FIRST DIV ISION JULY 14, 2008

No. 1-07-0239 BOOM TOWN SALOON, I NC., Licensee, and ) Appeal from the EUGENE PE

RRY, Presid

ent, ) Circuit Court of ) Co ok Co un ty. Plaintiff s-Appell ants, ) v. ) ) THE CI TY OF CHI

CAGO, a Mu

nicipal ) corporation, RICHARD M. DAL EY, ) as both Local Liquor License ) No. 06 CH 5562 Commissione

r and May

or, SCOTT B RUNER, ) Director of the May

or's License ) Comm issi on, R OBERT NOLAN, He aring ) Officer for the May

or's License ) Commission, the MAYO R'S L ICEN SE ) COM MIS SION , TH E LICE NS E AP PE AL ) COMMISSION OF

THE CITY OF CHICAGO, ) ANT HON Y CA LABR ES E, IR VING KOP PE L, ) The Honorable DON ADA MS and PHILIP J. C LINE, Chic ago ) Mary Ann Mason, Police Supe

rintende nt, ) Judge Presi ding. ) Defend ants-App ellees. )

JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: Plaintiffs Boom Town Saloon, Inc., and Eug ene Perry , Boom Town's president, appeal the order of the circuit court of Cook County affirming the decision of the L ocal Liquor Control Commissione

r (LLCC). The LLCC re voked Bo om Town' s liquor lic ense for allege dly committing acts of gambling. On appea l, plaintiffs claim that the LL CC’s findings of gambling were against the manifest weig ht of the evidence . We agree, and therefor e reverse.No. 1-07-0239

2 BACKGROUND Defendant City of Chica

go sought to revoke plaintiff Boom Town' s liquor license based on charges that Boom Town eng aged in gambling; that it operated, ke pt, or used a gambling device; and that it kept a place of gambling . The charges involved three sec tions of the Criminal Code o f 1961 (720 ILCS 5 /28-1 (a)(3) , 28-3 , 37-1 (West 2004) ), and two se ction s of th e Chic ago Municipal Code (Chicago Municipal Code §§8-12-010, 8-12-030 (1990) ). At the administrative hearing before the L LCC, Officer Mark Sobczy k of the vice control section testified that at 7 p.m. on March 4, 2004, he entered Boom Town in plain c lothes by himself, sat down at the bar, and ordered and paid for a drink. The bartender identified herself a s "Denise." Sobczyk noticed another patr on of the bar approach a "Fruit Bonus Number 9" video poker machine. Sobczyk e xplained that to play the game , the player inse rts money into the machine, which registers a corr esponding number of "credits." T he player hits a button to place a "bet" with the credits, and hits another button, which prompts icons on the scre en to roll. Dependi ng on how

the icons stop, the p layer eithe

r loses the

credits, or earn s additional cred its. Office r Sobczy k watche d the patr

on insert money into the ma

chine an d manipula

te its buttons. At the time, the machine was 25 to 28 feet away from the officer’s seat. Sobczy k left his seat and walked to within 10 feet of the machine, where he noticed that credits had appeared in its left corner. Sobczyk retur ned to his seat. Officer Sobczyk te stified that the patron playe d for 38 minutes and then approached the bar. Officer Sobczy

k again left his seat and walked to within 10 feet of the ma chine, where heNo. 1-07-0239

3

observe d an amoun

t of cre dits on the

screen . Sobczy

k could no t see the

exact numb er of cr

edits, but he testified it was a four-digit number. Sobczy k's testimony continued: "MS. NAV

E [Assistan

t Corpora tion Counse l]: What did you do next? OFFICER SOBCZ

YK: In the meantime while I was doing this, the p layer, as I

said, who

had bee n approa ching the bar, by

this time had made it to the bar at which point he called out to the bartender. MR. TOUHY

