ALARM DETECTION SYSTEMS, INC.,
Plaintiff-Appellant, v. THE VILLAGE OF HINSDALE, Defendant-Appellee.
No. 2-00-1393
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
326 Ill. App. 3d 372; 761 N.E.2d 782; 2001 Ill. App. LEXIS 1496; 260 Ill. Dec.
599; 2002-1 Trade Cas. (CCH) P73,554
December 21, 2001, Filed
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff alarm company sought a permanent injunction
preventing defendant village from enforcing an ordinance that required owners of
commercial buildings to connect their fire alarm systems directly to the
village's fire board for monitoring. The parties filed cross-motions for summary
judgment. The Circuit Court of Du Page County (Illinois) granted summary
judgment in favor of the village. The alarm company appealed.
OVERVIEW: The appellate court held that a municipality had the authority under
65 Ill. Comp. Stat. 5/11-8-2, 11-30-4 (1998) to amend national building or fire
codes or draft its own codes as it determined necessary to protect the public
safety and welfare. Accordingly, the village had the authority to enact the
instant ordinance requiring all fire alarm systems in new and existing
commercial buildings be tied directly to the village's fire board. The appellate
court noted that there was a reasonable basis for the determination by the
village that public safety required the application of the ordinance to existing
buildings. In addition, the appellate court held that the ordinance was not a de
facto regulation on fire alarm companies, nor was it a violation of the Illinois
Antitrust Act, 740 Ill. Comp. Stat. 10/1 et seq. (1998). Finally, the appellate
court concluded that although the alarm company failed to raise the issue prior
to its appeal, the ordinance was not an unconstitutional infringement upon its
right to contract, but rather was a reasonable legislative judgment tailored
toward the improvement of the public welfare and safety.
OUTCOME: The judgment was affirmed.
JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Alarm Detention Systems, Inc. (ADS), appeals from the August 29,
2000, order of the circuit court of Du Page County entering summary judgment on
behalf of the defendant, the Village of Hinsdale (the Village), on ADS's
complaint for injunctive relief. In its complaint, ADS sought the entry of a
permanent injunction preventing the Village from enforcing an ordinance that
required all owners of commercial buildings to connect their fire alarm systems
directly to the Village's fire board for monitoring. In granting summary
judgment, the trial court found that the Village had the authority to enact the
ordinance under the provisions of the Illinois Municipal Code (the Code) ( 65
ILCS 5/1-1-1 et seq. (West 1998)). We affirm.
[*375] The following facts are relevant to the disposition [***2] of this
appeal. ADS is state-licensed as a private alarm contractor pursuant to the
Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 (
225 ILCS 446/1 et seq. (West 1998)). ADS provides fire alarm services to
commercial, institutional, and residential customers in over 200 Illinois
communities, including Hinsdale. ADS sells and installs fire alarm systems and
monitors fire alarm signals at its central monitoring station. ADS has entered
into long-term contracts with commercial customers in Hinsdale to provide
central station monitoring of their fire alarm systems. ADS's fire alarm systems
and its central monitoring station satisfy all the requirements of nationally
recognized fire codes.
The Village is a non-home-rule unit of local government that operates its own
fire [**786] department and fire prevention bureau. The Village also operates a
communications center, which includes a fire board that receives alarm signals
from certain fire alarm system users in Hinsdale. The Village has entered into
an exclusive contract with Security Link/Ameritech to maintain and operate the
fire board. Security Link is a competitor of ADS.
Prior [***3] to 1999, the Village had adopted various national building and fire
prevention codes governing the requirements and use of automatic fire alarm
detection systems in certain types of buildings. These codes included the
National Building Code of the Building Officials Code Administrators (BOCA).
Hinsdale Municipal Code § 9-2-1 (1997). BOCA requires that all fire detection
systems be installed in accordance with the requirements of the National Fire
Alarm Code drafted by the National Fire Protection Association (NFPA 72). BOCA
National Building Code § 919.1 (1996). Pursuant to NFPA 72, all commercial
structures that are required to have an automatic fire alarm system must be
monitored by either a central monitoring station or a remote station (e.g., a
municipal fire board). NFPA National Fire Alarm Code § 5-4.1 (1999).
