author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES SCOTT CHRISTY, Defendant-Appellee.
    Fourth District
    No. 4—90—0025
    Opinion filed December 12, 1990.

      Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Jon McPhee, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

The State appeals the trial court’s order dismissing charges against defendant with prejudice. We affirm.

Defendant was charged by information on June 22, 1987, with battery, aggravated battery, aggravated assault, and resisting a peace officer. Defendant posted bond and was ordered to undergo any psychiatric or medical treatment that was prescribed for him.

On October 9, 1987, the question of competency was raised, and the court ordered defendant examined for psychiatric reasons. The court received an impounded letter from the examining physician on January 26, 1988, and on June 1, 1988, set the cause for review on the question of competency. On June 14, 1988, the court ordered defendant evaluated on the question of legal competency and fitness to stand trial. Defendant waived a jury trial as to the issue of incompetency on December 16, 1988, and the State presented evidence. Defendant did not present evidence. On December 23, 1988, the court found defendant incompetent to stand trial based upon his inability to understand the charges against him and his inability to assist his counsel in his defense. The court also found there was not a substantial probability that defendant would become competent to stand trial in one year.

On December 29, 1988, the matter was reassigned to another judge, who ordered both parties to appear for a status review. The court further ordered the parties to consider proceedings pursuant to sections 104 — 23 (unfit defendants) and 104 — 25 (discharge hearing) of the Code of Criminal Procedure of 1963 (Code), to bring the matter to a conclusion. (Ill. Rev. Stat. 1987, ch. 38, pars. 104 — 23, 104 — 25.) At the status hearing, the court, in a written order, noted that defendant was currently in treatment and set the matter for a hearing on May 3,1989, pursuant to sections 104 — 23 and 104 — 25.

On May 3, 1989, a discharge hearing was held pursuant to sections 104 — 23 and 104 — 25 of the Code. The record does not reveal who requested the hearing. After argument by counsel, the court found that defendant was not a person to be discharged under section 104 — 25(d). (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 25(d).) The court found defendant “guilty of all counts beyond a reasonable doubt” for purposes of the discharge hearing, but did not extend the treatment period pursuant to section 104 — 25(d)(1) of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 25(d)(1).) After hearing arguments as to defendant’s disposition, the court ordered defendant remanded to the custody of the Illinois Department of Mental Health and Developmental Disabilities (Department) for proceedings pursuant to section 104— 23(b)(3). (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(3).) The court’s order specified that if defendant was not committed to the Department, he was to be remanded to the court for disposition pursuant to subsection (b)(1) or (b)(2) of section 104 — 23 of the Code. (Ill. Rev. Stat. 1987, ch. 38, pars. 104 — 23(b)(1), (b)(2).) A hearing was held pursuant to statutory provisions governing the Department, and defendant was not committed to the Department.

On November 20, 1989, defendant filed a motion to dismiss the charges pursuant to section 104 — 23(b)(2) of the Code. Defendant alleged in his motion that the court had previously found him unfit and that there was not a substantial probability he would become fit to stand trial or to plead within one year from the date of the original finding of unfitness. Defendant also noted that a discharge hearing had been held pursuant to section 104 — 25, and a commitment hearing had been held pursuant to section 104 — 23(b). Defendant concluded that the only alternative available for the court was the dismissal of charges with prejudice.

The court held a hearing on defendant’s motion to dismiss on December 18, 1989. No evidence was presented. The State argued that section 104 — 23 of the Code provides “the State shall request the court” to dismiss the charge, and the statute does not grant the court authority to dismiss the charge on its own motion. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b).) The State asked the court to review the matter and order defendant reevaluated, noting that the original finding of incompetency had been made within the year. The State made clear that it did not wish to dismiss the charges with prejudice.

The court granted defense counsel’s motion to dismiss the charges pursuant to section 104 — 23(b)(2), and stated:

“The court has considered the arguments of counsel. So far as I am concerned the procedures for this type of proceeding are strictly provided for by statute and must be adhered to and so far as the court is concerned the court has no discretion. And the record should reflect that the other procedures provided for by statute have been followed and complied with. And I would have to agree under the circumstances, while I don’t, I don’t philosophically agree with the way the matter should be terminated, but pursuant to the statute I think it’s mandatory that the case be dismissed with prejudice. So the motion will be sustained. And please show in the order that it is sustained pursuant to the requirements of ch. 38, sec. 104 — 23.”

The State filed a timely notice of appeal.

The Code provides that the issue of a defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State, or the court at any time before a plea is entered, or before, during, or after trial. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 11(a).) A defendant is unfit to stand trial or be sentenced if he is unable to (1) understand the nature and purpose of the proceedings against him; or (2) assist in his defense. Ill. Rev. Stat. 1987, ch. 38, par. 104 — 10.

If the court or jury finds a defendant unfit to stand trial, it must then determine whether there is a substantial probability that the defendant, if provided with a course of treatment, will attain fitness within one year. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 16(d).) If the court or jury finds there is not such a substantial probability, the court shall proceed as provided in section 104 — 23 of the Code (unfit defendants). (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 16(d).) Under section 104 — 23, the defendant may request a discharge hearing. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(1).) The discharge hearing enables an unfit defendant to have the charges dismissed if there is not enough evidence to prove he committed the acts charged beyond a reasonable doubt. However, if the discharge hearing does not result in an acquittal of the charge, the court may remand the defendant for further treatment, and extend the treatment period — up to 15 months for a Class 2, 3, or 4 felony; up to two years for a Class 1 or X felony; and up to five years for a charge of first-degree murder. Ill. Rev. Stat. 1987, ch. 38, pars. 104-25(d)(l), (d)(2).

Section 104 — 23 also provides that if the court determines there is not a substantial probability that the defendant will attain fitness within a year, “the State shall request the court” to (1) set the matter for a discharge hearing pursuant to section 104 — 25; (2) dismiss the charges with prejudice; or (3) remand defendant to the Department to determine if he should be involuntarily committed under the civil standard. Section 104 — 23 does not provide for a reevaluation hearing to determine if defendant would become fit, or was presently fit, to stand trial.

The State maintains the court abused its discretion in several ways. First, the State argues the court erred by moving for the discharge hearing on its own motion. The court’s action, the State contends, was not allowed by the statute, which provides that only the defendant or the State may request a discharge hearing. The State next argues that the court erred by subsequently ordering defendant remanded to the Department on its own motion. The State notes the language of 104 — 23(b), the “State shall request the court” to proceed under one of the subsections. (Ill. Rev. Stat. 1987, ch. 38, par. 104— 23(b).) The language of a statute must be given its plain and ordinary meaning. (People v. Moore (1978), 69 Ill. 2d 520, 372 N.E.2d 666.) The State maintains the plain and ordinary meaning of section 104 — 23 is that the court may only hold a discharge hearing after either a defendant or the State requests one, and that the court may only proceed under section 104 — 23(b) after the State requests it to do so. The State also argues the trial court’s actions here violated the doctrine of separation of powers.

There is no indication in the record who requested the discharge hearing, but the State asserts that the court “probably” held the hearing on its own motion. There is also no indication in the record of who requested the court to remand defendant to the Department, but the State argues that the court remanded defendant to the Department on its own motion. We note that the State, as appellant, has the duty to provide this court with a record to support its contentions. (107 Ill. 2d Rules 323(c), (d).) The State has failed to include in the record the transcripts of the status review hearing of March 31, 1989, where the court thereafter set the cause, for a discharge hearing, and the transcript of the May 3, 1989, discharge hearing, where the court thereafter remanded defendant to the Department. We cannot speculate on what might have occurred during these hearings, whether the court acted on its own motion, whether one of the parties requested the action, or even whether the State objected to the procedure. We must presume that the trial court’s actions were in conformity with the law. (People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261.) We also note that the record does not reflect, and the State does not contend on appeal, that the State objected to the court’s procedure in the trial court. Issues not raised in the trial court are generally considered waived on appeal. The principle of waiver applies to the State as well as the defendant in a criminal case. People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441.

The State next argues that the trial court erred in granting defendant’s motion to dismiss, and claims the court’s action violated the language of the statute, and the doctrine of separation of powers. The State argued at the trial court level, and argues on appeal, that the court erred because section 104 — 23(b) provides “the State shall” request the court to proceed under one of the subsections. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b).) Defendant had just been released by the Department after a hearing conducted pursuant to section 104 — 23(b)(3). The State contends it then had the right to request the court to proceed under subsection (b) of section 104 — 23 before the court proceeded. The State, however, overlooks the last sentence of subsection (b)(3), which provides that a defendant who has been remanded to the Department for a civil commitment hearing and has not been committed “shall be remanded to the court having jurisdiction of the criminal matter for disposition pursuant to subparagraph (1) or (2) of paragraph (b)” of section 104 — 23. Thus, once a defendant has been released by the Department after a hearing conducted pursuant to section 104 — 23(b)(3), the court, and not the State, must determine whether to hold a discharge hearing pursuant to subsection (b)(1) or dismiss the charges with prejudice under subsection (b)(2). Because a discharge hearing had already been held, the trial court had no other option than to proceed under subparagraph (b)(2) and dismiss the case with prejudice.

