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Sagittarius, Inc. v. Vil. of Arlington Heights

OPINION FILED NOVEMBER 10, 1980.

SAGITTARIUS, INC., PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF ARLINGTON HEIGHTS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Sagittarius, Inc., brought an action against the village of Arlington Heights to compel the issuance of a business license for coin-operated amusement devices. The complaint sought injunctive and other relief and was amended to add a mandamus count. On plaintiff's motion, the circuit court of Cook County granted judgment on the pleadings on the mandamus count and Arlington Heights was ordered to issue the license. The trial court found there was no just reason to delay enforcement or appeal of this order (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)), and Arlington Heights appeals.

The facts are stated in the pleadings. Sagittarius' complaint, filed December 10, 1979, alleged that on August 15, 1979, it filed an application for a business license to operate coin-operated amusement devices in Arlington Heights. On November 20, 1979, the Village Manager of Arlington Heights rejected the application by a letter which stated.

"Pursuant to Section 9-204 of the Arlington Heights Municipal Code, we have conducted an investigation to determine the character or fitness of the applicant for a license. Our investigation reveals that your Manager, Mr. Posner, was convicted in the United States District Court of Interstate Transportation in Aid of Racketeering-Gambling (Title 18, U.S.C.) on July 10, 1972. The sentence was affirmed by the Court of Appeals. The investigation further revealed that Mr. Posner was found to have violated probation based on two guilty pleas of gambling and was sentenced to three years by the U.S. District Court in 1978. He was also found in contempt for attempting to disguise his handwriting.

We also determined that Mr. Joseph Ferriola has an interest in your company. Mr. Ferriola has an arrest record dating from 1945. On June 19, 1970, he was sentenced for Interstate Transportation in Aid of Racketeering-Gambling in the U.S. District Court for the Northern District of Illinois."

Sagittarius appealed the village manager's decision to the village president and board of trustees. On December 3, 1979, the president and board sustained the decision of the village manager.

The complaint further alleged that section 9-204 of the Arlington Heights Village Code is a general procedural section applicable only where another specific provision of the Code authorizes an investigation of character and fitness. Section 10-105 is the specific investigation provision pertaining to coin-operated amusement devices. It authorizes an investigation only to determine whether an applicant's proposed operations and premises comply with the Village Code. There is no reference to an investigation into an applicant's character and fitness. The complaint concluded that the action of the village manager in investigating Sagittarius' character and fitness and denying the application on that basis was not authorized under the Village Code. Plaintiff sought injunctive relief and a declaratory judgment that section 9-204 does not authorize an investigation of an applicant's character and fitness.

On January 7, 1980, Sagittarius amended its complaint, realleging the material allegations noted above, and adding a mandamus count. That count alleged that plaintiff complied with all applicable provisions of the Village Code dealing with coin-operated amusement devices and that Arlington Heights failed to provide any proper basis for denial of the license. It was further alleged that Arlington Heights was under a duty to issue the license pursuant to section 9-205 of the Village Code which provides that "* * * where licenses are required to be obtained and the requirements of the Code are complied with, such licenses shall be granted by the Village Manager and attested by the Village Clerk * * *."

On March 19, 1980, Arlington Heights filed its answer to the amended complaint. It denied that Sagittarius' license application was proper because "its principals, manager, or employees were ineligible for such license." It alleged that the relevant provision for licensing of coin-operated amusement devices was section 10-902(d) of the Village Code which was amended on January 7, 1980, to add the following paragraph:

"The application shall be referred to the police chief for investigation and verification of the facts stated therein. The Chief of Police shall determine whether the applicants, or if a partnership or corporation, any stockholder or member of the partnership or any employee or manager, has been convicted of a criminal offense in either the state or federal court. The Police Chief shall also determine whether the applicant or if a corporation or partnership, any stockholder, member, employee or manager, has employed coercive or illegal measures to promote the use of his machines. The Police Chief shall further determine whether the applicant or its principals, employees or managers are persons of good moral character. If the Police Chief shall determine that the applicant, its stockholders, members, employees or managers, or any of them, have in fact been so convicted or have engaged in such coercive or illegal measures or otherwise are not persons of good character and fitness, he shall report the results of his findings to the Village Manager. The Village Manager shall then order that said license shall not be issued. The applicant shall have the right of appeal to the Village Board provided in Section 9-603 through 9-605 of the Village Code; provided, however, that the provisions of Section 9-604 relating to a period of time for correction shall not be applicable. If the Village Manager shall determine at any time that any licensee is not, in fact, eligible by reason of any facts which would not have made him eligible for the issuance of an original license, he shall order the revocation of such license in the manner provided Section 9-603 through 9-605 of this Code."

The answer also alleged that section 10-902(d), as amended, contained the specific applicable investigation provisions for coin-operated amusement device licenses rather than section 10-105. It further alleged that on February 8, 1980, the Arlington Heights village manager reconsidered Sagittarius' application in light of the amendment to section 10-902(d) and again denied the application based on Posner's and Ferriola's criminal records.

On May 7, 1980, the trial court granted plaintiff's motion for judgment on the pleadings on the mandamus count. It ordered the immediate issuance of a writ of mandamus directing Arlington Heights to issue Sagittarius' business license.

On appeal, Arlington Heights contends that (1) Sagittarius was not entitled to a writ of mandamus because it failed to prove a clear legal right to the business license; (2) Sagittarius was not entitled to judgment on the pleadings because controverted issues of material fact existed; (3) Arlington Heights has a continuing right to amend its ordinances; section 10-902(d), as amended, applied to Sagittarius' license application, and denial of the application upon reconsideration was proper.

Arlington Heights originally denied Sagittarius' application based upon a character and fitness investigation under section 9-204 of the Village Code. Sagittarius contends that such an investigation was improper under that section because it is not a grant of general investigative powers but is only a procedural provision. We find it unnecessary to consider Sagittarius' ...


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