People v. Beaulieu Realtors, Inc.

• Decision Date: 19 March 1986
• Docket Number: No. 85-0551,85-0551
• Citation: 98 Ill.Dec. 382,144 Ill.App.3d 580,494 N.E.2d 504
• Parties: , 98 Ill.Dec. 382 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. BEAULIEU REALTORS, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 504

494 N.E.2d 504

144 Ill.App.3d 580, 98 Ill.Dec. 382

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. BEAULIEU REALTORS, INC., Defendant-Appellant.

No. 85-0551.

Appellate Court of Illinois First District, Third Division.

March 19, 1986.

Rehearing Denied June 16, 1986.

Edward J. Egan, Ltd., Chicago, for defendant-appellant.

Richard M. Daley, Chicago, for plaintiff-appellee.

WHITE, Justice.

Defendant Beaulieu Realtors, Inc. was charged in two counts with violating an Act to prohibit the solicitation or inducement of sale or purchase of real estate. (Ill.Rev.Stat.1983, ch. 38, par. 70-51 et seq.) Following a bench trial, Beaulieu Realtors Inc. was convicted and fined $1,000 on each count. It appeals.

In 1983, the Northwest Neighborhood Federation, a Chicago, Illinois community group, conducted an anti-solicitation of real estate drive. Staff members of the federation, along with community volunteers, collected homeowners' signatures on a document entitled, "Notice Not to Solicit." Lists consisting of the names and addresses of the homeowners who wished not to be solicited to sell or list their property were compiled from that document. Members of the community then served the anti-solicitation lists on various real estate firms in the area.

On September 2, 1983, flyers regarding Beaulieu's real estate services were received by two homeowners, Karen Kosik and Kurt Hedlund (complainants) who had signed the "Notice Not to Solicit" and whose names were included on the anti-solicitation list. As a result of the flyers being sent to complainants, the State brought the following solicitation charges: two counts against Beaulieu and two counts each against three individual employees of Beaulieu. At the bench trial, the individual defendants moved for directed verdicts at the close of the State's case. The trial court granted the motions and dismissed the individual defendants for lack of proof of personal service.

The State presented the following witnesses: the complainants; Dan Nix, a member of the federation; and Melissa Josephs, a staff person for the federation. Both complainants testified that on September 23, 1981, they signed the "Notice Not to Solicit" and that on September 2, 1983, they received flyers regarding Beaulieu's real estate services. Nix testified that on May 16, 1983, he examined the anti-solicitation list; he then signed and attached an affidavit stating that the list of names and addresses were of individuals who wished not to be solicited to sell or list their property. Nix added that the names and addresses of both complainants were included on the "Notice Not to Solicit" and on the anti-solicitation list. The State's last witness, Josephs, testified that on July 12, 1983, she delivered copies of the anti-solicitation list with attached affidavits to 5341 W. Belmont which had a sign outside identifying the business as Red Carpet, Beaulieu Realtors, Inc.

Patrick Schremp, the sole witness presented by Beaulieu, was the production manager for Harvest Club International, the company which contracted with Beaulieu to mass mail the flyers in question. Schremp compiled a mass mailing list which included names and addresses of individuals who were to be mailed Beaulieu's flyers. Schremp testified that in July 1983, he received the anti-solicitation list from Beaulieu. He then deleted from the mass mailing list a number of the names on the anti-solicitation list. He later sent the mass mailing list, which included both complainants' names, to Beaulieu for editing out names not to be included. He stated that Beaulieu struck neither complainants' name from the mass mailing list. Schremp testified that no one at Beaulieu contacted him regarding any mistakes on the mass mailing list.

At the close of evidence, Beaulieu was found guilty on both counts. This appeal followed.

The issues presented for review are: (1) whether the State proved beyond a reasonable doubt that Beaulieu was properly served with the anti-solicitation list; (2) whether the trial court erred in finding that the flyers constituted solicitation as opposed to advertising; and (3) whether the anti-solicitation statute properly provides for the punishment of corporate entities that violate the statute.