We briefly note that the trial court’s dismissal of the charges here does not violate the doctrine of separation of powers as the State argues. If the State’s argument had merit, the speedy-trial statute (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5) or any of the statutes of limitations would also violate the doctrine of separation of powers, as they also allow courts to dismiss charges with prejudice.

The State also contends that the court has the discretion in this instance to order a reevaluation hearing. We disagree. The statute does not provide for a reevaluation hearing, and there is no independent rule of law that would provide the basis for such a hearing. While the State argues that the court in People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105, held that the defendant had the right to a reevaluation hearing under section 104 — 23, the situation in Lang was much different than the situation here. Moreover, the court in Lang held that defendant was entitled to a reevaluation hearing based upon the due-process clause, which does not apply to the State.

Finally, the State includes in its appeal the argument that the trial court abused its discretion in not extending the treatment period after the discharge exam pursuant to section 104 — 25(d)(1) of the Code. We are unable to review this claim, however, as no transcript of the discharge hearing or any evidence concerning the hearing has been provided in the record on review.

Accordingly, the trial court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    COLIN STRANG, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.
    Fourth District
    No. 4—90—0135
    Opinion filed December 12, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Thomas R. Appleton and Elizabeth W. Anderson, both of Morse, Giganti & Appleton, of Springfield, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

The Illinois Department of Transportation (IDOT), the Board of Review of the Illinois Department of Employment Security (Department), and Sally A. Jackson, Director of the Illinois Department of Employment Security (defendants), appeal from the order of the circuit court of Sangamon County reversing defendants’ decision to deny Colin Strang (plaintiff) unemployment benefits. We reverse the order of the circuit court and reinstate the decision of the Board of Review.

Plaintiff was employed by IDOT from June 1981 through December 1987 as a civil engineer. On March 14, 1988, plaintiff submitted an application for unemployment insurance to the Department. Plaintiff’s application stated that he decided to leave his job with IDOT on December 24, 1987, to take a job in California. On that day, he notified his supervisor by telephone that he would not be returning to work. Although plaintiff told his supervisor that he was dissatisfied with the ratings he received in his employee evaluation, he contends that his decision to quit his job was in fact a product of mental illness.

Shortly after the plaintiff submitted his application, IDOT notified the Department that plaintiff was ineligible for benefits because he had voluntarily left his job. The matter proceeded to a Department claims adjudicator. After reviewing the evidence submitted by the plaintiff, the claims adjudicator determined that plaintiff was ineligible for benefits because he left work voluntarily without good cause attributable to his employer. Plaintiff filed an application for reconsideration of the adjudicator’s decision. On reconsideration, the decision was affirmed. Plaintiff then filed a departmental appeal. A Department hearing referee affirmed the decision of the claims adjudicator. Plaintiff appealed the hearing referee’s decision to the Department’s Board of Review. On July 19, 1988, the Board of Review affirmed the findings of fact and the decision of the referee.

Plaintiff filed a complaint for administrative review in the circuit court of Sangamon County on August 22, 1988. The complaint named the “State of Illinois, Department of Employment Security” as the only defendant. Plaintiff also served the complaint on the “Illinois Department of Employment Security.” The Department entered an appearance on September 6, 1988, by its attorneys from the Illinois Attorney General’s office and filed a motion to dismiss plaintiffs complaint for lack of jurisdiction. The motion stated that plaintiff’s failure to name and serve the Board of Review, the Director of the Department, and IDOT as party defendants within 35 days of the Board of Review’s decision rendered plaintiff’s complaint fatally defective. On March 23, 1989, more than eight months after the Board of Review had issued its final administrative decision, plaintiff filed an amended complaint naming the Board of Review, the Director of the Department, and IDOT as defendants.

The court entered an order on January 5, 1990, reversing the Board of Review’s decision to deny the plaintiff unemployment compensation. The court found that plaintiff’s mental illness rendered him incapable of voluntarily leaving his employment for purposes of section 601 of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 431).

Defendants appeal, contending that the circuit court lacked subject-matter jurisdiction over plaintiff’s complaint for administrative review because plaintiff failed to name and serve the necessary parties within 35 days of the final administrative decision. As the plaintiff’s failure to name the necessary parties in a timely manner was sufficient to deprive the court of subject-matter jurisdiction, we need not address the effect of plaintiff’s failure to issue summons within the statutory time frame.

• 1, 2 Section 1100 of the Act provides that the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.) “shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Director or Board of Review.” (Ill. Rev. Stat. 1987, ch. 48, par. 520.) Section 3—103 of the Administrative Review Law in turn provides that “[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1987, ch. 110, par. 3—103.) Section 3—107 of the Administrative Review Law prescribes who must be named and served in an action for administrative review:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” Ill. Rev. Stat. 1987, ch. 110, par. 3 — 107.

The Illinois Supreme Court’s recent decision in Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, provides the controlling interpretation of the foregoing provisions of the Administrative Review Law. In Lockett, Stafford E. Lockett III was discharged from his position as a Chicago police officer by the police board. Lockett filed a petition for administrative review pursuant to the Administrative Review Law within 35 days of the board’s decision. He named and served the board and its individual members as defendants. The board subsequently filed a motion to dismiss Lockett’s complaint, alleging that the superintendent was a necessary party to the administrative review action and that Lockett’s failure to name him in his complaint was a fatal defect.

The circuit court found that Lockett’s failure to name the superintendent as a defendant in the administrative review action deprived the court of jurisdiction. Accordingly, the court dismissed Lockett’s complaint without granting leave to amend. The appellate court determined that the superintendent was not a necessary party and reversed the judgment of the circuit court. Lockett v. Chicago Police Board (1988), 176 Ill. App. 3d 792, 531 N.E.2d 837.

The Illinois Supreme Court reversed the decision of the appellate court. In its decision, the supreme court first determined that the appellate court’s conclusion that the superintendent was not a necessary party “ignores the clear and unambiguous language of [section 3— 107], which requires that ‘all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.’ ” (Emphasis in original.) (Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268.) The court then concluded that the circuit court properly denied Lockett leave to amend his complaint:

“As noted previously, section 3 — 103 of the act provides that an action to review an administrative decision shall be commenced ‘by the filing of a complaint and the issuance of summons within 35 days’ of receipt of the decision being appealed. (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 103.) The requirement that a complaint be filed within the 35-day limit is jurisdictional; if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred.” Lockett, 133 Ill. 2d at 354-55, 549 N.E.2d at 1268.

• 3 In reaching its decision, the Lockett court expressly overruled the decisions of several appellate districts which held that the failure to name necessary parties within the 35-day time limit may be cured by subsequent amendment. (Lockett, 133 Ill. 2d at 356, 549 N.E.2d at 1269.) Among the decisions expressly overruled by Lockett is this court’s opinion in Bradshaw v. Barnes (1986), 145 Ill. App. 3d 866, 496 N.E.2d 276.

Plaintiff concedes that Lockett is factually similar to this case and does not dispute the defendants' contention that the Board of Review, the Director of the Department, and IDOT are necessary parties to the instant proceeding. Plaintiff merely contends that Lockett, which was decided almost one year after the plaintiff was granted leave to amend his complaint, cannot be applied retroactively to bar administrative review in this case. We disagree.

• 4 Historically, overruling decisions have been given retroactive effect. In People v. Laws (1981), 84 Ill. 2d 493, 419 N.E.2d 1150, the Illinois Supreme Court described the principle of retroactive application and explained that the United States Supreme Court did not recognize a State court’s power to apply its decisions prospectively only until 1932:

“At common law there was no authority to support the proposition that judicial decisions were to be applied prospectively only. Under what has come to be known as Blackstonian reasoning, the courts did not pronounce or make new law, but rather declared or discovered existing law. [Citations.] However, in Great Northern R.R. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 77 L. Ed. 360, 53 S. Ct. 145, it was held that a State court, in defining the limits of adherence to precedent, may make a choice for itself between prospective and retroactive application of its decision.” (Laws, 84 Ill. 2d at 498, 419 N.E.2d at 1153.)

Laws suggests that an overruling decision is presumed to have retroactive effect in the absence of an express statement to the contrary. Because Lockett is silent as to the scope of its application, we must presume that it is to be retroactively applied.

Plaintiff contends that the equities of this case counsel in favor of prospective-only application of Lockett. However, the Illinois Supreme Court has consistently stated that it is within the inherent power of the highest court of this State to give a decision prospective or retroactive application. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 328-29, 547 N.E.2d 437, 448; Board of Commissioners v. County of Du Page (1984), 103 Ill. 2d 422, 426, 469 N.E.2d 1370, 1372; Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 28, 163 N.E.2d 89, 97.) We do not have the authority to determine the effect of an overruling decision.

