APPEAL from the Circuit Court of Cook County; the Hon. WALLACE
I. KARGMAN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
The City of Chicago brought actions against defendants, Cecil E. Severini and Candy Club, Inc., for violations on 13 different dates of two city licensing ordinances. On March 6, 1979, after a bench trial, defendants were found guilty of failing, on January 11, 1979, to have a public place of amusement license (Municipal Code of Chicago, ch. 104.1, § 104.1-2) and a retail food purveyor's license (Municipal Code of Chicago, ch. 130, § 130-11) and were fined $200 plus $5 costs for each violation. The court ordered "Supervision June 5
" for each of the remaining charges of like violations on the 12 subsequent dates. On appeal, defendants contend that: (1) the City failed to prove by a clear preponderance of the evidence a violation of either ordinance; and (2) defendants were erroneously placed on supervision for allegedly similar violations on different dates since no evidence was introduced on such charges. The following pertinent facts are not in dispute.
On January 11, 1979, Chicago police officers Daniel Schraeger and Frank Riggio were assigned to investigate the premises known as the Candy Club. Officer Schraeger entered alone, walked up to a woman in a glass booth inside the inner doors, and was told the fee to enter was $4. Upon payment, he was given a membership card without being requested to show identification or to make an application for membership. The same membership fee is payable every time a customer returns. There is a table charge of $6 per person which entitles the customer to all the near beer and soda desired. Officer Schraeger, upon entering, was approached by Severini, the club's manager, who asked if he would like to be seated near the stage. After being seated, he paid the waitress $6 and received a bottle of near beer and a second one later. A record player provided music while several females danced on the stage in various stages of dress and undress.
After watching the show Schraeger went out to confer with Officer Riggio. Both officers entered together. Riggio identified himself as a police officer. Upon inquiry, Severini stated that the only license he had was for the cigarette machine. He produced articles of incorporation issued by the Secretary of State of Illinois to defendant Candy Club, Inc., as a not-for-profit corporation. Severini testified that he was the manager, members had to be over 21 years old, intoxicated persons and those not neatly dressed are refused entry, and no hard liquor is served. He turns over the funds collected to the registered agent but did not know what was done with the funds or whether there was a surplus remaining after disbursements.
In addition to the violations charged on January 11, 1979, defendants were also charged with like violations on January 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30 and 31, 1979.
The trial court found defendants guilty of violating on January 11, 1979, both ordinances and imposed fines. "Supervision June 5" was ordered for each of the remaining 24 charges. The trial court consolidated all of the cases for appeal.
Defendants first contend that the City failed to sustain by a clear preponderance of the evidence that defendants violated the public place of amusement licensing ordinance, section 104.1-2 of the Municipal Code of Chicago, which provides:
"It is unlawful for the owner or person in control of any property to produce, permit or conduct thereon, for gain or profit, any amusement, other than those excepted in Section 104.1-1 without first having obtained a license for a public place of amusement."
Section 104-1 defines "amusement" as "any theatrical, dramatic, musical or spectacular performance * * * or similar exhibition for public entertainment * * *." (Municipal Code of Chicago, ch. 104, § 104-1.) No exceptions are stated in this section notwithstanding the language in section 104.1-2.
A city must prove the violation of an ordinance by a clear preponderance of the evidence. (City of Chicago v. Joyce (1967), 38 Ill.2d 368, 373, 232 N.E.2d 289, 291; City of Chicago v. Abdullah (1979), 76 Ill. App.3d 325, 330, 395 N.E.2d 50, 53.) Defendants maintain that the City failed to meet its burden of proof that defendants engaged in business for gain or profit and that the business is open to the public at large for use or entertainment.
Defendants argue that they do not fall within the ordinance definition of amusement since the performance is not for public entertainment. Defendants maintain they are a private club which can only be used by its members. They premise this argument on a membership policy which provides:
"Membership shall be open to individuals without discrimination upon the payment of an initial membership fee of $4.00. A membership card shall be issued following the payment of said fee. Said initial membership fee of $4.00 shall constitute membership in the club as well as dues to enter upon the premises on the date said membership fee is paid. Subsequently, each member shall be required to pay a $4.00 membership charge ...