First Division
Filed: 4-23-07
No. 1-05-1901
RICHARD M. DALEY, Mayor of the City of ) Appeal from the
Chicago and Local Liquor Control ) Circuit Court of
Commissioner, and SCOTT V. BRUNER, ) Cook County.
Director, Local Liquor Control )
Commission of the City of Chicago, )
)
Plaintiffs-Appellants, )
)
v. )
) No. 04 CH 2537
LAKEVIEW BILLIARD CAFÉ, INC., STEWART )
RAMIREZ, President, LICENSE APPEAL )
COMMISSION OF THE CITY OF CHICAGO, )
ANTHONY CALABRESE, Chairman of the )
License Appeal Commission of the City )
of Chicago, IRVING KOPPEL and DONALD W. )
ADAMS, members of the License Appeal )
Commission of the City of Chicago, ) Honorable
) Richard A. Siebel,
Defendants-Appellees. ) Judge Presiding.
JUSTICE ROBERT E. GORDON deliver the opinion of the court:
Plaintiffs, Richard M. Daley, as mayor of the City of
Chicago and Local Liquor Control Commissioner, and Scott Bruner,
Director of the Local Liquor Control Commission of the City of
Chicago (LLCC), filed a complaint in the circuit court of Cook
County, seeking administrative review of a decision of the
License Appeal Commission of the City of Chicago (Commission)
reversing plaintiffs' denial of a request for a liquor license by
defendant, Lakeview Billiard Café, Inc. (Lakeview). The circuit
court upheld the ruling of the Commission and plaintiffs
appealed. Although Lakeview has not filed a brief in response,
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we may proceed under the principles set forth in First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,
133 (1976). (In any case in which the appellee has failed to
file a brief as required by Rule, this court may if justice
requires search the record and decide the case on the merits.)
Maps and diagrams submitted by the parties throughout the
proceedings reveal that Lakeview Billiard Café is located at 3449
North Lincoln Avenue in Chicago, on the east side of the street.
Its front entrance faces Lincoln, a diagonal street running
northwest and southeast. The billiard hall is bounded by
Cornelia Avenue on the north and a residential building and
carport on the east. Immediately east of the residence and
carport is an alley, and across the alley is the Cornelia Avenue
Baptist Church (church).
On September 27, 2002, LLCC issued a letter to Lakeview
denying its request for a liquor license, finding that allowing
such a license would have a deleterious impact on the surrounding
community and violate public policy regarding minors and alcohol.
On March 7, 2003, LLCC issued an amended letter setting forth the
additional finding that issuance of a liquor license would be
improper under section 6-11(a) of the Liquor Control Act of 1934
(Act) (235 ILCS 5/6-11(a) (West 2002)), because the Lakeview
Billiard Café is within 100 feet of a church.
Lakeview appealed to the Commission and an evidentiary
hearing was conducted on June 10, 2003. At this hearing, Chicago
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police officer Jamie Benvenuti testified that she conducted a
license investigation in August 2002, in response to Lakeview's
application. Officer Benvenuti initially recommended approval
for the liquor license; however, in February 2003, she returned
to the site and measured from the east side of the billiard hall
to the nearest part of the church using a Ready Rule measuring
device. She found the distance between these two points to be 42
feet and recommended that the license application be denied.
The hearing was continued to September 23, 2003. On that
date, LLCC called Mike Volino, an investigator for the law
department of the City of Chicago. He testified that he used a
Rollatape to measure the distance between the north wall of the
billiard hall to the south end of the church wall, which is the
worship area. The distance between these two points was 55 feet.
Reverend Arlee Powell, the pastor of the church, testified that a
portion of the church is used for worship and that another
portion is a kitchen.
Patricia Craig, an architect residing at 1751 West Cornelia
Avenue, testified that she is opposed to the issuance of a liquor
license to Lakeview based on the billiard hall's negative impact
on the community. She further testified that she measured the
distance between the edge of Lakeview's property abutting
Cornelia, east to the center of the church wall facing Cornelia
and found it to be 79 feet and 9 inches. Craig clarified that
she did not measure to the closest point of the church but,
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rather, continued measuring to the center of the windows facing
Cornelia.
Stewart Ramirez, the owner of Lakeview Billiard Café, Inc.,
testified that a portion of the building he leases for the
billiard hall is empty warehouse space and an electrical room
where he does not conduct business. Ramirez measured the
distance between the portion of the building used for his
business, which faces the alley, and the wall of the church
surrounding the area where worship occurs. He was able to
discern which area of the church was used for worship, rather
than as a kitchen, by looking in the windows. This distance was
more than 100 feet, although Ramirez did not testify to the
specific distance.