The highest court of this State has not mandated that Lockett is to be applied prospectively only. For this reason, we must apply Lockett retroactively and conclude that the circuit court lacked jurisdiction to review the Department’s decision to deny the plaintiff unemployment benefits. Accordingly, we reverse the order of the circuit court and reinstate the decision of the Board of Review.

Reversed; decision of Board of Review reinstated.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    TANJA SHERMAN, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    Fourth District
    No. 4—89—0979
    Opinion filed December 6, 1990.

      Leahy Law Offices, of Springfield (Mary Lee Leahy and Cheryl Redfield Jansen, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Human Rights Commission.
    Samuel C. Patton, of Springfield, for respondent Quincy Country Club.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Tanja Sherman filed a charge of sex discrimination and sexual harassment against her employer, Quincy Country Club (Club) with the Department of Human Rights (Department). Following the first administrative hearing, the Illinois Human Rights Commission (Commission) adopted the findings of the administrative law judge (ALJ) and issued a decision in favor of petitioner. (In re Sherman (1983), 10 Ill. HRC Rep. 381.) On administrative review, this court reversed the Commission because the findings of the ALJ were based on credibility determinations made by a prior ALJ who resigned before a recommended decision was issued. (Quincy Country Club v. Human Rights Comm’n (1986), 147 Ill. App. 3d 497, 498 N.E.2d 316.) Following a second administrative hearing, another ALJ issued a recommended decision for petitioner. The Commission reversed the ALJ, finding his decision was contrary to the manifest weight of the evidence and dismissed petitioner’s complaint with prejudice. (In re Sherman (June 2, 1989), _ Ill. HRC Rep. _ (HRC No. 1982SN0437).) Petitioner argues the ALJ’s decision was supported by the manifest weight of the evidence and the Commission erred in reversing the ALJ’s recommended decision. We affirm the Commission.

PETITIONER’S CASE IN CHIEF

In early November 1981, petitioner interviewed for a job as a bartender at the Club after hearing about a job opening from Terry Bolt, head bartender or bar manager at the Club. Bolt and petitioner had worked together previously for another employer. According to petitioner, she was interviewed by Bolt and the Club’s manager, Jerry Carnivale. Petitioner testified Bolt told her about her job duties and hours, and that he would alternate working every other Sunday in place of petitioner. Petitioner was hired on November 12, 1981, to work in the Carnoustie Room at the Club. Petitioner stated she reported to Bolt, who scheduled petitioner to work Wednesday through Saturday from 11 a.m. to 4 p.m. and every other Sunday. Bolt also (1) told petitioner which party she worked on; and (2) determined which bartender stayed late for the parties. Petitioner stated Bolt told her if she was good, he would give her a raise.

Shortly after she began working for the Club, petitioner became involved in a sexual relationship with Bolt outside of work. In March 1982, petitioner stated she told Bolt she wanted to break off the relationship. Bolt became upset and, according to petitioner, told her he did not want to see anyone else. Petitioner testified Bolt told her if he could not work with her and be with her after work “he would either quit or go crazy, he didn’t know which.” Petitioner stated she finally terminated the relationship with Bolt on April 6, 1982. However, Bolt continued to ask petitioner out on a daily basis.

Petitioner testified that after April 6, 1982, her job duties and the conditions of her employment changed. Petitioner stated Bolt (1) required her to carry heavy boxes of liquor and glasses up the stairs from the storeroom to the dining-room area; (2) sent her home early from parties when before April 6, 1982, she was the last one to leave; (3) spoke to her in a rude manner and made snide remarks; (4) repeatedly told her she did not know what she was doing; and (5) refused to allow petitioner to take every other Sunday off. Petitioner testified the other bartenders at the Club were males and their duties did not change after April 6, 1982. Petitioner was not reprimanded for her work prior to April 6, nor made aware of any complaints about her work or conduct. Bolt was not involved in a relationship with any other bartenders at the Club while petitioner was employed there.

Petitioner began working at the Brass Tap for additional income in April 1982, while working at the Club. Bolt told petitioner not to tell Carnivale about the second job because Carnivale did not like his employees having a second job. After petitioner told Carnivale about the second job, Carnivale told petitioner it was no problem as long as the Club remained petitioner’s priority.

The last day petitioner was scheduled to work was Sunday, May 2, 1982. On that day, petitioner’s 15-month-old daughter fell down a flight of stairs at home. According to petitioner, she called Bolt at the Club on May 2, told him about the accident, and said she did not think she could come in to work. She asked Bolt to tell Carnivale. Carnivale called petitioner back a few minutes later and told her “to get her butt to work.” Petitioner told Carnivale she would arrive to work in about 10 minutes. Petitioner stated she was getting ready to take her daughter to the baby-sitter when the Club’s hostess, Michelle Gilland, called to tell her Carnivale did not want her to come in that day but the next day, Monday, at 9 a.m. Petitioner did not work on May 2 and came into the Club on Monday, but Carnivale was not there. After leaving a message for Carnivale that she had come in, petitioner left. Petitioner stated Carnivale called her on Tuesday, May 4, 1982, and stated he thought petitioner would be happier at the Brass Tap, “it was more her type of place.” Carnivale fired petitioner. Petitioner testified she never received any notice or complaint about her job performance while other employees had received such notices on occasion.

On cross-examination, petitioner stated that while Carnivale was the only person who could hire and fire employees, Bolt told petitioner the day she was to start work. Petitioner admitted she was absent from work six times from November 1981 to May 1982 and tardy 24 times. Petitioner stated Bolt was the one who told her she could leave before the end of her shift. Petitioner stated Carnivale was never around but he would “pop in” every once in a while on his way to the golf course. Petitioner stated she never left her job at the Club early to go to her second job at the Brass Tap. Petitioner also stated (1) no one told her to tie up her hair at work but she tied it up every day voluntarily; (2) she never had any complaints about improperly stocking the bar; (3) she did not read while working; and (4) if she had to leave early, Bolt would cover for her.

Regarding her termination, petitioner stated on cross-examination that on May 2 Carnivale did not tell her that she would be terminated if she did not come in. Petitioner stated when she was fired on May 4, 1982, Carnivale stated her services were no longer needed and he did not mention anything else. Petitioner stated Carnivale was the one who scheduled the work hours for employees and the only duties Bolt performed other than tending bar were the ordering of liquor and preparation of the bar inventory.

On redirect, petitioner stated a male bartender was fired and rehired within one month while she worked at the Club. Petitioner also testified she was given a cash box with a combination lock to use when working. Petitioner stated she picked up the cash box daily from the office when her shift started at 11 a.m. She was told to count the money in the box to see that it matched the receipt she signed. Often the amount of money was less than $50 as reflected on the receipt. After bringing the discrepancy to the attention of. the office staff, the discrepancy was either corrected or left alone. If there was more than $50 in the box, the office staff would correct the error. Petitioner stated four other bartenders knew the combination to her box and everyone had access to it when she was working. Petitioner stated Bolt told her to leave her cash box under the counter at the bar at the end of her shift and the night bartender would turn the box in at the end of the evening. According to petitioner, Carnivale did not tell her she had to return the cash box to the office at the end of her shift.

Carnivale testified as an adverse witness for petitioner. Carnivale had been the manager of the Club since October 1980. According to Carnivale, Bolt was in charge of ordering supplies and liquor. Carnivale testified he did not know when he hired petitioner that she had worked with Bolt previously. Carnivale was impeached with statements to the contrary he made at the first administrative hearing. Carnivale admitted he had nothing in his records to indicate petitioner’s work was not satisfactory. Carnivale brought a problem to an employee’s attention if he considered it was serious. He did not recall giving blue slips to tardy employees. He recalled that Randy Riggs, a bartender at the Club, was consistently tardy and he talked to him about his tardiness. Carnivale admitted firing Riggs in November 1981 and rehiring him in January 1982. Carnivale admitted Riggs continued to be tardy after being rehired but also stated Riggs was excellent at his job.

Rhonda Young testified for petitioner that she was employed as a bartender in the Carnoustie Room at the Club in the fall of 1981. Young stated Bolt was the manager and he called her at home one day after he changed the schedule and asked her to come into work. After Young replied she did not want to come into work, Bolt stated if Young did not come into work she would not have a job, “she did not need to go back.” Young stated she did not go back and she was fired.

Linda Cosgrove was employed as a waitress for the Club from November 1981 to April 1983. Cosgrove testified for petitioner that she overheard a conversation between Bolt and petitioner wherein Bolt stated, “If I can’t see you [petitioner] after work, I can’t work with you.”

