Ciampa v. City of Chicago

• Decision Date: 29 May 1973
• Docket Number: No. 56441,56441
• Citation: 299 N.E.2d 53,12 Ill.App.3d 368
• Parties: Martha CIAMPA, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 53

299 N.E.2d 53

12 Ill.App.3d 368

Martha CIAMPA, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, et al Defendants-Appellees.

No. 56441.

Appellate Court of Illinois, First District, First Division.

May 29, 1973.

Rehearing Denied July 24, 1973.

Paul C. Ross, Morton J. Rubin, Chicago, for plaintiff-appellant.

Richard L. Curry, Corp. Counsel, Chicago, for defendants-appellees; William R. Quinlan and Thos. J. Cachor, Asst. Corp. Counsels, of counsel.

BURKE, Presiding Justice.

Plaintiff, Martha Ciampa, was the holder of a Food Purveyor License No. 1386 issued by the City of Chicago. After notice and hearings, the plaintiff's license was revoked by the Mayor of the City of Chicago.

Plaintiff subsequently filed a petition for a writ of mandamus in the circuit court of Cook County seeking to compel the Mayor to reinstate her Food Purveyor License. After having heard the testimony of the witnesses and having examined the evidence, the trial court denied plaintiff's petition. Plaintiff appeals.

On June 9, 1970, Officer James McGuinness of the Chicago Police Department purchased the magazine entitled 'Sybil No. 1' from plaintiff for $3.50. The sale took place at plaintiff's store at 1908 West Belmont Avenue, Chicago, the front portion of which was utilized by her as a food store where she sold ice cream, milk, cookies, candy, and school supplies. In the rear portion of the store plaintiff sold books and magazines. The Officer testified that he entered the store and proceeded to the rear where plaintiff had a book rack. He stated that he browsed through the rack and picked up the magazine 'Sybil No. 1' which he purchased from plaintiff.

On June 10, 1970, Officer McGuinness appeared before Judge Robert J. Collins of the circuit court of Cook County and verified a complaint charging the plaintiff with a violation of Ill.Rev.State.1969, ch. 38, par. 11--20 and the Judge issued a warrant for plaintiff's arrest.

On July 1, 1970, a hearing on the criminal complant was conducted before Judge Jack A. Welfeld of the circuit court of Cook County. At this hearing, plaintiff entered a plea of not guilty. The Court, without making a finding as to whether or not the magazine 'Sybil No. 1' was obscene, sentenced the plaintiff to six months supervision and released plaintiff's bond.

Subsequently on August 20, 1970, a notice to revoke plaintiff's Food Purveyor License was issued by the Mayor of the City of Chicago based upon the charge that the plaintiff had been 'dispensing obscene literature contrary to the Ordinances of the City of Chicago and the Statutes of the State of Illinois.' The specific violations with which plaintiff was charged are embodied in Section 192.9 of the Municipal Code of Chicago and Ill.Rev.Stat.1969, ch. 38, par. 11--20(a)(1) which provide respectively:

Section 192.9 of the Municipal Code of Chicago:

'It shall be unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing, or other article which is obscene. Any person violating any provisions of this section shall be fined not less than $20.00 nor more than $200.00 for each offense.

'Obscene for the purpose of this section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.'

Ill.Rev.Stat.1969, ch. 38, par. 11--20(a)(1)

'A person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:

(1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene;'

On September 21, 1970 and September 28, 1970, hearings were conducted before the Commissioner designated by the Mayor. The Commissioner found that the magazine 'Sybil No. 1' was obscene and on October 2, 1970, plaintiff's Food Purveyor License was revoked by the Mayor, pursuant to the authority conferred upon him by the Municipal Code of Chicago, Sec. 101--27 which provides in relevant part:

'The Mayor shall have power to revoke any license issued under the provisions of this code for good and sufficient cause.

If at any time after the granting of any license, any licensee shall have violated any of the provisions of this code or any of the statutes of the state in the conduct of his business, the mayor may revoke the license therefor.'

Plaintiff argues that before the Mayor can revoke a license, there must be a prior judicial determination for the purpose of determining whether a publication is constitutionally protected or obscene. Plaintiff also maintains that since Judge Welfeld did not make an express finding in the prior criminal proceedings that the magazine 'Sybil No. 1' was obscene and sentenced plaintiff to six months supervision and released her bond, this action was tantamount to a finding of not guilty and should have been considered Res judicata in the subsequent hearing conducted by the Mayor.

We are of the opinion that it is not necessary for us to reach a decision as to whether Judge Welfeld's actions in the criminal proceedings constituted, as plaintiff maintains, a 'finding of not guilty.' The outcome of the prior criminal proceedings would in any event be immaterial in the subsequent proceedings instituted by the Mayor to revoke plaintiff's Food Purveyor License. See Nechi v. Daley, 40 Ill.App.2d 326, 188 N.E.2d 243; Taylor v. Civil Service Comm., 33 Ill.App.2d 48, 178 N.E.2d 200. The doctrine of Res judicata is inapplicable in this case for the principal reason that the burden of proof in the criminal proceeding is different from the burden of proof in the license revocation proceeding.

We believe the following pronouncement by the Pennsylvania Supreme Court in Commonwealth v. Funk, 323 Pa. 390, 400, 186 A. 65, 70 is appropriate:

'It has been the established rule that a criminal prosecution does not bar a subsequent civil or administrative proceeding based upon the same set of facts, nor does a judgment rendered therein have any probative value in subsequent proceedings beyond the mere fact of its rendition. Wilson v. Wilson, 100 Pa.Super. 451. This is caused by the nature of criminal proceedings and the type of proof required therein. In criminal proceedings the guilt of the accused must be established beyond a reasonable doubt. In a civil proceeding to revoke a license, it is sufficient if the offense be established by a preponderance of the evidence; this distinction is pointed out by Mr. Justice Sadler in Barach's Case, 279 Pa. 89, 123 A. 727. See, also, Summers v. Bergner Brewing Co., 143 Pa. 114, 22 A. 707; Morch v. Raubitschek, 159 Pa. 559, 28 A. 369.'

In People ex rel. Anderson v. City of Chicago, et al., 312 Ill.App. 187, 37 N.E.2d 929 (Abstract), this court was concerned with a case in which the plaintiff's prior license for the year 1940 had been revoked by the Mayor pursuant to Section 101--27 of the Municipal Code. Plaintiff had instituted a mandamus proceeding to compel the restoration of the license but before the hearings were concluded in that proceeding the 1940 license period had expired and the cause was dismissed. When the plaintiff applied for a license in 1941, his application was not approved. He then instituted another mandamus proceeding seeking to compel the Mayor to issue him a license for the year 1941 and this petition for a writ of mandamus was granted by the trial court.

This court, in reversing the judgment, stated:

'It is a well recognized principle of law that there is vested in the licensing authority a discretionary power which may be reasonably exercised in the granting or refusing to issue a license. Even when the applicant for a license has complied with all of the requirements governing the issuance of such license, nevertheless a discretion exists in the licensing officer and he will not be compelled to issue a license when in his discretion, reasonably and fairly exercised, the license has been refused. (Harrison v. The People, 222 Ill. 150, 78 N.E. 52; People v. Dever, 236 Ill.App. 135.)

'The fact that plaintiff and his employees were discharged in the Municipal court when they were tried on charges brought against them as the result of the investigation made by the Police...