the age of 21 (720 ILCS
5/12-10), but beyond that, tattoo operations are
unregulated by the state. The question arises
whether municipalities may regulate or prohibit them.

The powers to regulate in the area of public
health and to define, prevent, and abate nuisances
discussed in ‚§‚§7.5 and 7.16 above give a
municipality the means to regulate tattoo operations for
public health purposes or to prohibit them. The
Illinois Supreme Court has found a compelling
interest in protecting and promoting public health
and in adopting measures reasonably designed to
prevent the spread of AIDS. People v. Adams, 149
Ill.2d 331, 597 N.E.2d 574, 173 Ill.Dec. 600

Effective regulation of tattoo operations by a
municipality would be quite extensive, requiring,
among other things, training and testing of
operators and frequent onsite inspections. It would thus
tax the resources of a municipality
disproportionately to the benefit of a small percentage of the
population. A more cost-effective means of
regulation is to limit tattoo operations to physicians,
osteopaths, or dentists operating for medical
purposes. The legislatures of the states of Connecticut,
Florida, Massachusetts, Oklahoma, and South
Carolina have followed this course. When such
restrictions have been subject to judicial
scrutiny, they have been found reasonable. Golden v.
McCarty, 337 So.2d 388 (Fla. 1976); Grossman v.
Baumgartner, 17 N.Y.2d 345, 218 N.E.2d 259,
271 N.Y.S.2d 195 (1966); Kennedy v. Hughes, 596
F.Supp. 1487 (D.Del. 1984); State ex rel. Medical
Licensing Board of Indiana v. Brady, 492 N.E.2d 34
(Ind.App. 1986). See also Yurkew v. Sinclair,
495 F.Supp. 1248 (D.Minn. 1980) (upholding
Minnesota State Fair Board of Managers’ total ban of
tattooing booths at state fairs).

The distinction between lay tattoo operators and
physicians, osteopaths, or dentists has withstood
equal protection challenge. Golden, supra, 337
So.2d at 391; Kennedy, supra, 596 F.Supp. at 1493.
Restrictions of tattooing to medical professionals
have not been found to be due process violations.
Golden, supra, 337 So.2d at 390; Kennedy, supra.
Neither have other courts found First Amendment
violations in restrictions on tattoo operations.
Yurkew, supra, 495 F.Supp. at 1253; Brady, supra, 492
N.E.2d at 39; People v. O’Sullivan, 96 Misc.2d 52,
409 N.Y.S.2d 332 (1978).

C. {7.27} The Use of Search Warrants

Searching or inspecting premises has been
considered by municipalities as a means of solving
certain police problems. Wheeler v. City of
Rockford, 69 Ill.App.3d 220, 387 N.E.2d 358, 25 Ill.Dec.
702 (2d Dist. 1979). Properly used, a search with
or without a warrant (as a particular case may
require) can be an effective tool in gathering
evidence of an ordinance violation or in determining
compliance with municipal regulations, for
example, in the area of code enforcement. Since there
does not usually appear to be an express
authorization for the use of a search warrant, the power can
be implied if necessary and essential to
accomplish the power granted. Such implied power derives
from the power to enforce certain ordinances, such
as zoning ordinances. People ex rel. Foreman v.
Sojourners Motorcycle Club, Ltd., 134 Ill.App.3d
448, 480 N.E.2d 840, 89 Ill.Dec. 358 (2d Dist.

The Fourth Amendment protects persons and owners
of property from unreasonable searches.
Ordinances that allow searches of buildings
without a warrant have generally found disfavor among
the courts. Camara v. Municipal Court of City &
County of San Francisco, 387 U.S. 523, 18 L.Ed.2d
930, 87 S.Ct. 1727 (1967); See v. City of Seattle,
387 U.S. 541, 18 L.Ed.2d 943, 87 S.Ct. 1737

