A NEW Law and Some OLD Questions
About the Use of Alcohol On Park District Property

By Harris W. Fawell IAPD General Counsel

P.A. 82-917, effective January 1, 1983, gives park districts broader authority to sell alcoholic liquor in any building owned by a park district, but leaves the definition of "building" to the traditional definition of that word.

In 1982, the General Assembly amended article VI, section 11 of the Illinois Liquor Control Act (Ill. Rev.Stat., ch. 43, par. 130 (1981) and section 8-19 of the Park District Code (Ill. Rev. Stat., ch. 105, par. 8-19 (1981)) by permitting park districts to sell or deliver alcoholic liquors in any building owned by the park district, subject to the approval of the governing board of the park district, starting January 1,1983. P.A. 82-917. Only the Chicago Park District previously had this power. Other park districts were only permitted to sell alcoholic liquors in eating estalbishments connected with park district owned golf courses. (Ill. Rev. Stat., ch. 43, par. 130 (1981)).

For those who may believe that the provisions of P.A. 82-917 can be construed to allow park districts to operate taverns or cocktail lounges, and the like, so long as such operations take place in a building owned by the park district, attention is called to sub-paragraph c of section 11 which still proscribes "the establishment and operation of facilities commonly called taverns, saloons, bars, cocktail lounges and the like, except as a part of lodge and restaurant facilities in State parks or golf courses owned by Forest Preserve Districts with a population of less than 3,000,000 or municipalities or park districts".

The legislature passed P.A. 82-917 with the intent that park districts would be able to rent some of their previously underutilized facilities for wedding receptions, anniversary parties and the like; the sale of alcoholic beverages being necessary to make these rentals feasible. (State of Illinois, 82d General Assembly, House of Representatives, transcription of Debate, April 21,1982, p. 101.) Yet, the wording of the statute also sheds new light on some old questions related to the use of alcohol on park district property, and raises some novel questions of its own.

Local Liquor Licenses

Prior to the passage of P.A. 82-917, article VI, section 11 of the same act provided, in part, that:

(A)lcoholic liquors may be sold at retail in buildings of golf courses owned by municipalities or park districts, under the "Park District Code" in connection with the operation of an established food serving facility during times when food is dispensed for consumption upon the premises.

Ill. Rev. Stat., ch. 43, par. 130 (1981) (hereinafter referred to as "Section 11").

Yet, the statutory language quoted above made it unclear as to whether a park district had to obtain a local liquor license before it could exercise the power granted it in section 11. In other words, a question was raised as to whether it would be "inconsistent with this Act" for a park district to have to obtain a local liquor license before it could sell alcoholic liquors.

With the passage of P.A. 82-917, it would appear that park districts will now be required to purchase local liquor licenses before they can dispense alcoholic liquors from park district buildings. There are several reasons why the enactment of P.A. 82-917 will have this effect.

First, a relatively innocuous provision of P.A. 82-917 also amended section 8-19 of the Park District Code. Section 8-19, prior to the passage of P.A. 82-917, stated that park districts could sell or deliver alcoholic liquors at their recreational centers, if there was no municipality within the boundaries of the district, "in accordance with the provisions of An Act in Relation to Alcoholic Liquors." Ill. Rev. Stat., ch. 105, par. 8-19 (1981). Since that provision was so limited, applying only to certain park districts that had no municipalities within their boundaries, it had no effect upon the power granted in the Liquor Control Act which gave park districts in general the power to sell alcoholic liquors at golf course food serving facilities, without any specific requirement or otherwise having to abide by the provisions of the Liquor Control Act.

The new wording of section 8-19 (especially requested by the Illinois Municipal League, according to some of the debates relative to P.A. 82-917) now reads:

"Any park district may sell or deliver alcoholic liquors in accordance with the provisions of (the Liquor Control Act)." (emphasis added)

Thus, there is now specific wording which would appear to say that, at least insofar as park districts are concerned, they must comply with all of the provisions of the Liquor Control Act. Heretofore, nothing in the The Park District Codes set forth such a duty.

