King's Health Spa, Inc. v. Vill. of Downers Grove

• Decision Date: 27 June 2014
• Docket Number: 2–13–0978.,Nos. 2–13–0825,s. 2–13–0825
• Parties: KING'S HEALTH SPA, INC., Plaintiff–Appellant, v. The VILLAGE OF DOWNERS GROVE, Defendant–Appellee (David B. Fieldman, Massage Business Commissioner of the Village of Downers Grove, Defendant). Ace Spa, Inc., Plaintiff–Appellee, v. The Village of Downers Grove, Defendant–Appellant (David B. Fieldman, Massage Business Commissioner of the Village of Downers Grove, Defendant).
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 130825

11 N.E.3d 489

381 Ill.Dec. 858

KING'S HEALTH SPA, INC., Plaintiff–Appellant,

v.The VILLAGE OF DOWNERS GROVE, Defendant–Appellee (David B. Fieldman, Massage Business Commissioner of the Village of Downers Grove, Defendant).

Ace Spa, Inc., Plaintiff–Appellee,

v.The Village of Downers Grove, Defendant–Appellant (David B. Fieldman, Massage Business Commissioner of the Village of Downers Grove, Defendant).

Nos. 2–13–0825, 2–13–0978.

Appellate Court of Illinois, Second District.

June 11, 2014.

Rehearing denied June 27, 2014.

J. Mark Lukanich, Law Offices of J. Mark Lukanich, Palos Heights, for King's Health Spa, Inc.

John B. Murphey and Matthew D. Rose, Rosenthal, Murphey, Coblentz & Donahue, Chicago, and Enza I. Petrarca, Assistant Village Attorney, Downers Grove, for Village of Downers Grove.

H. Shawn Kim, of Chicago, for Ace Spa, Inc.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 In these consolidated appeals, plaintiffs, King's Health Spa, Inc. (King's), and Ace Spa, Inc. (Ace), owners of massage establishments, filed petitions for writs of certiorari seeking review of decisions by the massage business commissioner (Commissioner) of the Village of Downers Grove (Village) revoking plaintiffs' massage establishment licenses. The Commissioner revoked the licenses pursuant to section 8.2016(a)(3) of the Village's massage business ordinance (Downers Grove Municipal Code § 8.2016(a) (3) (amended Jan. 18, 2005)), which provides that a massage establishment license is subject to suspension or revocation if “any massage therapist practicing at the licensed premises has committed a * * * Specified Criminal Act * * * on the Licensed Premises.” The ordinance defines “Specified Criminal Act” to include an act of prostitution.

¶ 2 In the King's matter, the trial court denied the petition for writ of certiorari, and King's appeals (No. 2–13–0825). In the Ace matter, the trial court granted the petition for writ of certiorari and, following two remands to the Commissioner, ultimately ruled that the 72 days during which Ace's license was revoked was a sufficient sanction for its ordinance violation; ¹ in that matter, the Village appeals (No. 2–13–0978). We hold that the Commissioner did not abuse his discretion in revoking either King's or Ace's massage establishment license.

¶ 3 I. BACKGROUND

¶ 4 A. The King's Case (No. 2–13–0825)

¶ 5 On June 6, 2011, the Commissioner filed a notice of charges and hearing against King's, alleging that, on March 31, 2011, one of King's' employees committed an act of prostitution at the spa and that, pursuant to ordinance section 8.2016(a)(3), King's' license could be suspended or revoked. A hearing before the Commissioner's designated hearing officer took place on October 20, 2011.

¶ 6 At the hearing, Sergeant Steve Loan of the Illinois State Police Public Integrity Task Force testified that he had been involved in 10 to 12 investigations of prostitution operations. On March 31, 2011, Sergeant Loan participated in an undercover investigation of King's. The sergeant testified that he drove to King's in an undercover vehicle and entered the spa at approximately 3:45 p.m. He testified that he asked a woman at the front desk for an appointment and that she led him to a room, where he was left alone. The sergeant testified that a different woman entered the room and told him that a massage would cost $70. He paid the woman, who left the room. Sergeant Loan testified that he undressed, lay on the massage table, and covered himself with a towel. The woman returned and began the massage.