RESPONDENT’S CASE IN CHIEF

James White testified for the Club that he was president of the Club from November 1981 to May 1982. White stated Carnivale was in charge of general supervision of the Club and had the sole authority to hire and fire employees. White stated Carnivale scheduled the hours of all employees. White testified petitioner never complained to him or any other officer about the conditions of her employment. White did not know about petitioner’s relationship with Bolt.

Kathy Tournear Libmann testified she was employed in the office of the Club and part of her responsibilities included tending to the cash boxes. Libmann testified it was the responsibility of the bartender to pick up and return the cash box to the office. Libmann stated petitioner’s cash box was short $2 to $3 on five occasions and she reported this to Carnivale. Libmann also stated it was policy that employees be on time for work and if an employee was late more than two times, the tardiness was brought to the manager’s attention and the employee was talked to about it. Libmann stated there was no question Carnivale had the sole authority to hire and fire employees.

On cross-examination, Libmann stated she made it a practice to report tardy employees to Carnivale, but she did not know how he handled the problem with the employee. Libmann recalled petitioner returned her cash box at the end of her shift during the day. If petitioner’s shift ended in the evening, petitioner would lock the cash box in a cabinet upstairs in the Carnoustie Room. Libmann stated she would immediately check the contents of the cash box against the receipt if petitioner waited, but usually petitioner handed in the box and left.

Bolt testified he had no authority to hire and fire employees and no authority over (1) scheduling employees, (2) deciding where employees were posted in the Club, (3) working conditions, (4) change of work hours, or (5) the amount of an employee’s pay. He stated he was not present when Carnivale interviewed petitioner for the job in November 1981. Bolt stated Rhonda Young was fired by Carnivale, not by him. Bolt stated he did not talk to petitioner about her job performance or make any overtures to petitioner to better or worsen her employment at the Club. Bolt stated Carnivale told employees how to do their jobs and it was a condition of employment that employees be on time for work. Bolt stated the bartenders picked up their cash box at the beginning of the shift and it was their responsibility to turn the box in and have the contents counted at the end of the shift. Bolt stated the only distinction between his job as head bartender and the other bartenders was that he did the inventory and ordered the liquor. Bolt stated he did not believe he was petitioner’s boss. Bolt stated petitioner left early a few times and a member complained petitioner was not taking drink orders from customers as she was required to when no waitresses were on duty. Bolt admitted he had a sexual relationship with petitioner, but said it was never connected with work at the Club. Bolt denied ever demanding that petitioner go out with him.

On cross-examination, Bolt stated he did not talk to petitioner on May 2, 1982, the day petitioner’s daughter fell down the stairs. Bolt testified he never told Carnivale he was seeing petitioner socially. Bolt stated if petitioner left early, she cleared it with Carnivale first. Bolt denied petitioner broke off their relationship in March or April 1982.

On redirect, Bolt stated he would cover for any of the bartenders as needed, not just for petitioner. Bolt denied (1) treating petitioner differently after April 6, 1982; (2) influencing Carnivale about other employees; and (3) stating to petitioner “if I can’t be with you after work, I can’t work with you.”

Virginia Benjamin testified she was employed as a waitress for the Club. She stated she had problems with petitioner (1) not having her bar stocked for the lunch crowds; (2) not being at her station when needed; (3) not taking table orders for drinks; and (4) not having her hair tied back at work. Benjamin did not complain to Carnivale about petitioner’s job performance. Benjamin was aware of petitioner’s relationship with Bolt and often found petitioner near Bolt’s work area when she should have been working in the Carnoustie Room.

Randy Riggs testified he was fired from his bartender position with the Club by Carnivale for one month between November 1981 and May 1982 because of a misunderstanding about a shortage in his cash box. Riggs was rehired by Carnivale after the cash problem was resolved. On cross-examination, Riggs admitted he was tardy many times before and after he was rehired by Carnivale. Riggs stated Carnivale told him. the cash shortage was a mistake and Carnivale wanted him to come back to work.

Carnivale testified he fired Rhonda Young because she would not come in to work when told to. Carnivale stated Bolt had nothing to do with Young’s termination. Carnivale stated he interviewed petitioner alone for the job and told her himself about her job duties, including the established procedure for handling the cash box. Carnivale stated he alone prepared the work schedule weekly for all employees and posted it on the employees’ bulletin board. Carnivale stated each employee was hired for a six-month probationary period.

Carnivale noticed petitioner’s work performance diminished after January 1982. When petitioner left early without his permission, Carnivale had to get someone to cover the bar in the Carnoustie Room until the night-shift bartender came in at 4 p.m. Carnivale recalled firing a male bartender who worked with petitioner for not doing his job. Carnivale stated petitioner did not tie up her hair on the job and he found her reading on the job once. Carnivale admitted there were shortages in petitioner’s cash box but did not ask her to repay them. Because petitioner frequently came in late to work, she did not always have the bar properly set up for customers. When petitioner was absent from her station, the hostess, Michelle Gilland, would cover for her.

Carnivale recalled the chef complained that petitioner was often in the kitchen when they were busy. While Carnivale was aware of petitioner’s tardiness, he did not keep a record of her tardiness. Carnivale testified he fired petitioner in May 1982 after she said she would come in to work and she did not come in. Carnivale also recalled petitioner left her station before the customers were ready to leave the Club. Carnivale stated he fired Riggs for the cash shortage and tardiness but rehired him because Riggs said he would pay to make up the shortage. Carnivale recalled firing another female employee who worked for the Club during the same time petitioner did because that employee was not performing the job properly. Carnivale stated the first time he learned of the relationship between Bolt and petitioner was at the first hearing at the Human Rights Commission in Springfield. Carnivale stated he did not change petitioner’s duties after April 6, 1982, and that her second job at the Brass Tap had no bearing on her termination. Carnivale also stated that before May 2, 1982, petitioner did not refuse to come in to work.

On cross-examination, Carnivale stated the Club was open 100 hours a week but he did not work 100 hours. When he was not working, Carnivale put the hostess in charge and Bolt was in charge of the bar. Carnivale denied that all employees knew Bolt was the bar manager. Carnivale was impeached with his statement given at the first administrative hearing in 1984 when he admitted all employees knew Bolt was the bar manager but also knew Bolt had no authority to hire and fire employees. Carnivale also stated (1) petitioner may have told him at the interview that she knew Bolt, and (2) he asked Bolt after the interview if he knew petitioner and whether she was a good worker. Carnivale stated one of the reasons why he hired petitioner was that Bolt told him she was a good worker. Carnivale admitted giving another employee written notice of her tardiness and not giving petitioner written notice even though she was tardy more than 20 times. Carnivale stated petitioner did not tell him she left her cash box with the night bartender.

REBUTTAL CASE

Petitioner testified her second job had nothing to do with not wanting to date Bolt after March 1982. Petitioner stated she was never told to return her cash box to the office at the end of her shift. Bolt told her to leave it under the cabinet at the bar for the night bartender. Petitioner also stated (1) Michelle Gilland never covered for her at work; (2) she never read at work; (3) Bolt was present at her initial interview; (4) she talked to Bolt first on May 2, 1982, then to Carnivale, and finally to Michelle Gilland; (5) she was never reprimanded by Carnivale; and (6) she never left work early.

Bolt, testifying for petitioner, stated he did not recall saying that petitioner’s second job had something to do with not seeing her after March or April 1982.

ALT’S FINDING AND ORDER

The ALJ concluded petitioner had proved by a preponderance of the evidence that she was discriminated against by the Club because of her sex and her affair with Bolt became a term and condition of her employment.

Regarding the sex discrimination charge, the ALJ found petitioner to be credible. Further, the ALJ found the petitioner established a prim a facie case that while she was not a perfect employee, her job performance was similar to the performance given by other bartenders who were males and were not terminated by the respondent. The ALJ determined the Club’s articulated reasons for firing petitioner-tardiness, leaving work early, cash shortages, refusal to tie up her hair, reading on the job — were merely a pretext for firing petitioner. After noting discrepancies in the testimony between petitioner and Carnivale from the first hearing to the second hearing in regard to the petitioner’s job performance, the ALJ found petitioner and her witnesses more credible than Carnivale and Bolt. The ALJ also accepted as true petitioner’s claim that she did not refuse to come in to work on May 2,1982.

Regarding the sexual harassment charge, the ALJ found petitioner to be more credible. The ALJ concluded that Bolt was petitioner’s supervisor and Bolt made their sexual relationship a term and condition of petitioner’s employment as evidenced by petitioner’s termination within one month after the end of the relationship. The ALJ found the Club’s reasons for firing petitioner and the fact that Carnivale was the only one who could fire employees were not credible in the face of petitioner’s witnesses and the inconsistencies in the Club’s witnesses’ testimonies. Specifically, the ALJ found (1) the testimony of Rhonda Young established that Bolt had the authority to fire employees; (2) the evidence that Carnivale supervised the bartenders more closely than waitresses or kitchen staff was not credible given that Carnivale spoke to Bolt more frequently than he spoke to petitioner; (3) Bolt was a supervisor and not only a bartender who ordered supplies based in part on the fact that Carnivale had very limited contact with petitioner and Bolt had authority to allow petitioner to leave early and to make changes in the bartenders’ schedules; (4) petitioner’s version of events on May 2, 1982, was more credible; and (5) since there was no evidence that petitioner’s work performance in the month prior to her termination was worse than her performance in the prior five months, the only reason for petitioner’s termination was her termination of the sexual relationship with Bolt.

