## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People e x rel. City of Chicago v. Le Mirage, Inc. , 2011 IL App (1st) 093547

Appellate Court Caption THE PEOPL E ex rel. THE CI TY OF CHI CA GO
, a m unicipal
corpor ation, Petitioner-Appellee
, v. L E MI RAGE, I NC., a/k/a L a Mirag e Al l Nite Studio, L td., Dwain J ohnson Kyles, and Calvin Hollins, J r., Respondents-Appe llants.

District & N o. First District, Third Division Docke t Nos. 1-09-3547, 1-09- 3549

Filed November 16, 2011

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endants’ convictions for indi rect criminal contempt based on their violation of a housing court’s order s requiring defe ndants to vacate portions of a two-story building they rente d for the oper at i o n of
restaur ants and nightc lubs wer e reve rsed and their sentenc es wer e

v aca ted, notwithstanding the fac t the portions of the building at i s s u e

wer e being used at the time of an incid en t in which numerous people

wer e killed a

nd injured while attempting to leave the building, since the formal order conce rning the prohi b i t ed use of the building was ambig uous t o the extent that it did not descr ibe in rea sonable detail the
acts prohibited, there was no evidenc e defe n d an t s ag ree d that their nightc lub would be closed, the city issued a liquor license to the nightc lub as proceeding s in the housing court c ontinued, and the violations of t he housing court ord er h ad nothing to do with the deaths and injuries that

occur red.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, Nos. 03-MC1-19280102, 03-MC1-19280103; the Hon. Da niel J . Gillespie, J udg e, pre siding.J udg ment Reverse d and vac ated.

Counsel on Appea l Abishi C. Cunningham, J r., Public Def ender (L est er Finkle and Vicki Roge rs, Assistant Public Def ender s, of counsel), and Victor P. Hende rson, Christopher W. Carmichae l, Chelsea A. As h b rook, and Dar ren H. Goodson, all of Holland & Knig ht, L L P, both of Chicag o, for appellants.

Stephen R. Patton, Acting Corporation Counsel, of Chicag o (B enna Ruth Solomon, My

riam Z rec zny Kaspe r, and Ker rie Maloney L ay

tin, Assista

nt Corporation Counsel, of counse l), for a ppellee.

Panel J USTI CE MU RPHY de livered the judgme nt of the court, with opinion. Presiding J ustice Steele and J ustice Quinn concur red in the judgme nt and opinion.

OP INION

¶ 1 This appea l relates to indirect c r im in a l c o nte mp t p r ocee dings ag ainst responde nts, Calvin Hollins, J r., and Dwain J

. Kyles, for the failure to comply with a J uly 19, 2002, “mandatory order ” in the underly

ing suit alleg ing building code viola t i o ns at 2347 South Michig an Avenue
, Chicag o, I llinois

. In particula r, petitioner City of Chicag o (City) alleg ed the second floor of the bui lding that housed t he “E2” ni g htclub and a second floor or m ezzanine with VI P rooms in that are a was dang erous. Trag ically
, in the ear ly morning hours of Fe bruar y 17, 2003, a fig ht broke out at the nightc lub and afte r secur ity g uards utiliz ed pepper spray in an attempt to control the situation, the crow d panicke d and 21 people wer e killed in a stampede to leave the club. ¶ 2 On the next day
, Fe bruar y 18, 2003, the City filed the underly ing petition for adjudication of indirect criminal contempt. The City al l ege d t h at responde nts had been order ed not to occupy the second floor of the building. The City asser ted that if responde nts had been acting in compliance wi t h 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 actua l incident and tra g ic deaths and injuries. ¶ 3 Respondents appea l that judgme nt and t h ei r re s p ec t i v e s en t en ce s o f t wo y ea rs’ imprisonment. Respondents asser t that the trial court err ed in instructing the jury o n v ic a r ious
corpor ate liability

and failing to inc lude a definition on willfulness. They also contend that the trial court improperly barr ed admission of cer tain evidenc e key to responde nts’ asser tion that the t rial court’s order was ambiguous and there wa s n o willful violation of t hat order.

-2-In particula r, responde nts argue that the trial court’s half sheet and a letter from responde nts’ attorney at the hear ing explaining the trial court’s order should have been admitted. Finally
, they arg ue that at sentenc ing the trial court improperly considere d fac tors unrelat ed t o t h e contempt char g es and for which respo n d ents wer e acquitted at a separ ate criminal trial. R espondent Hollins also argues that the City improperly broug ht out evidence o f h i s char acte r and past bad acts even though he did not testify or otherwise put his char acte r into issue. For the following rea sons, we reve rse the trial court and vacate responde nts’ sentenc es.

