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S & F Corp. v. Bilandic

OPINION FILED JUNE 26, 1978.

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

v.

MICHAEL A. BILANDIC, ACTING MAYOR OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. PHILIP A. FLEISCHMAN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 25, 1978.

S & F Corporation and its president, Sidney Finzelber (plaintiffs), appeal from affirmance by the circuit court of the revocation of plaintiffs' public place of amusement, food dispenser's and cigarette dealer's licenses by Michael A. Bilandic, then acting mayor of the city of Chicago.

Plaintiffs operated a business in Chicago known as the "Candy Store" under city licenses. In November 1976, the Mayor's License Commission instituted proceedings pursuant to section 101-27 of the Municipal Code of Chicago (1976) to revoke these licenses. A hearing was held after which, on February 3, 1977, the mayor entered an order revoking all three licenses. The order contained the following findings:

"1. That on 19 November 1976, the licensee corporation, by and through its agent, BOBBIE WILSON, knowingly permitted the use of the licensed premises for the purpose of prostitution * * *.

2. That on 19 November 1976, the licensee corporation, S & F CORPORATION, dba THE CANDY STORE, by and through its agents knowingly permitted a violation of the laws of the State of Illinois to be committed on the licensed premises, to wit: Public Indecency * * *."

• 1, 2 Plaintiffs filed a petition for certiorari in the circuit court seeking review of the revocation order. After a hearing, the circuit court affirmed the order of revocation. We note at the outset that plaintiffs are proceeding by certiorari rather than by administrative review. Since this case involves violation of an ordinance of a home rule municipality, review of the decision of the local administrative body by certiorari is proper. (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill.2d 11, 338 N.E.2d 186.) We also note that for cases brought under common law certiorari, the standard of review is similar to those brought under the Administrative Review Act. In certiorari proceedings, we will not reweigh the evidence or determine credibility nor will we overturn factual determinations of an administrative agency as long as they are not against the manifest weight of the evidence. See S & F Corp. v. Daley (1978), 59 Ill. App.3d 1024, 376 N.E.2d 699, and authorities therein cited.

The evidence shows that on November 19, 1976, two undercover Chicago police officers, Thomas Cusack and Kevin Creighton, entered the Candy Store and sat at one of the tables. They were soon joined by two women, Michele Knight and Theresa Andrade. A waitress, Bobbie Wilson, asked the officers if they wished to buy drinks for the two women. When asked how much the drinks would cost, Miss Wilson replied, "$144.90" for a bottle of "Cherry Frappe," a nonalcoholic beverage.

Officer Cusack asked Michele Knight what he would receive for $144.90. She replied that she would perform an act of oral sex. Officer Creighton asked Theresa Andrade in the presence of Bobbie Wilson if he could be sure he would receive oral sex. Andrade replied that he could be sure of it. Creighton then turned to Bobbie Wilson and asked if this was correct. Wilson replied, "Yes, don't worry, you'll be taken care of."

The officers each ordered a bottle of Cherry Frappe. They paid the requested price of $144.90 and were led by Andrade and Knight to a darkened area in the rear of the establishment. Andrade and Officer Creighton went into a booth where Andrade disrobed and started to remove Creighton's clothing. Officer Creighton then stated that he wanted to have intercourse. Andrade told him that this would cost more money. She put her clothes back on and returned to the front of the premises. A few minutes later she returned with Bobbie Wilson. Wilson told Creighton that if he wanted to have intercourse it would cost another $144.90. Shortly thereafter the officers arrested the three women.

Sidney Finzelber, one of the plaintiffs, testified that the Candy Store employs females to solicit customers to purchase drinks. These employees are not allowed or instructed to give "sexual favors" for purchase of soft drinks. Of the $144.90 received from the sale of a bottle of Cherry Frappe, $30 goes to the woman who solicited the sale, $18.90 goes to the waitress as a "tip" and "the premises" receives $96. Finzelber also stated that when customers purchase a bottle they are entitled to move into a "more comfortable area" with the woman who solicited the sale. The employee is allowed to spend 15 or 20 minutes with the customer.

Plaintiffs called Bobbie Wilson, the waitress, and Michele Knight. Both denied that there was any mention of sexual matters in the discussion with the two police officers. Both corroborated the sale of soft drinks to the officers at the price of $144.90 per bottle but they denied that sexual favors were agreed upon in return for the purchases.

Plaintiffs urge that in view of these denials the evidence is insufficient to sustain the findings appealed from. Plaintiffs point out that where revocation of a license is sought by a municipality for violation of a state statute, the proof must substantiate violation of the particular statute involved. (Daley v. Resnick (1972), 5 Ill. App.3d 683, 284 N.E.2d 39.) However, it should also be noted that in a license revocation proceeding the elements of the crime charged need not be proved beyond a reasonable doubt, but proof by a preponderance of the evidence is sufficient. Ciampa v. City of Chicago (1973), 12 Ill. App.3d 368, 371, 299 N.E.2d 53.

• 3 In our opinion, any reasonable examination of the evidence necessarily leads to the conclusion that the findings of the administrative body are both supported by clear and convincing evidence and are thus in accord with the manifest weight of the evidence. The denials by plaintiffs' witnesses merely raise questions of ...


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