On March 2, 1999, the Village adopted ordinance No. 99-8, which amended the
Village's building code. The ordinance made certain amendments to BOCA's fire
alarm system requirements. Specifically, the ordinance amended section 919.4.2
of the BOCA National Building Code (BOCA National Building Code § 919.4.2
(1996)) and required the fire [***4] alarm of certain commercial structures to
be directly connected to the Village's fire board. The ordinance provided, in
relevant part:
"HN1919.4.2 Existing Structures: An automatic fire detection system complying
with NFPA 72, 1993 edition, or an automatic fire suppression system complying
with NFPA 13, 1994 Edition. [*376]
A. in each existing building and structure in Use Group A-1; A-2; A-3; and A-5
***
* * *
Each such fire detection system shall be installed and tied directly to the
Hinsdale Fire Department Communications Center on or before January 1, 2000. See
also Section 904.0 related to fire suppression systems." Hinsdale Municipal Code
§ 9-2-3 (eff. March 12, 1999).
The ordinance was enacted on the basis of Fire Chief Patrick Kenny's
recommendation that direct connection to the fire board would reduce the
response time to fire alarms, thereby saving lives and property and promoting
firefighter safety. Following the enactment of the ordinance, the Village sent
letters to the commercial businesses that would be affected by the new
ordinance. The letters informed the businesses that their fire detection systems
would have to be directly connected to the Village's [***5] fire board by
January 1, 2000.
On November 29, 1999, ADS filed a six-count complaint seeking the entry of an
order permanently enjoining the Village from enforcing the ordinance. The only
counts of the complaint that are relevant to the instant appeal are counts I,
II, V, and VI. Count I alleged that the ordinance contravened the safety
standards adopted by national building and fire codes and was unlawful because
its enactment was beyond the scope of the Village's authority as a non-home-rule
municipality. Count II alleged the ordinance was a de facto regulation of
private alarm contractors that was preempted by the Private Detective, Private
Alarm, Private Security, and Locksmith Act of 1993 ( 225 ILCS 446/1 et seq.
(West 1998)). Count V alleged that the [**787] ordinance was an illegal
restraint on trade in violation of the Illinois Antitrust Act ( 740 ILCS 10/1 et
seq. (West 1998)). Count VI alleged that the ordinance deprived ADS of its
constitutional right to due process under article I, section 2, of the Illinois
Constitution (Ill. Const. 1970, art. I, § 2).
The parties subsequently filed cross-motions for summary judgment [***6] as to
counts I, II, V, and VI of the complaint. On August 29, 2000, following a
hearing, the trial court granted the Village's motion for summary judgment and
denied ADS's motion for summary judgment. In entering its ruling, the trial
court explained that the Code grants municipalities broad powers to enact
ordinances for the health, safety, and welfare of the community. The trial court
found that the ordinance was clearly germane to the community's health, safety,
and welfare as it addressed the fire safety needs of the community as determined
by the Village. On November 3, 2000, the trial court made an express written
finding that there was no just reason for delaying [*377] the enforcement or
appeal of its order. Also on November 3, 2000, ADS voluntarily dismissed the two
counts of its complaint that remained pending. This timely appeal followed.
HN2Summary judgment is appropriate when the pleadings, depositions, and
affidavits show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. 735 ILCS
5/2-1005(c) (West 2000). HN3Summary judgment is a drastic means of disposing of
litigation and should [***7] be allowed only when the right of the movant is
free and clear from doubt. McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941,
948, 194 Ill. Dec. 86, 627 N.E.2d 202 (1993). HN4The disposition of a summary
judgment motion is not discretionary, and the standard of review is de novo.
Quinton v. Kuffer, 221 Ill. App. 3d 466, 471, 164 Ill. Dec. 88, 582 N.E.2d 296
(1991). With these principles in mind, we turn to a consideration of the merits.
ADS's first argument on appeal is that the Village lacked the authority to
mandate that all commercial structures be directly connected to its fire board.
Specifically, ADS argues that the Village, as a non-home-rule unit of
government, lacked the statutory authority to adopt ordinances setting forth
fire alarm monitoring requirements for existing and new structures that were
inconsistent with BOCA and NFPA 72. Rather, ADS contends that the Village's
authority under the Code was limited to adopting by reference either all or part
of BOCA and NFPA 72.
