Connor v. City of Chicago
| Decision Date | 10 December 2004 |
| Docket Number | No. 1-03-0941.,1-03-0941. |
| Parties | Robert E. CONNOR, d/b/a Heinze Liquors, Plaintiff-Appellee, v. The CITY OF CHICAGO; Richard M. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago; Winston Mardis, Director of the Mayor's License Commission; and the Mayor's License Commission; Defendant-Appellants. |
| Court | United States Appellate Court of Illinois |
Corporation Counsel of the City of Chicago, Chicago (David La Raus, of Counsel), for Appellant.
Brown Udell & Pomerantz, Chicago (James R. Donoval, of Counsel), for Appellee.
Defendants, City of Chicago (City), Richard M. Daley, Winston Mardis and the Mayor's License Commission (MLC), appeal the order of the circuit court reversing the decision of the Local Liquor Control Commissioner (LLCC) to suspend plaintiff's liquor license for 15 days for permitting and engaging in acts of gambling on its premises. Upon appeal, defendants argue: (1) the trial court erred in finding that the LLCC's decision was against the manifest weight of the evidence; and (2) plaintiff waived his due process argument when he failed to raise the issue during the hearing. We reverse.
At the hearing before the LLCC to revoke plaintiff's license, Officer James Henneghan testified that on November 6, 1999, he entered plaintiff's establishment in plain clothes, sat at the bar and ordered a beer. The bartender gave him change from the register. As he sat, Officer Henneghan noticed a man playing a video game at one of three machines located directly across from him. Officer Henneghan recognized the machine as a "Cherrymaster" whereby a player purchases credits and bets credits on a scrolling screen that displays pictures in a row. The player wins or loses credits based upon the pictures appearing on the screen. If a player loses all of his credits, he can either stop playing or insert more money into the machine. A player may also be paid money corresponding to the number of credits he has accumulated. The credit total is cleared to zero by pressing a button. Officer Henneghan testified that the Cherrymaster is a game of pure chance, not skill.
The man continued playing and Officer Henneghan observed him insert money into the machine. After playing for about an hour, the man stopped, stood up and called or motioned to the bartender, Verna Egert. From behind the bar, Egert looked at the machine, which showed that the man had accumulated 1,100 credits, and she nodded and motioned for the man to follow her. As they walked, Officer Henneghan noticed that the credits total was scrolling down to zero. Officer Henneghan saw Egert take United States currency from the register and hand it to the man, who then took the money and left the premises.
Although Officer Henneghan did not arrest the man or learn his identity, he subsequently applied for a search warrant based upon his observations. On November 8, 1999, after the warrant was issued, Officer Henneghan returned with other officers and seized the circuit boards of the video machines as well as currency found inside the machines. The officers issued a criminal citation to Egert.
Officer Ollie Gavin testified that on November 12, 1999, he entered plaintiff's establishment in plain clothes and sat at the bar. He ordered a beer and the bartender gave him change from the register. Apparently, new circuit boards were installed and Officer Gavin observed a man playing Cherrymaster. Officer Gavin stated that the game was one of chance, not skill. The man continued to play the game for approximately 30 minutes and Officer Gavin saw the man place money into the machine approximately four times during that period. When the man stopped playing, he turned and waved towards the bartender. The bartender looked at the machine from behind the bar and it showed 400 credits. She took the man to one of the cash registers and removed some currency which she gave to the man. The man then left the premises. After leaving, Officer Gavin obtained a warrant based upon his observations, and on November 16, 1999, pursuant to the warrant, police officers seized the three video amusement machines and the cash inside.
On January 3, 2000, Officer Moises Flores entered plaintiff's establishment in plain clothes. Officer Flores sat at the bar and directly across from him were three video amusement machines. Officer Flores ordered a beer and observed a man playing Cherrymaster. Officer Flores testified that the game was one of chance, not skill.
The man continued to play the game for approximately 20 minutes in Officer Flores' presence, and once during that time the man inserted money into the machine. When he finished playing, the man left the machine and spoke briefly to the bartender. The bartender looked at the machine, which showed 4,000 credits, and then nodded and made some motions. The player returned to the machine and pushed a button which cleared the points from the screen. The bartender then took money out of the cash register and handed it to the man. As the man started to leave the premises, Officer Flores stopped him and issued criminal citations to the man and to the bartender. Officer Flores then had the machines opened and he confiscated the currency inside.
The City sought to revoke plaintiff's liquor license, based upon 17 charges.1 The charges allege that on each of the three occasions outlined above, plaintiff participated in and wagered upon a game of chance, managed or permitted its premises to be used for gambling, and kept a gambling place, thereby maintaining a public nuisance. The hearing officer found the testimony of the officers to be "credible, reliable and uncontradicted" and that the City sustained its burden of proof upon all 17 charges. He then determined that a 15-day suspension upon each charge, served concurrently, was an appropriate sanction. The License Appeal Commission (LAC) affirmed the LLCC's decision. Upon administrative review, the trial court reversed the decisions of the LLCC and the LAC because it found "that there is no evidence in the record to support an intent to gamble by the licensee." The LLCC filed this timely appeal.
Upon appeal, this court reviews the administrative agency's decision and not that of the trial court. Daley v. El Flanboyan Corp., 321 Ill.App.3d 68, 71, 254 Ill.Dec. 97, 746 N.E.2d 854 (2001). Furthermore, review is limited to whether the agency's factual findings are against the manifest weight of the evidence and whether the findings support the sanction given. El Flanboyan, 321 Ill.App.3d at 71, 254 Ill.Dec. 97, 746 N.E.2d 854. A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 204, 229 Ill.Dec. 522, 692 N.E.2d 295 (1998). An administrative agency's decision is not against the manifest weight of the evidence, and must be sustained upon appeal, if there is any evidence in the record supporting the agency's decision. Leong v. Village of Schaumburg, 194 Ill.App.3d 60, 65, 141 Ill.Dec. 27, 550 N.E.2d 1073 (1990). The mere fact that the opposite conclusion is reasonable, or that a reviewing court would have ruled differently, does not render an agency's decision as against the manifest weight of the evidence. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 88, 180 Ill.Dec. 34, 606 N.E.2d 1111 (1992).
Here, three officers testified without contradiction that on three separate occasions they observed a man playing a Cherrymaster machine. On all three occasions, the players inserted money into the game to continue playing, and when they stopped playing, they had accumulated a number of credits. The players approached the bartender, who looked...
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