[Defense Counsel]: I

object a nd move to

st ri ke it ou t a s h ea rs ay. MS. NAVE: I

t's not he arsay . It' s not a sta tement--he's just testifying wha

t he observed. COMMISSIONER NOL

AN: Are you of

fering it for the truth of the matter asserted? MS. NAVE: No, I a

m not. COMMI SSION

ER NOL AN: Then

it's not hearsay . I' ll overrul e it. * * * MS. NAVE: What happened after y ou observed the play

er call out to the bartender?No. 1-07-0239

4 OFFI CER SOBCZ

YK: I then conc entrate d my observations on the bartender and the play er. MS. NAVE: What did you observe? OFFI CER SOBCZ

YK: I observe d the play

er using his thumb over his shoulder and pointing toward the machine. MR. TOUHY : I' m going

to object and move t

o strike th is out as hearsay

and no proper foundation laid. COMMISSIONER NOL

AN: Overruled. MR. TOUHY: And there's no foundation establishing that this i s the k

ind of testi mony that would b e [re lied] upon [by] a reasonably

prudent person. COMMI SSION

ER NOL AN: I don't be lieve it' s hearsa

y, s o there' s no reas on for tha

t require ment. I 'm mere ly ta

king it a s his describing what the conduct was that he obser ved. MS. NAVE: Officer, what did y ou observe after y

ou saw the player point his thumb towards the mac hine? OFFICER SOBCZ

YK: The bartender nodded in the affirmative. MR TO UH Y: I ob

je ct ; m ov e t o s tr ik e i t o ut , h ea rs ay, nonverb al. COMMISSIONER NOL

AN: But by an a

gent of theNo. 1-07-0239

5 corporation, so it's overruled as an exception." Officer Sobczyk te stified that after the bartender nodded, the bar tender turned around and entered a storage ar

ea behind the bar. She exited within 15 seconds with money , which she handed to the patr on. Sobczy

k could no t see the

denomina

tion of the

bills or how

many bills were given. The

patron or dered a drink and

paid for it with the m

oney . The pat

ron finished his drink and left. Sobczyk left a short time later, and obtained a search warra nt for the premises. Officer Sobczyk te stified that, on the following day , March 5, 2004, he returned to Boom Town to execute the warrant. The bartender working at that time telephoned the bartender named Denise, who came to Boom Town. When she arr ived, Sobczyk issued her an ordina nce complain t ticket. Officer Sobczyk te stified that he seized $170 from the video poker machine and the machine itself. He did not recover any money, para

phernalia, documents, or other evidence of gambling from the back storag e area. Plaintiffs presented testimony from ba rtender Denise Pietz. Pietz testified that she tended the bar on March 4, 2004. She kept her "bank" in a register drawer and did not kee p any money in the back area. She also testified that she was not involved in any gambling activities. Pietz testif

ied that the Fruit B onus Numbe r 9 video p oker mac

hine at iss ue in this c ase had bee n malfunctioning d

uring the week o f March

4. The ma

chine wo uld "jam u

p," mea ning it would not accept a play

er's money , and "freeze." I f a customer complained about a malfunction, Denise would "take the customer's wor d for it" and refund the play er up to $5. Larg er refunds were at the discretion of the owner, Eug ene Perry . Pietz would refund customers with moneyNo. 1-07-0239

1 Bandyk' s testimony refers to the y ear 2005. The tickets in the record, however, show a yea r of 2004. 6 from the register drawer. Pietz testified that she refunded $5 to a customer named John on March 4, 2004. Concerning the refund, Pietz testified that she went from behind the bar to look at the machine, determined the machine was frozen, unplugg ed the machine to reset it, and gave John $5. Brya n Bandyk, a