The Illinois Constitution of 1970 allows non-home-rule units of local government
only those powers granted to them by law. Ill. Const. 1970, art. VII, § 7. Such
[***8] units are essentially in the position occupied by all units of local
government before the concept of home rule was established by the 1970
Constitution. Queenwood East Sheltered Care Home, Ltd. v. Village of Morton, 94
Ill. App. 3d 51, 54, 49 Ill. Dec. 618, 418 N.E.2d 472 (1981). In explaining the
powers of non-home-rule units of government, our supreme court has explained:
"It is well settled that HN5a city, like all other municipal corporations,
derives its existence and its powers from the General Assembly; that it
possesses no inherent power; that in order to legislate upon, or with reference
to, a particular subject or occupation, it must be able to point to the statute
which gives it the power to do so; that statutes granting powers to municipal
corporations are strictly construed, and any fair or reasonable doubt of the
existence of an asserted power is resolved against the municipality which claims
the right to exercise it ***." Father Basil's [**788] Lodge, Inc. v. City of
Chicago, 393 Ill. 246, 252, 65 N.E.2d 805 (1946).
ADS asserts that the only provision of the Code that permits municipalities to
regulate the construction and alteration of [***9] building structures is
section 1-3-2, which provides, in relevant part:
[*378] "HN6A municipality may adopt by reference, as criteria for the issuance
of construction, reconstruction, alteration, or installation permits, all or
part of the provisions of regulations [prepared by a nationally recognized
technical trade or service association] without setting forth those provisions
in full ***." 65 ILCS 5/1-3-2 (West 1998).
ADS argues that, as a non-home-rule unit of government, the Village's authority
to regulate the construction and alteration of building structures is strictly
derived from section 1-3-2 of the Code. Because section 1-3-2 grants the power
to only adopt "all or part" of nationally recognized regulations, ADS contends
that the Village was without the authority to amend, delete, or modify sections
of those national codes that it has adopted. Thus, ADS concludes that the
Village was without the authority to amend those provisions of BOCA and NFPA 72
that authorize fire alarm monitoring by either a central station or a fire
board. ADS also notes that section 1-3-2 only applies to the issuance of
building permits and does not permit a municipality [***10] to regulate existing
structures.
By focusing its attention on section 1-3-2 of the Code, ADS has ignored other
sections of the Code that provide the authority for the action taken by the
Village in this case. HN7Section 11-30-4 of the Code provides that the corporate
authorities of each municipality "may prescribe the strength and manner of
constructing all buildings, structures and their accessories and of the
construction of fire escapes thereon." 65 ILCS 5/11-30-4 (West 1998). Section
11-8-2 permits the enactment of ordinances to "put in a safe fire condition" all
buildings and enclosures. 65 ILCS 5/11-8-2 (West 1998). Illinois courts have
consistently held that HN8these grants of authority permit municipalities to
regulate both the construction of new buildings and the maintenance of existing
buildings in order to protect the lives, health, and property of the public. See
Kaukas v. City of Chicago, 27 Ill. 2d 197, 200-01, 188 N.E.2d 700 (1963); City
of Chicago v. Washingtonian Home of Chicago, 289 Ill. 206, 211, 124 N.E. 416
(1919).
In Washingtonian, our supreme court held that a municipality [***11] had the
authority to enact a fire prevention ordinance requiring all hospitals, nursing
homes, jails, and police stations to install an automatic sprinkling system.
Washingtonian, 289 Ill. at 217. In reliance upon an earlier version of section
11-30-4 of the Code, the court explained that a municipality has the right to
enact reasonable regulations for the protection of the lives and the safety of
its citizens and to protect property against destruction by fire. Washingtonian,
289 Ill. at 211-12. Noting that the rights of the individual may occasionally be
intruded upon in order to protect the welfare and safety [*379] of the public,
the court held that HN9a municipality may enact ordinances to protect the public
safety and welfare even though such ordinances may result in inconvenience or
monetary loss to individuals. Washingtonian, 289 Ill. at 212.
A number of years later, in Kaukas v. City of Chicago, 27 Ill. 2d 197, 188
N.E.2d 700 (1963), our supreme court reaffirmed the principle that
municipalities may lawfully enact new building code requirements that can be
retroactively applied to buildings already in existence. [***12] In that case, a
[**789] municipality enacted an ordinance prohibiting the use of glass panel
doors as fire exits in all new and existing buildings. Kaukas, 27 Ill. 2d at
199. The owner of an existing building filed a suit for declaratory judgment
arguing that the ordinance, when applied to existing buildings, deprived the
property owner of due process of law and constituted a taking of the owner's
property without just compensation. Kaukas, 27 Ill. 2d at 199-200.
