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].” 384 Ill. App. 3d at 35. 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 Chicago 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 (“ ‘[tjestimony 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 affirm 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. 384 Ill. App. 3d at 36. 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.” 384 Ill. App. 3d at 30. 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 ruled differently in the first instance.” 384 Ill. App. 3d at 32.
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 (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.” 384 Ill. App. 3d at 35. 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 revocation 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.