Several other witnesses testified to the impact on the
community if Lakeview were granted a liquor license. LLCC has
not raised the issue of deleterious impact in this appeal; thus,
we will not set forth the substance of this testimony because it
is not relevant to our review.
After hearing the evidence, the Commission issued a written
order reversing LLCC's denial of the liquor license, based on the
credibility of the witnesses and a finding that LLCC had not met
its burden of proof. LLCC then filed a complaint in the circuit
court seeking administrative review of that decision. In its
complaint, LLCC alleged that the Commission erred in reversing
its decision because the applicant premises was within 100 feet
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of a church. The City specifically contended that reliance on
Ramirez's measurement was incorrect because section 6-11(a) of
the Act requires measurement from the property line of Lakeview's
establishment to the nearest part of the church used for worship
services.
The record was lost by the clerk of the circuit court, but
the parties were able to reconstruct most of it. The circuit
court then remanded the cause to the Commission to "conduct a
further evidentiary hearing on the measurement issue only in
order to establish the location of the applicant premises and the
beginning and ending points of measurement."
On remand, the parties presented no additional live
testimony; however, counsel for LLCC informed the court that Mike
Volino had conducted new measurements of the distance between the
billiard hall and the church, with counsel for both parties
present. Counsel submitted a diagram showing the results of
these measurements. One of the measurements recorded on this
diagram was taken from the northeast corner of the unused portion
of the billiard building, along Cornelia, to the northwest corner
of the church, a distance of 57 feet. Counsel for Lakeview
stipulated to the foundation of these measurements and stated
that he "had no problem with the City entering that document into
the record as the City's measurement."
Counsel for Lakeview submitted the affidavit of Ramirez in
which he averred that he sought a liquor license limited to the
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portion of the building containing commercially usable space
accessible to the public. Ramirez recreated and submitted the
diagram that had been used in the earlier proceedings, which
showed that he had measured the distance from the exterior of the
portion of the billiard hall used for the business (the wall
adjacent to the alley) to the middle of the wall encompassing the
area used for worship services. Ramirez averred that this
distance was 103 feet. He also averred that he took an
additional measurement inside the church, from the wall abutting
the alley to the podium, and found the distance to be 13 feet and
7 inches.
At the conclusion of these proceedings, the Commission again
reversed the denial of Lakeview's license application. In its
written order, the Commission stated that plaintiffs' witnesses
impeached each other by reaching varying conclusions regarding
the distance between the two buildings, and rejected the entirety
of plaintiffs' evidence as inherently untrustworthy and lacking
credibility. The Commission accepted Ramirez' measurement of 116
feet and 7 inches, stating that the correct beginning point of
measurement was the exterior of the portion of the building
actually used for Lakeview's business, and that the correct end
point was inside the church, at the podium.
The circuit court affirmed, finding that the decision of the
Commission was not against the manifest weight of the evidence,
unreasonable, or arbitrary. The court stated that the license
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was to be limited to the floor plan submitted by Lakeview with
its initial application.
On appeal to this court, plaintiffs contend that the
Commission erred in relying on Ramirez' measurement because it
failed to conform to section 6-11(a) of the Act. They assert
that section 6-11(a) requires the measurement to be taken from
the property line of the establishment seeking the license to the
nearest point of the church building used for worship services.
Plaintiffs maintain that Volino's second measurement, presented
to the Commission on remand, satisfied this statutory requirement
and demonstrated that the billiard hall is within 100 feet of a
church and that it should not have been granted a license.
In reviewing a final administrative decision under the
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2004)),
this court's role is to review the administrative decision,
rather than the circuit court's decision. Du Page County Airport
v. Department of Revenue, 358 Ill. App. 3d 476, 481 (2005). The
applicable standard of review depends on whether the question
presented on appeal is one of fact, of law, or both. AFM
Messenger Service, Inc. v. Department of Employment Security, 198
Ill. 2d 380, 390 (2001).
In examining an administrative agency's factual findings, a
reviewing court will not weigh the evidence or substitute its
judgment for that of the agency but, rather, is limited to
determining whether such findings are against the manifest weight
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of the evidence. City of Belvidere v. Illinois State Labor
Relations Board, 181 Ill. 2d 191, 205 (1998). This court,
however, reviews an agency's resolution of a question of law de
novo. City of Belvidere, 181 Ill. 2d at 205. An agency's
determination of the legal effect of a given set of facts
presents a mixed question of fact and law subject to the clearly
erroneous standard of review. City of Belvidere, 181 Ill. 2d at
205. Such a decision will be deemed clearly erroneous only where
"the reviewing court, on the entire record, is 'left with the
definite and firm conviction that a mistake has been committed.'"