Explaining that a municipality had the authority to prescribe the strength of
buildings and to cause all buildings to be placed in a safe fire condition (Ill.
Rev. Stat. 1959, ch. 24, pars. 23-70, 23-72 (now codified at 65 ILCS 5/11-8-2,
11-30-4 (West 1998))), the supreme court held that the HN10municipality could
lawfully enact building requirements that retroactively applied to existing
buildings. Kaukas, 27 Ill. 2d at 200-01. The court noted that the only
limitation on this power arises when the burden imposed on the owner of the
property to comply with the ordinance is too great in comparison to the public
benefit that the ordinance provides. Kaukas, 27 Ill. 2d at 201. [***13] After
reviewing the evidence in the case, the court concluded that the municipality
had a reasonable basis to determine that public safety required that the
ordinance be applied to existing buildings. Kaukas, 27 Ill. 2d at 201. The court
also determined that the cost of compliance would not cause such undue hardship
to property owners so as to result in a violation of due process or an
unconstitutional taking of property without compensation. Kaukas, 27 Ill. 2d at
203; see also City of Chicago v. Franks, 15 Ill. App. 2d 189, 192-93, 145 N.E.2d
806 (1957) (municipality has broad authority under the Code to regulate the
construction and maintenance of buildings to promote the welfare and safety of
the community).
In light of these authorities, we reject ADS's assertions that section 1-3-2 of
the Code restricts a municipality to enacting only those rules and regulations
promulgated by nationally recognized trade associations. Indeed, section 1-3-2
contains no language that would prohibit a municipality from drafting and
enacting its own building and fire codes. We believe that such a conclusion
would be contrary to the purpose of [***14] the Code as articulated in both
Kaukas and [*380] Washingtonian. Rather, we hold that HN11a municipality has the
authority under sections 11-8-2 and 11-30-4 of the Code to amend national
building or fire codes or draft its own codes as it determines is necessary in
order to protect the public safety and welfare. Kaukas, 27 Ill. 2d at 201. We
agree with the Village that section 1-3-2 of the Code was intended merely as a
tool of convenience to permit municipalities to adopt national codes by
reference without having to reprint the entire text of the adopted codes in the
local municipal code.
Accordingly, we conclude that the trial court correctly determined that the
Village had the authority under the Code to enact the instant ordinance
requiring that all fire alarm systems in new and existing commercial buildings
be tied directly to the Village's fire board. As noted in Kaukas, the public has
a right to be protected from fire, and a municipality has the duty to provide
such protection. Kaukas, 27 Ill. 2d at 201. Based upon our review of the
evidence in the instant case, there existed a reasonable basis for the
determination by the Village [***15] that public safety required the application
of this ordinance to existing buildings. The affidavits and depositions filed in
support of the parties' motions for summary [**790] judgment indicate that the
direct connection of a fire alarm system to the Village's fire board allows for
a faster response time than if an alarm system is monitored by a private alarm
company. Even ADS acknowledges that private central station monitoring adds
anywhere from 15 to 40 seconds to fire alarm response times. Such a delay can
provide sufficient time for a small fire to grow into a larger and more
dangerous fire.
As there exists a reasonable public safety rationale to support the enactment of
the ordinance, the only remaining question is whether the burden that the
ordinance places upon private property owners is too great. Kaukas, 27 Ill. 2d
at 201. We note that ADS is not the owner of any property in Hinsdale and there
has been no allegation or evidence that the ordinance places too great a burden
on property owners there. We also note that, prior to the enactment of the
instant ordinance, the Village's ordinances already required that the owners of
commercial buildings install fire alarm [***16] systems connected to either a
central monitoring system or the Village's fire board. We do not believe that
property owners who have fire alarm systems that are currently connected to a
central monitoring system will suffer too great a burden in having their systems
changed to the Village's fire board. Indeed, the contract entered into between
the Village and Security Link provides for a connection fee of only $ 150.
Accordingly, we hold that Village's enactment of the instant ordinance was a
lawful exercise of its authority under the Code.
In so holding, we note that the authorities relied upon by ADS are [*381]
distinguishable from the case at bar. Both Wilkes v. Deerfield-Bannockburn Fire
Protection District, 80 Ill. App. 3d 327, 333-35, 35 Ill. Dec. 551, 399 N.E.2d
617 (1979), and Glenview Rural Fire Protection District v. Raymond, 19 Ill. App.
