IN THE CIRCUIT COURT OF COOK COUNTY,ILLINOIS

COUNTY DEPARTMENT,CHANCERY DIVISION

GENERAL CHANCERY SECTION

GREEN DOLPHIN INC., AN ILLINOIS

CORPORATION,

Plaintiff, Case No. 2016 CH 14803

v.
Calendar 03
CITY OF CHICAGO,DEPARTMENT OF
Honorable Franklin U. Valderrama
BUSINESS AFFAIRS &CONSUMER
PROTECTION,
Defendant.

MEMORANllUM OPINION AND ORDER

This matter comes to be heard on Petitioner, Green Dolphin's Petition for Judicial
Review by Writ of Certiorari. For the reasons that follow, the Petition is denied.
BACKGROUND

Plaintiff, Green Dolphin, Inc., ("Green Dolphin") is an Illinois corporation which

operates a tavern also known as Rio Chicago, located at 2200 N. Ashland in Chicago. Green
Dolphin has a tavern liquor, late hour liquor, outdoor patio, and public place of amusement
licenses issued by the City of Chicago (the "City").

On October 23, 2016, while inside Green Dolphin, a patron drew and pointed a firearm at
other patrons. The patron then left Green Dolphin, entered a car and fired multiple shots in the
direction of Green Dolphin, injuring a security guard inside (this incident is hereinafter referred
to as the "Incident")

On October 26, 2016, a Summary Closure Order (the "Summary Closure Order") was
issued in the name of Eddie T. Johnson, Superintendent of the Chicago Police Department (the
"Superintendent"), summarily closing Green Dolphin on the grounds that the establishment
presented a threat to public safety.

On November 1, and November 2, 2016, the City of Chicago Department of Business

Affairs &Consumer Protection (the "Department") conducted a probable cause hearing on the
summary closure of Green Dolphin (the "Hearing"). The only witness who testified at the
Hearing was Sergeant Charles Mammoser ("Sergeant Mammoser").

Green Dolphin argued at the Hearing's closing arguments, that the Investigation Report
leading to the summary closure of Green Dolphin was completed by Officer Nicole Carrethers
("Officer Carrethers"), and approved by Sergeant Mammoser, Lieutenant Patrick O'Malley
("Lieutenant O'Malley") and Commander Karen Konow ("Commander Konow"), not the
Superintendent. As such, Green Dolphin argued that the City did not prove that the
Superintendent found that Green Dolphin presented a "public safety threat" by a preponderance
of the evidence. Green Dolphin also argued that there was no evidence that it was the
Superintendent's order to summarily close the Green Dolphin as required under Section 4-4-285
of the Code ofthe City of Chicago (the "Code"). The City responded that the statute provided for
the Superintendent or a designee to issue the Summary Closure order.

The Hearing Commissioner found, among other things, that: (1) the Superintendent of
Police issued the Summary Closure Order as authorized under Section 4-4-285 of the Code;(2)
that on October 23, 2016 a violent offense as defined in section 4-4-285 of the Code occurred;
(3) that Green Dolphin had a history of violent incidents, including a double homicide;(4) that
Green Dolphin had failed to take adequate steps to prevent disturbances of the peace and
criminal activity; (5) that Green Dolphin did not present any evidence to contradict or mitigate
evidence presented by the City; (6) that upon the totality of the circumstances and by a
preponderance of the evidence, the Superintendent reasonably and correctly determined that
continued operation of Green Dolphin presented a danger to the public and that;(7) pursuant to
Section 4-4-285 of the Code Green Dolphin should remain closed until Apri126, 2017. After the
Hearing, the City issued the aforementioned findings of fact and issued an Order affirming the
Summary Closure Order.

On November 14, 2016, Green Dolphin filed atwo-count complaint against the
Department seeking judicial review by writ of certiorari, Count I; and a temporary restraining
order, preliminary and permanent injunction, Count II. Also on November 14, 2016, Green
Dolphin filed a motion for temporary restraining order, which the Court denied November 22,
2016.

On December 6, 2016, Green Dolphin filed its brief in support of its Petition for Writ of
Certiorari (the "Petition"). The Petition is presently before the Court.