¶ 7 According to Sergeant Loan, the woman asked him his age and whether he was a police officer. Sergeant Loan told her that he was 41 years old and in the Navy. The sergeant testified that, based on his experience investigating prostitution, he knew that offenders believed that police officers were duty-bound to disclose their occupation. Sergeant Loan testified that the woman said that she did not believe that he was 41 years old and asked to see his driver's license. The sergeant believed that this was a ruse to see if he had a police badge. He testified that he retrieved his wallet and license, showed the license to the woman, and returned to the table. According to the sergeant, when he returned to the table, the woman slapped his buttocks and said that he was a “bad boy.” The sergeant testified that she then began singing the theme song from the television show “Cops.” Sergeant Loan testified that, when he lay back down on the table, the woman pinched his nipple and again called him a “bad boy.” The sergeant further testified that the woman asked if he wanted to take a shower and that he declined. According to Sergeant Loan, prostitution offenders in massage spas often attempt to separate customers from their belongings so that other employees can search for any indication that a customer is a police officer.

¶ 8 Sergeant Loan testified that the woman next asked him what kind of vehicle he drove and where in the parking lot the vehicle was located. The sergeant told her that he drove a Nissan that was parked on the side of the building. He testified that the woman excused herself from the room for approximately five minutes. The sergeant explained that he believed that the woman left to investigate his car for signs that he was a police officer. He testified that when the woman returned she crouched down so that her head was at his eye level. According to the sergeant, she then put one finger to her lips, said “shush,” and made a licking motion. The sergeant believed that this was an offer to perform oral sex. Sergeant Loan testified that the woman pointed at him and that he said “yes.” According to Sergeant Loan, the woman removed the towel so that he was naked. The sergeant told the woman that he had to go to the bathroom. After he exited the room, fellow officers entered King's and arrested the woman.

¶ 9 Lieutenant William Budds of the Village police department testified that, on March 31, 2011, he was parked approximately 150 feet east of King's, monitoring the premises. According to Lieutenant Budds, while Sergeant Loan was inside King's, he (Budds) observed a woman exit the side door of the business, look to the left and right, then reenter the business. Lieutenant Budds testified that, a few minutes later, he observed the woman exit the same door, walk north to the fence line of the property where vehicles were parked, then reenter the business. According to the lieutenant, shortly thereafter another woman exited the business, walked east toward Sergeant Loan's undercover Nissan, walked around the vehicle, looked into the vehicle, then reentered King's. Lieutenant Budds was not sure if the woman who looked into the Nissan was the same woman who had previously exited the business.

¶ 10 King's presented no mitigation evidence at the hearing and did not file a written closing argument, despite the hearing officer's request. On November 15, 2011, the Commissioner revoked King's' massage establishment license. The Commissioner found that evidence at the hearing established that King's violated ordinance section 8.2016(a)(3).

¶ 11 King's filed a petition for writ of certiorari in the trial court. King's alleged that the Commissioner's finding of a violation of ordinance section 8.2016(a)(3) was against the manifest weight of the evidence and that the Commissioner's decision to revoke its massage establishment license was an abuse of discretion.

¶ 12 On July 11, 2013, the trial court denied King's' petition for writ of certiorari. The court reasoned that the Commissioner's finding that King's violated ordinance section 8.2016(a)(3) was not against the manifest weight of the evidence. The court further determined that, given King's' failure to present mitigation evidence at the hearing, and given that the Village's evidence suggested a “scheme endemic to the business, as opposed to the isolated act of an individual,” the Commissioner did not abuse his discretion in revoking the license. King's timely appeals.

¶ 13 B. The Ace Case (No. 2–13–0978)

¶ 14 On June 6, 2011, the Commissioner filed a notice of charges and hearing against Ace, alleging that on March 31, 2011, one of Ace's employees committed an act of prostitution at the spa and that, pursuant to ordinance section 8.2016(a)(3), Ace's license could be suspended or revoked. A hearing before the Commissioner's designated hearing officer took place on September 7, 2011.

¶ 15 At the commencement of the hearing, the Village moved for a “summary determination” and directed finding as to the Commissioner's charge. The Village supported its motion with a copy of a jury's verdict finding Ace's employee guilty of prostitution. The Village also introduced the police report arising out of the employee's arrest. The report indicated that an undercover officer entered the spa and paid $70 for a massage. The woman giving the massage asked the officer his occupation, and the officer told her that he worked in the construction business. The woman asked the officer what he “wanted her to rub.” The employee then attempted to touch the officer's penis. The officer stopped the woman, and the woman asked him if he wanted to shower. According to the report, the woman again attempted to touch the officer's penis while he was in the shower. Fellow officers entered Ace and arrested the woman. The hearing officer granted the Village's motion and found that Ace violated the ordinance.

¶ 16 The hearing officer allowed Ace to submit evidence in mitigation. Chong Kim testified that he was Ace's sole owner and that he purchased the business in 1999 for $45,000. According to Kim, he invested an additional $40,000 to renovate the business. Kim testified that he recently signed a 3–year lease and paid $3,000 per month in rent. Kim admitted that it was a risk to renew his lease, given that he could lose his massage...