MJ Ontario, Inc. v. Daley

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-04-2249 NRel

Case Date: 01/19/2007

Preview:SIXTH DIVISION January 19, 2007 No. 1-04-2249

MJ ONTARIO, INC., an Illinois Corporation,

) ) Plaintiff-Appellant, ) ) v. ) ) RICHARD M. DALEY, as Mayor of the City of ) Chicago and Local Liquor Control Commissioner, ) the LOCAL LIQUOR CONTROL COMMISSION ) OF THE CITY OF CHICAGO, the MAYOR'S ) LICENSE COMMISSION OF THE CITY OF ) CHICAGO, SCOTT V. BRUNER, as DIRECTOR ) of the MAYOR'S LICENSE COMMISSION OF ) THE CITY OF CHICAGO, the CITY OF ) CHICAGO, a Municipal Corporation, the ) LICENSE APPEAL COMMISSION OF THE ) CITY OF CHICAGO, ANTHONY CALABRESE, ) as Chairman of the License Appeal Commission, ) IRVING KOPPEL and DONALD ADAMS, as ) Commissioners of the License Appeal Commission, ) ) Defendants-Appellees. )

Appeal from the Circuit Court of Cook County No. 03 CH 13213 Honorable David R. Donnersberger, Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court: Plaintiff MJ Ontario, Inc., an Illinois corporation (plaintiff or MJ Ontario), sought administrative review in the circuit court of Cook County of a decision by the defendant License Appeal Commission of the City of Chicago (LAC), which, after a hearing, affirmed an order by the defendant Local Liquor Control Commission of the City of Chicago (LLCC)1 denying plaintiff's application for a late-hour liquor license. The circuit court upheld the LAC's decision.

1

We refer to the defendants LAC and LLCC specifically where necessary; however, we

refer to defendants generally as "the City."

1-04-2249 Plaintiff appeals, contending the LAC improperly construed the ordinance concerning the issuance of late-hour liquor licenses and improperly admitted certain evidence at the hearing. Plaintiff contends, in the alternate, that the LAC's findings were arbitrary, unreasonable, and unsupported by sufficient evidence. We affirm. MJ Ontario is located at 224 West Ontario Street, which is near the intersection of Franklin and Ontario Streets in Chicago. Plaintiff applied for and was granted a liquor license. It also applied for a late-hour license to extend the time it is allowed to serve alcoholic beverages on the premises, seeking to do so for an additional two hours, i.e., until 4 a.m. on Monday through Saturday and until 5 a.m. on Sunday. On October 21, 2002, the former director of the LLCC, Winston Mardis (Director),2 issued an order denying the application from MJ Ontario and Mark Jurczyk, president of MJ Ontario, for a late-hour liquor license. The order stated that, upon consideration of police department "review & reports" and the written objections of the alderman where the premises are located, the Director found the public interest would be served by denying the license. The order also stated that the area had been "plagued with numerous problems including: noise, litter and other problems which endanger and disrupt the local community."3 Additionally, it contained the Director's further finding that granting a license would have a deleterious impact on the health,

2

A motion has been granted changing the caption of the case to reflect Scott Bruner as

the current Director of the Mayor's License Commission of the City of Chicago.
3

The order noted that a late-hour license had already been issued for premises at 226 W.

Ontario, next door to the applicant. -2-

1-04-2249 safety and welfare of the surrounding community. Plaintiff appealed the denial of the application to the LAC, which held a hearing on the application on March 18, 2003. At the hearing, the LLCC presented three witnesses: Alderman Burton Natarus, Chicago police lieutenant Robert Cooper, and area resident Mary Ellen Rosemeyer, who testified personally and on behalf of the River North Residents Association. Jurczyk, the owner of MJ Ontario, testified for plaintiff, as did Alderman Theodore Matlak, who represents a ward where Jurczyk's other club property is located, and by stipulation, Morene Dunn, the representative of another area association. We briefly summarize the testimony. Alderman Natarus testified that 224 W. Ontario is located within the 42nd ward, which he has represented for 32 years. He testified as to his impressions of traffic congestion around the location, his observations of heavy late-night traffic in the area at another nightclub, and the overcrowding due to the mass exodus of cars from Ontario Street after 5 a.m. on weekends that resulted in a public safety problem. The alderman testified that he lived four blocks from the location of MJ Ontario, he walked the streets of his ward late at night, and was extremely concerned about overcrowding in nightclubs since the E2 nightclub incident. Alderman Natarus personally observed fights, crowds of inebriated people, and individuals soliciting sex and controlled substances around 224 W. Ontario. By agreement, a letter Alderman Natarus had written in objection to the late-hour license was considered as substantive evidence. In the letter, the alderman expressed his opinion that the issuance of such license would increase noise and litter, and adversely affect public safety. Lieutenant Cooper testified that he had been a Chicago police officer for more than 30

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1-04-2249 years, and for the last 10 years, he had been assigned to the district encompassing the MJ Ontario location, working the overnight shift. He testified that the issuance of a late-hour license would create problems for the police department, since the department operates after 2 a.m. in that district with a skeleton crew and there are dramatically fewer officers available to respond to calls. Officers who respond to calls involving complaints of "drunk and disorderly" behavior are kept from answering emergency calls. The lieutenant testified that, after 2 a.m., manpower for the district decreases by 50%; he noted that bar patrons who are unruly at 2 a.m. become even more so by 4 a.m., and that the issuance of a 4 a.m. license would attract a greater criminal element to the area. Lieutenant Cooper further testified that he and his district commander, Joseph Griffin, speak several times during the week and have discussed the late-hour license. Lieutenant Cooper testified that he was there to represent the police department and Commander Griffin, and that Commander Griffin opposed the issuance of the license. Based upon his own experience as a police officer, Lieutenant Cooper also opposed the late-hour license. Over objection, Lieutenant Cooper testified that the City's Exhibit No. 2 was a memorandum summarizing calls for service that the police department had received between 8 p.m. and 6 a.m. in the immediate vicinity of MJ Ontario over a period of about eight months, from July 1, 2002, through March 5, 2003. The document was prepared at his direction in preparation for the hearing and reflected numerous calls in a the one-block radius of the Franklin-Ontario intersection; the calls included criminal damage, parking complaints, reckless conduct, robbery, deceptive practices, and theft. The LAC admitted the document over objection to "clarify and