COMMISSION’S DECISION AND ORDER

The Commission first concluded that the ALJ’s finding that petitioner was fired because she refused to continue a sexual relationship with Bolt was against the manifest weight of the evidence. The Commission, accepting the ALJ’s determination that petitioner’s evidence was more credible, noted petitioner’s actual testimony regarding Bolt’s response to her decision to end their relationship differed significantly from the ALJ’s finding. Petitioner testified that Bolt told her if he could not work with her and be with her after work “he would either quit or go crazy.” The ALJ’s finding of fact was that Bolt said “if he could not see petitioner, he could not work with her.” According to the Commission, from petitioner’s own testimony, Bolt’s statement cannot be reasonably viewed as a threat because if Bolt had supervisory authority to hire and fire employees, he would not say to an employee that he “would quit or go crazy.” Therefore, the ALJ’s finding on this fact was against the manifest weight of the evidence.

The Commission also noted the testimony regarding petitioner’s second job and Bolt’s initial reaction to it (do not tell Carnivale about it, he does not like his employees to have second jobs). The evidence was uncontroverted. According to the Commission, this evidence suggested Bolt was not seeking to get petitioner fired but rather was interested in protecting her job. The Commission considered this evidence highly relevant. Further, the Commission noted the ALJ did not make any findings of fact regarding this evidence. The Commission concluded this evidence, which concerned events just prior to petitioner’s discharge, supported one of the Club’s reasons why petitioner was fired. Thus, the ALJ’s decision was against the manifest weight of the evidence.

As to whether Bolt or Carnivale fired petitioner, the Commission found that Rhonda Young’s testimony, even if credible, did not support the ALJ's finding that Bolt fired Young. Young’s testimony established only that (1) Bolt told Young that if she did not come in to work she would be fired; and (2) Young did not go back to work after her conversation with Bolt.

Regarding the events on May 2, 1982, the Commission accepted the weight given by the ALJ to petitioner’s testimony regarding these events. Petitioner testified she told Bolt to tell Carnivale she was not coming in. This testimony, according to the Commission, established that Carnivale was in fact more involved on a day-to-day basis with the bar staff than the ALJ’s findings would support. Further, petitioner testified Carnivale did call her back within minutes of her call to Bolt, again supporting a finding that Carnivale was in charge of the staff. Additionally, petitioner stated she told Carnivale she would be in in 10 minutes. The Commission also noted that petitioner testified that Carnivale talked about her committments to her second job as being the reason she was being fired. This testimony supported a finding that Carnivale fired petitioner because of her commitments to her second job and not, as the ALJ found, because of her sex.

According to the Commission, the Gilland evidence was presented to show Carnivale's reason for firing petitioner was pretextual. However, because petitioner did not present the testimony of Gilland, who lived outside Illinois, petitioner failed to establish that Carnivale, who clearly fired petitioner on May 4, 1982, was influenced somehow by some third party to fire petitioner after she agreed to come in to work. The evidence was hotly disputed as to whether Carnivale asked Gilland to call petitioner and to tell her to stay home. The Commission concluded petitioner, who had the burden of proof, failed to establish that Carnivale alone was responsible for her termination.

Finally the evidence failed to establish that other bartenders were directly insubordinate to Carnivale but were not terminated. According to the Commission, firing an employee for insubordination was a legitimate nondiscriminatory reason. Therefore, the Commission rejected the ALJ’s recommended decision and order and dismissed petitioner’s complaint with prejudice.

ANALYSIS

A court reviewing a decision of the Commission must uphold that decision unless it is based on facts which are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 68, par. 8— 111(A)(2); Habinka v. Human Rights Comm’n (1989), 192 Ill. App. 3d 343, 371, 548 N.E.2d 702, 719; Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173, 180, 496 N.E.2d 1138, 1143.) The court may not reweigh the evidence, determine the credibility of witnesses, or substitute its decision for that of the Commission. Adams, 146 Ill. App. 3d at 180, 496 N.E.2d at 1143.

Section 8 — 107(E)(2) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(E)(2)) directs that the Commission shall adopt the ALJ’s findings of fact unless they are contrary to the manifest weight of the evidence. Where, as here, the Commission rejects some of the ALJ’s findings because they are contrary to the manifest weight of the evidence, the function of the court on administrative review is limited to ascertaining whether the Commission’s decision, not that of the ALJ, is contrary to the manifest weight of the evidence. (Habinka, 192 Ill. App. 3d at 371, 548 N.E.2d at 719-20; Adams, 146 Ill. App. 3d at 180, 496 N.E.2d at 1143.) Thus, the reviewing, court examines the actual determination of the Commission as if the Commission were the original fact finder. (Carver Lumber Co. v. Human Rights Comm’n (1987), 162 Ill. App. 3d 419, 424, 515 N.E.2d 417, 421.) If the record contains any evidence supporting the administrative agency’s decision, the decision must be sustained on review. Quincy School District No. 172 v. Human Rights Comm’n (1990), 197 Ill. App. 3d 694, 700, 555 N.E.2d 21, 26, quoting Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 194, 524 N.E.2d 1172, 1175.

In analyzing employment discrimination claims brought under the Act, the Commission and Illinois courts have adopted the three-part analysis set out in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. First, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant employer to “articulate, not prove (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089, 1097), a legitimate nondiscriminatory reason for its decision.” (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 179, 545 N.E.2d 684, 687.) If the employer carries its burden of production, the presumption of unlawful discrimination falls and the plaintiff must prove by a preponderance of the evidence that the employer’s articulated reason was not true but a pretext for unlawful discrimination. Burdim, 450 U.S. at 253, 67 L. Ed. 2d at 214, 101 S. Ct. at 1093; Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.

Petitioner argues the ALJ’s findings of fact that she established (1) a prima facie case of sexual discrimination and harassment, and (2) the Club’s reasons for firing petitioner were a pretext for discrimination are supported by the evidence and, therefore, the Commission erred in rejecting these findings.

The Club contends the decision of the Commission is correct because petitioner failed to prove that the male bartenders performed their jobs as poorly as she did but were not fired. The Club also argues petitioner failed to prove her sexual relationship with Bolt became a term and condition of her employment. The evidence established (1) the relationship with Bolt was voluntary; (2) it was conducted after work hours, outside the Club; (3) Bolt had no authority to fire petitioner; and (4) Carnivale had no knowledge of the relationship.

The Commission argues its decision was correct because the evidence failed to show that (1) petitioner’s discharge was tied to the termination of the sexual relationship between petitioner and Bolt; or (2) petitioner was treated differently than other employees when she was insubordinate on May 2,1982.

As noted, the task of the reviewing court is to determine whether the Commission’s decision is supported by the evidence. Courts are not free to look anew at the ALJ’s findings and disturb the discretion of the Commission to accept or reject the ALJ’s findings and recommendations. (Ill. Rev. Stat. 1987, ch. 68, par. 8— 107(E)(1); Adams, 146 Ill. App. 3d at 181, 496 N.E.2d at 1144.) Nonetheless, the Commission’s order must rest upon competent evidence and be supported by the record. (Acorn Corrugated Box Co. v. Illinois Human Rights Comm’n (1989), 181 Ill. App. 3d 122, 136, 536 N.E.2d 932, 941.) Thus, our review of the record will focus on whether the Commission’s findings are against the manifest weight of the evidence.

In reviewing the ALJ’s findings of fact, the Commission accepted the finding that petitioner was a credible witness, but concluded the inferences drawn by the ALJ from her testimony were not supported by the evidence. We agree. As to the sexual harassment charge, petitioner’s own testimony failed to establish Bolt reacted to petitioner’s desire to end the relationship in a manner consistent with one who had authority to fire or dictate the conditions of her employment. As to Bolt’s supervisory position, petitioner failed to present sufficient evidence on this issue. As the Commission noted, Young’s testimony established only that Bolt told Young she would lose her job if she did not come in, but not that Bolt fired Young. Further, petitioner’s testimony regarding the events of May 2, 1982, suggested strongly that Bolt did not have any authority to fire petitioner.