Second, when P.A. 82-917 amended section 11 the words "under the 'Park District Code"' were placed in the new grant of authority in such a way that they no longer signify a specific grant of power. Section 11 now reads that alcoholic liquors may be sold or delivered "in any building owned by a park district organized under 'The Park District Code,' subject to the approval of the governing board of the district." Ill. Rev. Stat., ch. 43, par. 130 (1981). Compare this to the old language: "Alcoholic liquors may be sold at retail in buildings of golf courses owned by municipalities or park districts, under the 'Park District Code' . . ." Ill. Rev. Stat., ch. 43, par. 130 (1977), and the importance of the change in language becomes apparent.

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Additionally, the reason for amending section 11, to give the park districts the ability to dispense alcoholic beverages from more park district property, argues against park districts being immune from local liquor licensing laws. Park districts were given this broader power so that "literally hundreds of facilities throughout Illinois which are located in ideal locations and can be used as settings as banquet halls for anniversaries and for wedding receptions, et cetera" could be used for "useful and productive" purposes. State of Illinois, 82d General Assembly, House of Representatives Transcription of Debate, April 21, 1982, p. 101. In other words, P.A. 82-917 amended section 11 so that park districts could make some money hosting banquets, parties, etc., like the local VFW hall or a restaurant. Raising additional funds from underutilized space is indeed a noble goal, however, when a park district rents its property for banquets and wedding receptions it moves away from its traditional functions and acts more like the types of entities which the legislature intended for local liquor commissioners to regulate. Thus, municipalities should be able to argue that the liquor licensing provisions of the Liquor Control Act should take precedence over the general police power provision of the Park District Code, at least with respect to park districts leasing their facilities for the purposes previously mentioned.

Third, it appears from a review of the legislative debates that the legislature intended that P.A. 82-917 have the effect of requiring park districts to obtain a local liquor license before selling alcoholic liquors from park district buildings. During debate on P.A. 82-917, Senator Nedza stated, "There was an amendment that was attached to the bill that changed four words of the language which, in fact, give the local municipalities complete control (over the sale of alcohol by park districts). " State of Illinois, 82d General Assembly, Senate Transcription of Debate, June 23,1982, p. 180. Senator Bowers, who also spoke on the bill, concurred: "the local authorities do have the power under . . . after this thing has been amended and was amended on the Floor, they have to obtain ... the park district has to obtain its license from the local liquor commissioner . . " Id. Hence, even if the original Liquor Control Act was not intended to affect governmental bodies, it is clear P.A. 82-917 was contemplated to have precisely such an effect.

What is Meant By Use of the Word "Building"?

An intriguing question, is what did the legislature mean when it said that alcoholic liquors could be sold or delivered in any "building" owned by a park district? The word is not defined within the Liquor Control Act and unfortunately, the legislative history of P.A. 82-917 is none too clear on this subject. During the debate on P.A. 82-917, Senator Gitz rose to ask Senator Egan, the Bill's sponsor, for his definition of building. Senator Egan responded:

Well. . . there is no legislative definition to my knowledge in the Act. What my interpretation would be, Senator, is any structure that is ... that is called a building on the park. There are literally hundreds of these that are used for ... that can be used for example for wedding receptions. I'm sure they won't use a ... wishing well or such a structure. It would be a bona fide building with doors and windows and floors, I assume.

State of Illinois, 82d General Assembly, Senate Transcription of Debate, June 23, 1982, p. 182. To which Senator Gitz replied, "You said any structure but you also said doors. Anyway, it ... seems to me clear then, whatever the park district defines as a building is a building" Id. As is apparent, this exchange is none too helpful in developing a working definition of "building"

When confronted with a word that is not defined in a statute, Illinois courts have held that the word is to be given its plain and ordinary meaning. Ambassador East, Inc. v. City of Chicago, 399 Ill. 359, 364 (1948). There are no Illinois cases that have defined the word "building" with respect to the Liquor Control Act, but there are cases in the criminal law area in which Illinois courts have interpreted the word to flesh out the burglary statute. The best definition comes from the Second District Court of Appeals in Sacks v. Legg, 219 Ill. App. 144, 147 (2d Dist. 1920), where the court said:

A building is defined in Corpus Juris to be "a fabric or edifice, such as a house, church, or the like, and designed for the habitation of men or animals, or for the shelter of property." Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation, or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice such as a house, a store, a church, a shed.