¶ 4 BA CKGROUND ¶ 5 This matter involves alleg ations that responde nts willfully violated order s of the housing
court to vaca

te portions of the two-story building located at 2347 South Michig an Avenue
, Chicag o, I llinois

. The two-story building was orig inally constructe d to house an automobile deale rship and consisted of sever al levels. Prior tenants of the building had constructe d and utiliz ed the mezzanine level of the sec ond floor for

auto par ts storag e. ¶ 6 Respondents be g a n r e nti n g the building in the 1980s and operated various restaur ants and

n i gh t cl ub s in that location up to, and including, the date of the trag edy

. In approximately 1990, responde nts remode led the mezz anine level, which was suspended above the floor of the nightc lub by trusses connec ted to the ceiling of the building, to cre ate a VI P are a. Around 1999, responde nts remode led the building and re- opened with the first flo o r h o u s i ng a restaur ant called Epitome and, on the second floor, responde nts operated a nightc lub called Epitome 2 Nig htclub or “E2.” E2 consisted of a main dance floor, two bar are as and the afor ementioned mezz anine level with seve ra l VIP rooms hang ing over the dance floor. In 2001, responde nts ag ain remodeled t he mez zanine, this t i m e u t i l izi ng the t russes to cre ate natura l separ ation for sever al VI P rooms. Epitome and E2 wer e operating in the building in this condition on all of the dates in question in the instant matter.

¶ 7 BuildingCode Enforc ement Proce eding s ¶ 8 On J une 18, 2002, the City filed a building code enforce m en t ac t ion in housing c ourt ag ainst the owner of the building, L esly Motors
, I n c. T h e operator of the restaur ant and nightc lub, L e Mirag e, Inc., voluntarily allowed i t s elf to be impleaded into the action. Respondent Kyles was named as L e Mirag e’s sole share holder, and responde nt Hollins was named as Kyles’ “silent partne r.” The City soug ht an injunction requiring responde nts to

corr ect 11 code violations all related to the second- floor mezz anine and VI P are a. The City alleg ed that this suspended mezzanine and VI P area had bee n built without proper permits and t h at the partitions could not support its weig ht, cre ating dang erous conditions for the nightc lub. ¶ 9 On J uly 19, 2002, the parties enter ed their first appea ranc e befor e the court, J udg e Da niel Ly nch presiding

. Edwar d J

. Morris appea red on behalf of L esly Motors. L e Mirag e’s regular attorney , Thomas Roy ce, was on trial in Wi l l C o u n t y and could not appea r so Br adley Prender g ast, Royce’ s office mate, appe are d in his stead. ¶ 10 At t h e h ea ri n g, Prender g ast waived service of summons on behalf o f L e M i ra ge. Assistant corpor ation counsel Demetr ius Kar e stated that the City h a d c it e d s ever al violations

-3-“per taining to the second- floor VI P rooms attach ed t o t h i s nightc lub” and that was the immediate conce rn at that time. Kar e prese nted what he descr ibed as an “agree men t t hat L eMirag e, Incorpor ated a g ree s not to occupy the sec ond-floor V I P rooms.” ¶ 11 J udg e Ly

nch then hear d testimony from the City ’s building inspector, Marg arite Shahi. Shahi testified that the entire second floor was dang erous due to, inter alia, the weig ht of the VI P rooms suspended from the bow truss roof and that substandard partitions wer e used to buil d the VI P rooms. At the conclusion of the testimony
, the trial court stated: “Your
ag ree ment i s n o o ccupancy of t he second floor. You have to keep it vaca nt.” J udg e L y

nch then wrote the following note on the half she et: “B A Mirag e will not occupy 2d Floor V I P rooms” (he reina fter, ha lf sheet or der)

. ¶ 12 After the hear ing, Prender g ast sent a letter to Roy ce to repor t on the proce eding s befor e the cour t on J uly 19, 2002, as follows: “The city inspector testified that the sky -boxes on the second floor overlooking the dance floor are dang erous and hazardous beca use they are suspended from the trust-roof [ sic ] ***. The judge entere d an Or d er that the s econd floor m ezzanine not be used, the VI P
room, until there is a hear ing. As a result, they are now ‘v ac an t ’ important persons rooms. That orde r will remain in ef fec t until August 9th.” ¶ 13 Prender g ast rec eived a fac simil e of the written order of J uly 19, 2002 (her einaf ter, for mal order), signe d by J udg e Ly nch, sever al day s afte r the hearing. He forwa rded the formal order
to Roy ce. The formal order did not specify whether it appli ed t o t h e s ec ond floor of the building or of the nightc lub, and simply provided: “Manda tory order not to occupy 2d floor.” ¶ 14 On August 9, 2002, Kar e appea red in court on behalf of the City and Roy ce appea red on behalf of responde nts as well as for L esly Motors. Kar e asked that the formal order b e continued to September 6, 2002, and reque sted an order of interior inspection. After the trial
court inquired whether there wer e any dang erous or hazardous conditions, t h e fol lowing exchang e occ urre d:
“MR. KARE: Imay

call the inspec tor if the Court wishes to hea r any thing f urther.
THE COURT: Other than the secon d fl oor, which has been addre ssed by the
ag ree ment not to occupy ?
MR. KARE: Right, and t h e mezz anine that–the V.I .P. rooms is alleg ed in our complaint.
M R. ROYCE: We’ve ag ree d to that y our Honor. We’ve taken steps and I b el i ev e y esterda y th ere was a meeting and it wasn’t resolved to the C ity ’s s atisfac tion. I spoke
to them last evening

–beg in the structure swelling
, pulling permits. Wit h that in mind we neede d additional time. Iwas a sking c ounsel for a dditional tim e. THE COURT: September 6th. MR. ROYCE: Yes y our Honor.
THE COURT: I s that the retur n date? MR. KARE: Yes y our Honor.
THE COURT: Matter for confe renc e September 6th, and in particula r the dang erous, haz[ a]rdous condition relates to the struc ture of the second f loor?