Although there are cases in which warrants may not
be necessary, they require dividing property
into private areas (in which a warrant is
required) and public areas (in which a warrant is not
required) (see People v. Janis, 139 Ill.2d 300,
565 N.E.2d 633, 152 Ill.Dec. 100 (1990)) or examining
whether certain private commercial properties
(such as a mine) may be entered without a warrant
because of some regulatory scheme and inspection
schedule (Donovan v. Dewey, 452 U.S. 594, 69
L.Ed.2d 262, 101 S.Ct. 2534 (1981)). Other areas
in which warrants have been found unnecessary are
(1) on business premises but not within a building
(Air Pollution Variance Board of Colorado v.
Western Alfalfa Corp., 416 U.S. 861, 40 L.Ed.2d
607, 94 S.Ct. 2114 (1974)); (2) in a business that
has been subject to extremely close government
supervision such as firearms dealers (United States v.
Biswell, 406 U.S. 311, 32 L.Ed.2d 87, 92 S.Ct.
1593 (1972)) or even junkyard dealers (New York v.
Burger, 482 U.S. 691, 96 L.Ed.2d 601, 107 S.Ct.
2636 (1987)) and secondhand dealers (Second
Hand Tunes v. City of Chicago, 231 F.Supp.2d 784
(N.D.Ill. 2002)); (3) liquor stores (Colonnade
Catering Corp. v. United States, 397 U.S. 72, 25
L.Ed.2d 60, 90 S.Ct. 774 (1970)) and convenience
stores that sell liquor (Aida Food & Liquor, Inc.
v. City of Chicago, No. 03 C 4341, 2005 U.S.Dist.
LEXIS 6277 (N.D.Ill. Mar. 29, 2005)); (4)
intrusions serving governmental needs that exist beyond
ordinary law enforcement needs (National Treasury
Employees Union v. Von Raab, 489 U.S. 656,
103 L.Ed.2d 685, 109 S.Ct. 1384 (1989); see also
Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989));
and (5) searches of residential property for the
purpose of protecting and preserving life and property
and to avoid serious injury when enforcement
officers reasonably believe, in light of the totality of
circumstances, that an emergency exists (People v.
Thornton, 286 Ill.App.3d 624, 676 N.E.2d 1024,
222 Ill.Dec. 60 (2d Dist. 1997) (warrantless
search of apartment by police officers responding to
reports that dog had been left alone in apartment
for several days without food or water)).

Whether a warrantless inspection of a closely
regulated business will be reasonable usually
depends on meeting three criteria: there must be a
substantial government interest, the inspection
must be necessary to further the regulating
scheme, and the owner must be advised that the search is
being made pursuant to law and within a defined
scope with limited discretion by the inspector.
Burger, supra; Hansen v. Illinois Racing Board,
179 Ill.App.3d 353, 534 N.E.2d 658, 128 Ill.Dec.
476 (1st Dist. 1989).
In Camara, supra, the Supreme Court recognized
that a code enforcement search of property
differs from a typical criminal search. Probable
cause for the latter requires knowledge of a specific
violation; probable cause to inspect exists when
‚“reasonable legislative or administrative standards
for conducting an area inspection are satisfied
with respect to a particular dwelling.‚ 87 S.Ct. at 1736.
Accordingly, the City of Hometown enacted an
ordinance describing what a court must consider in
determining probable cause for warrants for
inspections for municipal building code violations.
Hometown Co-operative Apartments v. City of
Hometown, 515 F.Supp. 502, 503 (N.D.Ill. 1981).

An earlier version of the Hometown ordinance,
having no warrant procedure, was held
unconstitutional under the Fourth Amendment
(Hometown Co-operative Apartments v. City of
Hometown, 495 F.Supp. 55 (N.D.Ill. 1980));
however, the amended ordinance withstood facial
challenge to its constitutionality. A similar
Peoria ordinance was also held constitutional on its face.
Tobin v. City of Peoria, Illinois, 939 F.Supp. 628
(C.D.Ill. 1996). In both the second Hometown
decision and Tobin, however, the courts reserved
ruling on whether application of those ordinances
would be unconstitutional in the event city
officials would or could not obtain either a warrant or
consent for inspection but nevertheless proceeded
to impose penalties on property owners for failure
to obtain certificates of inspection.