3d 272, 274-76, 311 N.E.2d 302 (1974), concern the powers of fire protection
districts to enact building codes and provide ambulance service. Fire protection
districts are not governed by the provisions of the Code and are completely
separate legal entities from municipalities. Raymond, 19 Ill. App. 3d at 277.
[***17] Accordingly, these cases are of no import in determining the authority
of municipalities.
We also believe that the facts of Queenwood East Sheltered Care Home, Ltd. v.
Village of Morton, 94 Ill. App. 3d 51, 54, 49 Ill. Dec. 618, 418 N.E.2d 472
(1981), are distinguishable. In that case, the court invalidated a municipal
ordinance regulating the maintenance of fire protection devices. Queenwood, 94
Ill. App. 3d at 55. However, contrary to ADS's representations, the court did
not invalidate the ordinance because the municipality lacked the authority to
enact such an ordinance under the Code. Rather, the court held that the
municipality could not enact such an ordinance when there was no preexisting
ordinance requiring the installation of fire protection devices in the first
instance. Queenwood, 94 Ill. App. 3d at 55. Thus, Queenwood does not affect our
determination that the Village was authorized under the Code to enact the
instant ordinance.
ADS's next argument on appeal is that the Village's enactment of the ordinance
violated its right to due process under the Illinois Constitution (Ill. Const.
1970, art. I, § 2). Although [***18] ADS acknowledges that fire safety is a
legitimate governmental interest, it argues that the ordinance is an
unreasonable method of achieving fire safety, as it disregards the BOCA and NFPA
72 standards for fire alarm monitoring. ADS argues that the ordinance is
arbitrary and capricious and impermissibly [**791] interferes with ADS's
property and liberty interest in pursuing its chosen trade and business.
It is a well-established constitutional principle that HN12every citizen has the
right to pursue a trade, occupation, business, or profession. Coldwell Banker
Residential Real Estate Services of Illinois, Inc. v. Clayton, 105 Ill. 2d 389,
397, 86 Ill. Dec. 322, 475 N.E.2d 536 (1985). This right constitutes both a
property and liberty interest entitled to the protection of the law as
guaranteed by the due process clauses of the state and federal constitutions.
Rios v. Jones, 63 Ill. 2d 488, 496-97, 348 N.E.2d 825 (1976). Nevertheless, this
constitutionally protected right is limited by the right of the state to
regulate, through the proper exercise of police power, where the public health,
safety, or welfare so require. Clayton, 105 Ill. 2d at 397. [***19] HN13Where
the governmental regulation at issue does not affect fundamental rights, the
constitution requires only that the statute be "rationally related" to a
legitimate state interest. Clayton, 105 Ill. 2d at 398.
[*382] As already noted, ADS does not dispute that fire safety is a legitimate
governmental interest. However, ADS argues that the instant ordinance is not
rationally related to fire safety because it is inconsistent with the codes and
standards promulgated by BOCA, NFPA 72, and Underwriters Laboratories. All of
these national codes authorize the use of a central station to monitor fire
alarm systems. ADS argues that the Village has provided no rational basis for
rejecting central station monitoring as a primary means of monitoring.
For many of the same reasons discussed above, we believe that the ordinance is
rationally related to the legitimate governmental interest of fire safety. As
noted earlier, the evidence appearing in the record demonstrates that the
connection to the Village's fire board allows for a quicker response time of up
to 40 seconds. Chief Kenny testified that a quicker response time will result in
fewer fire-related injuries and less property [***20] damage. In light of such
evidence, we believe that the ordinance is rationally related to achieve its
objective of increased fire safety to the community.
We also do not believe that the ordinance is unreasonable because it adopts a
stricter standard than that contained in BOCA or NFPA 72. We are aware of no
legal authority that would prevent the Village from adopting stricter building
and fire code standards than those contained in national codes and regulations.
By choosing to adopt a stricter monitoring standard for fire alarm systems, the
Village obviously determined that alarm connections to its fire board would
provide a quicker response time than those alarm systems connected to a central
monitoring system. Based upon the record before us, we do not believe that the
Village's determination was arbitrary or unreasonable and we therefore conclude
that there has been no due process violation.
ADS's next argument on appeal is that the Village was preempted from enacting
the instant ordinance by the Private Detective, Private Alarm, Private Security,
and Locksmith Act of 1993 (the Alarm Act) ( 225 ILCS 446/1 et seq. (West 1998)).