-4-MR. KARE: Pertains to the V.I .P. rooms and mezz anine.
THE COURT: I t’s the structure ?
MR. KARE: We don’t know i f t here ’s no plans or permits on file. W e don’t know if they can suppor

t the weight, these people occupy ing the second f

loor. THE COURT: This is the floor that’s supported by the roof tr

usses? MR. KARE: That’s corr ect. MR. ROYCE: No one has been in the premises since, o t h er than employ ees and worke rs. They

won’t g o up there .” ¶ 15 T h e co u rt en tere d an order continuing the matter to September 6, 2002, and orde ring : “Mandatory order not to occupy 2nd floor of subject premises.” At the September 6, 2002, hear ing, Kar e, Shahi and counsel for L esly Motors appea red. Despite filing a m o t i o n to

vacate the formal order
, the motion was not serve d on the City and Roy ce and the responde nts did not ap p ea r at t he hear ing. Kar e filed a petition to show cause based on Shahi’s inability to g ain ac cess to the buildingfor a n inspection. The tria l court ente red an order stating: “(1) Def

endant, L e Mirag e, Inc., motion to vacate the order of J uly 19, 2002, requiring that said defe ndant not occupy the 2nd floor and mezz anine is stricken, and (2) All previous orde rs re main in full force and ef fec t.” 1 ¶ 16 At the next hear ing o n Oc t o b er 2 5
, 2002, the parties had rea ched ag ree ment for a n inspection of the building and the petition for rule to s h o w ca u s e was withdrawn. Kyles
ag ree d to continue the prior order

. The City confirme d that the order was to “ not to occupy the sec ond floor, mezz anine and VI P rooms.” The trial c ourt’s orde r of that date provided: “[A]l l prior order s to rema in in full forc e and eff ect.” The matter was continued to Marc h 7, 2003, for tria l, settlement or dismissal.

¶ 17 The E2 Tr ag edy and The City ’s Petition ¶ 18 Respondents continued to operate the E2 nightclub on the s econd floor of the bui lding throug hout the instant pr ocee dings. During the early morning of Fe bruar y 17, 2003, a fig ht ensued on the E2 dance floor. Securit y gu ar ds utiliz ed pepper spray to brea k up the alterc ation. The patrons of the c lub panicked, some repor ting that they

hear d someone yell “ter rorist attack” or “anthr ax” as the crow d fled for the doors. T rag ically
, in the rush to

esca pe the smog of pepper spray , the patrons manifested into a stampede and crow ded into

a narr ow stairca se to r eac h the first-floor exit

. As a result of the stampede, 21 patrons wer e crushe d and killed in the cha rg e and 50 othe r patrons w ere injured. ¶ 19 On Fe b ruar

y 18, 2003, the following day
, the City filed a three -pag e, s i n gl e- s p ac ed petition for adjudication of indirect criminal contempt ag ainst L e Mirag e and Kyles. The City alleg ed that responde n t s o pened the E2 premises in entirety

. I t asser ted that this was in violation of the forma l order a nd 21 people died a s a re sult. ¶ 20 On J uly

10, 2003, the City

amende d the petition. The City had dete rmined that Hollins

T his ord er is of re cor d; however
, as add re sse d by thi s cou rt in Peop le ex r e l

. C i t y of 1 Chic ago v. Holl ins , 368 I ll . App. 3d 934, 938 (2006 ), no copy of res pond ent s’ m oti on is of re cor d.

-5-was a partne r in L e Mirag e and added Hollins as a party while omitti ng L e Mirag e as a party

.

The City also added sever al excerpts from the hear ing transcripts wher e the parties discussed the alleg ed violations and the fo rm al order

. The City filed it’s third amende d petition on J anuar y 27, 2005. In this 10-pag e final petition, the City added detail on proposed witnesses and expected testimony to be prese nted at t ri al i n s up p ort of its claim that responde nts violated the for

mal order

.

¶ 21 Criminal Charg es and Proc eeding s ¶ 22 Respondents wer e acquitted of charg es filed by the State’s Attorney
, asser ting 63 counts of involuntary manslaughter related to the 21 deaths. As part of those proce eding s, this court aff irmed the trial court’s order g ranting responde nt Ky les’ motion to bar evidenc e or testi m o ny that E2 was supposed to be closed on the night of Fe bruar y 17, 2003, and that
structura l defe cts exis ted in the building. This court ag ree d with the trial court’s conclusion that the structura l defe cts had “nothing to do with the cause or man n er o f d ea t h of the individuals here .” Acc ording ly
, we found that the building code violations for the structura l defe cts and resulting order wer e not rele vant to the question of whether defe ndant consciously disreg arde d a substantial and unjustifiable risk when he continued to operate the nightc lub. People v. Kyles
, No. 1-07-0284 ( 2008) (unpublished order pursuant to Supre me Court Rule 23).