ADMINISTRATIVE REVIEW STANDARD

The Municipal Code of the City of Chicago states: "Right of review. Any order of the
mayor issued under this section may be appealed to a court of competent jurisdiction or as
otherwise provided by law." Chicago Municipal Code 4-4-285 (i). When the act conferring
power on an agency does not expressly adopt the Administrative Review Law (735 ILCS 5/3-
101, et seq.) and does not provide for another form of review, a party may obtain circuit court
review of an administrative decision through a common law writ of certiorari. Finnerty v.
Personnel Bd., 303 Ill. App. 3d 1, 8 (1st Dist. 1999). Review of an administrative decision
pursuant to a writ of certiorari is the same as a review pursuant to the Administrative Review
Law. Miles v. Hous. Auth., 2015 IL App (1st) 141292, 24.

On administrative review, the standard of review applied by the trial court depends on the
issues presented on review. Express Valet Inc. v. City of Chi., 373 Ill. App. 3d 838 (1st Dist.
2007). There are three types of questions that courts may encounter on administrative review of
an agency's decision:(1) questions of fact,(2) questions of law, and (3) mixed questions of fact
and law. Cinkus v. Vill. of Stickney Mun. Officers Electoral Bd., 228 Ill. 2d 200, 210 (2008).
However, under any standard of review, a plaintiff to an administrative proceeding bears the
burden of proof, and relief will be denied if he or she fails to sustain that burden. Marconi, 225
Ill. 2d at 532.

2
 On administrative review, an administrative agency's findings and conclusions offact are
deemed to be primafacie true and correct. 735 ILCS 5/3-110(West 2012); O'$oyle v. Personnel
Bd. of Chi., 119 Ill. App. 3d 648, 653 (1st Dist. 1983). Consequently, when a decision presents
purely a question of fact, the standard of review to be applied is whether the findings of fact are
against the manifest weight of the evidence. Belvidere v. Ill. State Labor Relations Bd., 181 Ill.
2d 191, 204 (1998). An administrative agency's factual findings are against the manifest weight
of the evidence if no trier of fact could have agreed with the agency or an opposite conclusion
than that reached by the agency is clearly evident. Wade v. City of North Chi. Police Pension
Bd., 226 Ill. 2d 485, 505 (2007). In examining an administrative agency's factual findings, a
reviewing court does not weigh the evidence or substitute its judgment for that of the agency.
Cinkus, 228 Ill. 2d at 210. Indeed, "a reviewing court may not re-evaluate the credibility of
witnesses or resolve conflicting evidence." Alden Nursing Ctr.-Morrow, Inc. v. Lumpkin, 259
Ill. App. 3d 1027, 1033 (lst Dist. 1994). If the issue before the reviewing court is merely one of
conflicting testimony and credibility of witnesses, the administrative board's decision should be
sustained. O'Bovle, 119 Ill. App. 3d at 653. Because the weight of the evidence and the
credibility of the witness are within the province of the agency, there need only be some
competent evidence in the record to support its findings. Trettenero v. Police Pension Fund of the
City of Aurora, 333 Ill. App. 3d 792, 802 (2d Dist. 2002). Although "manifest weight of the
evidence" is a high standard of review, it does not relieve the court of its duty to examine the
evidence in an impartial manner and set aside an agency order that is unsupported in fact. Boom
Town Saloon, Inc. v. Citv of Chi., 384 Ill. App. 3d 27, 32 (1st Dist. 2008). When there is
evidence to support the agency's findings, its decision will be affirmed. Commonwealth Edison
Co.. v. Prop. Tax Appeal Bd., 102 Ill. 2d 443,467(1984).

When an agency's decision comes before a trial court challenging a question of law, the
agency's findings are not binding on a reviewing court and the agency's decision is reviewed de
novo. Cinkus, 228 Ill. 2d at 210. While an agency's interpretation of a statute is a question of
law, a court should afford substantial deference to an agency's interpretation of a statute which
the agency administers, as an agency is presumed to make informed judgments based on its
experience and expertise substantial deference should be given to its statutory interpretation.
Kaszynski v. Ill. Dept of Public Aid, 274 Ill. App. 3d 38,41 (3d Dist. 1995); Swoope v. Ret. Bd.
of the Policemen's Annuity &Benefit Fund, 323 Ill. App. 3d 526, 529(1st Dist. 2001).

