dissenting:
I respectfully dissent. I would find Normal’s forfeiture ordinance to be a constitutional exercise of Normal’s powers, and would affirm the decision of the trial court.
The majority correctly states the law which applies to this case. For purposes of substantive due process a test similar to that used in equal protection cases is employed: the statute will be upheld if it bears a rational relation to a legitimate legislative purpose and is neither arbitrary nor discriminatory. There is a presumption that the statute in question is valid; the burden of showing its invalidity is on the defendants. If there is any conceivable basis for finding a rational relationship, the law will be upheld. (People v. Hamm (1992), 149 Ill. 2d 201, 216, 595 N.E.2d 540, 546.) Where a statute deals with some fundamental right a more demanding form of review may be employed; such a statute might not be upheld unless it were shown to be necessary to promote a compelling or overriding interest. More demanding review is certainly not appropriate in this case. The control of alcoholic liquor has long been recognized as a legitimate governmental interest, one where extensive regulation is possible at various levels of government.
I cannot agree that an ordinance providing for seizure of beer kegs and other items used to facilitate violations of Normal’s alcoholic liquor ordinance is not rationally related to Normal’s purpose to reduce underage drinking and associated crimes such as vandalism and battery.
“Forfeiture of conveyances that have been used — and may be used again — in violation of the [liquor control] laws fosters the purposes served by the underlying criminal statutes, both by preventing further illicit use of the conveyance and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.” Calero-Toledo, 416 U.S. at 686-87, 40 L. Ed. 2d at 470, 94 S. Ct. at 2093-94.
The innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense. (Calero-Toledo, 416 U.S. at 683, 40 L. Ed. 2d at 468, 94 S. Ct. at 2092.) As stated in CaleroToledo, application of forfeiture statutes to innocent purchasers “may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.” (Calero-Toledo, 416 U.S. at 688, 40 L. Ed. 2d at 471, 94 S. Ct. at 2094.) The majority focuses, however, upon dicta in Calero-Toledo setting out a potential exception to its broad sweep:
“It therefore has been implied that it would be difficult, to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. [Citations.] Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.” Calero-Toledo, 416 U.S. at 689, 40 L. Ed. 2d at 471, 94 S. Ct. at 2094-95.
The imprecise Calero-Toledo dicta provides no justification for striking down the considered decision of a legislative body in the facts of this case. Looking at the second sentence of the Calero-Toledo dicta, there is no evidence that intervenor was unaware of the underage drinking and related problems testified to by Normal’s chief of police. Intervenor does not argue the incident leading to forfeiture in this case did not involve a violation of Normal’s liquor control ordinance, or that intervener's property was not used in the incident. In Calero-Toledo the boat owner was not shown to be involved with the marijuana found aboard the boat, but that is not true here. Intervenor in a very real sense was involved in the unlawful consumption of beer testified to by the witnesses; intervenor actually supplied that beer. Although intervenor no doubt intended that the beer be consumed lawfully, intervenor did profit financially from illegal consumption.
Nor can it be said that intervenor has done all that reasonably could be expected “to prevent the proscribed use of its property.” There was evidence that security deposits were required for the items seized here, but those deposits were kept to an artificially low level, apparently to promote the sale and consumption of beer. An increase in security deposit may be one method “to prevent the proscribed use” of the property. Intervenor argues that a higher deposit would inhibit beer sales in general, but not illegal beer sales, where the consumers might be willing to risk the penalty. Intervenor could at least protect itself by higher deposits, and Normal might well have concluded that the risk to the illegal consumer of losing higher security deposits would tend to reduce illegal consumption. Normal may have concluded that any burden on legal sales was warranted in light of the burden imposed on illegal sales. Even if Normal could not identify a specific method by which intervenor could do more to prevent illegal use of its property, the reasonable possibility that experienced distributors could devise such a method is sufficient to sustain the ordinance and the incentive it provides distributors to exercise greater care.
Intervenor argues the ordinance is not rational because it will only force illegal consumption into other alternatives, such as the use of cans. The quick answer to that argument is that the legislature “ ‘ “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489.’ ” (Hamm, 149 Ill. 2d at 211, 595 N.E.2d at 544.) Normal may also have concluded that a switch to other alternatives would involve an increase in cost which would have a deterrent effect on illegal consumption.
The majority indicates the Calero-Toledo dicta contains three separate exceptions: (1) where there is no privity, (2) where the property was taken without consent, and (3) where the owner was uninvolved, unaware, and had done all he could do. In my view only one exception is suggested, and it is not sufficient for intervenor to simply show he was not in privity with the user. The fact that the owner was not in privity is just one more consideration in determining whether the intervener has proved “that he had done all that reasonably could be expected to prevent the proscribed use of his property.” The cases cited by the majority which follow Calero-Toledo focus on that final sentence of the Calero-Toledo dicta; none of them rely on a lack of privity.
Intervenor here is a beer distributor, which buys from manufacturers and sells to retailers such as taverns, liquor stores, and grocery stores, which in turn sell beer to the ultimate consumer. Whatever weight the privity argument may have in other contexts, it has little here, especially an argument of vertical privity. In this case the manufacturer, the distributor, and the retailer shared a common objective, the sale of beer. Intervenor intended that retailers would resell the beer sold them, and to assist the retailers in that objective intervenor made the beer kegs and other items owned by it available to the retailers. Some statutes, such as the Drug Asset Forfeiture Procedure Act (Ill. Rev. Stat. 1991, ch. 561k, par. 1678), provide an “innocent owner” exception. It is interesting that that particular exception does not apply unless the owner “could not reasonably have known of the conduct or that the conduct was likely to occur,” and “did not stand to acquire substantial proceeds from the conduct.” Ill. Rev. Stat. 1991, ch. 56½, pars. 1678(A)(i), (B).
Nor is intervenor aided by its horizontal privity argument that the users who purchased the beer and leased the kegs were of legal age, but those users allowed others, with whom the retailers were not in privity, to use the products illegally. Intervenor has not shown that it was unaware of that practice. A lessor of a yacht may not have reason to suspect the lessee will allow others to use it, but a lessor of beer kegs must expect that others than the customer dealt with will use the product. The risk of illegal consumption may be more acute when the lessee is not in the regular business of selling alcoholic beverages. I disagree with the statement of the majority that “lack of privity deprives B & J of a meaningful opportunity to exercise control over the party who eventually used the property in an unlawful manner.” (Emphasis in original.) (234 Ill. App. 3d at 722.) Intervener has not sustained its burden of proving facts which would support that statement.
Because the legislation challenged here, at least to some degree, tends to prevent some offense or evil or to preserve public health, morals, safety and welfare (People v. Weiner (1915), 271 Ill. 74, 78, 110 N.E. 870, 872), the legislation has a rational relationship to a legitimate governmental interest, and does not violate substantive due process. Intervener should direct its arguments to the legislative body, not to the courts.
Accordingly, I dissent.