¶ 23 Prior Procee dings on Petition for Indirec t Criminal C ontempt ¶ 24 On Fe bruar

y 1, 2005, in the first proce eding s on the instant petition for indirect criminal contempt proce eding s, J udg e Ly nch presided over a jury trial in housing court. Howeve r, a mistrial was decla

red based on t h e p ro secution’s improper comment on what the defe nse would be during opening arguments. This court considere d and reje cted responde nts’ contention that the proce eding s should be dismiss ed on the g round that double jeopar dy barr ed retria l beca

use the City intended to provoke t h e m i strial. People ex rel. City of Chicago v. Hollins
, 368 I ll. App. 3d 934, 941-46 (2 0 0 6 ). For retria l, responde nt Kyles’ contention that J udg e Ly

nch wa s a potential witness and should be disqualified on rema nd

was a cce pted, with J ustice Campbell noting f or the pa nel:
“W e fi nd Kyles’ argument compelling and do not ag ree that Kyles is reque stin g a revie w of prior nonfinal judgme nts. Fr om the rec ord, it appea rs that the interpre tation of the original order and the s ubsequent orders reg ardingthe closingof either the E2 VI P

rooms or the second floor or both may become an issue at trial and that J udg e Ly nch had
persona l knowledg e of disput ed ev i d enti ary fac ts. As such, it would be improper for J udg e Ly nch to continue to pre side over this ca se.” Id. at 947-48.
As such, this court rec og nized that the prior order s and the underly ing hear ings befor e J udg e Ly nch mig ht be cr

ucial issues on re mand.

¶ 25 Pretrial Motions ¶ 26 The matter was transfe rre d to a new judge
, and prior to the instant tria l, the court he ard

-6-numerous motions in limine . Of note are the motions by the Attorney Gene ral on be half of J udg e Ly nch to qua sh the subpoena for him to testify

and by the City to exclude testimony

conce rning the half sheet entries by J udg e Ly nch and introduction of the half sheet as evidenc e. The trial court found that the formal order was clea r and unambig uous on its fac e. There fore
, it g rante d the motion to quash beca use it would be improper for J udg e Ly nch to testify about his mental proce sses behind the order

. Also, beca use the trial court conclude d that the formal order controlled, discussion of the half sheet woul d b e i rr el evant and confusingto the jury

.

¶ 27 Retrial on the Third Ame nded Petition ¶ 28 At retria l, the afor ementioned fac ts conce rning the building inspection, code violations and h o u s i n g court proce eding s wer e prese nted by various witnesses. Shahi testified that b u i l d i n g i n s pector s do not close businesses, but that she had reque sted the whole second floor rema in vaca

nt due to the conce rn that the construction of the mezz anine and VI P rooms could have d am aged the roof so badly as to cause harm to occupa nts of the second floor. Shahi acknowle dg ed that discussions in c ourt cente red on closing the VI P a rea and not the entire se cond floor. ¶ 29 Shahi testified that on October 23, 2002, she and J ulio Montill a, a building inspector f or the City , met Hollins and two eng ineer s at t he buil ding. They explained the vi olations and when in the VI P rooms explained that they wer e not to be used. Montill a signe d his name on

a napkin and place d it underne ath a g lass on a table in the VI P room and stated that when they returne d that they would know if the VI P rooms had been in use. Hollins stated that he understood. Montill a testified that the comments wer e intended to mean that the whole second f loor was not supposed to be use d. ¶ 30 Kar e testified that the J uly 19, 2002, order was draf ted by a law cler

k for the City . Kar e maintained, contra

ry t o h i s statements in court at the 2002 hear ings, that the scope of the order was not limit ed to the VI P rooms and mezz anine, but included the entire second- floor nightc lub are a. Kar e testified that the orig inal ag ree ment was to enter an ag ree d order closing the mezz anine and VI P room. Howeve r, afte r Shahi’s testim o n y , t h e ex tent of the closure

was c hang ed to include the e ntire sec ond floor. ¶ 31 Severa l patrons of t h e n i gh t cl u b t es t i fi ed t h at they wer e able to g ain entry to the

mezz anine and VI P are a from J uly 19, 2002, up to and including Fe bruar y 16, 2003. Testimony was provided that there wer e no ropes or signs prohibiting acc ess to the VI P

rooms. A secur ity office r, who worke d for a third party , also testified that he did not preve nt

acc ess to this are a and that patrons utiliz ed the VI P rooms. None of these witnesses rec alled seeingresponde nts at the nig htclub. ¶ 32 Chicag o police office r J ohn Lucki testified that he interviewe d responde nts on Fe bruar y 17, 2003. Respondents informed Lucki that E2 secur ity was prese nt on the g round floor for events, but a third-par

ty g roup promoted and booked eng ag ements at the club and provided the s ecur ity in the ni g htclub are a. R espondents did not indicate there were any is sues wit h the building. ¶ 33 Prender g ast testified that he understood that the ag ree ment rea ched on J uly 19, 2002, was