AFM Messenger, 198 Ill. 2d at 395, quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766,
68 S. Ct. 525, 542 (1948).
With these rules in mind, we first address the legal
question of the proper method of calculating the 100-foot
distance set forth in section 6-11(a) of the Act. The cardinal
rule of statutory interpretation is to ascertain and give effect
to the intent of the legislature. Comprehensive Community
Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d
455, 473 (2005). The plain language of the statute is the best
indicator of this intent and undefined statutory terms will be
given their ordinary meaning. Comprehensive Community Solutions,
216 Ill. 2d at 473-74.
Section 6-11(a) provides:
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"No license shall be issued for the sale
at retail of any alcoholic liquor within 100
feet of any church, school other than an
institution of higher learning, hospital,
home for aged or indigent persons or for
veterans, their spouses or children or any
military or naval station ***. In the case
of a church, the distance of 100 feet shall
be measured to the nearest part of any
building used for worship services or
educational programs and not to property
boundaries." 235 ILCS 5/6-11(a) (West 2004).
The plain language of this statute clearly indicates that
the legislature intended the end point of measurement to be the
nearest part of the portion of the building used for worship.
The term "building" is not defined in the Act; however, Webster's
Third New International Dictionary defines this term as "a
constructed edifice designed to stand more or less permanently,
covering a space of land, usually covered by a roof and more or
less completely enclosed by walls." Webster's Third New
International Dictionary 292 (1993). As applied here, we find
that the measurement should have been taken to the closest part
of the exterior of the worship portion of the church and that the
Commission's determination that the end point of measurement was
the podium or pulpit inside the church was clearly erroneous.
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As for the proper beginning point of measurement, the
statute is silent (235 ILCS 5/6-11(a) (West 2002)), and we thus
examine the legislative history to determine legislative intent
(Land v. Board of Education of the City of Chicago, 202 Ill. 2d
414, 426 (2002)). In amending a statute, the legislature is
presumed to have knowledge of judicial decisions interpreting the
statute and to have acted with that knowledge. Bruso v. Alexian
Brothers Hospital, 178 Ill. 2d 445, 458 (1997).
In 1979, the legislature amended section 6-11(a) with regard
to church property by adding that, "[i]n the case of a church,
the distance of 100 feet shall be measured to the nearest part of
any building used for worship services or educational programs
and not to property boundaries." 235 ILCS 5/6-11(a) (West 2002).
Cases interpreting section 6-11(a) prior to this amendment held
that establishments seeking a liquor license and churches,
schools, and other entities named in the statute were to be
measured from property line to property line. See, e.g.,
Bilandic v. Johnson, 62 Ill. App. 3d 455, 457 (1978); Kaminski v.
Liquor Control Comm’n, 20 Ill. App. 3d 416, 418-21 (1974).
"[I]n amending the statute, the legislature is presumed to
have been aware of [the] judicial decisions interpreting the
statute and to have acted with this knowledge." Bruso, 178 Ill.
2d at 458. Thus, when the legislature amended the statute at
issue by only changing the end measurement for churches and
effecting no change in the beginning measuring point for
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establishments seeking a license, we find that the legislature
did not intend to disturb the long-standing precedent that
measurement from the establishment seeking a license is to be
made from its property line. Bruso, 178 Ill. 2d at 458-59. The
Commission did not set forth, and we have not found, any support
for its assertion that the measurement is to be taken from the
portion of the establishment's building actually used for its
business activities. It is thus clear that the Commission
applied the wrong standard of measurement at both ends, and we
review the propriety of its ultimate conclusion that petitioner
met the statutory distance requirement to allow it to be
licensed.
The record reveals that the measurement submitted by Ramirez
did not conform to section 6-11(a) and therefore its result does
not support the conclusion drawn by the Commission. The
measurement taken by Volino the second time, however, was done in
conformity with that statute and shows that Lakeview's
establishment was within 100 feet of a church. Volino measured
from the northeast corner of the unused portion of Lakeview's
building, to the northwest corner of the portion of the church
building used for worship and found that distance to be 57 feet.
Although Volino testified that he measured from the corner of the
billiard hall building, rather than the property line, the close
proximity of the neighboring residence suggests that the building
is on the property line. In any case, measurement from the
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property line, rather than the building, would only result in a
shorter distance to the church. We therefore find that the
issuance of a liquor license would violate section 6-11(a), and
the Commission's decision to the contrary was therefore clearly
erroneous.
Accordingly, we reverse the decision of the circuit court
and reinstate the decision of the LLCC. See O'Boyle v. Personnel
Board of City of Chicago, 119 Ill. App. 3d 648, 657 (1983).
Circuit court reversed; LLCC decision affirmed.
CAHILL and GARCIA, JJ., concur.
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