*1 when he ordered Taylor abused his discretion Consequently, Judge well. retrial on this basis as
CONCLUSION stated, the order of the circuit court of Cook For the reasons to the The cause is remanded County granting a new trial is reversed. jury’s verdict for Dr. circuit court with instructions to reinstate Boler.
Reversed and remanded.
CAHILL, EJ., WOLFSON, J., concur. SALOON, INC., al., Plaintiffs-Appellants, BOOM TOWN et v. THE CITY OF al., Defendants-Appellees.
CHICAGO et (1st Division) First District No. 1 — 07—0239 Opinion July filed 2008. Ltd., counsel), appel- Chicago (Timothy Touhy, for Touhy Touhy, & J. lants. (Benna Solomon, Counsel, Chicago Georges, Corporation Ruth Mara S. Kornstra, Counsel, Kasper, Corporation
Myriam Zreczny and Sara K. Assistant *2 counsel), appellees. of for of the opinion ROBERT E. GORDON delivered JUSTICE court: Saloon, Inc., Eugene Perry, and Boom
Plaintiffs Boom Town County circuit court of Cook president, appeal Town’s the order of the Liquor of the Local Control Commissioner affirming the decision (LLCC). allegedly The revoked Boom Town’s license for LLCC plaintiffs claim that committing gambling. appeal, acts of On of the weight the manifest findings gambling LLCC’s of were agree evidence. and therefore reverse. We
BACKGROUND Town’s Chicago sought plaintiff to revoke Boom City Defendant gambling; charges engaged on that Boom Town liquor license based device; kept and that it or used a operated, kept, that it sections of the Criminal gambling. charges The involved three place (West (720 2004)), 1(a)(3), and 37—1 Code of 1961 ILCS 5/28 — 28— Chicago Municipal (Chicago Municipal Code two sections of the Code (1990)). 12—010, 8—12—030 §§8— LLCC, Officer Mark Sob- hearing before the
At the administrative p.m. that at 7 on March control section testified czyk of the vice himself, sat down at plain Boom Town in clothes he entered The bartender identified bar, paid and ordered and for a drink. “Denise.” herself as approach a “Fruit patron of the bar
Sobczyk noticed another that, to Sobczyk explained poker 9” video machine. Bonus Number machine, which money inserts into the play game, player but- player hits a number of “credits.” registers corresponding button, credits, which and hits another a “bet” with the place ton stop, on how the icons Depending the screen to roll. prompts icons on credits. the credits or earns additional player either loses money into the machine insert Sobczyk watched the Officer time, was 25 to At the the machine manipulate its buttons. and walked to Sobczyk left his seat away from the officer’s seat. feet ap- credits had machine, he noticed that where within 10 feet his seat. Sobczyk returned to in its left corner. peared for 38 minutes played Sobczyk testified that Officer left his seat and Sobczyk again then the bar. Officer approached an amount machine, he observed 10 feet of the where walked within the exact number Sobczyk screen. could not see of credits on the Sobczyk’s testimony credits, four-digit number. but he testified it was a continued: you do Counsel]: did Corporation
“MS. What [Assistant NAVE next? this, doing while I was SOBCZYK: In the meantime
OFFICER bar, said, by this approaching I had been player, as who he called out to point time had made it to the bar at which bartender. it object I and move to strike [Defense Counsel]:
MR. TOUHY hearsay. out as just hearsay. not a statement —he’s
MS. NAVE: It’s not It’s testifying he what observed. you offering it the truth of
COMMISSIONER NOLAN: Are for the matter asserted? No,
MS. I am NAVE: not. hearsay. I’ll COMMISSIONER NOLAN: Then it’s not overrule it. ^ ^ ^ happened you player MS. after observed the call NAVE: What out to the bartender? *3 my I
OFFICER SOBCZYK: then concentrated observations on the bartender and the player. you did
MS. NAVE:What observe? player using OFFICER SOBCZYK:I observed the his thumb over his and pointing shoulder toward the machine. object I’m as going
MR. TOUHY: to and move to strike this out hearsay no proper foundation laid. NOLAN: Overruled.