-7-that the VI P rooms would not be occupie d and there was no mention that the nightc lub would

be closed by any of the parties or the trial court. Prender g ast explained that he did not crossexamine any witnesses concerning the i ssue bec ause he believed that there was no dispute
reg arding the s cope of the agree d order . Howeve r, he c oncede d an orde r sig ned by a judge controls and the judg e re serve s the rig ht to modify the orde r. ¶ 34 P re n d er gas t al s o t estified that he did not object when J udg e Ly nch stated that th e ag ree ment was no occupa ncy of the sec ond floor, but that he be lieved that the r efe renc e of the second f

loor was to the VI P rooms. Aga in, he testified that this was beca use he did not believe there was any dispute that the orde r wo u l d o n l y bar use of the VI P rooms. He explained that he left prior to rec eiving the order
, but stated this was ty pical prac tice. Fur

ther, he noted that he dictated the shor t letter to Roy ce to de tail the proce eding s that day

. ¶ 35 Roy ce testified that when he rec eived the letter and order he beca me conce rned and went to revie w the half sheet. Be cause t h e half sheet was consistent with the letter from Prender g ast, the parties had an ag ree ment, and Kar e had noted himself to the court that the

o rd er p erta ined to the VI P rooms and mezz anine, he did not raise the inconsistency in the

co u rt ’s order

. Fur

thermore
, no one with the C ity had tol d him that the ni g htclub h ad t o b e closed, so Roy ce advised responde nts that the VI P rooms wer e the problem and that are a had to be taped or roped off and rema in vaca nt. Roy ce admitted that allowing occupa ncy of the VI P rooms and mezz anine would constitute a violation of the order as he understood the order

. ¶ 36 Re spondent Kyles testified on his own behalf

. Respondents worke d with a n e v e nt p la

n n e r who rente d the nightc lub wee kend nights and provided its own secur ity

. Ky les testified that he hired his own security to chec k identification at the door. Royce informed Kyles that the VI P rooms had to be closed and he informed staff. After putting up a sign and a rope in front of the VI P e ntranc e failed to ke ep patrons out, a secur ity person wa s place d at the entr ance to prohibit acce ss. ¶ 37 Kyles t es t i fi ed that at t he October 25, 2002, hear ing he presented a structura l eng ineer
repor t that demonstrated that the loads on the mezz anine wer e safe ly supported. Whil e Kyles
t estified that he thought the parties had reac hed a compromise, he informed the t ri al co u rt that he understood the prior or ders we re to re main in effe ct. He testified t hat t he nightclub continued to opera

te and host events. Fur

ther, Kyles testified that he rene wed the nightc lub’s business and liquor license s with the City in November

2002. ¶ 38 Kyles testified that he considere d responde nt Hollins a p ar t n er , but he was off icially considere d a consultant to the business. Kyles knew that Hollins was leg ally ineligible to be

a man age r o f a bar and that is why he was listed as a consultant. Following objection by responde nts, based on the pretria l order barr ing evidenc e of Hollins’ prior convict i o n for manslaug hter, counsel did not mention “manslaughter,” but simply said “leg ally ineligible” and questi o n i n g continued with respe ct to a liquor commission proce eding involving responde nts. Kyles testified that, af ter a hearing, his liquor license was not re voked.

¶ 39 J ury Instructions and Ve rdict ¶ 40 During the jury instruction confe renc e, responde nt Hollins reque sted that an instruction

-8-defining “willful” be g iven. The City argued that no definition was nece ssary for willful as

it was a commonly understood term. Counsel for Kyles stated t hat he supported use of the Bla ck’s L aw Dictionary definition of the term, but stated that he pref err ed g oing without it rathe r than usingthe patter n instruction for the ter

m. Hollins’ attorney

conce ded. ¶ 41 Following extensive discussion conce rning the ins t ru ction for the elements of indirec t criminal conte mpt, the court instructed the jury as follows on this issue:
“A person commits an offe nse of indirect criminal contempt when he willf ully violates a va lid court order

. To sustain the charg e of indi re ct crimi nal contempt, the City must prove the follow i n g p roposition, first, there was an order reduc ed to writing signe d by the J udg e and enter ed of rec ord ; s ec o n d
, that the order descr ibed in rea sonable detail the acts prohibited; third, that the R espon d ent rec eived actual [ notice] of t he order by persona l service or otherw ise; and four , that the Respondent willfully violated said orde r. I f y ou find from y our consideration *** of all the evi d en ce that eac h one of these propositions had been proved beyond a reas o n ab l e doubt, y ou should find the Respondent guilty .” ¶ 42 During delibera tions, the j ury sent a request t o the t rial cour t for the leg al def

inition of “willfully .” The court responde d with a note to the jury that it h ad s h o u l d conti nue to deliberate as it had “re ceive d all the instructions and evidenc e the Court has admitted.” The jury returne d guilty

verdic ts ag ainst both respondents.