Petitioner relies heavily on Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054, 510 N.E.2d 1226. There, the complainant alleged his employer fired him because of his race. The Commission reversed the ALJ’s findings that the complainant’s employer terminated the complainant because of his race. The Commission concluded there was no substantial evidence the complainant was discriminated against because of race. On review, the appellate court noted the evidence clearly established complainant, who had a poor job performance record, was terminated for refusing to retract a statement regarding the racial attitudes of his employer. The case before us is easily distinguished from the Lipsey case.

Petitioner raises an issue with respect to the weight given by the Commission to the testimony regarding the actions of Michelle Gilland on May 2, 1982. Petitioner argues the Commission afforded this evidence little weight because it constituted hearsay, although no such objection to this testimony was raised before the ALJ. We conclude the Commission gave proper weight to this testimony. The record shows the Commission found Gilland’s testimony was only relevant to establish petitioner’s state of mind on May 2, 1982. The evidence did not establish what Carnivale told Gilland. Evidence establishing that Carnivale talked to Gilland on May 2, 1982, would have been highly relevant to establishing whether Carnivale used petitioner’s insubordination on May 2 as a pretext to fire her because she was a female. We find no error in the Commission’s reasoning with respect to this testimony.

Petitioner also relies heavily on the following statement Bolt allegedly made to petitioner for her claim of sexual harassment: “If he could not see her, he could not work with her.” Petitioner points out that since (1) petitioner admitted the statement was made to her in the first administrative hearing; (2) Linda Cosgrove testified at the second hearing she overheard Bolt make this statement to petitioner; (3) Bolt did not deny making the statement during the first administrative hearing or on the first day of the second administrative hearing; and (4) Bolt denied making the statement on the second day of the second hearing, the ALJ’s finding that petitioner and Cosgrove were more credible than Bolt should not have been disturbed by the Commission. We find petitioner’s contention that this one statement, if made, conclusively proves sexual harassment by Bolt untenable. The petitioner ignores her direct testimony at the second hearing wherein she testified Bolt told her “he would either quit or go crazy, he didn’t know which.” The Commission adopted the ALJ's determination that petitioner was a credible witness and concluded that petitioner’s own testimony on Bolt’s reaction to her decision to end their relationship was strong evidence that Bolt did not hold a supervisory position with respect to petitioner. The Commission did not reweigh the evidence but found the inferences drawn from it by the ALJ were erroneous. We find no error in the Commission’s decision.

The Club articulated a legitimate nondiscriminatory reason for firing petitioner — insubordination—and petitioner failed to establish this reason was a pretext for discrimination. Petitioner presented no evidence that other insubordinate male employees were not fired by the Club. We find the Commission’s decision is supported by the manifest weight of the evidence and, therefore, affirm that decision.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re CONTEMPT OF MORRIS W. ELLIS (The People of the State of Illinois, Petitioner-Appellee, v. Morris W. Ellis, Respondent-Appellant).
    Fourth District
    No. 4—90—0256
    Opinion filed November 26, 1990.
    Rehearing denied January 15, 1991.

      Morris W. Ellis, pro se, and Phyllis Ellis Rosenfeld, both of Ellis & Ellis, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Douglas K. Smith, Assistant Attorneys General, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Morris W. Ellis, was held in direct criminal contempt of court in January 1990, based upon his conduct in a small claims proceeding in which he was appearing as counsel. The trial court subsequently entered a written order of contempt and later denied defendant’s motion to vacate or reconsider.

Defendant was placed on court supervision for a period of 12 months, subject to the conditions that he pay court costs and perform 20 hours of public service work with the Legal Assistance Foundation of Chicago.

Defendant appeals, arguing that his conduct was not calculated or intended to embarrass, hinder, or obstruct the court, but instead was a good-faith attempt to represent his client and did not constitute direct criminal contempt of court.

We disagree and affirm.

The facts in this case are not complicated. Defendant appeared as counsel for a party in a small claims proceeding who had been defaulted, and at the hearing in question, defendant had argued a motion to vacate or reconsider the default judgment. After both defendant and counsel for plaintiff had presented their initial arguments, the court asked defendant if there was anything else he wished to state, and defendant made a rebuttal argument. When both counsel had completed their arguments, the court began to state its ruling and the reasons therefor. As the court was doing so, it was interrupted by defendant, and the court stated the following: “No. Mr. Ellis, you had your turn. Now it is my turn. Don’t interrupt.” The court continued with its remarks, and, as it concluded, the record shows the following:

“THE COURT: Show the motion is denied. Prior judgment will—
MR. ELLIS: May I-THE COURT: -stand.
MR. ELLIS: May I-THE COURT: No.
MR. ELLIS: I can’t hear—
THE COURT: I’ve ruled.
MR. ELLIS: Well, wait a minute. You—
THE COURT: Mr. Ellis.
MR. ELLIS: —you said on an affidavit—
THE COURT: Mr. Ellis. You want to go—
MR. ELLIS: Well, wait a minute. You said—
THE COURT: Mr. Ellis.
MR. ELLIS: —there was an affidavit filed. And the defendant never received an affidavit.
THE COURT: Take him out before he is held in contempt of court.
THE BAILIFF: Mr. Ellis.
MR. ELLIS: He never received the affidavit.
THE COURT: Take him out or he will be held in contempt of court.
You do not argue with this court, Mr. Ellis.
MR. ELLIS: Well, we’re going to file a notice of appeal in this case.
THE COURT: That’s your right, Mr. Ellis.'
MR. ELLIS: Your [sic] damn right that’s my right:
THE COURT: Mr. Ellis, get back here right now. Bring him back here.
Show in this matter that the attorney by the name of Ellis from Chicago has argued with the court when the Court was ruling. After the Court ruled, he wanted to further argue with the Court. Was told he should not do that and to leave. As he was being taken out of the courtroom by the court officer, he told the judge that the judge was damn right, language not to be used in the courtroom. That this attorney is held in direct criminal contempt of court.
As you know, Mr. Ellis, I can sentence you to jail right now for up to six months. I can fine you up to $500. But I don’t know what I should do at this time, so I’m going to order you to report to the court services department this date for a presentence report to determine what your sentence should be for being held in direct criminal contempt of court.
No. Mr. Ellis—
MR. ELLIS: Your Honor-
THE COURT: -youhave-
MR. ELLIS: —did not receive a hearing. Am I entitled to be heard?
THE COURT: Mr. Ellis, if you know anything about the law, you know that you are not entitled to [a] hearing for direct criminal contempt of court. At this time you will go to the Champaign County Court Services Department for a pre-sentence report to be prepared for you for your being held in direct criminal contempt of court for the things that I have stated already. You will go there this date and we will continue this matter for a sentencing hearing as to whether you should be held in direct — or as to what your sentence should be on February 28th at 11:30 in this courtroom.
MR. ELLIS: Was the Court saying what I said that was contemptuous?
THE COURT: Aside from trying to talk when I was talking, Mr. Ellis, aside from not being quiet when I was talking, aside from arguing with me after I have ruled, it’s for telling — saying the word damn in the courtroom in a loud voice when I told you to leave.
MR. ELLIS: All I said was ‘damn right’, Judge.
THE COURT: Well, Mr. Ellis-
MR. ELLIS: All I said-
THE COURT: Mr. Ellis.
MR. ELLIS: And Your Honor should know that that was not meant to be contemptuous. And that is a severe punishment for something that I said (inaudible) regarding the appeal of the case. I asked to serve a notice of appeal and I’m going to file an appeal in this case. That’s all I said.
THE COURT: Mr. Ellis, I heard what you said. You will have a—
MR. ELLIS: All right.
THE COURT: —hearing date—
MR. ELLIS: Okay.
THE COURT: —on February 28th. I would suggest that you take this across the street to the court services office for the pre-sentence report to be prepared. And as you know, you can have [an] attorney here to represent you, and your attorney can file any motions they wish at that time.”