Finally, mixed questions of law and fact are questions in which the historical facts are
admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy
the statutory standard. Cinkus, 228 Ill. 2d at 210. Where a question of an agency's decision is a
mixed question of law and fact, it is subject to the "clearly erroneous" standard of review.
Marconi v. Chi. Heights Police Pension Bd., 225 Ill. 2d 497, 532 (2006). An administrative
agency's decision is deemed "clearly erroneous" when the reviewing court is left with the
definite and firm conviction that a mistake has been committed. Cinkus, 228 Ill. 2d at 210.

DISCUSSION

As a preliminary matter the Court notes that the parties disagree as to the standard of
review applicable in this case. As best as the Court can discern, Green Dolphin argues that both,
the de novo and manifest weight of the evidence standards of review apply. Green Dolphin,
however, does not apply either standard to any particular argument. The Department, on the
other hand, contends that the appropriate standard of review is the manifest weight of the
evidence. For the reasons stated, infra, the Court agrees with the Department that this matter
presents a question of fact, and will therefore apply the manifest weight of the evidence standard.

Green Dolphin argues that Section 4-4-285 of the Code only provides for the
Superintendent or his authorized designee to issue a summary closure order. However, asserts
Green Dolphin, it was neither the Superintendent nor an authorized designee who issued the
summary closure order; it was Commander Konow. Green Dolphin maintains that Chicago
Police Department Special Order 504-26-16 (the "CPD Special Order") supports the contention
that Konow was not the Superintendent's authorized designee under Section 4-4-285 of the
Code, and as such, she was not authorized to issue the Summary Closure Order.

Furthermore, contends Green Dolphin, there was no evidence that the Superintendent or
his authorized designee reasonably determinedbased on data or informationthat continued
operation of Green Dolphin presented a danger to the public because it was neither the
Superintendent nor his authorized designee the one who issued the Summary Closure Order.

The Department initially notes that Green Dolphin did not raise the issue of whether
Commander Konow was the Superintendent's designee for purposes of the Summary Closure
Order at the Hearing and as such, the Green Dolphin waived this argument. The Department
further contends that Green Dolphin provided no evidence at the Hearing and did not cross-
examine the only witness as to whether Commander Konow was acting ultra vices. The
Department further notes that Green Dolphin does not dispute the facts and findings presented at
the Hearing, specifically, that continued operation of Green Dolphin presented a danger to the
public. As for Green Dolphin's contention that the City did not prove that the Superintendent
issued the Summary Closure Order, the Department contends that the Code does not require that
the Superintendent "personally" issue the closure order; it also provides that such order may be
issued by his or her designee. The Department asserts that Commander Konow was the
Superintendent's designee.

As a preliminary matter, the Court notes that Green Dolphin relies on the CPD Special
Order to support its contention that Commander Konow, as the Commander of the Vice and
Asset Forfeiture Division, does not qualify as a designee of the Superintendent under Section 4-
4-208 of the Code. As such, the gravamen of Green Dolphin's argument is that it was neither the
Superintendent nor his designee the one who issued the Summary Closure Order as required by
the Code. However, the Court agrees with the Department that the argument of whether the
Summary Closure Order was issued by a proper designee of the Superintendent was forfeited by
Green Dolphin through its failure to raise it at the Hearing."When an argument, issue or defense
is not presented in an administrative hearing, it is procedurally defaulted and may not be raised
for the first time before the circuit court on administrative review." Shachter v. City of Chicago,
2014 IL App (1st) 103582, 88. This rule is based on the demands of orderly procedure and the
justice : of holding a party to the results of his or her conduct where to do otherwise would
surprise the opponent and deprive the opponent of an opportunity to contest an issue in the
tribunal that is supposed to decide it. Cinkus, 228 Ill 2d at 212. In addition, "raising an issue for
the first time in the circuit court on administrative review is insufficient." Id. The rule of
procedural defaults specifically requires raising an issue before the administrative tribunal
rendering a decision from which an appeal is taken to the courts. Id. at 213. "Given that in
administrative review cases, the circuit courts act as the first-tier courts of review, the reason and
logic behind that requirement are clear." Id. As such, the Court will not address this argument.