The court in Black v. Village of Park Forest, 20
F.Supp.2d 1218 (N.D.Ill. 1998), had before it the
village’s annual inspections of rented
single-family homes as part of its housing code. The court held
that (1) the renter’s (as opposed to the owner’s)
consent was required absent a search warrant for an
administrative search of the home; (2) traditional
probable cause principles were not applicable to the
issuance of administrative search warrants but the
passage of time and/or the nature of the building
were to be considered; (3) reasonable legislative
or administrative standards were needed concerning
the search (a) to protect against properties being
unfairly targeted for searches, thus requiring some
‚“neutral criteria,‚ and (b) to limit the scope of
the search to what is necessary to achieve the lawful
goals of the program; (4) rented single-family
home annual inspections without similar inspections
for multifamily rentals were not justified; and
(5) an additional fee when the village was forced to
obtain a warrant was an unconstitutional burden on
the exercise of Fourth Amendment rights. 20
F.Supp.2d at 1222 ‚”œ 1231.

Although Hometown and Tobin suggest and Black
requires that either a warrant or consent is
ordinarily required for inspection of residential
property for building code violations, the Seventh
Circuit declined to rule that a warrantless
inspection for code violations was clearly unlawful when
the contractor working on the premises consented
to the inspection without the owner’s knowledge or
consent. Montville v. Lewis, 87 F.3d 900 (7th Cir.
1996), cert. denied, 117 S.Ct. 961 (1997). The
issue in that case was whether the defendant city
officials were entitled to qualified immunity. The
court held that they had such immunity on the
basis that the inspectors’ duty to inquire further as to a
third party’s authority to consent to an
inspection was not clearly established under the relevant case
law. Citing the distinction made by the Supreme
Court in Camara, supra, between administrative
searches and searches in furtherance of a criminal
investigation, the Seventh Circuit concluded it was
reasonable for the inspectors to believe that they
were not subject to the same requirements for thirdparty
consent as they would have been had the search
been part of a criminal investigation.

Clearly, an officer would be required in most
cases to obtain a warrant to search when consent is
not forthcoming. Therefore, a municipality must be
prepared in this area of law to have appropriate
ordinances that courts can rely on when asked to
issue a search warrant. But see Brower v. Village of
Bolingbrook, 735 F.Supp. 768 (N.D.Ill. 1990),
setting forth criteria that an ordinance must meet to
provide for a warrantless inspection of commercial

In Illinois, a verified complaint for a search
warrant is drafted stating facts sufficient to show
probable cause and particularly describing the
place or person or both to be searched and seized. See
725 ILCS 5/108-3 through 5/108-5.

D. {7.28} Parental Responsibility for Juvenile

Many Illinois municipalities have experienced
ever-increasing evidence of juvenile vandalism
resulting in property loss or damage. The Illinois
Parental Responsibility Law, 740 ILCS 115/1, et
seq., provides a civil remedy to injured parties
against the parents of unemancipated minors who
reside with their parents for the willful and
malicious acts of the minors in an amount not to exceed
$20,000. 740 ILCS 115/5. The Law was approved in
Vanthournout v. Burge, 69 Ill.App.3d 193, 387
N.E.2d 341, 25 Ill.Dec. 685 (2d Dist. 1979), and
Robison v. First State Bank of Pekin, 144 Ill.App.3d
991, 495 N.E.2d 637, 99 Ill.Dec. 190 (3d Dist.
1986). Section 4 of the Law specifically authorizes
municipalities and others specified to enforce the
liability imposed by the Law. Further, 720 ILCS
5/21-1.2 and 5/21-1.3 make institutional vandalism
and defacement of property crimes for which
parents may be liable for damages under the Law.
Also, 430 ILCS 65/4(c) makes parents of
applicants under 21 years of age who give required
written consent for a Firearm Owner’s
Identification Card liable for the applicants’ use
of the firearm or ammunition.

The Parental Responsibility Law requires that the
unemancipated minor reside with his or her
parent before the parent can be liable. A
discussion of disputed ‚“residency‚ in an effort to add the
parents as party defendants in a suit under the
Law from defendants in discovery can be found in
McGee v. Heimburger, 287 Ill.App.3d 242, 678
N.E.2d 364, 222 Ill.Dec. 752 (4th Dist. 1997).

Many Illinois municipalities have adopted both
civil and quasi-criminal ordinances that impute
fault to the parent and require, among other
things, (1) parental liability for criminal damages
occasioned by the juvenile, i.e., restitution; (2)
quasi-criminal penalties against the parent; and (3)
participation of the juvenile (and perhaps the
parent) in social adjustment programs.