Four days after this hearing, the trial court filed an order of direct criminal contempt of court, which in its entirety reads as follows:

“Cause number 89 — S—2204, in the Circuit Court of Champaign County, was called to be heard on January 29, 1990, upon the motion of the Defendant Rosenfeld, filed January 4, 1990. Present for the Plaintiff Ward was attorney Terry Prillaman and present for the Defendant was the contemner, Morris W. Ellis.
At the time that the Defendant’s motion was called for hearing, also present in the courtroom were some unidentified persons with the contemner, one private attorney representing a defendant, three pro-se plaintiffs and two pro-se defendants waiting for their cases to be heard.
When the motion filed January 4, 1990, in 89 — S—2204, was called, Morris W. Ellis argued the motion for the Defendant. Terry Prillaman then argued his client[’]s position. Morris Ellis was then allowed a rebuttal argument for the Defendant. After making sure that each party had said what they desired to say, the Court ruled, denying the motion filed January 4, 1990. At that time, the following occurred:
1) Morris W. Ellis asked to be heard for further argument on his motion and the Court replied ‘no.’ Mr. Ellis then asked once again to be heard and the Court stated: T have ruled.’ Mr. Ellis continued to be asked to be heard and the Court raised its voice stating: ‘Mr. Ellis, no.’
2) At that time, Mr. Ellis did not stop but continued and began to make his argument with reference to the matter that the Court had already ruled on. The Court attempted to stop Mr. Ellis from continuing his argument by saying ‘Mr. Ellis,’ but Mr. Ellis kept on making his argument before the Court.
3) The Court at this time could not continue on with the motion call and call any of the other cases that were still waiting to be heard.
4) Mr. Ellis was still standing in front of the bench and arguing his position to the Court and the Court looked over towards Mr. Ellis and the Court Security Officer who was approximately five to six feet beyond Mr. Ellis and requested in a voice loud enough so everyone in the courtroom could hear, that the Court Security Officer [should] ‘take Mr. Ellis out so he would not be held in criminal contempt of court.’
5) Mr. Ellis kept talking and arguing his case even though the Court had just told him he would be held in contempt of court. At this time, the Court Security Officer was approaching Mr. Ellis while he was arguing to the Court.
6) The Court again told the Officer and Mr. Ellis who were now next to each other that the Officer should ‘take Mr. Ellis out of the courtroom or he would be held in criminal contempt of court’ and again told Mr. Ellis not to argue anymore with the Court.
7) During this entire incident, Mr. Ellis was continuously speaking. At times, the Court had to raise its voice so as to be heard over Mr. Ellis’ in its attempt to get Mr. Ellis to stop speaking. Mr. Ellis however kept arguing, totally frustrating the Court’s effort to proceed with other cases. The Court could only get a few words in at a time in its attempt to put a stop to Mr. Ellis’ conduct.
8) The Court Security Officer had her hand on Mr. Ellis’ arm and was walking him out of the courtroom towards the back of the Court away from the bench and the Court could hear the Court Security Officer telling Mr. Ellis to quiet down. At this time, when Mr. Ellis was approximately half way out of the courtroom he yelled back to the Court words to the effect that he wanted the Court to know that he would file a notice of appeal. To which the Court responded: ‘That is your right, Mr. Ellis.’
9) By this time the Court Security Officer had Mr. Ellis all the way across the courtroom to the door and Mr. Ellis raised his hand in the air and yelled across the courtroom at the Court: ‘Your [sic] damn right, it’s my right.’
10) At that time the Court ordered Mr. Ellis to be brought back before the bench and held him in direct criminal contempt of court.
11) The Court continued the contempt matter for a sentencing hearing and advised the contemner that he had a right to have counsel present at the sentencing hearing.
The contemner’s conduct after the Court had ruled on the motion filed January 4, 1990, in 89 — S—2204 was such that it obstructed the Court in its administration of justice, in that until court had finally finished holding the contemner in direct criminal contempt of court, the Court could not call any other
cases in the courtroom that were waiting to be called. Further, the Court finds that the contemner’s conduct was calculated to embarrass the Court by continually arguing after the Court had ruled, by yelling in the courtroom, by not letting the Court talk in that he was continually interrupting the Court with his argument. Further the Court finds that the contemner’s action put the Court in disrepute by showing a total lack of respect for the Court’s authority and the administration of justice. Further, the body motions and profanity used by the Defendant were such as to show to all those in the courtroom that the contemner had a total lack of respect for the proceedings and the Court.
The Court finds that it has jurisdiction over the parties hereto and the subject matter herein. Further, the Court finds that the contemner’s actions as described above were such as to constitute direct criminal contempt of court.
Wherefore, the contemner, Morris W. Ellis, is found to be in direct criminal contempt of court. Contemner was ordered to report on January 29, 1990, to the Champaign County Court Services Department for the preparation of a pre-sentence report for sentencing hearing on his direct criminal contempt of court and the sentencing hearing is set for February 28, 1990, at 11:30 a.m. in Courtroom J, Champaign County Correctional Center.”

In People v. Graves (1979), 74 Ill. 2d 279, 384 N.E.2d 1311, and People v. Miller (1972), 51 Ill. 2d 76, 281 N.E.2d 292, the Illinois Supreme Court considered the issue of attorneys who had been held in direct criminal contempt based upon their behavior in court. In Graves, the supreme court stated that contempt of court was defined as “ ‘conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.’ ” (Graves, 74 Ill. 2d at 284, 384 N.E.2d at 1314, quoting In re Estate of Melody (1969), 42 Ill. 2d 451, 452, 248 N.E.2d 104, 105.) The court also wrote the following:

“As a reviewing court, we determine whether there is sufficient evidence to support the finding of contempt [citation] and whether the judge considered only facts within his personal knowledge. The latter requirement is peculiar to cases of direct contempt such as that involved here, and is warranted by the summary nature of direct contempt proceedings.” Graves, 74 Ill. 2d at 284, 384 N.E.2d at 1314.

In Miller, the supreme court stated the following:

“Direct contempt is predicated upon specific misconduct which interferes with the orderly administration of justice, and therefore an order imposing punishment for direct contempt must state, or the record must show, the specific acts upon which it is based.” Miller, 51 Ill. 2d at 78, 281 N.E.2d at 293.

This court recently spoke of direct criminal contempt proceedings as follows:

“Because the respondent is entitled to appeal a direct contempt conviction, the record made in the trial court must *** be sufficient to permit a reviewing court to determine whether the trial court had jurisdiction to enter the contempt order. Thus, the facts supporting the finding of contempt must be fully set forth in the contempt order [citation] or must appear in the transcript of the proceedings at which the contempt finding was made.” In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 49, 558 N.E.2d 404, 419.

The order of direct criminal contempt entered in the present case is in accordance with the aforesaid standards. We find that the facts supporting the findings of direct criminal contempt in this case are fully set forth both in the contempt order and in the transcript of proceedings as well.

We are unpersuaded by defendant’s argument that his conduct was merely that of a vigorous advocate and not contumacious. In In re Magnes (1972), 8 Ill. App. 3d 249, 253-54, 290 N.E.2d 378, 382, the court observed that “[t]he trial judge could see the contemnor’s mannerisms and hear the tone of his voice.” That observation is applicable to this case as well, and there is no basis on this record for disregarding the trial court's assessment that, “the body motions and profanity used by the Defendant were such as to show to all those in the courtroom that the contemner had a total lack of respect for the proceedings and the court.”

Defendant asserts that the trial court’s holding him in direct criminal contempt for his use of the word “damn” is unjustified. However, as the trial court’s findings make clear, defendant’s use of the word “damn” was but a minor part of the totality of defendant’s inappropriate behavior with which the trial court was confronted.

In support of his argument that the trial court erroneously found him to be in direct criminal contempt, defendant cites In re Dellinger (7th Cir. 1972), 461 F.2d 389. We note that in Magnes a similar argument was made and the appellate court responded as follows:

“The contemnor calls this court’s attention to two recent cases of the Seventh Federal Circuit rendered on May 11, 1972: United States v. Seale, No. 18246, and In the Matter of David Dellinger, No. 18294. These cases are cited for the proposition that to be guilty of contempt of court one must have a specific intent to obstruct the court and cannot be guilty of contempt for merely being obnoxious. In In the Matter of David Del-linger, the court stated:
‘Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client’s behalf.’ [Dellinger, 461 F.2d at 400.]

We do not agree with the Federal Court that an attorney has the right to go so far in his conduct as to appear obnoxious to the court; however, this case does not give aid to the contemnor because the court specifically denounced such behavior as exhibited by the contemnor:

‘However, this is not to say that attorneys may press their positions beyond the court’s insistent direction to desist. On the contrary, the necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument.’ [Dellinger, 461 F.2d at 399.]

We agree with the above statement and with the following statement in the Seale case, where the court stated:

‘On the positive side of the obstruction question, failure to heed the directive of the court to desist ffom arguing, to sit down, or to remain quiet may indeed constitute an actual material obstruction to the administration of justice. *** As governor of the trial, the trial judge must have the authority necessary to ensure the orderly and expeditious progress of the proceedings. His directives in exercise of this authority must be obeyed; otherwise the clear result would be courtroom chaos.’ ” [United States v. Seale (7th Cir. 1972), 461 F.2d 345, 371.]
Magnes, 8 Ill. App. 3d at 254, 290 N.E.2d at 382.

In an attempt to justify and explain his behavior, defendant makes the following argument to this court:

“Even though the court below stated that there is nothing else to say after it is made clear that the court has ruled, it should be pointed out that the attorney, in representing his client’s interests, had a duty and an obligation to his client, to inform the judge that the judge failed to take into consideration, in his ruling, that the plaintiff never served notice upon the defendant that he would seek additional damages at the time the default judgment was entered ***. All the attorney attempted to do was merely inform the judge that the defendant never received the affidavit. Such an act of making the statement was directly related to the issue that the court was to decide, and certainly, the attorney, in doing so, was acting as an advocate for his client.”