See also. People v. Gillespie, 344 Ill. 290, 294 (1931). This definition is extremely broad and it would seem that any structure erected to serve a useful purpose would be considered a "building" by an Illinois court. However, a court could temper this definition by keeping Senator Egan's remarks in mind. Then it would probably hold that more permanent structures, with doors and windows, etc. could be considered to be buildings within the meaning of the statute. On the other hand, Senator Gitz's comments may influence a court, in which case, park districts should be able to sell alcoholic liquors in virtually any structure a park district chooses to call a building. But until a court resolves this problem, park districts should probably err on the side of caution and stick to serving alcohol in more traditional structures.

What Kind of "Sales" of Alcoholic Liquors are Regulated by Liquor Control Act?

To answer this question an examination must first be made of the power municipalities and counties have over alcoholic liquors as well as an examination of how the word "sale" is defined in Section 11.

It should be noted that the word "sale" in Section 11 has a very broad meaning. In section 2.21 of the Liquor Control Act (Ill. Rev. Stat., ch. 43, par 95.21) the word "sale" is defined as "any transfer, exchange or barter in any manner, or by any

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means whatsoever, . . ." Sales without consideration are also encompassed within this definition. (See 1976, Op. Atty Gen. No. 2-1139). In the opinion, the Attorney General pointed out that although previously the Liquor Control Act did provide that the transfer, exchange or barter of alcoholic liquors had to be "for a consideration" to constitute a sale under that Act (Laws or 1933-34, Second Sp. Sess., p. 57), the consideration requirement was deleted by Laws of 1949, p. 804. Thus the Attorney General has opined, with some considerable logic, that "when alcoholic liquors are distributed . . . gratuitously, they are 'sold' within the meaning of section 11 of article VI" of the Liquor Control Act. 1976 Op. Atty Gen. No. 2-1139.

The general grant of authority to municipalities to regulate liquor comes from article IV, section 4-1 of the Liquor Control Act (Ill. Rev. Stat., Ch. 43, par. 110 (1981)) which reads, in pertinent part:

In every city, village or incorporated town, the city council or president and board of trustees, and in counties in respect of territory outside the limits of any such city, village or incorporated town the county board shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses for sale at retail of alcoholic liquor not inconsistent with this Act...

Article I, section 1-3.18 of the Liquor Control Act (Ill. Rev. Stat., ch. 43, par. 95.18 (1981)) defines "sale at retail" as "sales for use or consumption and not for resale in any form." Thus the broad definition of "sale" found in section 2.21 of article I of the Liquor Control Act, discussed above, including even transfers of alcoholic liquors without consideration, again comes into play. Hence, under paragraph 110, it would seem municipalities have the authority to regulate virtually any transfer of alcoholic liquors, except "sales" intended for resale.

Yet, there is one important limitation on a municipality's control over alcohol. Article II, section 2-1 of the Liquor Control Act (Ill. Rev. Stat., ch. 43, par. 96 (1981)), (hereinafter referred to as paragraph 96) states that "nothing herein contained shall prevent the possession and transportation of alcoholic liquor for the personal use of the possessor, his family and guests ..." Hence, "the Liquor Control Act does not prohibit the possession of alcohol," (1974 Op. Atty Gen. No. S-699), and transfers that would normally be considered "sales" within the meaning of the Act (i.e. gratuitous transfers between two persons) would not be so categorized if they occurred between family members or groups of friends.

A gratuitous transfer of alcoholic liquors to a customer (under a "commercial" setting) by one who is "in the business" of selling alcoholic liquors at a retail establishment is a "sale" even though no consideration for the particular delivery is charged. On the other hand, a gratuitous transfer of alcoholic liquor by a host to social guests, as by an employer's association to employees at a company picnic (see Miller v. Owens-Illinois Glass Co., supra), absent the commercial nature of the delivery and the background of the dispenser of the alcoholic liquors being "in the business", is not a "sale". The court, in Miller, added that it was the intent of the legislature that the Liquor Control Act would regulate those in the business of selling alcoholic liquors at retail and "Not the social drinker or the social drinking of a group".

The key question therefore in determining if certain "sales" of alcoholic liquors are "sales" within the rather broad definition of that word under the Liquor Control Act is not whether the transfer of liquor was for a consideration, but rather whether the transfer took place within the environment of a "business" background or within the environment of a host dispensing liquor to social drinkers.

Power of Park Districts to Authorize the Commerical Sale, Possession and Consumption of Alcoholic Liquors on Park District Land

(i) "Traditional" Commercial Sales.