ADS argues that, [***21] under section 40 of the Alarm Act, the power to
regulate private alarm companies is the exclusive province of the General
Assembly. ADS argues that the ordinance in the instant case is a de facto
regulation of fire alarm companies and is prohibited under the Alarm Act.
[**792]
In enacting the Alarm Act, the General Assembly expressed its belief that the
public health, safety, and welfare required the licensing and regulation of
detectives, private alarm companies, private security companies, and locksmiths.
225 ILCS 446/10 (West 1998). The legislature also expressed the need for
individuals with expertise in these areas to be charged with the responsibility
of regulating those [*383] licensed under the Act. 225 ILCS 446/55 (West 1998).
To effectuate this intent, section 40 of the Alarm Act provides that the
regulation of these businesses falls within the exclusive authority of the
state. Section 40 provides as follows:
"HN14Pursuant to paragraph (h) of Section 6 of Article VII of the Illinois
Constitution of 1970, the power to regulate the private detective, private
security, private alarm, or locksmith business shall be exercised exclusively
[***22] by the State and may not be exercised by any unit of local government,
including home rule units." 225 ILCS 446/40 (West 1998).
In reliance upon this provision, Illinois courts have held that municipalities
are without the authority to enact ordinances that create additional licensing
requirements or regulations upon private detectives, private alarm companies,
private security companies, or locksmiths. See United Private Detective &
Security Ass'n, Inc. v. City of Chicago, 62 Ill. 2d 506, 343 N.E.2d 453 (1976)
(municipality without authority to enact concurrent licensing requirements for
private detectives); City of Chicago v. Haworth, 303 Ill. App. 3d 451, 236 Ill.
Dec. 839, 708 N.E.2d 425 (1999) (municipal ordinance requiring private
detectives to register their firearms and pay a licensing fee was preempted by
section 40 of the Alarm Act).
Unlike United Private Detective and Haworth, this case does not involve an
ordinance that imposes licensing or regulatory requirements upon a business that
is licensed under the Alarm Act. Indeed, the ordinance here is not even directed
at alarm system providers. Rather, [***23] the ordinance imposes certain fire
alarm requirements upon the owners of commercial buildings as part of the
Village's building code. As the ordinance does not seek to regulate private
alarm contractors, we conclude that it is not preempted by section 40 of the
Alarm Act.
ADS asserts that the ordinance was a de facto regulation on fire alarm companies
as it "prohibits" the use of central system alarm monitoring and therefore
prevents ADS from seeking future alarm monitoring business in the Village.
However, such an argument is not supported by the language contained in the
ordinance. There is no language that prevents central station monitoring or
prohibits the owners of commercial structures from connecting their alarm
systems to a central monitoring system. Although the ordinance may have an
impact on ADS's business in the Village, we note that municipal enactments often
have a secondary impact upon the business community. Greyhound Lines, Inc. v.
City of Chicago, 24 Ill. App. 3d 718, 732, 321 N.E.2d 293 (1974) (upholding
ordinance banning pay toilets against challenge brought by suppliers of coin
locks used on lavatories). Illinois courts have held that HN15the [***24] right
of an individual to conduct business in a [*384] certain way is subordinate to
the interests of public safety and welfare. Greyhound Lines, 24 Ill. App. 3d at
732. Based upon our review of the ordinance, we conclude that it was not an
illegal attempt to regulate the private alarm industry, but was instead a lawful
exercise of those powers granted to the Village under the Code.
ADS next argues that the ordinance constitutes an unlawful restraint of trade
and an illegal exercise of monopoly [**793] power in violation of the Illinois
Antitrust Act (the Antitrust Act) ( 740 ILCS 10/1 et seq. (West 1998)). ADS
argues that the Village has contracted with Security Link to install and
maintain its fire board monitoring system. As part of this agreement, each
entity that is connected to the fire board must pay Security Link a $ 150
connection fee and monthly monitoring fees of $ 18. ADS argues that the
ordinance creates a monopoly on behalf of Security Link by controlling the means
of monitoring commercial fire alarm systems.
