Boom Town Saloon, Inc. v. City of Chicago

• Decision Date: 14 July 2008
• Docket Number: No. 1-07-0239.,1-07-0239.
• Citation: 892 N.E.2d 1112,384 Ill.App.3d 27
• Parties: BOOM TOWN SALOON, INC., Licensee, and Eugene Perry, President, Plaintiffs-Appellants, v. THE CITY OF CHICAGO, a Municipal corporation, Richard M. Daley, as both Local Liquor License Commissioner and Mayor, Scott Bruner, Director of the Mayor's License Commission, Robert Nolan, Hearing Officer for the Mayor's License Commission, the Mayor's License Commission, The License Appeal Commission of the City of Chicago, Anthony Calabrese, Irving Koppel, Don Adams and Philip J. Cline, Chicago Police Superintendent, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

892 N.E.2d 1112

384 Ill.App.3d 27

BOOM TOWN SALOON, INC., Licensee, and Eugene Perry, President, Plaintiffs-Appellants, v. THE CITY OF CHICAGO, a Municipal corporation, Richard M. Daley, as both Local Liquor License Commissioner and Mayor, Scott Bruner, Director of the Mayor's License Commission, Robert Nolan, Hearing Officer for the Mayor's License Commission, the Mayor's License Commission, The License Appeal Commission of the City of Chicago, Anthony Calabrese, Irving Koppel, Don Adams and Philip J. Cline, Chicago Police Superintendent, Defendants-Appellees.

No. 1-07-0239.

Appellate Court of Illinois, First District, First Division.

July 14, 2008.

Touhy & Touhy, Ltd. (Timothy J. Touhy of counsel), Chicago, IL, for Appellants.

Corporation Counsel of the City of Chicago — Mara S. Georges (Benna Ruth Solomon, Myriam Zreczny Kasper and Sara K. Kornstra of counsel), Chicago, IL, for Appellees.

Justice ROBERT E. GORDON delivered the opinion of the court:

Plaintiffs Boom Town Saloon, Inc., and Eugene Perry, Boom Town's president, appeal the order of the circuit court of Cook County affirming the decision of the Local Liquor Control Commissioner (LLCC). The LLCC revoked Boom Town's liquor license for allegedly committing acts of gambling. On appeal, plaintiffs claim that the LLCC's findings of gambling were against the manifest weight of the evidence. We agree, and therefore reverse.

BACKGROUND

Defendant City of Chicago sought to revoke plaintiff Boom Town's liquor license based on charges that Boom Town engaged in gambling; that it operated, kept, or used a gambling device; and that it kept a place of gambling. The charges involved three sections of the Criminal Code of 1961 (720 ILCS 5/28-1(a)(3), 28-3, 37-1 (West 2004)), and two sections of the Chicago Municipal Code (Chicago Municipal Code §§ 8-12-010, 8-12-030 (1990)).

At the administrative hearing before the LLCC, Officer Mark Sobczyk of the vice control section testified that at 7 p.m. on March 4, 2004, he entered Boom Town in plain clothes by himself, sat down at the bar, and ordered and paid for a drink. The bartender identified herself as "Denise."

Sobczyk noticed another patron of the bar approach a "Fruit Bonus Number 9" video poker machine. Sobczyk explained that to play the game, the player inserts money into the machine, which registers a corresponding number of "credits." The player hits a button to place a "bet" with the credits, and hits another button, which prompts icons on the screen to roll. Depending on how the icons stop, the player either loses the credits, or earns additional credits.

Officer Sobczyk watched the patron insert money into the machine and manipulate its buttons. At the time, the machine was 25 to 28 feet away from the officer's seat. Sobczyk left his seat and walked to within 10 feet of the machine, where he noticed that credits had appeared in its left corner. Sobczyk returned to his seat.

Officer Sobczyk testified that the patron played for 38 minutes and then approached the bar. Officer Sobczyk again left his seat and walked to within 10 feet of the machine, where he observed an amount of credits on the screen. Sobczyk could not see the exact number of credits, but he testified it was a four-digit number. Sobczyk's testimony continued:

"MS. NAVE [Assistant Corporation Counsel]: What did you do next?

OFFICER SOBCZYK: In the meantime while I was doing this, the player, as I said, who had been approaching the bar, by this time had made it to the bar at which point he called out to the bartender.

MR. TOUHY [Defense Counsel]: I object and move to strike it out as hearsay.

MS. NAVE: It's not hearsay. It's not a statement-he's just testifying what he observed.

COMMISSIONER NOLAN: Are you offering it for the truth of the matter asserted?

MS. NAVE: No, I am not.

COMMISSIONER NOLAN: Then it's not hearsay. I'll overrule it.

* * *

MS. NAVE: What happened after you observed the player call out to the bartender?

OFFICER SOBCZYK: I then concentrated my observations on the bartender and the player.

MS. NAVE: What did you observe?

OFFICER SOBCZYK: I observed the player using his thumb over his shoulder and pointing toward the machine.