COMMISSIONER establishing MR. TOUHY:And there’s no foundation that this is testimony [by] reasonably upon [relied] the kind of that would be a prudent person. hearsay, I
COMMISSIONER NOLAN: don’t believe it’s so there’s merely it as his describ- requirement. taking no reason for that I’m ing what the conduct was that he observed. Officer, you you player after
MS. what did observe saw the NAVE: point his thumb towards the machine? The bartender nodded in the affirmative.
OFFICER SOBCZYK: out, object; hearsay, MR I strike it nonverbal. TOUHY: move to corporation, agent COMMISSIONER NOLAN: But an so as an exception.” it’s overruled nodded, Sobczyk
Officer testified that after the bartender storage bartender turned around and entered a area behind the bar. She exited within money, 15 seconds with which she handed to the patron. Sobczyk could not see the denomination of the bills or how many given. paid bills were The ordered a drink and for it with money. Sobczyk The finished his drink and left. left a short time premises. later and obtained a search warrant for the that, 5, 2004, Sobczyk following day,
Officer testified on the March he returned Boom Town to execute warrant. The bartender Denise, working at that who telephoned time bartender named arrived, came to Boom her Sobczyk Town. When she issued an complaint ordinance ticket. Sobczyk
Officer he from poker testified that seized the video $170 any machine and He money, the machine itself. did not recover documents, paraphernalia, or other evidence of from the storage back area. presented testimony
Plaintiffs from bartender Denise Pietz. Pietz kept testified that she tended the bar on March 2004. She her register keep any money “bank” in a drawer and did not in the back any gambling in area. She also testified that she was not involved activities. poker
Pietz testified that the Fruit Bonus Number 9 video machine malfunctioning during at issue in this case had been the week of March “jam meaning accept 4. The machine would it would not up,” If player’s money, complained and “freeze.” a customer about malfunction, Denise would “take the customer’s word for it” and player up Larger refund the refunds were at the discretion $5. owner, money Eugene Perry. Pietz would refund customers with register from the drawer. to a customer named John on
Pietz testified that she refunded $5 refund, Concerning March 2004. Pietz testified that she went machine, determined the machine from behind the bar to look at the frozen, it, gave unplugged the machine to reset John $5. Company, of Shamrock Amusement Bryan Bandyk, employee an two work service tickets. The first ticket was testified and identified 2004,1 Town response created on to a call from Boom March machine. Ban indicating sticking poker the dollar bill intake was on a evening Boom Town that and fixed the machine. dyk went to 5, 2004, indicating a Boom Town second ticket was created on March *4 the monitor Bandyk inspected monitor. machine needed a new When sticking. he found it was day, later that record, year The tickets in the 1Bandyk’s testimony refers to the 2005. however, year show a of 2004. testified. president, Town’s also Eugene Perry,
Plaintiff Boom 2004, 4, records for March Perry identified Boom Town’s financial He also refunds made to customers. which indicated two were $10 had on March 5 was the one that testified that the machine seized malfunctioning. been consisting of 236-page
Plaintiffs offered into evidence a document for demonstrating support and their neighbors letters from customers letters, or from the establishment. The which were either undated 2001, alleging response previous charge were in to a Boom Town faced Chicago it of offered a City had served alcohol to a minor. Defendant violations, prior record of Boom Town’s discussed below. Sobczyk found Officer to be “credible and believable” LLCC
and City concluded that had sustained its burden as to all five charges. proper The LLCC found that revocation was the sanction circumstances, upon totality including “based this licensee’s prior respect charges, record.” to the made the follow- With LLCC ing findings: 4, 2004, licensee, by through
“3.1 find that on March and its agent, engaged game in a of chance or skill for the of purpose money gambling premises, paying for on the licensed to wit: out on machine, 8, 12, Chapter video slot in violation of Title Sec. 010 Municipal of Chicago. Code 2004, 4, licensee, by
