Appeal from the Circuit Court of Cook County. Nos. 03 MC1 19280102, 03 MC1 19280103 Honorable Daniel J. Gillespie, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
JUSTICE MURPHY delivered the judgment of the court, with opinion. Presiding Justice Steele and Justice Quinn concurred in the judgment and opinion.
¶ 1 This appeal relates to indirect criminal contempt proceedings against respondents, Calvin Hollins, Jr., and Dwain J. Kyles, for the failure to comply with a July 19, 2002, "mandatory order" in the underlying suit alleging building code violations at 2347 South Michigan Avenue, Chicago, Illinois. In particular, petitioner City of Chicago (City) alleged the second floor of the building that housed the "E2" nightclub and a second floor or mezzanine with VIP rooms in that area was dangerous. Tragically, in the early morning hours of February 17, 2003, a fight broke out at the nightclub and after security guards utilized pepper spray in an attempt to control the situation, the crowd panicked and 21 people were killed in a stampede to leave the club.
¶ 2 On the next day, February 18, 2003, the City filed the underlying petition for adjudication of indirect criminal contempt. The City alleged that respondents had been ordered not to occupy the second floor of the building. The City asserted that if respondents had been acting in compliance with that order, there would not have been 21 dead and 50 injured patrons. There was no explanation as to how the building code violations related to the actual incident and tragic deaths and injuries.
¶ 3 Respondents appeal that judgment and their respective sentences of two years' imprisonment. Respondents assert that the trial court erred in instructing the jury on vicarious corporate liability and failing to include a definition on willfulness. They also contend that the trial court improperly barred admission of certain evidence key to respondents' assertion that the trial court's order was ambiguous and there was no willful violation of that order. In particular, Respondents argue that the trial court's half sheet and a letter from respondents' attorney at the hearing explaining the trial court's order should have been admitted. Finally, they argue that at sentencing the trial court improperly considered factors unrelated to the contempt charges and for which respondents were acquitted at a separate criminal trial. Respondent Hollins also argues that the City improperly brought out evidence of his character and past bad acts even though he did not testify or otherwise put his character into issue. For the following reasons, we reverse the trial court and vacate respondents' sentences.
¶ 5 This matter involves allegations that respondents willfully violated orders of the housing court to vacate portions of the two-story building located at 2347 South Michigan Avenue, Chicago, Illinois. The two-story building was originally constructed to house an automobile dealership and consisted of several levels. Prior tenants of the building had constructed and utilized the mezzanine level of the second floor for auto parts storage.
¶ 6 Respondents began renting the building in the 1980s and operated various restaurants and nightclubs in that location up to, and including, the date of the tragedy. In approximately 1990, respondents remodeled the mezzanine level, which was suspended above the floor of the nightclub by trusses connected to the ceiling of the building, to create a VIP area. Around 1999, respondents remodeled the building and re-opened with the first floor housing a restaurant called Epitome and, on the second floor, respondents operated a nightclub called Epitome 2 Nightclub or "E2." E2 consisted of a main dance floor, two bar areas and the aforementioned mezzanine level with several VIP rooms hanging over the dance floor. In 2001, respondents again remodeled the mezzanine, this time utilizing the trusses to create natural separation for several VIP rooms. Epitome and E2 were operating in the building in this condition on all of the dates in question in the instant matter.
¶ 7Building Code Enforcement Proceedings
¶ 8 On June 18, 2002, the City filed a building code enforcement action in housing court against the owner of the building, Lesly Motors, Inc. The operator of the restaurant and nightclub, Le Mirage, Inc., voluntarily allowed itself to be impleaded into the action. Respondent Kyles was named as Le Mirage's sole shareholder, and respondent Hollins was named as Kyles' "silent partner." The City sought an injunction requiring respondents to correct 11 code violations all related to the second-floor mezzanine and VIP area. The City alleged that this suspended mezzanine and VIP area had been built without proper permits and that the partitions could not support its weight, creating dangerous conditions for the nightclub.
¶ 9 On July 19, 2002, the parties entered their first appearance before the court, Judge Daniel Lynch presiding. Edward J. Morris appeared on behalf of Lesly Motors. Le Mirage's regular attorney, Thomas Royce, was on trial in Will County and could not appear so Bradley Prendergast, Royce's officemate, appeared in his stead.
¶ 10 At the hearing, Prendergast waived service of summons on behalf of Le Mirage. Assistant corporation counsel Demetrius Kare stated that the City had cited several violations "pertaining to the second-floor VIP rooms attached to this nightclub" and that was the immediate concern at that time. Kare presented what he described as an "agreement that LeMirage, Incorporated agrees not to occupy the second-floor VIP rooms."
¶ 11 Judge Lynch then heard testimony from the City's building inspector, Margarite Shahi. Shahi testified that the entire second floor was dangerous due to, inter alia, the weight of the VIP rooms suspended from the bow truss roof and that substandard partitions were used to build the VIP rooms. At the conclusion of the testimony, the trial court stated: "Your agreement is no occupancy of the second floor. You have to keep it vacant." Judge Lynch then wrote the following note on the half sheet: "BA Mirage will not occupy 2d Floor VIP rooms" (hereinafter, half sheet order).
¶ 12 After the hearing, Prendergast sent a letter to Royce to report on the proceedings before the court on July 19, 2002, as follows:
"The city inspector testified that the sky-boxes on the second floor overlooking the dance floor are dangerous and hazardous because they are suspended from the trust-roof [sic] ***. The judge entered an Order that the second floor mezzanine not be used, the VIP room, until there is a hearing. As a result, they are now 'vacant' important persons rooms. That order will remain in effect until August 9th."
¶ 13 Prendergast received a facsimile of the written order of July 19, 2002, ("formal order"), signed by Judge Lynch, several days after the hearing. He forwarded the formal order to Royce. The formal order did not specify whether it applied to the second floor of the building or of the nightclub, and simply provided: "Mandatory order not to occupy 2d floor."
¶ 14 On August 9, 2002, Kare appeared in court on behalf of the City and Royce appeared on behalf of respondents as well as for Lesly Motors. Kare asked that the formal order be continued to September 6, 2002, and requested an order of interior inspection. After the trial court inquired whether there were any dangerous or hazardous conditions, the following exchange occurred:
"MR. KARE: I may call the inspector if the Court wishes to hear anything further.
THE COURT: Other than the second floor, which has been addressed by the agreement not to occupy?
MR. KARE: Right, and the mezzanine that - - the V.I.P. rooms is alleged in our complaint.
MR. ROYCE: We've agreed to that your Honor. We've taken steps and I believe yesterday there was a meeting and it wasn't resolved to the City's satisfaction. I spoke to them last evening - - begin the structure swelling, pulling permits. With that in mind we needed additional time. I was asking counsel for additional time.
THE COURT: September 6th.
MR. ROYCE: Yes your Honor.
THE COURT: Is that the return date?
MR. KARE: Yes your Honor.
THE COURT: Matter for conference September 6th, and in particular the dangerous, haz[a]rdous condition relates to the structure of the second floor?
MR. KARE: Pertains to the V.I.P. rooms and mezzanine.
THE COURT: It's the structure?
MR. KARE: We don't know if there's no plans or permits on file. We don't know if they can support the weight, these ...