¶ 43 Postt rial Motion and Sentencing ¶ 44 Respondents both filed motions for judgme nt notwithstanding the verdic t or a new tria l. They argued that the trial court should have g rante d responde nts a direc ted verdic t beca use the order s at issue wer e vague. Respondent Kyles added arg ument that the comments from Kar e, Shahi and the trial court, in addition to the wording of the formal order s and half-she et order
, added to the confusion conce rning the scope of the order s. Be cause of this, he argued the City chang ed its theory mid-trial that the order s applied only to the mezz anine are a and this not only confuse d the jury
, but led to the City ’s failure to prove a willful violation of the trial court’s order

. Respondents advanc ed sever al additional arguments, including asser tions of num erous error s by the t rial court in allowing or barr ing e vidence and in instructing the jury

. ¶ 45 At sentenc ing, the trial court first denied responde nts’ posttrial motions. The court hear d extensive testimony and argument in ag g rava ti o n and mitigation, including 10 mitigation witnesses. I n ag g rava

tion, the C ity argued that responde nt s did whateve r t hey had to do to keep the nightc lub open and “bec ause of t h ei r willful and wanton violations of the court order s we have 21 people dead.” ¶ 46 The trial court noted t h at i t had never heard as much t estimony in mitigation as in this

case and that it had a signific ant effec t. I t stated t hat i t seriously cons i d ered probation, but deter mined that probation would “depr ecate[,] under all the fac ts and circ umstances of this

case , [t he] serious nature of this matter.” Be cause a jury had found responde nts guilty beyond

-9-a rea sonable doubt of the conscious and willful d i s re g ard of the court’s order s for an

extended period of time, it conc luded:
“Court order s must be respe cted and obey ed. The City had asked for three y ear s,

rec ommended a sentenc e of three y ear s befor e the case went to trial. After trial the City had asked for five y ear s. And that was not an unrea sonable reque st under all the fac ts and circ umstances. Howeve r, it is the belief of this court that justice should be tempere d with

merc y

. And if there was ever a case wher e justice should be tempere d with merc y , it would be this c ase, acc ording ly
, [i t is] the sentenc e of this cour t that eac h defe ndant be
sentenc ed to two y ear s in the I llinois Depa rtment of Corre ctions.”

¶ 47 ANALYSI S ¶ 48 Contempt adjudications are an important tool inherent in the powers of t he court. This
power is utiliz ed as an essential component in the administration of judicial power

. People

v. Martin-Trigona
, 94 I ll. App. 3d 519, 522 (1980). Howeve r, without leg islative or define d authority
, these proce eding s are sui generis and wi t h the differ ence s betwee n the various
cate g ories of c ontempt–civil and criminal, di rec t and indirec t–there is ofte n confusion and

a lack o f au thority to provide g uidance

. For an excellent and compre hensive revie w of contempt proc eeding s that rea ds more like a tre atise than a n opinion, we urg e re view of In

re Marriage of Betts
, 200 I ll. App. 3d 26, 43-60 (1990), from the Four th Di strict of this
court. For the resolution of this matter, we are conce rned on l y wi th indirect criminal contempt and r efe r only

to that are a of the law. ¶ 49 Criminal contempt i s p u n i t i ve in nature and retrospe ctive, punishing a party for e ither doing what was prohibited or failing to do what was order ed. People v. Covington , 395 I ll. App. 3d 996, 1006 (2009). The judicial contempt power is power ful in nature and serious penalties may be imposed under that power

. O’Leary v. Allphin
, 64 I ll. 2d 500, 513 (1976). The rationale for imposing punishment is t h e s ame as for misdemeanor criminal
proce eding s–retribution, dete rr en ce , and vindication of the norms of socially acc eptable conduct ((1 ) re s p ec t for judges and court officials i n the admini stration of t heir duti es; (2) order ly judicial proce eding s; (3) obedienc e of court order s; and (4) not committing fra ud upon the cour

ts). Betts , 200 I ll. App. 3d at 44-45. ¶ 50 By definition, indirect as opposed to direc t cr i m i n al co n t empt is based on action or inaction outside the purview of the court and require s proof of the responde nt’s violation of the court’s order

. A party char g ed with indirect criminal contempt who fac es a possibili ty of

more than six months in jail and a fine is aff orded constitutional protec tions aff orded to any other criminal defe ndant, including a jury t ri al

. Id

. The responde nt is entitled to know the
nature of the char g e or charg es ag ainst him, to have those char g es definitely and specific ally
set out w ithin a citation or rule to show cause , and to have the opportunity to a nswer. Id. at 58. Natura ll y , t h e respondent has the privileg e ag ainst self-inc rimination, is presumed innocent, and must be pr oved guilty beyond a re asonable doubt. Id. ¶ 51 Ultimately
, two elements must be proven beyond a reasonable doubt by a petiti oner to sustain a char g e of indirect c riminal contempt: (1) the e x istence of a valid cour

t or der; and (2) willful violation of that order by the responde nt. City ofRock ford v. Suski
, 307 I ll. App.

