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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