It should be noted that many of the communities
that have adopted such parental responsibility
ordinances are home rule units. Further, there
are, to this author’s knowledge, no reported Illinois
cases dealing with such ordinances.

Other states have had varying degrees of success
with parental responsibility statutes or
ordinances. New Jersey struck down as
unconstitutional a criminal presumption that a parent is
responsible for the misbehavior of a child who
twice within one year is adjudged guilty of acts
defined as violations of the public peace. Doe v.
City of Trenton, 143 N.J.Super. 128, 362 A.2d 1200
(1976). In another case, the New Jersey Supreme
Court held constitutional a statute that imposed
vicarious civil liability requiring parents of
pupils to respond in money damages for their children’s
willful and malicious destruction of school
property. Board of Education of Piscataway Township v.
Caffiero, 86 N.J. 308, 431 A.2d 799 (1981). In
Piscataway, the statute had no limits on monetary
liability. The court limited the liability to
parents who have custody and control of a child and
thereby are charged with responsibility for the
child’s conduct.
Cases from other jurisdictions upholding
constitutionality are General Insurance Company of
America v. Faulkner, 259 N.C. 317, 130 S.E.2d 645
(1963); Kelly v. Williams, 346 S.W.2d 434
(Tex.Civ.App. 1961); Mahaney v. Hunter
Enterprises, Inc., 426 P.2d 442 (Wyo. 1967); In re William
George T., 89 Md.App. 762, 599 A.2d 886 (1992); In
re Sorrell, 20 Md.App. 179, 315 A.2d 110
(1974); Rudnay v. Corbett, 53 Ohio App.2d 311, 374
N.E.2d 171 (1977); Payless Drug Stores
Northwest, Inc. v. Brown, 80 Or.App. 255, 722 P.2d
31 (1986); Fortune v. Wong, 68 Haw. 1, 702
P.2d 299 (1985); Stang v. Waller, 415 So.2d 123
(Fla.App. 1982); Distinctive Printing & Packaging
Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989);
and In re B.D., 720 So.2d 476 (Miss. 1998).
Georgia held such a law unconstitutional, citing
the policy of the state against imposing liability
without fault and distinguishing cases from other
jurisdictions on the basis that they had limits of
liability and were thus more akin to a penalty.
Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766

It has been held in Maryland that if parents do
not have actual custody and control of a child,
they cannot be made liable. In re James D., 295
Md. 314, 455 A.2d 966 (1983). Liability may attach
to the custodial parent of a child who damages
property while a patient in a hospital. William George
T., supra. Further, if deterrence is directed
toward individuals who have no means of avoiding the
child’s conduct or who cannot affect the offending
conduct, it may be contrary to basic justice and
therefore violative of due process. See Plyler v.
Doe, 457 U.S. 202, 72 L.Ed.2d 786, 102 S.Ct. 2382

Non-home rule Illinois municipalities will have to
point to grants of power from the legislature to
operate effectively in the area of juvenile
vandalism. The municipality may rely on Illinois Municipal
Code ‚§‚§11-1-8, concerning programs and activities
for the prevention or control of juvenile crime,
and 11-5.2-2, for the use of youth service
bureaus. It would appear that the municipality would have
to argue that vandalism is a part of disorderly
conduct under Code ‚§11-5-3 and perhaps a disturbance
under Code ‚§11-5-2. Since there is no express
power to shift the responsibility to the parent, the
municipality may argue that shifting the
responsibility is a power implied necessarily from those
specifically granted.

It should be remembered that prosecution of minors
for municipal ordinance violations
punishable by fine only is permitted without
referral to juvenile court. Village of Glen Ellyn v.
Fujinaga, 190 Ill.App.3d 584, 546 N.E.2d 816, 137
Ill.Dec. 871 (2d Dist. 1989). If the juvenile is
placed on court supervision and then violates the
supervision, contempt proceedings with the
possibility of incarceration are inappropriate.
The Illinois Supreme Court, using its supervisory
powers, has determined that a petition to revoke
court supervision against a minor begins the
prosecution anew with the available fine-only
penalty. The court said the alternative is not a contempt
proceeding for incarceration but rather a referral
to the state’s attorney to file a delinquency petition
under the Juvenile Court Act. City of Urbana v.
Andrew N.B., 211 Ill.2d 456, 813 N.E.2d 132, 286
Ill.Dec. 75 (2004).

