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S & F Corp. v. Daley

OPINION FILED APRIL 28, 1978.

S & F CORPORATION ET AL., PLAINTIFFS-APPELLEES,

v.

RICHARD J. DALEY, MAYOR OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 24, 1978.

This action was brought in the circuit court of Cook County on a common law writ of certiorari by plaintiffs, S & F Corporation and its president, Sidney Finzelber, to reverse the revocation of their food dispenser and public place of amusement licenses by the Mayor of the City of Chicago. On January 31, 1977, the circuit court entered an order reversing the decision of the mayor, and it is from that order that defendants appeal. We reverse the trial court. The pertinent facts follow.

Plaintiffs were licensed by the City of Chicago to dispense food and have a public place of amusement at 874 North Wabash Avenue, Chicago. Pursuant to these licenses plaintiffs operated a business, known as the Candy Store, at that address which featured nude dancing by female entertainers. On April 30, 1976, plaintiffs were given notice that proceedings were being instituted by the mayor to revoke their food dispenser and public place of amusement licenses. Hearings on this matter were had before the Mayor's License Commission, Deputy License Commissioner Joseph W. Handy, Jr., presiding, at which the following pertinent testimony was adduced.

Gerald Buchta testified that on September 13, 1975, at about 1:30 a.m., he went to the Candy Store with a friend named Joe Gomez. They entered, were seated at a table, and ordered two beers from a waitress, after which two uninvited women sat next to them at their table. When the waitress returned with their drinks, she asked if the two men would like to buy the women a drink. They replied that they would not and the women left.

Subsequently, two other women sat with Buchta and Gomez, and the waitress returned to tell them that they had just bought some drinks for these girls at $40 each. She brought two containers to the table which appeared to contain fruit cocktail. When the customers objected to paying for these "drinks" the waitress pointed to two men at the bar and said "They're not going to like it." She told the customers to pay or else, and made a motion to the two men at the bar, approximately 15 feet away. Buchta and Gomez then paid the waitress $20 each, separated to different tables for about five minutes, and then left the premises. They reported the incident to the Chicago Avenue police station.

On cross-examination Buchta restated that the waitress had told them to buy drinks for the women, or the two men at the bar wouldn't like it. When asked whether anybody ever threatened to harm him bodily, Buchta responded affirmatively. While he could not recall the specific words used, he stated that the waitress said they would be "taken apart," or that they would "bash their heads in" if they didn't purchase the drinks for the women. He related this threat to the police when he reported the incident.

Mabel Massetti testified that she was a waitress at the Candy Store, and that she was working there on September 13, 1975. She stated that she never threatened anyone and that she would not bring anything to a customer that he had not ordered.

Sidney Finzelber, the owner of the premises, testified that the waitresses were instructed not to bring anything to a customer unless he specifically ordered it. He never instructed any employees to inflict bodily harm upon any customer who is reluctant or refuses to pay his bill.

Officer Bruno Muczynsky testified that on September 13, 1975, he talked with Gerald Buchta concerning an incident which allegedly occurred at the Candy Store. Buchta told the officer that he was forced by the waitress there to buy two bottles of champagne, or else "the doorman would take care of him." Buchta did not tell him that anyone had threatened to "tear him apart" if he did not buy the drinks.

Investigator Ronald Anderson testified that he contacted Buchta the day after he made his report to the police. He asked him about the incident and Buchta told him that the waitress brought some unordered drinks to his table for two women, along with a bill of $80. When they objected to this, the waitress told them that the bouncer "would not be very happy if you didn't pay."

There was also evidence adduced at the hearings before the License Commission regarding entertainers appearing nude at the Candy Store. A number of different police officers testified that they observed dancers for the plaintiffs appear on the premises in a state of nudity.

On September 3, 1976, findings were made that certain acts had been committed upon the premises by plaintiffs' employees and agents upon which the order of revocation was based. The first finding was that drink solicitation had occurred in violation of both a State statute (Ill. Rev. Stat. 1975, ch. 38, par. 26.1-2(a), repealed by P.A. 80-360, § 3, eff. Oct. 1, 1977) and a city ordinance (Municipal Code of Chicago, ch. 147, § 147.15.1(a)). *fn1 Findings two through five concerned dancers performing in a state of nudity, also contrary to a city ordinance. (Chicago Municipal Code, ch. 192, § 192-8.) The final finding reads as follows:

"That on September 13, 1975, at or about 2:30 A.M., the licensee corporation, by and through its agent, name unknown, waitress, coerced two patrons, namely: JOSEPH GOMEZ and GERALD BUCHTA, through the threat of bodily harm, to but [sic] two (2) bottles of Champagne, at the cost of eighty dollars ($80.00), ...


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