Based upon Green Dolphin's arguments, the Court finds that the matter presents a
question of fact. The issue on administrative review is, therefore, whether the Summary Closure
Order was issued by the Superintendent as provided under Section 4-4-285 of the Code, and the
Court will apply the manifest weight of the evidence standard ofreview.

The Court first examines the relevant language of the Code. In doing so, the Court notes
that "municipal ordinances are interpreted using the same general rules of statutory
interpretation" and therefore, the Court will apply the general principles applicable to statutory
construction in its review of the relevant Code provisions. Landis v. Marc Realty, L.L.C., 235 Ill.
2d 1, 7(2009).

In construing a statute, a court's task is to "ascertain and give effect to the legislature's
intent," the most reliable indicator of which is "the language of the statute, which is to be given
its plain and ordinary meaning." Solon v. Midwest Med. Records Assn, 236 Ill. 2d 433, 440
(2010). To determine the plain meaning of statutory terms, a court should "consider the statute
in its entirety, the subject it addresses, and the apparent intent of the legislature in enacting it."
Id. "When the statutory language is clear and unambiguous, it must be applied as written,
without resort to extrinsic aids of statutory construction." Id. However, a court may consider
extrinsic aids of construction if a statute is capable of being reasonably understood in two or
more different ways. Id. An ambiguous statute should be construed "to avoid rendering any part
of it meaningless or superfluous." Id. at 440-41. A presumption also exists "that the legislature
did not intend absurd, inconvenient, or unjust consequences." Id. at 441.

Section 4-4-285 of the Code provides in relevant part:

a. Definitions. As used in this section:

"Summary closure" or "summarily closed" means the immediate cessation of all
business activities at an establishment and closure ofthe establishment.
"Public safety threat" means the occurrence of all of the following: (1) a
violent offense occurs at an establishment during the establishment's operating
hours, and (2) the violent offense involves acts of the licensee/owner, or
its employees, agents or patrons, or otherwise involves circumstances having a
nexus to the operation of the establishment, and (3)the superintendent reasonably
determines, based on data or information in the superintendent's possession, that
continued operation of the establishment presents a danger to the public.
"Superintendent" means the superintendent of police or the superintendent's
designee.

5
 "Violent offense" means the illegal discharge of a firearm; the killing of a human
being by another; aggravated assault or aggravated battery; criminal sexual
assault; or any other conduct that causes a person to suffer unconsciousness,
severe bruising, severe bleeding, disability or disfigurement.

c. Summary closure order Lifting of summary closure order When authorized.

If the superintendent determines that an establishment presents a public safety
threat, the superintendent may abate the threat by ordering the summary closure
of the establishment.

1. Manner of enforcement. The superintendent is authorized to use appropriate

means to effect the summary closure of an establishment...."
City of Chicago Municipal Code 4-4-208.

Under the plain language of the Code, either the Superintendent or his designee may
order the summary closure of an establishment if the Superintendent or his designee determine
that the establishment presents a public safety threat. City of Chicago Municipal Code, 4-4-208
(a), (c). The Court notes that the Code explicitly defines .the term "superintendent" to mean the
superintendent of police or the superintendent's designee.

The Court next turns to the evidence presented at the Hearing. The only witness at the
Hearing was Sergeant Mammoser. Sergeant Mammoser testified that he initiated the
investigation that lead to the Summary Closure of Green Dolphin. R. Ex. 4 at 8-9. Sergeant
Mammoser is assigned to the Vice Control Section, Licensing Enforcement Unit of the Chicago
Police Department. R. Ex. 4 at 7. His unit "is responsible for conducting license inspection
checks on establishments that have licenses issued by the City of Chicago." R. Ex. 4 at 7.
Sergeant Mammoser also testified that his unit also responds to the Department's requests for
follow-up investigations and that his unit does "mostly all jobs that are associated with licensed
establishments." R. Ex.4 at 8.

Sergeant Mammoser stated that he assigned Officer Carrethers to the investigation of

Green Dolphin leading to the Summary Closure Order. R. Ex. 4 at 8-13. As part of the
investigation, Sergeant Mammoser took into consideration the incident that took place on
October 23 at Green Dolphin. R. fix. 4 at 15-16, 79. Sergeant Mammoser reviewed, among other
things, a security video of Green Dolphin the night of the Incident, in which he observed that a
patron pointed a weapon at several other patrons, left the establishment and then fired his
weapon from a vehicle parked outside Green Dolphin, injuring a security guard inside. R. Ex. 4
at 21, 35-57. Sergeant Mammoser testified that there had been another incident reported at Green
Dolphin earlier the same night. R. Ex. 4 at 10. Based on the video evidence, he stated that there
were concerns about the way Green Dolphin's security handled the Incident, that "they were not
properly trained in handling their weapons or actually in security itself." R. Ex.4 at 107-108.