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1-04-2249 support" Lieutenant Cooper's opinion. Rosemeyer, who is the attorney for the River North Residents Association, testified in opposition to issuance of the late-hour license. She further testified that, for almost 10 years, she has lived several blocks away from 224 W. Ontario. Over plaintiff's objection, Rosemeyer testified as to the concerns and objection of the River North Residents Association to the issuance of the license. The City then rested. For plaintiff, Alderman Matlak testified that he went often to Jurczyk's other club. He believed Jurczyk was a responsible licensee and a good business person. Jurczyk testified on his own behalf, in support of the issuance of the license. He said he operated the previously mentioned club in Alderman Matlak's ward and he was renovating 224 W. Ontario with plans to institute a $20 cover charge and serve expensive wines (a bottle of which would cost, on average, about $300). Jurczyk also testified the premises would be 4,500 square feet and have a capacity of 217 people. Both sides agreed by stipulation that, if called, Morene Dunn would testify that she is the executive director of the River North Association, a group representing area businesses, and that the association was in favor of the issuance of a late-hour license to 224 W. Ontario and she believed it would not deleteriously impact the community. On July 30, 2003, the LAC issued an order affirming the LLCC's denial of the application for a late-hour liquor license. Shortly thereafter, plaintiff filed a petition for rehearing, which the LAC denied. On August 8, 2003, MJ Ontario filed a complaint for administrative review of the denial of

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1-04-2249 its application. On February 6, 2004, the court issued an order upholding the denial of the latehour license. Plaintiff subsequently filed a motion for reconsideration. On July 16, 2004, the court denied the motion. Plaintiff now appeals the orders of February 6 and July 16, 2004. On appeal, plaintiff first contends that the LAC improperly construed the section of the ordinance concerning the issuance of late-hour liquor licenses. According to plaintiff, under the ordinance the LAC was required to prove that the issuance of a late-hour license would cause a deleterious impact to the surrounding community, but, plaintiff further claims, the LAC failed to meet its burden because it failed to present relevant evidence. The parties disagree as to the appropriate standard of review. Plaintiff claims that, as a question of an administrative agency's interpretation of an ordinance, review is de novo. Although the City does not disagree that a question of statutory interpretation presents a question of law, which is subject to de novo review, it contends that here, however, there is no question of law at issue. Rather, the City maintains that plaintiff in fact challenges the LAC's finding of deleterious impact, which is subject to review under a standard of manifest weight of the evidence. We agree with the City. Initially, we note that this court reviews the administrative agency's final decision and not the decision of the circuit court. See Gounaris v. City of Chicago, 321 Ill. App. 3d 487, 491, 747 N.E.2d 1025 (2001). In the instant case, the Liquor Control Act of 1934 (235 ILCS 5/7-11 (West 2002)) provides that judicial review of all final administrative decisions be pursuant to the Administrative

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1-04-2249 Review Law (735 ILCS 5/3-101 et seq. (West 2002)). The latter statute provides that judicial review extends to all questions of law and fact presented by the entire record. 735 ILCS 5/3-110 (West 2002); Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992). The standard applied on review of an agency's decision depends upon whether the issue presented is one of fact or of law. Carpetland U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill. 2d 351, 369, 776 N.E.2d 166 (2002). Where the agency's decision involves a pure question of law, the decision is reviewed de novo. Carpetland U.S.A., Inc., 201 Ill. 2d at 369; Daley v. License Appeal Comm'n, 311 Ill. App. 3d 194, 201, 724 N.E.2d 214 (1999). On the other hand, review of purely factual findings made by an administrative agency is conducted under a manifest weight of the evidence standard. Carpetland U.S.A., Inc., 201 Ill. 2d at 369. Under such review, the agency's findings and conclusions on questions of fact are entitled to deference, being deemed prima facie true and correct. See 735 ILCS 5/3-110 (West 2002); Carpetland U.S.A., Inc., 201 Ill. 2d at 369; City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998). A reviewing court may not substitute its own judgment for that of the agency, nor does it reweigh the evidence or make an independent determination of the facts; instead, it should inquire whether the findings of the agency are against the manifest weight of the evidence. Abrahamson, 153 Ill. 2d at 88; Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419, 427, 603 N.E.2d 477 (1992). An administrative agency's decision is against the manifest weight of the evidence only when the opposite conclusion is clearly evident. Abrahamson, 153 Ill. 2d at 88.

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1-04-2249 However, the "mere fact that an opposite conclusion is reasonable or that the reviewing court might have ruled differently" does not justify reversal of the agency's decision. Abrahamson, 153 Ill. 2d at 88. If there is evidence in the record supporting the administrative agency's decision, it should be affirmed. Abrahamson, 153 Ill. 2d at 88; O'Neill v. Rodriguez, 298 Ill. App. 3d 897, 903, 699 N.E.2d 1081 (1998). The ordinance at issue provides that the local liquor control commissioner "may deny an application for a city liquor dealer's license if the issuance of such license would tend to create a law enforcement problem, result in or add to an undue concentration of licenses, or have a deleterious impact on the health, safety or welfare of the community in which the licensed premises is to be located." Chicago Municipal Code,

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