Appeal from the Circuit Court of Cook County; the Hon. John J.
McDonnell, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 16, 1986.
Defendant Beaulieu Realtors, Inc. was charged in two counts with violating "An Act to prohibit the solicitation or inducement of sale or purchase of real estate * * *." (Ill. Rev. Stat. 1983, ch. 38, par. 70-51 et seq.). Following a bench trial, Beaulieu Realtors, Inc. was convicted and fined $1,000 on each count. It appeals.
In 1983, the Northwest Neighborhood Federation, a Chicago community group, conducted an antisolicitation of real estate drive. Staff members of the federation, along with community volunteers, collected homeowners' signatures on a document entitled, "Notice Not to Solicit." Lists consisting of the names and addresses of the homeowners who wished not to be solicited to sell or list their property were compiled from that document. Members of the community then served the antisolicitation lists on various real estate firms in the area.
On September 2, 1983, flyers regarding Beaulieu's real estate services were received by two homeowners, Karen Kosik and Kurt Hedlund (complainants), who had signed the "Notice Not to Solicit" and whose names were included on the antisolicitation list. As a result of the flyers being sent to complainants, the State brought the following solicitation charges: two counts against Beaulieu and two counts each against three individual employees of Beaulieu. At the bench trial, the individual defendants moved for directed verdicts at the close of the State's case. The trial court granted the motions and dismissed the individual defendants for lack of proof of personal service.
The State presented the following witnesses: the complainants; Dan Nix, a member of the federation; and Melissa Josephs, a staff person for the federation. Both complainants testified that on September 23, 1981, they signed the "Notice Not to Solicit" and that on September 2, 1983, they received flyers regarding Beaulieu's real estate services. Nix testified that on May 16, 1983, he examined the antisolicitation list; he then signed and attached an affidavit stating that the list of names and addresses were of individuals who wished not to be solicited to sell or list their property. Nix added that the names and addresses of both complainants were included on the "Notice Not to Solicit" and whose names were included on the antisolicitation list. The State's last witness, Josephs, testified that on July 12, 1983, she delivered copies of the antisolicitation list with attached affidavits to 5341 W. Belmont, which had a sign outside identifying the business as Red Carpet, Beaulieu Realtors, Inc.
Patrick Schremp, the sole witness presented by Beaulieu, was the production manager for Harvest Club International, the company which contracted with Beaulieu to mass mail the flyers in question. Schremp compiled a mass mailing list which included names and addresses of individuals who were to be mailed Beaulieu's flyers. Schremp testified that in July 1983, he received the antisolicitation list from Beaulieu. He then deleted from the mass mailing list a number of the names on the antisolicitation list. He later sent the mass mailing list, which included both complainants' names, to Beaulieu for editing out names not to be included. He stated that Beaulieu struck neither complainants' name from the mass mailing list. Schremp testified that no one at Beaulieu contacted him regarding any mistakes on the mass mailing list.
At the close of evidence, Beaulieu was found guilty on both counts. This appeal followed.
The issues presented for review are: (1) whether the State proved beyond a reasonable doubt that Beaulieu was properly served with the antisolicitation list; (2) whether the trial court erred in finding that the flyers constituted solicitation as opposed to advertising; and (3) whether the antisolicitation statute properly provides for the punishment of corporate entities that violate the statute.
The antisolicitation statute, section 1(d) (Ill. Rev. Stat. 1983, ch. 38, par. 70-51(d)), in pertinent part provides that:
"It shall be unlawful for any person of corporation knowingly:
(d) To solicit any owner of residential property to sell or list such residential property at any time after such person or corporation has notice that such owner does not desire to sell such residential property. For the purpose of this subsection, notice must be provided as follows:
(1) The notice may be given by the owner personally or by a third party in the owner's name, either in the form of an individual notice or a list, provided it complies with this subsection.
(3) The individual notice, or notice in the form of a list with the accompanying affidavit, shall be served personally or by certified or ...