Appeals judges extinguish tobacco dealers' challenge to Chicago city tax on non-cigarette tobacco items

By Scott Holland | Dec 24, 2018

A state appeals court has snuffed out much of a lawsuit challenging the right of Chicago City Hall to slap a tax on non-cigarette tobacco products, saying a Cook County judge was wrong to find a state law prevents the city from doing so.

At issue is the March 16, 2016, Chicago City Council vote creating flat taxes on units of non-cigarette tobacco products, including smoking tobacco, smokeless tobacco, pipe tobacco, little cigars, and large cigars sold and used within Chicago.

Cook County Circuit Court Judge Ann Collins-Dole ruled in favor of Iwan Ries & Co., the Cigar Association of America, the Illinois Association of Wholesale Distributors, the Illinois Retail Merchants Association, the International Premium Cigar and Pipe Retailers Association, the National Association of Tobacco Outlets and Arangold Cigar Co., who collectively argued Illinois Municipal Code pre-empts the city’s authority to enact the tax, despite its home rule authority.

The city and Comptroller Erin Keane appealed that ruling to the Illinois First District Appellate Court, which issued a decision Dec. 20. Justice Jesse Reyes wrote the opinion; Justices Margaret McBride and Eileen O’Neill Burke concurred.

Justice Jesse Reyes

According to Reyes, the dispute hinges on Municipal Code language providing that “a home rule municipality that has not imposed a tax based on the number of units of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date.”

The city argued its longstanding cigarette tax allowed it to enact the 2016 tax ordinance. The plaintiffs maintained the phrase “such a tax” is a singular modifier to the word “cigarette” and does not apply to the term “tobacco products,” so the city didn’t have a tax on the books before 1993 that could be expanded two decades hence.

The panel explained how home rule laws were intended to give such municipalities broad power, and that “powers and functions of home rules units shall be construed liberally,” according to the 1970 Illinois Constitution, unless the Legislature enacts a statute with express language outlining limitations.

Reyes continued by noting the General Assembly, in the late 1980s, set forth seven categories of tangible personal properties a home rule community could tax, and specifically a clause that as of Sept. 1, 1990, they could “impose a tax based on the selling or purchase price or gross receipts from the sale of cigarettes or tobacco products.”

The panel agreed with the city’s position the “or” in that statute iteration — especially considering the full context of the code — enabled it to legally enact the 2016 tax. Reyes explained lawmakers also used phrases like “hotel or motel room or similar facility” and said “ ‘cigarettes or tobacco products’ is a wide category that describes goods that contain nicotine.”

Further, the panel cited several instructive cases in which the word “or” was used to glean legislative intent, all of which supported the city’s position.

Reyes also explained the 1993 Municipal Code amendment containing the parenthetical at the crux of the plaintiffs’ argument simply mirrored the original statutory language.

“As previously determined,” he wrote, “it was the Legislature’s intent to carve out a broad category. … because the city had enacted a tax on cigarettes prior to July 1, 1993, it fulfilled the condition of the statute that ‘a tax’ exist on either the number of units of cigarettes or tobacco products.”

As such, the panel reversed Collins-Dole’s judgment granting the plaintiffs’ motion for partial summary judgment and denying the city’s motion for summary judgment, effectively preserving the 2016 tax.

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