E. {7.29} Video Games and Arcades

In recent years, coin-operated and/or
card-operated video game arcades have attracted large
numbers of juveniles who have freely emptied their
pockets in their pursuit of beating the machines.
Many municipalities believe that such arcades also
are breeding grounds for juvenile crime. Under
Illinois Municipal Code ‚§‚§11-42-2 and 11-42-5,
municipalities have the power to ‚“license, tax,
regulate, or prohibit pinball, or bowling alleys,
billiard, bagatelle, pigeon-hole, pool, or any other
tables or implements kept for a similar purpose in
any place of public resort‚ and to ‚“license, tax,
regulate, or prohibit . . . theatricals and other
exhibitions, shows, and amusements and may license,
tax, and regulate all places for eating or

The Illinois appellate court has approved
licensing regulations that prohibit minors from playing
such games. Aladdin’s Castle, Inc. v. Village of
North Riverside, 66 Ill.App.3d 542, 383 N.E.2d
1316, 23 Ill.Dec. 289 (1st Dist. 1978). In a
challenge to a Des Plaines ordinance prohibiting
electronic games and automatic amusement devices
in all but liquor establishments and prohibiting
persons under 21 from operating such games without
a parent or guardian present, the court found
that (1) Illinois municipalities possess the power
to pass such ordinances and (2) the Des Plaines
ordinance would withstand a facial challenge to
its constitutionality. Rothner v. City of Des Plaines,
554 F.Supp. 465 (N.D.Ill. 1981).

The City of Chicago’s ordinance prohibiting minors
(age 17 and under) from playing video
games on days in which school was in session was
found to be a legitimate time, place, and manner
restriction of First Amendment expression. Rothner
v. City of Chicago, 929 F.2d 297 (7th Cir. 1991).

Other jurisdictions that have examined similar
ordinances concur they are not unconstitutional.
People of City of Warren v. Walker, 135 Mich.App.
267, 354 N.W.2d 312 (1984), appeal dismissed,
106 S.Ct. 32 (1985); Marshfield Family Skateland,
Inc. v. Town of Marshfield, 389 Mass. 436, 450
N.E.2d 605, appeal dismissed, 104 S.Ct. 475
(1983). Compare City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283, 71 L.Ed.2d 152, 102 S.Ct. 1070
(1982), on remand, 713 F.2d 137 (1983), in
which a prohibition of a licensee allowing
children under 17 years of age to operate the machines
unless accompanied by their parents violated the
Texas Constitution’s ‚“substantive‚ due process as
lacking social necessity.

F. {7.30} Disorderly Conduct

Traditional powers continue to be helpful in
solving current problems. The State of Illinois
provides a disorderly conduct statute. 720 ILCS
5/26-1. Municipalities are also authorized to enact
ordinances prohibiting disorderly conduct under
Illinois Municipal Code ‚§11-5-3, which states: ‚“The
corporate authorities of each municipality may
prevent intoxication, fighting, quarreling, dog fights,
cock fights, and all other disorderly conduct.‚
This provision permits municipalities to expand on the
conduct that can be proscribed beyond that
provided for in the state’s disorderly conduct statute. In so
doing, a municipality may better tailor its
ordinance to cover specialized local problems. The
examples below are taken from the ordinances of
various Illinois municipalities and illustrate the
success or failure of the ordinances in the
courts. The ordinances provide that a person commits
disorderly conduct when he or she

1. knowingly does any act in such an unreasonable
manner as to provoke, make, or aid in
making a breach of peace (similar to 720 ILCS
5/26-1(a)(1)) (Failure to define
‚“unreasonable‚ does not render the section
unconstitutionally vague. United States v.
Woodard, 376 F.2d 136 (7th Cir. 1967). See People
v. Jackson, 132 Ill.App.2d 1059, 271
N.E.2d 673 (4th Dist. 1971). See also People v.
Justus, 57 Ill.App.3d 164, 372 N.E.2d 1115,
14 Ill.Dec. 836 (1st Dist. 1978); Lester v. City
of Chicago, 830 F.2d 706 (7th Cir. 1987).);