With respect to whether a park district may commercially "sell" or deliver alcoholic liquors on park district owned land, it should first be reiterated that section 11 begins with a general proscription of the sale or delivery of alcoholic liquors in any

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building belonging to or under the control of the State or any political subdivision thereof. This would seem to imply that otherwise the "sale or delivery" of alcoholic liquors on public land might be authorized. However, immediately after this general proscription there are a myriad of grants of authority, to various of the State's agencies and political subdivisions, to sell alcoholic liquors. P.A. 82-917 added one of the broader delegations of authority to the section permitting park districts to sell or deliver alcoholic liquors in park district owned buildings.

Prior to the passage of P.A. 82-917, the question was therefore raised as to whether these specific grants of authority to local governments to sell and deliver alcoholic liquors in certain specified buildings raised the implication that, otherwise, the sale or delivery of alcoholic liquors, on public land, is not authorized.

The conservative argument, had been that the "grants of authority" of section 11, allowing alcoholic liquors to be "sold or delivered," pertains to more than just "buildings," but also encompasses "airports" "recreational centers" (if no municipality is within the boundaries of a park district), "Land" (of the Cook County Forest Preserve Commission and of the Chicago Sanitary District), etc., thereby strongly implying that a local government ought not to assume it possesses the power to use the public's land for the "sale or delivery" of alcoholic liquors unless such a power is clearly spelled out. That argument is buttressed by the so-called "Dillon" rule which provides that non "home-rule" municipal entities, including park districts, can exercise only those powers expressly granted by the legislature, or such as are necessarily or fairly implied in, or incident to, those expressly granted powers, or essential to the declared objects and purposes of the public body. Wesclin Education Association v. Board of Education, 30 Ill. App. 3d 67, 331 N.E.2d 335, (5th Dist. 1975).

On the other hand, the "liberal" position was that section 11 is basically a prescriptive statue relative to the sale or delivery of alcoholic liquors in public buildings and should not be construed to deny park districts the right to sell or deliver alcoholic liquors on park district land. In addition, the argument was made that section 8-1(d) of "The Park District Code" authorizes park districts to pass all "needful rules and regulations for the government and protection of parks, boulevards and driveways and other property under its jurisdiction". Ill. Rev. Stat., ch. 105, par. 8-1 (d) (1981). The proposition was therefore advanced that the legislature had granted the power to park districts to pass their own rules and regulations as to the sale or delivery of alcoholic liquors on park district land, so long as such sales or deliveries of alcoholic liquors did not conflict with specific proscriptions of section 11.

The question now presented is whether the passage of P.A. 82-917 has given either the "liberal" or "conservative" position any additional strength. The legislative history on this point is sketchy, but it would seem that the debate on P.A. 82-917, in both houses of the legislature, bolsters the conservative view. While Senator Egan had a hard time defin-

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ing "building" he was clear on the point "that the bill addresses itself only to the buildings, not the grounds." State of Illinois, 82d General Assembly, Senate Transcription of Debate, June 23, 1982, p. 185. In the House of Representatives, Representative Steczo stated, "In closing, I would reiterate that the word 'building' is used in the legislation and 'buildings' means buildings and not adjacent areas of any park district property." State of Illinois, 82d General Assembly, House of Representatives Transcription of Debate, April 21, 1982, p. 103. Had these legislators believed that the "sale or delivery" of alcoholic beverages on park district land could be permitted before the passage of P.A. 82-917, it was strange indeed for them to so specifically state that P.A. 82-917 was to affect only park district buildings. It could easily be inferred that these legislators did not believe that park districts were permitted to sell or deliver alcoholic beverages on park district land prior to the amending of section 11, and they did not want anyone to construe that new grant of power to park districts to sell or deliver alcoholic liquors as changing the situation.

Thus, until the General Assembly clearly gives the authority to a park district to allow public lands, as well as buildings, to be used for either the "sale" (any transfer, exchange or barter by any means whatsoever, with or without consideration) or "delivery" of alcoholic liquors, it should not be assumed that such powers exist insofar as "traditional" retail sales of alcoholic liquors are concerned. These types of "sales" should be strictly confined to "buildings" approved by the park board.

(ii) Possession and Consumption of Alcoholic Liquors Under Noncommercial Setting.