n employee of Shamr

ock Amusement Company, testified a nd identified two work service tickets. The first ticket was cre ated on March 1, 2004, 1 in respon se to a ca ll fr om Bo om To wn in di ca ti ng th e d ol la r b il l i nt ak e w as st ic ki ng on a p ok er ma ch in e. Ba nd yk went to Boom Town that evening and fixed the machine. The se cond ticket was created on Ma rc h 5 , 2 00 4, in di ca ti ng a B oo m T ow n m ac hi ne ne ed ed a n ew mo ni to r. Wh en Ba nd yk insp ected t he mon itor l ater t hat da y, he foun d it w as sti cking. Plaintiff Eugene Perry , Boom Town’s president, also testified. Perry identified Boom Town’s f inancia l recor ds for Ma rch 4, 20 04, which

indicate d two $10 r

efunds w ere mad

e to customers. He also testified that the machine seized on March 5 was the one that had been malfunctioning. Plaintiffs offered into evidence a 236-pag e document consisting of letters from customers and neighbors demonstrating their support for the e stablishment. The letters, which were either undated or from 2001, were in response to a pre vious charge Boom Town face d alleging it had served alcohol to a minor. Defendant City of Chicago offered a re cord of Boom Town's priorNo. 1-07-0239

7

violations, discussed below. The LL CC found Officer Sobczyk to be " credible and believable" and conc luded that the City had sustained its burden as to all five cha rges. The LLCC found that revocation was the proper sanction "based upon the totality of the circumstances, including this licensee' s prior record ." With re spect to the charges, the L LCC ma de the fo llowing f

indings: “3. I find that on March 4, 2004, the lice nsee, by and through its agent, engaged in a game of chance or skill for the purpose o f gambl ing for

money on the lic ensed pr

emises, to wit: paying out on a video slot machine, in violation of Title 8, Chapter 12, Sec. 010 Municipal Code of Chicago.

4. I find that on March 4, 2004, the license e, by and through its agent, while on the licensed premises ope rated, kept and used a gambling device, to wit: a Fruit Bonus #9 video slot machine in violation of 720 IL CS 5/281 (a)(3). 5. I find that on March 4, 2004, the license e, by and through its agent, owned, maintained and mana ged a premises used for the p urpose f o permitti ng per sons to ga

mble for a

ny valuable thing, to wit: United States Currency , in violation of Title 8, Chapter 12, Sec. 030 Municipal Code of Chicago. 6. I find that on March 4, 2004, the license e, by andNo. 1-07-0239

8 through its agent, knowingly allowed the licensed premises to be used for the purposes of gambling, in violation of 720 I LCS 5/28- 3. 7. I find that on March 4, 2004, the license e, by and through its agent, maintained a public nuisance on the lice nsed premises in violation [of] 720 ILCS 5/37-1, in that the premises were used for the commission of the violation of 720 I LCS 5/28-3, to wit: keeping of a gambling place .” Defend ant L icense A

ppeal Comm

ission (L AC) aff irmed the LL CC's dec ision. The

circuit court subsequently af

firmed “for the reasons stated in open court.” I n court on December 20, 2006, the circuit c ourt state d that the hearing office r could f ind that the

city had susta ined its burden of proof based on the following fac ts: “the officer observe[d] a patron play ing the machine for over a half a hour and the n the patron approache[d] the bartender, and there [was] an exchange of money .” This timely appeal followe d. ANA LYSIS Plaintiff s claim on a

ppeal tha t the commi ssioner’ s finding s were a gainst t he manif est weight of the evidence presente d at the revocation hearing. A liquor license cannot be revoked or suspended “except after a public hearing .” 235 IL CS 5/7-5 (West 2006). At the revocation hearing, the licensee “must be af forded the basic rights of procedur al due process.” Lopez v. Illinois Liquor Control Comm’n , 120 Ill. App. 3d 756, 760 (1983).No. 1-07-0239

