City of Chicago v. Groffman

• Decision Date: 30 August 1976
• Docket Number: 60675,Nos. 59701,s. 59701
• Citation: 354 N.E.2d 572,42 Ill.App.3d 139
• Court: United States Appellate Court of Illinois
• Parties: CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellee, v. Cindy K. GROFFMAN and Claude Jones, Jr., Defendants-Appellants.

Page 572

354 N.E.2d 572

42 Ill.App.3d 139

CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellee, v. Cindy K. GROFFMAN and Claude Jones, Jr., Defendants-Appellants.

Nos. 59701, 60675.

Appellate Court of Illinois, First District, First Division.

Aug. 30, 1976.

Patrick A. Tuite, Chicago, for defendants-appellants.

William R. Quinlan, Acting Corp. Counsel, Chicago (Daniel Pascale, Robert Retke and Ann Acker, Asst. Corp. Counsel, Chicago), for plaintiff-appellee.

GOLDBERG, Presiding Justice.

We have consolidated two appeals for hearing and decision. In case No. 59701, defendant Cindy K. Groffman was found guilty of two separate violations of the Municipal Code of Chicago (1973), ch. 104.1, par. 104.1--2, which makes it unlawful to operate a public place of amusement without a license. Defendant Claude Jones, Jr. was found guilty of violating the same ordinance 7 times in case No. 59701 and 44 times in case No. 60675. The trial court imposed fines of $100 and costs of $5 against each defendant as to each charge. The primary issue raised by defendants is directed to the constitutionality of the general licensing provisions of the Municipal Code (1973), ch. 101, par. 101--5.

Two preliminary matters require attention:

First, plaintiff City of Chicago has moved to dismiss the appeal in case No. 60675 for failure of the defendants to file the record on appeal within the prescribed time. We have taken this motion for disposition with the case. Although prosecutions under city ordinances are quasi-criminal in nature, they are civil in form and the civil rules of procedure are applicable on trial and on review. (City of Decatur v. Chasteen (1960), 19 Ill.2d 204, 216, 166 N.E.2d 29; City of Highland Park v. Curtis (1967), 83 Ill.App.2d 218, 222, 226 N.E.2d 870.) The defendants in good faith requested and were granted extensions of time for filing of the record by the trial court under the rules applicable to criminal cases. (Compare Rule 326 with Rule 608(c). Ill.Rev.Stat.1975, ch. 110A, pars. 326 and 608(c).) In our opinion, it would be an abuse of discretion to grant the motion to dismiss and it is accordingly denied. People v. Aliwoli (1975), 60 Ill.2d 579, 328 N.E.2d 555.

Second, in case No. 59701, defendants argued that there is no evidence to support the judgments of guilty in the two cases against Cindy Groffman and in five of the seven cases regarding Claude Jones. An examination of the record, however, shows that defendants' counsel admitted that there was a plea of guilty in each of the nine cases. Also there was an admission by counsel of record for defendants that they had operated a public place of amusement without a license. There was no need, therefore, for the trial court to hear additional evidence.

We will next consider the sole remaining issue raised by defendants regarding the constitutionality of section 101--5 of the Municipal Code of Chicago. Chapter 101 of the Chicago Municipal Code pertains to 'General Licensing Provisions.' Chapter 104.1 deals with 'Public Places of Amusement.' Both of these chapters are material in determining the constitutional issue raised in the case before us. We will state the pertinent provisions thereof.

Section 104.1--2 of the public places of amusement ordinance (chapter 104.1 of the Municipal Code of Chicago) forbids the operation, for gain or profit, of a public place of amusement without a license. Section 104.1--3 requires that an application for license 'shall be made in conformity with the general requirements of this Code relating to applications for licenses.' Section 101--4 of the general licensing provisions (chapter 101) requires that applications shall be made 'in writing to the Director of Revenue on a form provided for that purpose.'

Section 101--5 provides that upon receipt of application which requires an investigation or inspection by any department of the city and the approval thereof as to the character and fitness of the applicant or as to the proper location or condition of the premises, the Director of Revenue shall refer the matter to the proper department which shall within ten days make 'an investigation or inspection' and either approve or disapprove the issuance of the license and notify the Director of Revenue accordingly.