4. I find that on through March and its agent, while on the premises operated, kept licensed and used a device, to wit: a Fruit Bonus #9 video slot machine in 5/281(a)(3). violation of 720 ILCS 4, licensee, 2004,
5. I find that on March through and its owned, agent, premises maintained and used for the managed any purpose permitting persons gamble thing, fo for valuable Currency, 12, wit: Chapter United States in violation of Title Municipal Chicago. Sec. 030 Code 4, 2004, licensee, by
6. I find through that on March its agent, knowingly premises allowed the licensed to be used for the purposes gambling, in violation of 720 ILCS 5/28—3. 4, 2004, licensee, by through
7. I find that on March its agent, public maintained a the licensed premises nuisance on violation in that the were used for premises [of] ILCS 5/37— keep- the commission of the violation of 720 to wit: ILCS 5/28— ing of a gambling place.” (LAC)
Defendant License Appeal Commission affirmed the LLCC’s decision. The circuit court “for subsequently affirmed the reasons 20, 2006, stated in open court.” court on December the circuit hearing city court stated that find that had officer could following sustained its “the officer proof burden based on facts: *5 32 over a half a hour and playing the machine for [d]
observe bartender, [was] and there an approache[d] then the timely appeal This followed. exchange money.” of
ANALYSIS findings were appeal that the commissioner’s Plaintiffs claim on the revoca presented the evidence at against weight the manifest of suspended “except cannot be revoked or hearing. liquor A license tion (West 2006). revoca At the hearing.” 235 ILCS public after a 5/7—5 rights of afforded the basic hearing, tion the licensee “must be Comm’n, 120 Control Lopez Liquor v. Illinois procedural process.” due (1983). 756, App. Ill. 3d 760
Standard of Review agency, of an administrative party appeals the decision When agency, administrative reviews the decision of the appellate court not 354 City Chicago, v. Ill. of the circuit court. Connor the decision of Ill. 3d 381, (2004); Corp., App. 321 Daley Flanboyan 384 v. El App. 3d (2001). the decision of An court will reverse appellate 71 against was the manifest agency only if the decision administrative findings support did not agency’s or if the weight of the evidence 384; El 321 Connor, Flanboyan, Ill. 3d at App. sanction. 354 imposed fairly sup any evidence in the record App. 3d at 71. If there is Ill. decision, decision is not then the ports agency’s Connor, appeal. on must be affirmed weight and the decision manifest appel An 384; App. 3d at 71. Flanboyan, at El 321 Ill. App. 354 Ill. 3d have ruled differ simply because it would court not reverse late is also conclusion opposite or because the ently in the first instance 384; 321 Ill. Flanboyan, El Connor, App. 354 Ill. 3d at reasonable. must bear record, appellate court reviewing 71. In App. 3d at support revoca evidence is sufficient in mind that circumstantial 3d at 384; App. 321 Ill. Connor, Flanboyan, 3d at El App. tion. 354 Ill. 75. hurdle, it still high is a the manifest evidence standard
Although duty “its to examine court of appellate does not relieve unsup set an order manner and to aside impartial evidence in an App. Ill. 3d Schaumburg, 194 Village v. ported Leong in fact.” Comm’n, App. Ill. Inn, 354 (1990); Appeal License Inc. v. Amigo’s 65 (2004) against the decision was (finding that the LLCC’s (find evidence); App. Ill. 3d at Lopez, 120 weight of the manifest the revoca to warrant at issue was “insufficient the conduct ing that license”). [plaintiffs liquor] tion of Proof
Standard proceed- that, license revocation liquor in a question There is no a reasonable charges beyond its agency prove does not have to ing, Connor, App. 3d at 354 Ill. doubt, as must in a criminal case. the State However, some there is 386; App. 321 Ill. Flanboyan, El proof is. the correct standard question about what license held, to a recently respect has with This court charges by a prove must its proceeding, agency revocation that the 385-86; at El 354 Ill. preponderance of the evidence. However, previously this court had Flanboyan, by substantial proof proof standard of was held that the correct *** (“[substantial evidence 3d at 70 Leong, evidence. license”). plaintiff’s liquor necessary suspend to revoke or “ mere been defined as ‘more than a Substantial evidence has ” “ mind scintilla’ as ‘such relevant evidence as a reasonable ” Connor, *6 Ill. might adequate support a conclusion.’ 354 accept as Board, 385, App. 303 Ill. 3d App. quoting Finnerty 3d at v. Personnel (1999). 1, 11 from the specifically