9 Standard of Review When a party appe als the decision of an administrative agency , the appellate court reviews the decision of the administrative agenc y, not the decision of the c ircuit court. Connor v. Ci ty of Chi cago , 354 I ll. App. 3d 381, 384 (2004); Daley v. El F lanboyan Corp. , 321 Ill. App. 3d 68, 71 ( 2001). An

appella te court will reve rse the d ecision o f the adm

inistrative age

ncy only if the decision was against the manifest weig ht of the evidence or if the agenc y’s findings did not support the imposed sanction. Connor , 354 I ll. App. 3d at 384; El Flanboyan , 321 Ill. App. 3d at 71. If there is any

evidence in the record that fairly supports the agency ’s decision, then the decision is not against the manifest weight and the dec ision must be affirmed on appeal. Connor , 354 I ll. App. 3d

at 384; El Flanboyan , 321 I ll. App. 3d at 71. An a

ppellate court ma y not rever se simply because it would ha

ve ruled differe ntly in the first instanc e or bec ause the opposite conclusion is also reasonable. Connor , 354 I ll. App. 3d at 384 ; El Flanboyan , 321 Ill. App. 3d at 71. I n review ing the r ecord, t he appe llate cou

rt must bea

r in mind tha

t circumstantial e

vidence is sufficient to support revocation. Connor , 354 I ll. App. 3d at 384; El Flanboyan , 321 Ill. App. 3d at 75. Although the manifest evidence standard is a hig h hurdle, it still does not relieve the appellate court of “its duty to examine the evidence in an impartial manner and to set aside an order unsupported in fact.” Leong v. Villag e of Schaumburg , 194 Ill. App. 3d 60, 65 (1990); Amigo ’s Inn, Inc. v. Licen se App eal Co mm’n o f the C ity of Ch icago , 354 Ill. App. 3d 959, 967 (2004) ( finding

that the L

LCC’s decision was ag ainst the manifest weight of the evide nce); Lopez , 120 Ill. App. 3d at 766 (finding that the conduc t at issue was “insufficient to warrant theNo. 1-07-0239

10

revocation of [plaintiff’s liquor] license”). Standard of Proof There is no question that, in a liquor license revocation procee ding, the agency does not have to prove its charges bey ond a reasonable doubt, as the State must in a criminal case. Connor , 354 I ll. App. 3d

at 386; El Flanboyan , 321 I ll. App. 3d at 71. However, there is some question about what the correct standard of proof is. This court has recently

held, with respect to a liquor license revocation proce eding, that the agency

must prove its charges by a preponderance of the evidenc e. Connor , 354 Ill. App. 3d at 385-86 ; El Flanboyan , 321 Ill. App. 3d at 75. However, this court ha d previously held that the correct standard of proof was proof by substantial evidence

. Leong , 194 Ill. App. 3d at 70 (“[s]ubstantial evidence *** was necessary to revoke or suspend plaintiff’s liquor license”)

. Substantial evidence has been defined as “ ‘more than a mere scintilla’ ” and as “ ‘such re levant evidence as a reasonable mind might ac cept as adequate to support a conclusion.’ ” Connor , 354 Ill. App . 3d at 385, q uoti ng Finnerty v. Personnel Board , 303 Ill. App. 3d 1, 11 (1999). The substantial evidence standard derives specific ally from the L iquor Control Act of 1934, 235 IL CS 5/1-1 et seq . (West 2006). Section 7-9 provides that when a license appeal commission reviews a revocation decision by a commissioner, it must decide whether the commissioner’s fin

dings we re “supp orted by

substantia

l evidenc e in the lig

ht of the w

hole record.” 235 IL

CS 5/7-9 (2006). In reaching

the conclusion that a preponderance standar d applied, neither Connor nor El Flanboya ndiscussed or distinguished our prior holding in Leong , 194 Ill. App. 3d at 70