MR. TOUHY: I'm going to object and move to strike this out as hearsay and no proper foundation laid.

COMMISSIONER NOLAN: Overruled.

MR. TOUHY: And there's no foundation establishing that this is the kind of testimony that would be [relied] upon [by] a reasonably prudent person.

COMMISSIONER NOLAN: I don't believe it's hearsay, so there's no reason for that requirement. I'm merely taking it as his describing what the conduct was that he observed.

MS. NAVE: Officer, what did you observe after you saw the player point his thumb towards the machine?

OFFICER SOBCZYK: The bartender nodded in the affirmative.

MR TOUHY: I object; move to strike it out, hearsay, nonverbal.

COMMISSIONER NOLAN: But by an agent of the corporation, so it's overruled as an exception."

Officer Sobczyk testified that after the bartender nodded, the bartender turned around and entered a storage area behind the bar. She exited within 15 seconds with money, which she handed to the patron. Sobczyk could not see the denomination of the bills or how many bills were given. The patron ordered a drink and paid for it with the money. The patron finished his drink and left. Sobczyk left a short time later, and obtained a search warrant for the premises.

Officer Sobczyk testified that, on the following day, March 5, 2004, he returned to Boom Town to execute the warrant. The bartender working at that time telephoned the bartender named Denise, who came to Boom Town. When she arrived, Sobczyk issued her an ordinance complaint ticket.

Officer Sobczyk testified that he seized $170 from the video poker machine and the machine itself. He did not recover any money, paraphernalia, documents, or other evidence of gambling from the back storage area.

Plaintiffs presented testimony from bartender Denise Pietz. Pietz testified that she tended the bar on March 4, 2004. She kept her "bank" in a register drawer and did not keep any money in the back area. She also testified that she was not involved in any gambling activities.

Pietz testified that the Fruit Bonus Number 9 video poker machine at issue in this case had been malfunctioning during the week of March 4. The machine would "jam up," meaning it would not accept a player's money, and "freeze." If a customer complained about a malfunction, Denise would "take the customer's word for it" and refund the player up to $5. Larger refunds were at the discretion of the owner, Eugene Perry. Pietz would refund customers with money from the register drawer.

Pietz testified that she refunded $5 to a customer named John on March 4, 2004. Concerning the refund, Pietz testified that she went from behind the bar to look at the machine, determined the machine was frozen, unplugged the machine to reset it, and gave John $5.

Bryan Bandyk, an employee of Shamrock Amusement Company, testified and identified two work service tickets. The first ticket was created on March 1, 2004,¹ in response to a call from Boom Town indicating the dollar bill intake was sticking on a poker machine. Bandyk went to Boom Town that evening and fixed the machine. The second ticket was created on March 5, 2004, indicating a Boom Town machine needed a new monitor. When Bandyk inspected the monitor later that day, he found it was sticking.

Plaintiff Eugene Perry, Boom Town's president, also testified. Perry identified Boom Town's financial records for March 4, 2004, which indicated two $10 refunds were made to customers. He also testified that the machine seized on March 5 was the one that had been malfunctioning.

Plaintiffs offered into evidence a 236-page document consisting of letters from customers and neighbors demonstrating their support for the establishment. The letters, which were either undated or from 2001, were in response to a previous charge Boom Town faced alleging it had served alcohol to a minor. Defendant City of Chicago offered a record of Boom Town's prior violations, discussed below.

The LLCC found Officer Sobczyk to be "credible and believable" and concluded that the City had sustained its burden as to all five charges. The LLCC found that revocation was the proper sanction "based upon the totality of the circumstances, including this licensee's prior record." With respect to the charges, the LLCC made the following findings:

"3. I find that on March 4, 2004, the licensee, by and through its agent, engaged in a game of chance or skill for the purpose of gambling for money on the licensed premises, to wit: paying out on a video slot machine, in violation of Title 8, Chapter 12, Sec. 010 Municipal Code of Chicago.

4. I find that on March 4, 2004, the licensee, by and through its agent, while on the licensed premises operated, kept and used a gambling device, to wit: a Fruit Bonus # 9 video slot machine in violation of 720 ILCS 5/281 (a)(3).

5. I find that on March 4, 2004, the licensee, by and through its agent, owned, maintained and managed a premises used for the purpose of permitting persons to gamble for any valuable thing, to wit: United States Currency, in violation of Title 8, Chapter 12, Sec. 030 Municipal Code of Chicago.

6. I find that on March 4, 2004, the licensee, by and through its agent, knowingly allowed the licensed premises to be used for the purposes of gambling, in violation of 720 ILCS 5/28-3.

7. I find that on March 4, 2004, the licensee, by and through its agent, maintained a public nuisance on the licensed premises in violation [of] 720 ILCS 5/37-1 in that the premises were used for the commission of the violation of 720 ILCS 5/28-3, to wit: keeping of a gambling place."

Defendant License Appeal Commission (LAC) affirmed the LLCC's decision. The circuit court subsequently affirmed "for the reasons stated in open court." In court on December 20, 2006, the circuit...