The substantial evidence standard derives (235 (West 2006)). Liquor seq. Act of 1934 et Sec- Control ILCS 5/1—1 provides appeal tion 7—9 that when a license commission reviews a commissioner, the by revocation decision a it must decide whether findings by commissioner’s substantial evidence in “supported were (West 2006). light the of the whole record.” 235 ILCS 5/7—9 reaching In preponderance applied, conclusion that a standard distinguished prior neither Connor nor El or our Flanboyan discussed holding Connor, 194 Ill. Ill. 3d at Leong, App. App. 354 385; El 321 Ill. The decisions in Connor and Flanboyan, App. 3d at 75. El Flanboyan discussed and cited cases that involved administrative in general, specifically by liquor decisions but not decisions control Connor, 385-86, 303 App. citing Finnerty, commission. 354 Ill. 3d at board), city Corp. Ill. 3d 11 v. App. (involving personnel at S&F (1978) Bilandic, 193, App. (involving 62 Ill. 3d 196 revocation amusement, cigarette and a place dispenser licenses for a a food dealer); 75, Flanboyan, App. citing El 321 Ill. 3d at Grames v. Illinois (1993) Police, (involving Ill. 204 the Illinois App. State 254 3d Board). Thus, State Police Merit cited cases did not involve the (235 (West 2006)) Liquor seq. Act et or its Control ILCS 5/1—1 (235 (West 2006)). “substantial evidence” standard ILCS 5/7—9 bar, In of whether question the case at we need not resolve preponderance proof, or substantial evidence is the correct standard of Connor, because In our decision is the same under either standard. it although preponderance applied, this court held that the standard also held that its conclusion would be the same under the substantial App. evidence standard as well. 354 Ill. sum, question
In we will treat the before us as: whether the com- agency proved charges (by missioner’s conclusion that had its evidence) preponderance against either a or substantial weight manifest of the evidence. Gambling
Evidence of All charges against plaintiffs gambling. ambling involved “[G] types is one of those of crimes which the courts have as a recognized Leong, justification liquor for the revocation of a license.” 194 Ill. (“concern fairly 3d liquor at 68-69 about is related to control”). reviewing gambling, the record for evidence of we cannot
consider, asserted, any for the truth of the matter evidence that was purpose. during not admitted for that If a commissioner a hear ing purpose, admits evidence for a limited then the commission must Comm’n, v. Liquor limit. Seul’s Inc. Illinois Control its own “heed[ ]” (1992). “[Njothing can be treated as evidence Comm’n, is not admitted as such.” Anderson v. Human Rights that (2000) findings an (discussing administra agency). tive bar,
In the case at the commissioner ruled that two statements or gestures being were not admitted for the truth of the matter asserted. testified, first, Specifically, the officer that the had “called out” bar, second, that patron approached to the bartender after the gesture over his shoulder to toward had used his thumb the video machine. calling out and the objected
Plaintiffs to the admission of both gesture grounds they hearsay. “[T]he thumb were on evidentiary hearsay applicable rule the use of has been held *7 before local control generally hearings license revocation a Lopez, A is App. commissioner.” 120 Ill. 3d at 760-61. statement matter as hearsay when it is “offered to establish the truth of the E.H., Loyola In re Leonardi v. 42, (1998); 299 Ill. 3d 51 App. serted.” (1995). University Chicago, 168 Ill. 2d 99 The rule exists, in of the statement as evidence hearsay part, because the value meaning credibility intended and of the asserter whom depends on the E.H., In re App. 299 Ill. 3d opportunity there is no to cross-examine. at 51. hearsay objections and plaintiffs’
The commissioner overruled gesture being nor the was admitted calling ruled that neither the out Thus, neither will be considered for the truth of the matter asserted.2 asserted. by this court for the truth of the matter gesture calling were admis- held that the out and 2Thecommissioner