. Connor ,No. 1-07-0239

11

354 I ll. App. 3d

at 385; El Flanboyan , 321 Ill. App. 3d at 75. The decisions in Connor and El Flanboya n discussed and cited cases that involved administrative decisions in gener al, but not specifically de cisions by a liquor control commission. Connor , 354 Ill. App. 3d at 385-86, citing Finnert y , 303 Ill. App. 3d at 11 (involving a city personnel board) and S&F Corp . v. Bila ndic , 62 Ill. App. 3d 193, 196 (1978) (involving revoc ation of licenses for a place of amusement, a f ood dispense r and a c igare

tte deale r); El Flanboyan , 321 Ill . App. 3d at 7 5, cit ing Grames v . Illi nois State Police , 254 Ill. App. 3d 191, 204 (1993) (involving the I llinois State Police Merit Board). Thus, the cited cases did not involve the Liquor Control Act (235 I LCS 5/1-1 et seq . (West 2006)) or its “substantial evidence” standard. 235 I LCS 5/7-9 (West 2006). In the case at ba

r, we need not resolve the question of whether pre ponderance or substantial evidence is the correct standard of proof , because our decision is the same under either standard. In Connor , althoug h this cour

t held tha t the pre pondera nce stan dard app lied, it also held that its conclusion would be the same under the substantial evidence standard as well. Connor , 354 Ill. App. 3d at 385. In sum, we will treat the question before us as: whether the commissioner’s conclusion that the agency

had proved its charges (by either a preponderance or by substantial evidence) was against the manifest weight of the evide nce. Evidence of Gambling All the charges aga

inst plaintiffs involved gambling. “[G]ambling is one of those ty pes of crimes which the courts have recog nized as a justification for the revocation of a liquor license.” Leong , 194 Ill. App. 3d at 68-69 (“conce rn about gambling is fairly related to liquorNo. 1-07-0239

12

control”). In reviewing

the record for evidence of gambling, we cannot consider for the truth of the matter asserted, any

evidence that was not admitted for that purpose. I f a liquor commissioner during a hearing admits evi dence f

or a limite d purpose , then the commission

must “hee d[]” its own limit. Seul’s Inc. v. Illinois Liquor Control Comm’n , 240 Ill. App. 3d 828, 832 (1992). “[N]othing can be treated as evidence that is not admitted as such.” Anderson v. Human Rights Comm’n , 314 Ill. App. 3d 35, 41 (2000) (discussing the f indings of an administrative agency ). In the case at ba

r, the commissioner ruled that two statements or gestures wer e not being admitted for the truth of the matter asserted. Specifically , the officer testified, first, that the patron had “called out” to the bartender a fter the patron approached the bar ; and second, that the patron had used his thumb over his shoulder to gesture toward the video ma chine. Plaintiffs objected to the admission of both the calling out and the thumb gesture on the ground s that they

were he arsay . “[T]he ev identiar y r ule aga inst the use

of hearsay

has been held applicable generally

to license revocation hearings befor e a local liquor control commissioner.” Lopez , 120 Ill. App. 3d at 760-61. A statement is hearsa y when it is “offe

red to establish the truth of the matter asserted.” In re E.H. , 299 I ll. App. 3d 42, 51 (19 98); Leonardi v. Loyo la Unive rsit y of Chica go , 168 Ill. 2d 83, 99 (1995). The rule against hearsay exists, in part, because the value of the sta tement as evidenc e depends on the in tended me aning a

nd credi bility of the asserter whom there is no opportunity to cross-examine. In re E.H. , 299 Ill. App. 3d at 51.

The commissioner overruled plaintiffs’ hearsay objections and ruled that neither theNo. 1-07-0239

2 The commissioner held that the calling out and the gesture were admissible so that the officer could report what he had obser ved. In re E.H. , 299 Ill. App. 3d 42, 51 (1998) (a police officer’s testimony

about defendant’s mother’s pointing to a weedy lot where the officer later recovered a pistol was not admitted for the truth of the matter a sserted but “offered to explain the steps in his investigation of the crime”). 13 calling out nor the gesture was be ing admitted for the truth of the matter asserted. 2 Thus, neither will be considered by