This section 101--5 (of the general licensing provisions) also provides:

'Upon receiving Satisfactory proof from the Director of Revenue that The applicant or each of the principal officers, if the applicant is a corporation, Is a fit and proper person to be granted such license, and that all laws and provisions of this Code regulating the business or occupation for which such license is applied for, have been complied with, the Mayor may authorize the issuance of the said license by the City Clerk.' (Emphasis added.)

This same section 101--5 of the general licensing provisions also requires that the mayor, if he disapproves the license application, notify the unsuccessful applicant in writing of the reasons for the disapproval. The applicant may, within 10 days after receiving such notice, request a public hearing, which shall be authorized within 10 days after said request, to be held before a hearing examiner appointed by the mayor. The public hearing shall be commenced within 10 days after it is authorized. The examiner is to report his findings to the mayor, who shall within 15 days after conclusion of the hearing, if he determines after the hearing that the application be disapproved, state the reason for such determination in a written finding and serve a copy thereof upon the applicant.

Other sections of the pertinent ordinances which are relevant to this appeal are as follows:

'101--4. All applications for licenses of any character whatsoever, except those licenses specifically excepted, shall be made in writing to the Director of Revenue on a form provided for that purpose.

'Every application for a license shall contain the name of the person desiring the same and the place of business of such applicant. If the applicant is a partnership or firm, the application shall contain the names and residence addresses of each of its members; if a limited partnership, the names and residence addresses of each general partner thereof; and if a corporation, the application shall contain the names and residences of its principal officers. In addition to such statements, there shall be set forth in said application the location of the place of business, or proposed location thereof, for which the license is sought, and such other information as may be required by the Director of Revenue in conformity with the provisions of this Code prescribing the requirements of such license.'

'101--14. No license or permit shall be issued to any person indebted to the city, unless and until such person pays to the city all indebtedness then due from such person or by authority of the city council otherwise discharges all such indebtedness in accordance with the terms and conditions fixed by the city council.'

'104.1--3. An application for said license shall be made in conformity with the general requirements of this code relating to applications for licenses. Said application shall be signed by the owner or lessee of the property in his own proper person or in his name by his duly authorized agent.

'104.1--4. Each application and all information required to be furnished in connection therewith or a copy thereof shall be referred to the commissioner of buildings, the director in charge of the bureau of fire prevention, and the superintendent of police. Each officer shall certify to the mayor whether or not the applicant is qualified to receive the license applied for and whether or not the place complies in every respect with the applicable provisions of this code relating to his department. No license shall be issued without approval by the mayor.'

'104.1--6. Before any license is issued the applicant shall execute a written undertaking conditioned that the taxes imposed upon any amusement at the licensed premises will be paid in the manner and at the times provided in chapter 104 of this code.'

The record shows that the defendants Groffman and Jones were cited for operating without a license for public place of amusement the theater premises at 606 S. Wabash Ave., in Chicago, apparently owned by Wabash Books, Inc. which is not a party to these proceedings. In case No. 59701 the citations were issued in January and February 1973. The owners of the theater applied for a license on March 13, 1973.

The report of proceedings filed by defendants commences with a hearing before the trial court on March 27, 1973. Counsel for the city told the court that the matter had previously been partially heard and then continued for the purpose of permitting 'them' to apply for a license.

Upon filing of the license application at the office of the Director of Revenue, investigations were instituted by the police, building and fire prevention departments. (See section 104.1--4 above). As a result of these investigations, Wabash Books, Inc. was denied a license. An inspector for the building department testified that on March 26, 1973, the subject premises lacked fire doors in two places, another type of fire door at the projection booth, automatic fire shutters at the booth and plasterboard on the walls and ceiling. The inspector could not get access to the basement which also required his attention. The building department refused approval of the license application.

A lieutenant of the fire department testified that he inspected the premises on March 14, 1973. He found a defect in connection with the prothole openings of the projection block, failure to post occupancy placards concerning number of persons permitted to occupy the premises, lack of necessary plastering and a missing 'elbow' from the hearing unit.

A representative of the police department testified that the application for license was made by 'Wabash...