The purpose of the Antitrust Act is to promote the unhampered growth of commerce
and industry through the prohibition of restraints [***25] of trade that are
secured through monopolistic or oligarchic practices and that act to decrease
competition between persons engaged in commerce and trade. 740 ILCS 10/2 (West
1998). HN16The Antitrust Act prohibits any person from entering into contracts
with one or more persons that unreasonably restrain trade or commerce. 740 ILCS
10/3(2), (3) (West 1998). However, under section 5(15) of the Antitrust Act, the
activities of a unit of local government are specifically exempted from the
statutory scheme. That section provides as follows:
"HN17No provisions of this Act shall be construed to make illegal:
* * *
(15) the activities of a unit of local government or school district and the
activities of the employees, agents and officers of a unit of local government
or school district." 740 ILCS 10/5(15) (West 1998).
Additionally, section 11 further provides that HN18the Antitrust Act "shall not
be construed to restrict the exercise by units of local government or school
districts of powers granted, either expressly or by necessary implication, by
Illinois statute or the Illinois Constitution." 740 ILCS 10/11 [***26] (West
1998).
The Village is clearly a unit of local government within the meaning of sections
5(15) and 11. Therefore, under the plain language of these sections, the
Village's activity of enacting a municipal ordinance is not restricted by the
provisions of the Antitrust Act. These statutory provisions contain no
exceptions and we see no reason not to give effect to their plain meaning. See
Du Page Aviation Corp., Flight Services, Inc. v. Du Page Airport Authority, 229
Ill. App. 3d 793, 802, 171 Ill. Dec. 814, 594 N.E.2d 1334 [*385] (1992)
(municipal airport authority was a "unit of local government" immune from
liability under the Antitrust Act).
ADS argues that these immunities do not apply to the instant case because the
Village was not acting within the scope of its authority in enacting the
ordinance. However, in light of our determination that the Village had the
authority to enact the ordinance under the provisions of the Code, this argument
must also fail. We also decline ADS's invitation to consider the facts of this
case under the "state action" doctrine, which is applied in federal antitrust
cases to determine the immunity of local municipalities. See Wellwoods
Development Co. v. City of Aurora, 631 F. Supp. 221, 223-26 (N.D. Ill. 1986).
[***27] ADS's complaint is predicated upon state law and does not allege
violations of federal law. Accordingly, we see no reason to go beyond the plain
language of the Antitrust Act in determining whether the Village was immune from
liability. Giving effect to that plain language, we conclude that the Village
was immune from any liability under the Antitrust Act.
ADS's final argument on appeal is that the ordinance is an unconstitutional
infringement upon its right to contract. See U.S. Const., art. I, § 10; Ill.
Const. [**794] 1970, art. I, § 16. ADS argues that the Village may impair its
contractual rights only if such an impairment is necessary to secure fire
safety. ADS argues that, because central system monitoring of fire alarms is
acceptable under either BOCA or NFPA 72, the ordinance requiring that all
commercial structures be connected to the Village's fire board is unnecessary.
A review of the record demonstrates that the defendant did not raise this
constitutional argument before the trial court. HN19Constitutional issues not
presented to the trial court are deemed waived and may not be raised for the
first time on appeal. Villareal v. Peebles, 299 Ill. App. 3d 556, 560, 233 Ill.
Dec. 502, 701 N.E.2d 145 (1998). [***28] However, even if ADS had not waived
this issue, we would nonetheless find that the Village's enactment of the
ordinance did not unconstitutionally infringe upon ADS's right to contract.
Illinois courts have consistently held that an individual's right to conduct
business is subordinate to the interests of the public welfare. See Greyhound
Lines, 24 Ill. App. 3d at 732; see also City of Decatur v. Chasteen, 19 Ill. 2d
204, 211, 166 N.E.2d 29 (1960). A municipality may enact legislation that
affects the right to contract where it is reasonably necessary to secure the
health, safety, and general welfare of the community. Memorial Gardens Ass'n v.
Smith, 16 Ill. 2d 116, 128, 156 N.E.2d 587 (1959). As detailed above, we believe
that the ordinance's enactment was a reasonable legislative judgment tailored
toward the improvement of the public welfare and safety. Accordingly, we do not
believe that the ordinance unconstitutionally infringes upon ADS's right to
contract. [*386] Therefore, we hold that the trial court properly granted the
Village's motion for summary judgment and denied ADS's cross-motion for summary
judgment.
For the foregoing reasons, [***29] the judgment of the circuit court of Du Page
County is affirmed.
Affirmed.
McLAREN and CALLUM, JJ., concur.