this court for the truth of the matter asserted. If we disreg ard any ma

tters allegedly

asserted by the

calling out or by

the gesture, then the record shows merely : (1) a patron play ing a video machine; (2) the patron approa ching the bar; and (3) the bartender nodding, going into a back area and then handing the patron a bill or bills of an unknown amount. As discussed below, these acts show no evidence of gambling and are completely distinguishable f rom the facts in Connor , where our supreme court found sufficient evidence of gambling. Connor , 354 Ill. App. 3d at 384. In Connor , our supreme court found sufficient evidence of gambling where three diff erent police officers each testified about a sepa rate occasion when they

observed patrons play

ing video gambling games and then obse rved bartenders verify

ing the score on the machine before handing the patrons money. Connor , 354 Ill. App. 3d at 382-83. The facts in the case at bar are very diffe

rent. First, in the case at bar, the contested conduct occurred only

once with only one pa

tron. By c ontrast, in Connor , our supreme court emphasized that “three officers” testified about “thre e separate occasions” and that the off icersNo. 1-07-0239

3 The officer did not testify that the bartender looked toward the video machine or took any action to verify the score on the machine. The officer testified that when the pa tron called out, the ba

rtender was 13 fe et away

from him. 14 observed essentially

the same conduct “[o]n all three occasions.” Connor , 354 Ill. 2d at 384. Repetitive conduct occurring in the same sequenc e or pattern is likely to shar e a particular motive; by contrast, conduct oc curring on only one occasion may

occur for almost any

reason. Second, there was no testimony that the bartender in the case at bar ve rified the score on th e m ac hi ne be fo re ha nd in g t he pa tr on mo ne y. 3 This lack of verification is significant. Ve ri fi ca ti on of

a s co re pr ov id es ci rc um st an ti al ev id en ce th at a b ar te nd er is gi vi ng mo ne y because of the score. Without verification, there is no causal link between the money and the score, and hence no circumstantial evidence of g ambling. Hussung v. Patel , 369 Ill. App. 3d 924, 934 (2007) (contemporaneity

does not prove causation). Third, there was no testimony in the c ase at bar that, after the bartende r gave the patron

mo ne y, t he ba rt en de r o r t he pa tr on sc ro ll ed th e s co re on th e m ac hi ne do wn to ze ro . P re su ma bl y, if this was a gambling operation, the bar would not wa nt to pay out twice for the same score and thus readjusting the machine to start at zero would be important. By contrast, in Connor , the officers testified that on two of the occasions at issue, the office rs observed that, after the patron approached the bartender, the sc ore on the machine was scrolled back down to zero. Connor , 354 Ill. App. 3d at 384. In sum, there is no circumstantial evidenc e that the bartender gave mone y based on theNo. 1-07-0239

15

score w hen ther e is no tes timony

that she e

ven bothe red to check wha

t the scor e was or to scroll the scor e back to zero; and the facts of our c ase are

very differe nt from the facts in Connor because in Connor , the cond uct was r epeate d severa

l times and

the bart ender g ave mone

y on ly after verify

ing the score. Thus, we must reverse be cause the commissioner’s findings of gambling are ag ainst the manifest weight of the evidence. We want to address several remarks made in the dissent in order to eliminate any possible c onfusion a

nd to delineate cl early

the point o f disag

reemen t. First, the disse

nt writes : “The majority a

ppears to have adopted Boom Town’s contention that the obser ved conduct was excludable as hearsay .” The exact opposite is true. For the record, we a ccept the commissioner’s ruling that the calling out and the ge sture were notadmitted for the truth of the

matter a sserted , that the

y w ere thus nothearsay

and that for this reason, they were notexcluded and properly

so. Second, the dissent writes that neither plaintiffs nor defendants claimed that the c alling out or the gesture communicated any thing. Then, in addition to no error, there can also be no harm in disregarding any

possibly assertive quality that these two acts may

have possessed. Third, the dissent disagrees that the repetition of the acts in Connor had any sig

nificance. Even if that were true, that was only one of several ways in which the facts of Connor were very different from the facts at hand. CONCLUSIO N For the foregoing r

easons, the decisions of the LLCC and the circuit court are reversed. Reversed. WOLF SON, J., concurs.No. 1-07-0239