2. knowingly does or makes any unreasonable or
offensive act, utterance, gesture, or display
that under the circumstances creates a clear and
present danger of a breach of peace or
imminent threat of violence (The provision was
upheld in City of Chicago v. Ikin, 12
Ill.App.3d 489, 299 N.E.2d 513 (1st Dist. 1973).
See also People v. Gentry, 48 Ill.App.3d
900, 363 N.E.2d 146, 6 Ill.Dec. 617 (1st Dist.
1977). As to profane language, see City of
Chicago v. Lowy, 40 Ill.App.3d 950, 353 N.E.2d 208
(1st Dist. 1976).);

3. knowingly fails to obey a lawful order of
dispersal by a person known to be a peace officer
under circumstances under which three or more
persons are committing acts of disorderly
conduct in the immediate vicinity that are likely
to cause substantial harm or serious
inconvenience, annoyance, or alarm (The provision
was upheld in City of Chicago v. Weiss,
51 Ill.2d 113, 281 N.E.2d 310, cert. denied, 93
S.Ct. 122 (1972), and City of Chicago v.
Greene, 47 Ill.2d 30, 264 N.E.2d 163 (1970), cert.
denied, 91 S.Ct. 2180 (1971).);

4. knowingly assembles with three or more persons
for the purpose of using force or violence
to disturb the public peace (The provision was
upheld in Weiss, supra.);

5. knowingly carries in a threatening or menacing
manner without authority of law any pistol,
revolver, dagger, razor, dangerous knife,
stiletto, knuckles, slingshot, an object containing
noxious or deleterious liquid, gas, or substance,
or other dangerous weapon or conceals such
a weapon on or about the person or a vehicle (See
City of Chicago v. Roma, 58 Ill.App.3d
686, 374 N.E.2d 1097, 16 Ill.Dec. 322 (1st Dist.
1978) (weapon must be concealed within
accused’s convenient control so weapon is
immediately accessible).);

6. knowingly pickets or demonstrates on a public
way within 150 feet of any primary or
secondary school building while the school is in
session and one-half hour before the school
is in session and one-half hour after the school
session has been concluded (however,
peaceful picketing of any school involved in a
labor dispute not prohibited) (The provision
was held unconstitutional in Grayned v. City of
Rockford, 408 U.S. 104, 33 L.Ed.2d 222, 92
S.Ct. 2294 (1972).);

7. willfully makes or assists in the making of any
noise or diversion that disturbs or tends to
disturb the peace or good order of a school
session or class while on public or private
grounds adjacent to any building in which a school
or any class is in session (The provision
was upheld in Grayned, supra. See also Police
Department of City of Chicago v. Mosley,
408 U.S. 92, 33 L.Ed.2d 212, 92 S.Ct. 2286

8. knowingly pickets or demonstrates on a public
way within 150 feet of any church, temple,
synagogue, or other place of worship while
services are being conducted and one-half hour
before services are to be conducted and one-half
hour after services have been concluded
(however, peaceful picketing of any church, temple
synagogue, or other place of worship
involved in a labor dispute not prohibited) (The
provision was held unconstitutional in
Grayned, supra. See also Mosley, supra.);

9. knowingly engages in any violent, tumultuous,
offensive, or disorderly conduct by
threatening, traducing, quarreling, challenging to
fight, or fighting, or uses obscene,
offensive, profane, or unseemly language to the
annoyance, disturbance, or vexation of
another, or is guilty of any conduct calculated to
breach the peace (The provision was upheld
in City of East Peoria v. Moushon, 45 Ill.App.3d
719, 359 N.E.2d 1205, 1208, 4 Ill.Dec. 253
(3d Dist. 1977), but the court also noted that
vulgar or profane words are not alone sufficient
to permit criminal prosecution unless they are
‚“fighting words.‚); or

10. knowingly fails to obey a lawful order to
disperse by a police officer, when known to be
such an official, when one or more persons are
committing acts of disorderly conduct in the
immediate vicinity and the public health and
safety are imminently threatened (The provision
was upheld in City of Park Ridge v. Larsen, 166
Ill.App.3d 545, 519 N.E.2d 1177, 117
Ill.Dec. 10 (1st Dist. 1988).).