-10-3d 233, 245 (1999). Be cause of the liberty conce rns addre ssed above that are implicated in

contempt proce eding s and beca use contempt is such a drastic reme dy
, the underly ing order
must set forth “with cer

tainty
, clar ity and concise ness prec isely what actions are enjoined.” O’Leary
, 64 I ll. 2d at 514. Acc ording ly
, the valid court o rd er “ ‘must be clea r befor e disobedience can subject a person to punishment.’ ” Id. (quoting People v. W ilcox
, 5 I ll. 2d 222, 228 (1955))

. On appea l, a revie wing court views the evidenc e in a light most favor able
to the prosec ution to deter mine whether an y ra t i o nal trier of fac t could have found the elements wer e proved beyond a rea sonable do ubt. Suski
, 307 I ll. App. 3d at 247-48. Howeve r, wher e a co u rt of revie w is of the opinion that the evidenc e is insufficient to establish the defe ndant’s g uilt beyond a rea son ab l e d o u b t , it must reve rse the conviction. People v . Smith , 185 I ll. 2d 532, 541 (1999). ¶ 52 The City adds that, as with any criminal matter, the relative weig ht and cre dibilit y g iven
to te stimony is w ithin the province of the trier of fac t. Suski
, 307 I ll. App. 3d at 248 (citing People v. Smeathers
, 297 I ll. App. 3d 711, 717 (1998))

. The City asser ts t h at this court should reve rse a finding of contempt only if the verdic t is ag ainst the manifest weig ht of the evidenc e or the rec ord ref lects an abuse of discretion. In re Marriage of Logston
, 103 I ll. 2d 266, 286-87 (1984). I t argues that this strict standard is highlight ed b y t his court’s
pronounce ment th at a “trial court’s finding of willful contempt will not be disturbed on appea l unles s t h er e is a clea r abuse of discretion.” Suski
, 307 I ll. App. 3d at 248 (citing Smeathers , 297 I ll. App. 3d at 717). ¶ 53 Prior to c onsidering the parties’ arguments, we must address the standard of revie w, as it is centr al to our dispositi o n

. Fi rs t , u nlike the instant matter, Logston involved an adjudication fo r ci v i l co ntempt for failure to pay maintenanc e pursuant to a judgme nt of dissoluti on and was not a criminal contempt ca s e and the City ’s relianc e on that case is misplaced. Howeve r, both Suski and Smeathers involved criminal contempt adjudications and also advanc ed this standard of revie w, with Suski citing Smeathers for support. The City

corr ectly cites these case s and provides further support for our contention above conce rning the var ious levels of conf usion and lack of

g uidance in the application of c ontempt law. ¶ 54 Trac king the support from the se case s reve als the courts’ err or and supports our depa rture from these decisions. As noted, Suski cited to Smeathers for this contention, which also cited
to a n indirect criminal contempt case in suppor t. Smeathers
, 297 I ll. App. 3d at 716 (citing In re Marriage of Madary
, 166 I ll. App. 3d 103, 106 (1988))

. The Madary court p ro p er ly cited an indirect criminal contempt case itself. Madary
, 166 I ll. App. 3d at 106 (citing People

ex rel. Hartigan v. Jansen
, 151 I ll. App. 3d 208, 210-11 (1986))

. Howeve r, the Jansen court improperly established this standard of revie w by following a ruling in a civil contempt case

. Jansen
, 151 I ll. App. 3d at 213 (citing Frank B. Hall & Co. v. Payseur
, 99 I ll. App. 3d 857, 860 (1981))

. As addre ssed above, the differ ence s betwee n the ty pes of contempt require distinct approac hes and c ase la w re g ardingeac h are a is often disting uishable. ¶ 55 I t is well established t h at cr i m i n al s an ct i o n s and deprivation of liberty require the protec tion of due proce ss, and in this context, proof beyond a rea sonable doubt. See Jack son

v. Virginia
, 443 U.S. 307, 317-19 (1979). Whil e the abuse of discretion and manifest weig ht of the evidenc e standards may apply to civil contempt finding s and ancillar y matters such as evidentiar y ruling s in criminal case s, the ultimate standard of revie w require s proof beyond

-11-a re asonable doubt. Accor dingly , we disagree with Suskiand it s prede cessor s to the extent

those ca ses deviate from this standard. ¶ 56 Wit h respe ct to the merits of the case , responde nts advanc e three issues to support their claims for reve rsal. Howeve r, beca use we ag ree that the formal order was ambig uous and did
not provide in rea sonable detail the acts prohibited, we need only discuss this issue. In doing
so, we reve rse the indirect criminal contempt adjudications ag ainst responde nts and vacate their sentenc es. ¶ 57 The City contends that the plain and simple languag e of the formal order controls and the jury proper ly found that the evidenc e at trial supported the charg e that defe ndants willfully violated the cle ar c ommand of the formal order

. The City argues that this is t rue e specia lly viewingthe evidenc e in a lig ht favora ble to the prosec ution. I t concludes that, limi ting our revie w to the four corne rs of that document, there can be no rea ding of the formal order other than that the entire nightc lub w as closed and the contempt adjudications must be aff irmed. ¶ 58 We disag ree with the City

. The City corr ectly cites City of Chicago v. American National Bank & Trust Co. of Chicago
, 171 I ll. App. 3d 680, 685-86 (1988), for the proposition that

a written order takes prec edenc e over the half sheet and if it is pl ai n an d u n am biguous, it controls. We also ag ree with the trial court and the City that the sanctity of court order s and the power of the court are essential and contempt proce eding s are sometimes nece ssary