16

GARCI A, J., dissen

ts.No. 1-07-0239

17

JUSTICE GARCIA, dissenting. I question the position taken by the majority that evidence the patron "called out" to the bartender and that he used his thumb over his shoulder as he approached the bar in the direction of the poker machine can somehow be "disregard[ed]." Slip op. at __. You can no more "disregard" those observations of the investigating officer then you can "disregard" the remainder of his testimony describing what he observed. For the reasons stated below, I submit all of the observed conduct testified to by Officer Sobczyk was properly before the Commissioner. And the Commissioner was free to draw reasonable inferences from the officer's observations to support its findings. The majority appears to have adopted Boom Town's contention that the observed conduct was excludable as hearsay. However, it is a fundamental rule of evidence that observed conduct is not hearsay unless it is offered as "assertive conduct." See People v. Barger , 251 Ill. App. 3d 448, 464, 624 N.E.2d 405 (1993) (gesture, nodding, or pointing, may " 'clearly be the equivalent of an assertive statement' " where it is made " 'for the purpose of deliberate communication' "), quoting M. Graham, Cleary & Graham's Handbook of Illinois Evidence §801.2, at 572 (5th ed. 1990). While the majority intimates otherwise, the City of ChicagoNo. 1-07-0239

18

does not argue the observed conduct conveyed anything more than what was observed; the City of Chicago does not characterize the patron's conduct as "assertive" to support the decision by the LLCC, affirmed by the LAC, which the trial court in turn affirmed. The evidence presented of the patron's conduct was quintessentially nonhearsay. In re E.H. , 299 Ill. App. 3d 42, 51, 700 N.E.2d 1044 (1998), quoting Simms , 143 Ill. 2d at 174 (" 'testimony describing the progress of the investigation is admissible even if it suggests that a nontestifying witness implicated the defendant' "). Also of note, Boom Town identifies no "deliberative communication" the observed conduct conveyed that was somehow improperly used against it. The fact is the patron's conduct was not offered for whatever truth Boom Town believes the conduct may have asserted but rather was offered as "one link in a chain of investigative evidence" establishing gambling. People v. Stewart , 105 Ill. 2d 22, 57-59, 473 N.E.2d 840 (1984) (laundry receipt not hearsay as offered only to link the defendant to hotel room). After the patron played a video poker machine, he and the bartender had an exchange, and the bartender handed the patron a sum of money. The trial court found this incontrovertible evidence, circumstantial as it is, along with the reasonable inferences drawn therefrom, sufficient to affirmNo. 1-07-0239

19

the administrative decision and I agree. While admittedly more than one reasonable inference may be drawn from the observed conduct, the Commissioner appears to have drawn the inference that the patron signaled the bartender he had finished his poker play and he was entitled to his winnings based on the credits Officer Sobczyk observed on the poker machine. There was no testimony from the bartender that she and the patron returned to the poker machine as one might expect to verify a problem did occur. That there was evidence that tended to support Boom Town's claim that the money exchange was nothing more than a "refund" suggests nothing more than a reweighing of the evidence. Slip op. at __. The bartender testified she gave a patron by the name of "John" a $5 refund. However, this conflicted with the testimony of the president of Boom Town that there were two $10 refunds handed out on March 4. The repair company employee's testimony contributed to the confusing nature of Boom Town's case. He testified that the seized machine had a problem: the "dollar bill intake was sticking." Slip op. at __. How a $5 refund is converted into a $10 refund, either refund or both refunds based on the use of a machine that accepted $1 bills, was never explained. It is not unreasonable for the Commissioner to have disregarded this testimony. Of course, it is of no moment that I, like the majority, might "have ruledNo. 1-07-0239