The possession of alcoholic liquors by persons who bring such liquors on to park district land to consume the same, or to share the same with social guests under a non-commercial setting is a different issue, though closely related to the one just discussed. Such a possessor of liquors could have purchased the liquors off park district premises or in an authorized building owned by the park district. This issue pertains to what authority park districts have to regulate the possession, consumption and delivery of alcoholic liquors on park district lands when no "traditional" type of retail sale of alcoholic liquors on park district lands is involved.

It should be noted that "park districts, like other non-home rule units of local government, can only exercise those powers expressly granted to them by statue or necessarily implied from such a grant". Charlton v. Champaign Park District, 110 Ill. App. 3d 554, 442 N.E. 2d 915, 917, 66 Ill. Dec. 354, 356 (4th Dist. 1982).

It would appear, however, that article VIII, section 8-1 of the Park District Code, is a statute that gives park districts the power to allow people to bring alcoholic liquors onto park district owned land. This statute, Ill. Rev. Stat., ch. 105, par. 8-1(d) (1981), grants park districts the power "(t)o pass all necessary ordinances, rules and regulations for the government and protection of parks, boulevards and driveways and other property under its jurisdiction, and to effect the objects for which such districts are formed."

It is clear that one of the main purposes for which park districts are formed is to provide parks and open space for the use of residents within the district's boundaries. In addition, among the main uses to which parks and open space are put are activities at which it would not be unusual to serve alcoholic beverages (e.g. picnics, parties, reunions, softball games, etc.). This being the case, a park district board should be able to institute a policy permitting patrons of park district land to bring defined alcoholic beverages onto such property, as a necessary regulation to effect the objects for which park districts are formed.

Also, it is difficult to say that section 8-1 of the Park District Code does not give park districts the authority to allow people to bring alcoholic beverages onto park district property, and to consume the same, for then it would have to be held that park district boards are unable to pass any regulations concerning the possession of alcohol on park district property. Presumably, if paragraph 8-1(d) does not permit park districts to allow the use of alcohol on park district land it does not permit park districts to prohibit such use either. Since, as was demonstrated above, municipalities may not regulate the delivery and/or possession of alcoholic liquors, in the non-commercial setting, to take this position would mean that no one could control the use of alcohol on park district property. The legislature surely could not have intended for the Liquor Control Act and the Park District Code to have such an absurd result.

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Thus, it should be concluded that Ill. Rev. Stat., ch. 105, par 8-1(d) gives park districts the singular ability to regulate the delivery and/or possession and consumption of alcoholic beverages on park district land, under the said non-commercial setting. It would further appear that once a customer purchases alcoholic liquors in an approved park district building, the park board would have authority to designate if possession and consumption of such purchased liqours could take place on any of the park district lands since any such possession and consumption upon lawful purchase of the alcoholic liquor, would appear to be no different from any other possession and consumption of alcoholic liqours of a non-commercial nature upon designated park district lands. What appears to not be authorized upon park district lands would be only the commercial type of sale or delivery of alcoholic liquors.

Summary

The effect of P.A. 82-917 was certainly to give a much broader authority for park districts to engage in the "business" type of sale of alcoholic liquor in any building owned by a park district. It left the definition of what was a "building" however to the traditional definition of that word, if such a "legal" definition can be said to exist. It appears to have made it clear that traditional business sales of alcoholic liquor cannot take place on park district lands. Such sales may take place only in park district owned buildings with the approval of both the park board and the local liquor commissioner. The question of whether alcoholic liquors may be pos-

(Continued on page 32)

ABOUT THE AUTHOR:

Harris W. Fawell is a partner in the law firm of Fawell, James and Brooks, Naperville, a firm specializing in the representation of local government entities. He is a graduate of North Central College, Naperville, and Chicago-Kent College of Law, Chicago. Mr. Fawell served as a State Senator from 1962 through 1976 for the DuPage-Will County area. He is General Counsel for the Illinois Association of Park Districts and also represents numerous school districts, park districts and special recreation districts, as well as other public bodies. He is a past chairman of the Illinois State Bar Association's school law section council and was a member of the Illinois School Problems Commission for 15 years. Mr. Fawell has been a speaker at numerous meetings of the IAPD and IPRA.

January/February 15 Illinois Parks and Recreation

(Cont. from p. 15)

sessed, delivered or consumed on park district lands by a lawful possessor-consumer or in the setting of a traditional host and social guest or guests, is one strictly for the park board to determine under its powers to regulate the use of its park lands.

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