. Of

course , we also ag ree that the events at the E2 nightc lub w ere indeed a horrific trag edy and actions to administer justice or preve nt a simil ar trag edy in the future are war ranted. Howeve r, simply
, under the fac ts of this case , we disag ree that the formal order was as clea r and unambiguous as the City maintains and the lawrequire s. ¶ 59 In order to find the defe ndan t s gu i l t y o f i n d i re ct crimi nal contempt, the trial court ins t ructed the jury that it would have to find beyond a rea sonable doubt that “the order descr ibed in rea sonable detail the acts prohibited.” Whil e t h i s i s an issue of fac t requiring defe rential revie w, whether a court order is sufficie ntly detailed is a matter with which courts of revie w are extremely familiar. Where we are not convinced t h at this element has been proven be y ond a re asonable doubt, we ar e oblig ated to re verse the convictions. Smith , 185 I ll. 2d at 541. ¶ 60 We are prese nted on appea l with a vast amount of evidenc e showing that the parties a nd the trial court eac h wer e under a differ ent u n d e r s ta nding of the alleg edly unambiguous formal

o rd er stating “Manda

tory order not to occupy 2d floor.” The contempora neous an d subsequent in-court statements by the trial court, the partie s , and the City ’s attorney s and experts do not support the City ’s position that it was the clea r command of the trial court that the entire nightc lub was to rema in vaca nt. ¶ 61 At fi rs t blush the languag e appea rs clea r; howeve r, a revie w of the rec ord befor e thi s court reve als that the City ’s law cler k should have included three words followi n g “Mandatory order not to occupy 2d floor” in the formal order –either “of the building” or “of the nightc lub.” Contrary to the C i t y ’s asser tion that, if confuse d, responde nts should have
soug ht clar ification of the formal order
, this action is criminal i n nature and the City fac es the burden of proving beyond a rea sonable doubt t h at the underly ing order set forth “with

cer tainty
, clar ity and conciseness precisel y wh at actions are enjoined.” O’Leary
, 64 I ll. 2d

-12-at 514.

¶ 62 Whil e some of the comments of rec ord may be const ru ed i n t h e m an n er t h e C i t y maintains, the majority of testimony and querie s seeking clar ification of the City ’s conce rns with the building all related to the closure of the portion of the structure attache d to the roof
t ru sses–the mezz anine and VI P rooms. I t is telling that, afte r rec eiving clar ification fr o m counsel, the trial court indicated on its half s h ee t t h at the parties ag ree d to vacate the “2d floor VI P rooms” afte r the J uly 19, 20 0 2
, h ear ing. Fur ther, the trial court ag ain soug ht clar ification of the extent of the City ’s conce rns during the August 9, 2002, hearing and the City attorney aff

irmed that the VI P room s and mezz anine–the floor supported by the roof
trusses–was t h e conce rn. Subsequent statements by the parties and the trial court further support this contention. ¶ 63 Additionally
, the formal order was enter ed by agr ee m en t o f t h e p ar t i es

. T h ere is absolutely no evidenc e to support the notion that responde nts ag ree d that the nigh tc lub would be closed. On the contra

ry , it is evident that re spondents did not ag ree to close the entire

n i gh t cl ub as they maintained operations. Fur ther, the City issued a liquor license to the nightc lub as proce eding s continued in housing court as the City inspected the structure and responde nts enlisted the service s of a struc tural eng ineer

. ¶ 64 Following the City ’s authority in City of Chicago
, we note that a circ uit court order must be interpre ted in its entirety
, including ref ere nce to the rec ord. City of Chicago
, 171 I ll. App. 3 d at 6 8 7

. Reviewing the formal order
, as well as t he transcripts of t he hearing s and o t h er evidenc e of rec ord, the formal order is insufficient to support a finding of indirect criminal contempt beyond a rea sonable doubt. We are unawa re, and the City admitted it was also

unawa re, of any case s from building court on point with the instant matter that resulted in a finding of indirect criminal contempt and prison sentenc e rathe r th an finding s for civil contempt for violation of prospective orders or civil fines. The City has t aken t he posi tion that, at its sole discretion, an untold number of building code violation case s or other simple order s could be rea d to result in criminal prosec ution and possible prison sentenc es. Be cause of this, the require ment of an order clea rly defining what actions are require d or barr ed is essential to the prope r adjudication of indirect cr iminal contempt. ¶ 65 We understand the horrible traged y i n v o l v i n g the E2 nightc lub and do not wish to diminis h the seriousness of that incident. No r d o we minimi ze the need to assure that buildings are maintained acc ording to the building code to a void a ny undue harm. We a lso completely understand the absolute need for order s of the court to be respe cted and obey ed. Howeve r, we ag ree with the Hollins court’s f inding that the violation of the building court order had nothing to do with the t rag edy

. Fur ther, the court’s inherent power t o adjudicate

a party in co n tempt is wisely constricted by the elements requiring a specific order and willful violation of t hat orde r. B eca use we have f

ound there was not a suf

ficiently specific order in this case, we reve rse r espondents’ a djudications and vac ate their sentenc es.

¶ 66 CONCLUSI ON ¶ 67 For the fore g oing re asons, the judgme nt of the trial court is reve rsed and re spondents’
sentenc es ar e her eby

vaca ted.

-13-¶ 68 Reverse d and vac ated.

-14-