20

differently in the first instance." Slip op. at __. Reasonably, I submit, the Commissioner found circumstantial evidence of gambling from these established facts and from the inferences the Commissioner was free to draw. Circumstantial evidence is not objectionable hearsay. Stewart , 105 Ill. 2d at 58, citing 6 J. Wigmore Evidence §1788 (J. Chadbourn rev. ed. 1976) . Finally, I find unpersuasive the manner in which the majority distinguishes Connor . Considering Connor and this case, I understand the majority to conclude that conduct observed once may be considered meaningless such that it can be disregarded, but repeat that conduct and it gains meaning. However, the only way repetitive conduct can suggest a "particular motive" is when the conduct performed once has that same "particular motive." Slip op. at __. Motive does not materialize by repetition alone. If a "particular motive" cannot reasonably be ascribed to conduct observed once, I fail to see how there is any "motive" to share upon observing the conduct repeated. Because we owe deference to the Commissioner's factual findings, I would sustain the gambling charges, as the trial court did. Connor , 354 Ill. App. 3d at 384 ("A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident"). I would also sustain revocationNo. 1-07-0239

21

as an appropriate sanction. Daley v. El Flanboyan Corp. , 321 Ill. App. 3d 68, 77, 746 N.E.2d 854 (2001) ("The violation of any statute, ordinance or regulation related to the control of liquor generally constitutes cause for the revocation of a liquor license"; court may also consider establishment's prior violations). I therefore dissent.No. 1-07-0239

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to b e attac hed to eac h Opinion) ] Please use the ] foll owin g for m: ] ] BOO M TOW N SALO ON, INC., Li cense e, and ] EUG ENE PER RY , President, ] ] Plaintiffs-A ppellan ts, ] v. ] ] TH E C ITY OF CH ICA GO , a M unic ipal ] Co rpo ratio n, R ICH AR D M . DA LE Y, ] as both Loca l Liquor License ] Comm is si one r an d Mayor , S COTT BRUNER, ] Director of the Mayor's License ] Commiss ion, ROB ERT NO LAN, Hearing ] Officer for t he M ayor's Licens e ] Commiss ion, the MAY OR'S LICENSE ] COM M ISSI ON, THE LICENSE APPEAL ] COMMISS I ON OF THE CI TY OF CHI CAGO, ] ANTHO NY CALAB RESE, I RVING KOP PEL, ] DON ADAM S and PHILIP J. CLINE, Chi cago ] Police Superintenden t, ] ] Defe ndan ts-App ellees. Complete ] TITLE ] of Case. ] Docket No. ] No. 1-07-0239

] Appellate Court of Ill

inois COURT ] First District, First Division

] ] JULY 14, 2008 Opinion File d ] ( Month, Day and Year )

] JUSTICES ] JUSTICE ROBERT E. GORDON delivered the opinion of the court .

] ] WOLFSON,

J., concur s. GARC IA, J., diss ents. ] APPEA L from the ] Lower Co urt and Tria l Judge(s)in form indi cated Circuit Court ] in mar gin: of Cook County; ] Appeal from the Circuit Court of Cook County. the Hon:______ ] Judge Pr esiding ] Honorable M ary Anne M ason, Judge P residing .

] For AP PELLANTS ]Indicate if attorney represents APPELLANTS or John Doe of ]APPELLEES and include attorneys of counsel. Chicago. ]Indicate the word NONE if not represented. For AP PELLEES, ]----------------------------------------------------------------------------------- ------------ Smith and ] Touhy & Touhy, L td. Smith, of ] Chicago, Illinois 60601 Chicago. ] Attorneys for Appellants Brown, ] Attn: Tim othy J. TouhyNo. 1-07-0239

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of Counsel. ] OF COUN SEL

] Also add atty. ] Corporation Counsel of the City of Chicago - Mara S. Georges for third party ] Chicago, Illinois 60602 appellants ] Attorneys for Appellees or appelle es. ] Attn: Benna Ruth Solomon, Myriam Zrecz ny Kasper

] and Sara K. Kornstra ] OF COUN SEL ]