35 by calling out or disregard any allegedly If we matters asserted (1) by gesture, merely: patron playing then the record shows (3) (2) bar; machine; patron approaching video handing patron nodding, going bartender into a back area and then below, these acts a bill or bills of an unknown amount. As discussed from distinguishable no gambling completely show evidence of and are Connor, sufficient evidence of the facts in where our court found Connor, gambling. App. 354 Ill. Connor, our court found sufficient evidence of where police separate
three different officers about a occasion each testified they patrons playing gambling games when observed video and then verifying observed bartenders the score on the machine before hand ing patrons Connor, money. App. 354 Ill. 3d at 382-83. First, in very facts the case at bar are different. in the case at
bar, the only only patron. contested conduct occurred once with one By contrast, in emphasized our court that “three officers” separate testified about “three occasions” that the officers essentially observed “[o]n the same conduct all three occasions.” Con nor, Repetitive 354 Ill. conduct occurring the same sequence pattern motive; contrast, or likely particular is to share a occurring only conduct any on one occasion occur for almost reason.
Second, there was testimony no that the bartender in the case at bar verified the score on the machine before handing patron money. lack significant. This of verification is Verification of a score provides circumstantial giving money evidence that a bartender is verification, because of the score. Without there is no causal link money score, between the and the and hence no circumstantial Patel, evidence of gambling. Hussung v.
(2007) causation). (contemporaneity prove does not
Third, that, there no testimony in the case at bar after the gave bartender patron money, the bartender or the scrolled the score on the machine if Presumably, down to zero. this was a gambling operation, pay the bar would not want to out twice for the E.H., report sible that so the officer could what he had observed. In re (1998) (a police testimony officer’s about defendant’s mother’s pointing pistol weedy to a lot where the later recovered a was not officer explain steps admitted for the truth of the matter but “offered to asserted crime”). investigation in his testify 3The officer did not the bartender looked toward the video any verify machine or took action to the score on the machine. The officer out, away testified that when the called the bartender was 13 feet from him. *8 be readjusting the machine to start at zero would
same score and thus Connor, two of contrast, in the officers testified that on important. By that, issue, patron ap after the the occasions at the officers observed bartender, scrolled back the score on the machine was proached Connor, Ill. down to zero. bartender sum, no circumstantial evidence that the there is testimony no that she on the score when there is
gave money based back was or to scroll the score even bothered to check what the score the facts in zero; very our case are different from and the facts of times repeated the conduct was several Connor because in Thus, verifying the score. we gave money only after and the bartender findings are because the commissioner’s must reverse weight the manifest evidence. in in the dissent order to address several remarks made We want clearly point any possible confusion and to delineate to eliminate First, majority appears “The disagreement. the dissent writes: that the observed conduct adopted have Boom Town’s contention opposite The exact is hearsay.” as excludable commissioner’s call record, ruling that the accept For the we true. the matter for the truth of ing gesture out and the were not admitted reason, this asserted, hearsay and that for they that were thus not properly not excluded and so. they were Second, plaintiffs neither nor defendants the dissent writes that anything. gesture communicated calling that the out or the claimed disregard- in Then, error, there can also be no harm in addition to no pos- two acts have quality that these ing any possibly assertive sessed. in Con- of the acts
Third, disagrees repetition that the the dissent true, one of only that was Even if that were any significance. nor had from the very different in which the facts of Connor were ways several facts at hand.
CONCLUSION and the reasons, decisions of the LLCC foregoing For the circuit court are reversed.