Of course, not all conduct can simply be called
disorderly conduct and be prohibited by an
ordinance. Therefore, the conduct of retail theft
has been held not to fall within the range of
disorderly conduct nor any other grant of power.
City of Kewanee v. Swanson, 144 Ill.App.3d 1, 493
N.E.2d 1213, 98 Ill.Dec. 192 (3d Dist. 1986).

G. {7.31} Juvenile Street Gangs ‚” Curfews

In recent years, municipalities across the country
have been experimenting with new laws and
enforcement policies in an attempt to respond to
problems associated with juvenile street gangs. In
some areas, new ordinances have been adopted that
specifically define and prohibit gang-related
conduct; in others, officials have employed
existing laws and ordinances for curfew, loitering,
disorderly conduct, etc., to curb gang activities.
Both kinds of responses, however, have been
vulnerable to constitutional challenges to the
extent they impinge on First Amendment rights of
association, speech, and assembly or violate due
process standards for defining unlawful conduct or
limiting discretion in enforcement.

The Illinois Supreme Court struck down a Chicago
city ordinance prohibiting loitering by and
with street gang members. City of Chicago v.
Morales, 177 Ill.2d 440, 687 N.E.2d 53, 227 Ill.Dec.
130 (1997). The city adopted the ordinance after
conducting hearings and finding that the presence of
gang members in public places not only intimidated
others but was part of the means by which gangs
created and controlled their territories.

Nevertheless, the Supreme Court found that the
ordinance violated the freedoms of association
and travel under the federal and state
Constitutions, violated due process rights on vagueness
grounds, and unconstitutionally criminalized
gang-member status. On appeal, the U.S. Supreme
Court affirmed. City of Chicago v. Morales, 527
U.S. 41, 144 L.Ed.2d 67, 119 S.Ct. 1849 (1999).
The Court held that uncertainty about the scope of
the ordinance made it too vague. The Court
determined that the standard authorized by the
ordinance and used by a police officer when observing
a street gang member of ‚“remaining in any one
place with no apparent purpose‚ with one or more
other persons was ‚“inherently subjective.‚ 119
S.Ct. at 1854, 1862. The ordinance violated the due
process liberty interest in loitering for innocent
purposes and did not provide fair notice to the
offender of what conduct was prohibited. Recently,
the City of Joliet’s anti-loitering for the purpose
of engaging in drug-related activity ordinance was
held unconstitutional for vagueness and failure to
provide adequate enforcement standards by the
appellate court. People v. Lee, 345 Ill.App.3d 782,
803 N.E.2d 640, 281 Ill.Dec. 236 (3d Dist. 2004).
The decision, however, was vacated by the
Supreme Court as being unnecessary to decide the
case. People v. Lee, 214 Ill.2d 476, 828 N.E.2d
237, 293 Ill.Dec. 267 (2005).

In contrast, the California Supreme Court upheld a
preliminary injunction prohibiting gangmember
defendants from ‚“{s}tanding, sitting, walking,
driving, gathering or appearing anywhere in
public view with any other defendant . . . or with
any other known . . . member {of local gangs}.‚
People ex rel. Gallo v. Acuna, 14 Cal.4th 1090,
929 P.2d 596, 608, 60 Cal.Rptr.2d 277, cert. denied,
117 S.Ct. 2513 (1997). The case, brought under
state nuisance law, sought only to enjoin the conduct
of the named defendants in a four-block area.
Under those circumstances, the California court found
that the San Jose defendants had no protected
associational rights on the basis that their collective
public activities were mainly directed at drug
trafficking and securing control of territory through
intimidation and violence rather than the exercise
of rights to personal associations with others. Id.
The Morales line of cases and In re M.P., 297
Ill.App.3d 972, 697 N.E.2d 1153, 1160 ‚”œ 1161, 232
Ill.Dec. 223 (1st Dist. 1998), may limit the
effect of Acuna on the issue of freedom of association.