The anti-solicitation statute section 70-51(d) (Ill.Rev.Stat.1983, ch. 38, par. 70-51(d)) in pertinent part provides that:

It shall be unlawful for any person or corporation knowingly:

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(d) To solicit any owner of residential property to sell or list such residential property at any time after such person or corporation has notice that such owner does not desire to sell such residential property. For the purpose of this subsection, notice must be provided as follows:

(1) The notice may be given by the owner personally or by a third party in the owner's name, either in the form of an individual notice or a list, provided it complies with this subsection.

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(3) The individual notice, or notice in the form of a list with the accompanying affidavit, shall be served personally or by certified or registered mail, return receipt requested.

Beaulieu contends that the essential question is: how is a corporation served personally under this criminal statute? The Code of Criminal Procedure (Ill.Rev.Stat.1983, ch. 38, par. 107-13(b)) provides that when a corporation is charged with an offense, summons for the appearance of the corporation may be served in the manner provided for service of summons upon a corporation in civil actions. In civil actions, service on a corporation may be made "by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State * * *." (Ill.Rev.Stat.1983, ch. 110, par. 2-204.) It follows, therefore, that service upon an officer or agent of the corporation is required for service on a corporation under the anti-solicitation statute.

To establish that Beaulieu was properly served, the State presented the testimony of Josephs who testified that she and another member of the federation delivered 20 anti-solicitation lists to the Beaulieu office on a weekday during business hours. She stated that they talked with a woman who sat at the desk near the office entrance. Josephs testified that the desk had a telephone, pencils, pads of paper and receptacles for messages for employees. She stated that the woman's desk was separated from the other smaller desks which were occupied by men. Josephs testified that upon entering they: identified themselves as being from the federation; told the woman at the desk they had anti-solicitation lists that were signed by members of the community who wished not to be solicited to sell or list their property; and that they wanted to deliver the lists to all the salespersons in the office. The woman then told Josephs that 20 salespersons worked there and that she would distribute the lists to them.

On the basis of the foregoing, we find it reasonable to conclude that the woman with whom Josephs spoke was an employee (agent) of Beaulieu. The question now becomes whether she was employed in a position of such character that she impliedly had authority to receive notice and would be likely to inform the corporation of the service. (Jansma Transport, Inc. v. Torino Baking Co. (1960), 27 Ill.App.2d 347, 352, 169 N.E.2d 829.) The uncontroverted testimony of Josephs supports an inference that the woman was employed as a receptionist or secretary at Beaulieu. Courts have found the character of these positions to be commensurate with the character of the agency required for purposes of service. A-Z Equipment Co. v. Moody Masonry Co. (1980), 88 Ill.App.3d 187, 410 N.E.2d 438, 43 Ill.Dec. 438; Jansma, 27 Ill.App.2d 347, 169 N.E.2d 829.

There was further evidence that Beaulieu received actual notice of the lists. Schremp, the sole witness presented by Beaulieu, testified that he received the anti-solicitation list from a woman named Delores from Beaulieu. According to Schremp's testimony, Beaulieu did, in fact, have the anti-solicitation lists in its possession, indicating that Beaulieu did receive notice. (Maunder v. DeHavilland Aircraft of Canada (1983), 112 Ill.App.3d 879, 68 Ill.Dec. 450, 445 N.E.2d 1303.) "[U]pon receipt of written notice defendant [ ] knew precisely what [it] must not do * * *." (People v. C. Betts Realtors, Inc. (1977), 66 Ill.2d 144, 5 Ill.Dec. 258, 361 N.E.2d 581.) Based on the foregoing, we hold that Beaulieu did receive proper notice that the complainants did not desire to sell or be solicited to sell their property.

Beaulieu next argues that the trial court erred in finding that the flyers mailed by Beaulieu constituted solicitation, not advertising. To ascertain the difference between soliciting and advertising, we look to the definition of both terms. Advertise, which may be accomplished by statements or representations made in newspapers, radio, television or any other method of notice is defined:

To advise, announce, appraise, command, give notice of, inform, make known, publish * * *. Any * * * statement made by the seller in any manner in connection with the solicitation of business * * *.

Black's Law Dictionary 50 (5th ed. 1979).

Solicit, which may be done by writing, word of mouth or any other method (People v. Murray (1923), 307 Ill. 349, 365, 138 N.E. 649) is defined:

To appeal for something; to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading * * *.

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The term...