Sergeant Mammoser testified that other factors were taken into consideration in issuing
the Summary Closure Order. R. Ex. 4 at 79-92. He testified that from October 23, 2015 to
October 23,2016, there were 225 calls for service originating from Green Dolphin, and that there

,:~
were approximately 60 violent incidents in this time period. R. Ex. 4 at 98, 99. Sergeant
Mammoser also took into consideration a double homicide that occurred at the premises of
Green Dolphin on March 2015. R. Ex. 4 at 79. He also reviewed social media information from
Green Dolphin. R. Ex. 4 at 92. Sergeant Mammoser further testified that after the March 2015
double homicide, Green Dolphin enacted a plan to "re-brand themselves and institute safety
procedures to alleviate further issues with the club," but that Green Dolphin did not successfully
implement said plan. R. Ex. 4 at 89-97.

Based on the aforementioned evidence and the history of violent activity at Green
Dolphin, Sergeant Mammoser testified that there was a determination to issue a summary closure
order for Green Dolphin, and that said order was issued on October 26, 2016.. R. Ex. 4 at 101,
108. Sergeant Mammoser testified that his Commander issued the Summary Closure Order. R.
Ex. 4 at 106. Finally, Sergeant Mammoser testified that the Notice to Owner with the Summary
Closure Order states that the Business was closed by Order of the Superintendent. R. Ex. 4 at
102.

Additional evidence presented at the Hearing included a copy of the Summary Closure
Order and an Investigation Report dated October 26, 2016 prepared by Officer Carrethers. The
Summary Closure Order states: "Business Closed By Order of the Superintendent of Police" and
shows an effective date of October 26, 2016. R. Ex. 3. The Summary Closure Order further
states that "the Superintendent of Police has determined that this establishment presents a public
safety threat..." R. Ex. 3. The Investigation Report lists Sergeant Mammoser as an Investigating
Sergeant and Officer Carrethers as an Investigating Officer. The conclusion of the Investigation
Report states that Officer Carrethers recommended "an immediate revocation... due to the
multitude of `Calls for Service' and violent incidents associated with the establishment." R. Ex.
3. The final page of the Investigation Report shows that it was approved by Sergeant Mammoser,
Lieutenant O'Malley and Commander Konow. R. Ex. 3.

The Court agrees with the Department that the Hearing Commissioner's finding that the
Superintendent issued the Summary Closure Order is not against the manifest weight of the
evidence. As stated above, the Code states that the term "Superintendent" for purposes of
summary closure orders means the Superintendent or his designee. Sergeant Mammoser testified
that the Summary Closure Order was issued by his Commander and that that Green Dolphin was
closed by order.of the Superintendent. R. Ex. 4 at 102. Moreover, the Summary Closure Order
itself states, in capital letters: "BUSINESS CLOSED BY ORDER OF THE
SUPERINTENDENT OF POLICE." R. Ex. 3. Green Dolphin presented no evidence at the
Hearing, and did not make any argument that Commander Konow was not a proper designee
under the Code.

Therefore, based on the aforementioned evidence, the Court finds that the Hearing
Commissioner's finding that the Superintendent issued the Summary Closure Order is not
against the manifest weight of the evidence.

7
 CONCLUSIpN

For the aforementioned reasons, the City of Chicago Department of Business Affairs &
Consumer Protection's Order Affirming Summary Closure Order is a fir d -~----~.-___~___~ _ ._
~~"~
Jl1DtiE FRAMftI.IN U 99E5 ~!aL()~(t1~ANIA1966
a~
DEB x _ J 20~~
r~o~oT~ :.~e~;v~,~
ENTERED: ~~~~K AF THE CIRCUIT GOUR1'
OF COOK COUNTY, IL
D~PIlTY CLERK

Franklin U. Valderrama
Judge Presiding

DATED: February 28, 2017