The underlying issue in these and other cases is
the extent to which laws and enforcement
policies may reach conduct that is gang related
but either is unrelated to criminal conduct or cannot,
as a practical matter, be linked to the commission
of any crimes. On one end of the spectrum, laws
that merely prohibit wearing street gang colors or
symbols or using gang gestures and signs are
unlikely to survive constitutional challenge since
they raise substantial issues concerning not only
First Amendment rights to free expression but also
due process rights to adequate notice of what
conduct is prohibited. See City of Harvard v.
Gaut, 277 Ill.App.3d 1, 660 N.E.2d 259, 260, 214
Ill.Dec. 68 (2d Dist. 1996), striking down a
Harvard ordinance making it unlawful for any person ‚“to
wear known gang colors, emblems, or other
insignia, or appear to be engaged in communicating
gang-related messages.‚ {Emphasis added by Gaut
court.} See also Stephenson v. Davenport
Community School District, 110 F.3d 1303 (8th Cir.
1997), holding unconstitutional a school district
regulation against the display of gang colors,
signs, signals, etc., on school grounds, and People ex
rel. Gallo v. Acuna, 48 Cal.App.4th 641, 40
Cal.Rptr.2d 589 (1995), rev’d, 14 Cal.4th 1090 (1997),
holding unconstitutional injunction provisions
concerning gang communications, gestures, signals,
and clothing. (The appellate court ruling on these
provisions was not appealed to the California
Supreme Court.)

On the other hand, laws that prohibit other kinds
of conduct with elements of intimidation,
harassment, or coercion may pass constitutional
muster if they require something more than loitering
for ‚“no apparent purpose‚ as in the Morales line
of cases or more than mere gang-member status. See
Jackson v. State of Indiana, 634 N.E.2d 532
(Ind.App. 1994) (upholding conviction under state gang
statute when evidence showed active participation
in gang as officer but no part in commission of any
other crime). See also Helton v. State of Indiana,
624 N.E.2d 499 (Ind.App. 1993) (holding gang
statute constitutional). However, to the extent
that such laws single out gang members based on their
status or expression, they would have difficulty
surviving constitutional challenge. See the Morales
line of cases, supra; R.A.V. v. City of St. Paul,
Minnesota, 505 U.S. 377, 120 L.Ed.2d 305, 112 S.Ct.
2538, 2541 (1992) (invalidating bias-motivated
crime ordinance on grounds that even conduct
equivalent to ‚“fighting words‚ may not be
selectively prohibited on basis of content or point of

Another approach to gang-related crime has been to
target the instruments of gang violence and
vandalism. Although provisions in an injunction
prohibiting the use or possession of various objects
commonly used by gang members for unlawful
purposes were held unconstitutionally overbroad by
the California appellate court in Acuna, supra, 40
Cal.Rptr.2d at 598, the Seventh Circuit upheld a
Chicago home rule ordinance prohibiting the sale
of spray paint and jumbo indelible markers within
the city limits. National Paint & Coatings Ass’n
v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995). An
Illinois non-home rule municipality, however,
would have no power to enact such an ordinance
unless a ban on sales could be supported by
specific statutory grants of power.

Municipalities may by ordinance declare a curfew
throughout all or any part of the municipality
and establish conditions therefor. Illinois
Municipal Code ‚§11-1-5. The Child Curfew Act, 720 ILCS
555/0.01, et seq., establishes times and days on
which children of specified ages may not be present
at specified locations. A municipality’s curfew
ordinance is valid even if it conflicts with the state’s
curfew statute by being more restrictive. Village
of Deerfield v. Greenberg, 193 Ill.App.3d 215, 550
N.E.2d 12, 140 Ill.Dec. 530 (2d Dist. 1990).

A recent decision of the Seventh Circuit
challenging Indiana’s curfew law, Hodgkins v. Peterson,
355 F.3d 1048 (7th Cir. 2004), has caused both the
State of Illinois and most municipalities to redraft
their curfew regulations. The court, in striking
down the Indiana curfew statute, found that it was not
sufficiently narrowly tailored to serve a
significant government interest and failed to allow sufficient
exceptions to permit children the exercise of
their constitutional rights under the First Amendment’s
freedom of expression clause during the hours when
the children were not permitted to be in a public

In order to be in accordance with Hodgkins, it is
necessary that a curfew ordinance provide
specific defenses to the violation related to
exercising First Amendment rights and provide a
procedure whereby the officer enforcing the
ordinance, prior to taking any action such as an arrest,
makes inquiry concerning the suspected violation
such as to the person’s age and reason for being out
in public during the prohibited hours. After the
inquiry, enforcement should ensue only if there is a
reason to believe that a violation has occurred
and none of the First Amendment defenses are