Reversed. J.,
WOLFSON, concurs. GARCIA,dissenting:
JUSTICE
evidence the
majority taken
position
I
question
over
his thumb
and that he used
to the bartender
“called out”
poker
direction of the
the bar
approached
his shoulder as he
at 35. You
“disregard[ed].”
be
machine can somehow
investigating of
“disregard”
no more
those observations
can
*9
testimony
his
describ
“disregard” the remainder of
you
ficer then
can
below, I submit all of the
stated
ing what he observed. For the reasons
properly
was
before
by
Sobczyk
Officer
observed conduct testified to
free to draw reasonable
was
And the Commissioner
Commissioner.
findings.
its
support
officer’s observations to
inferences from the
Town’s contention
adopted
have
Boom
majority appears
The
to
However,
is a
hearsay.
it
conduct was excludable as
observed
hearsay
not
un
evidence that observed conduct is
fundamental rule of
251 Ill.
People Barger,
less it is offered as “assertive conduct.” See
v.
(1993)
448, 464,
nodding,
point
or
App.
(gesture,
3d
While
intimates
argue
conveyed anything
not
the observed conduct
more than what
observed;
City Chicago
patron’s
was
does not characterize the
by
LLCC,
conduct as
to support
“assertive”
the decision
affirmed
LAC,
which the trial court in turn affirmed. The evidence
presented
patron’s
of the
quintessentially nonhearsay.
conduct was
E.H.,
42, 51,
(1998),
Simms,
re
299 App.
quoting
Ill.
Also of
Boom Town identifies no “deliberative communica
conveyed
improperly
tion” the observed conduct
that was somehow
used
it. The fact is the
conduct was not offered for
patron’s
whatever truth Boom Town believes the conduct
have asserted
investigative
but rather was offered as “one link in a chain of
Stewart,
establishing gambling. People
evidence”
v.
105 Ill. 2d
57-
(1984)
hearsay
only
(laundry receipt
While more than one reasonable inference conduct, to have appears drawn from the observed the Commissioner signaled drawn the inference that the the bartender he had poker play winnings finished his and he was entitled to his based on Sobczyk the credits Officer poker observed on the machine. There was testimony no from the bartender that she and the returned to poker might expect verify problem machine as one did occur. support That there was evidence that tended to Boom Town’s claim money exchange nothing that the more a “refund” suggests than nothing more reweighing than a of the evidence. 384 Ill. gave
The bartender testified she
patron by
name of “John” a $5
However,
testimony
president
refund.
this conflicted with the
Boom Town that there were two
refunds handed out on March 4.
$10
repair
employee’s testimony
contributed
the confus
company
ing nature of Boom Town’s case. He testified that the seized machine
problem:
sticking.”
had a
the “dollar bill intake was
refund,
at 30. How a
refund is converted into a
either refund
$5
$10
bills,
accepted
or both refunds based on the use of a machine that
$1
explained.
was never
It is not unreasonable for the Commissioner to
I,
course,
disregarded
testimony.
have
this
Of
it is of no moment that
differently in
majority, might
like the
“have ruled
the first instance.”
*10
submit,
Reasonably, I
found circumstantial
Commissioner
the infer
gambling
evidence
from these established facts and from
ences
is
the Commissioner was free to draw. Circumstantial evidence
Stewart,
objectionable hearsay.
citing Wig
not
Finally, majority I find the manner in which the unpersuasive case, I understand distinguishes Considering Connor. Connor and this may once be considered majority to conclude that conduct observed meaningless disregarded, repeat such that it can be but that conduct However, conduct can gains meaning. only way repetitive and it once has suggest “particular performed motive” is when the conduct Motive does not “particular that same motive.” 384 Ill. alone. If a motive” cannot reason by repetition “particular materialize once, I fail to see how there is ably be ascribed to conduct observed repeated. the conduct any upon observing “motive” to share findings, we owe deference to the Commissioner’s factual Because charges, I as the trial court did. would sustain the (“A weight of decision is the manifest at evident”). I clearly if conclusion is only opposite the evidence v. El appropriate Daley as an sanction. would also sustain revocation (2001) (“The Corp., N.E.2d Flanboyan statute, regulation related to the control any violation of ordinance or liquor the revocation of a generally constitutes cause for violations). prior license”; consider establishment’s court also I therefore dissent.