We emphatically reject this argument, and we agree with the statements from Magnes that “ ‘the necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument.’ ” (Magnes, 8 Ill. App. 3d at 254, 290 N.E.2d at 382, quoting Dellinger, 461 F.2d at 399.) When, as here, the trial court has directly and clearly informed counsel that their opportunity for argument is over, that is a nondebatable order, and no misguided sense of advocacy can be permitted to overcome it. If an attorney believes that the trial court’s findings of fact or conclusions of law are in error, then that attorney can file a post-trial motion or appeal. His options, however, do not include the privilege of interrupting the trial court as it states its findings or conclusions, nor do his options include the privilege of arguing with the court after its rulings have been made.

For the reasons stated, the judgment and sentence of the circuit court of Champaign County are affirmed.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE GREEN JUSTICE STEIGMANN,

text:
    BRAD STRODE, as Guardian and Next Friend of John David Strode, a/k/a J.D. Strode, Plaintiff-Appellant, v. WILLIAM BECKER, Defendant-Appellee.
    Fourth District
    No. 4—90—0172
    Opinion filed September 26, 1990.
    Modified on denial of rehearing January 24, 1991.

      STEIGMANN, J., dissenting.
    Thomas R. Blondell, of Beckett & Crewell, of Champaign, for appellant.
    Michael E. Raub, of Heyl, Royster, Voelker & Allen, of Urbana, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On July 21, 1989, plaintiff Brad Strode, as guardian and next friend of John David Strode, a minor, brought suit in the circuit court of Champaign County against defendant William Becker, charging negligence and seeking damages for personal injuries sustained by the minor. On January 8, 1990, upon defendant’s motion (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) that court dismissed plaintiff’s first-amended complaint with prejudice for failure to allege a breach of duty owed by defendant to the minor. Plaintiff appeals. We reverse and remand.

The plaintiff’s first-amended complaint, in part, alleged: (1) on April 1, 1988, John David (then 2Mz years old), and his family were at the defendant’s home; (2) at that time, the child was injured when his fingers were caught in the rotating spokes of an “exercycle” while being operated by the defendant’s niece; (3) the “exercycle” was located in the defendant’s living room adjacent to the children’s playroom; (4) the “exercycle” was a dangerous condition of which the defendant negligently failed to remedy or warn the child as to its dangerous propensities; (5) the injury was foreseeable because the defendant knew the child would be visiting his home and also knew or should have known the “exercycle” posed greater risks than children can comprehend and avoid; and (6) the defendant knew that other children had previously been injured by using and/or playing with the “exercycle.”

The complaint also alleged that pursuant to section 2 of the Premises Liability Act (Act) (Ill. Rev. Stat. 1987, ch. 80, par. 302), the defendant, as a homeowner-occupier, possessed a duty to exercise reasonable care under the circumstances regarding the state of the premises for those persons lawfully upon the premises.

A discussion of a landowner’s duty to protect children from dangerous conditions existing on the property logically begins with Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, a case involving a trespassing child. There, the supreme court abandoned the attractive nuisance doctrine and concluded that the appropriate criterion for determining landowner liability in cases of personal injury to children is the ordinary rules of negligence. Since the minor plaintiff in Kahn was a trespasser, the court noted that ordinarily, a landowner has no duty to protect children who are trespassing on the property. However, the court recognized that children, even if trespassing on the property, need special protection from injury, because their immaturity and inexperience render them unable to comprehend and avoid dangerous situations.

Thereupon, the Kahn court formulated an exception to the general rule that a landlord has no duty to protect children who are trespassing:

“It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it.” Kahn, 5 Ill. 2d at 625,126 N.E.2d at 842.

Logically, a landowner or occupier would have at least as great a duty to children who are invitees or, as here, licensees as to those who are trespassers. Subsequent to Kahn, the cases have deemed landowners or occupiers to have the same duty to children who are invitees or licensees. For example, in Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806, 431 N.E.2d 1218, the complaint alleged a seven-year-old boy drowned in a creek located in a park, owned and operated by the defendant park district. The creek was covered with a layer of ice upon which snow had accumulated, concealing the creek’s location. The trial court dismissed that plaintiff’s complaint, and the appellate court, after applying the Kahn conditions, reversed, holding the creek was a dangerous condition which, under the circumstances, posed a risk which children generally could not appreciate and avoid.

The supreme court in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, noted that as a result oí Kahn, the common law categories of trespasser, licensee, and invitee no longer have a bearing on whether a landowner has a duty to protect children from dangerous conditions on the property. Provided that the prerequisites set forth in Kahn are present, the injury is deemed foreseeable and the landowner has a duty to remedy the condition. Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.

As plaintiff correctly sets forth, now, under section 2 of the Act, an owner or occupier of land has a duty to exercise’ ordinary care to a person rightly on the land regardless of whether that person is an invitee or a licensee. Previous to the enactment of the Act, the duty of a landowner or occupier to a licensee, not subject to the protection of Kahn, was to refrain from wilful and wanton misconduct. (O’Donnell v. Electro-Motive Division of the General Motors Corp. (1986), 148 Ill. App. 3d 627, 631-32, 499 N.E.2d 608, 611.) However, because of the precedent of Kahn and its progeny, the duty of the defendant here to the child allegedly injured was not changed by the enactment of the Act.

In examining the first amended complaint to see whether it complied with the Kahn factors, we first note that defendant does not dispute the sufficiency of that portion of the complaint alleging that he knew young children would likely be in the vicinity of the “exercycle.” We next consider whether that complaint properly alleged the “exercycle” was a dangerous instrument. An “exercycle” is, apparently a stationary bicycle upon which a person sits and pedals causing a single wheel to rotate, all for the purpose of obtaining exercise. Clearly, by itself, such an apparatus is a harmless agency. However, an innocuous object, when combined with additional circumstances, can become a dangerous condition. (Niemann v. Vermilion County Homing Authority (1981), 101 Ill. App. 3d 735, 739, 428 N.E. 706, 710.) In order for the trial court to conclude that a dangerous condition existed, the plaintiff must sufficiently allege ultimate facts that describe a condition that “exposes children to risks greater than those which normally attend their daily lives.” Corcoran, 73 Ill. 2d at 328, 383 N.E.2d at 181.

The defendant properly contends that some authorities plaintiff cites in support of his contention that the alleged “exercycle” was a dangerous instrument are distinguishable from the allegations contained in plaintiff’s complaint. For example, the plaintiff cites to Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62, where the appellate court found that plaintiff’s complaint sufficiently established a dangerous condition by alleging. a defect in a slide. Plaintiff also cites to Ford v. Wilson (1989), 184 Ill. App. 3d 374, 540 N.E.2d 1, where the appellate court deemed an overgrown bike path a dangerous condition, because the potential harm of being hit by a car was hidden from the bike rider. Here, the only direct allegation of any defect in the “exercycle” was that it was “an old, time worn ex-ercycle.” The complaint does not directly state how the “old, time worn” apparatus became dangerous.

Closer in point is the case of Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App. 3d 761, 404 N.E.2d 918. In Novak, the complaint alleged that a 10-year-old plaintiff was injured after falling into an .excavation at a construction site. The trial court dismissed plaintiff’s complaint against the defendant builder, and the appellate court reversed. The appellate court concluded that in combination, the excavation, mounds of dirt, and concrete created a foreseeable danger that a child may slip, slide, and fall. Moreover, the court found that the excavation did not present merely the risk of falling into an obvious depression but that circumstances may also be proved to be sufficiently “obscure in their potential danger to infant trespassers as to be more unusual than those encountered in their daily lives.” Novak, 83 Ill. App. 3d at 765, 404 N.E.2d at 921.

While the instant complaint does not state directly how the exercycle was dangerous, we conclude a sufficient indirect allegation is made to survive dismissal at this stage of the proceedings. As distinguished from Federal practice, Illinois requires a pleader to set forth ultimate facts giving rise to the cause of action or defense for which relief is requested. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580.) However, the entire complaint may be examined to determine whether such ultimate facts are alleged. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 435 N.E.2d 463.) As we have indicated, the first amended complaint indicated the child’s fingers were caught in the spokes of the wheel of the exercycle while the wheel was rotating. Thus, we may conclude the danger in the “exercycle” was that a very small child could stick his fingers through the spokes of the wheel while the wheel was rotating.

We conclude that under the circumstances alleged here, a sufficient allegation of the dangerousness of the exercycle to the child was made. Consider rather than an exercycle on the floor of a room where children were expected to be, an operating electrical fan. If the face of that fan was alleged to be such that a small child could stick its finger in and between the blades of that fan, would not an allegation of a dangerous instrumentality be properly stated? The situation alleged here is very similar.

The defendant’s contention that the instant case is more similar to Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 420 N.E.2d 243, than Novak is unpersuasive. In Bonamie, the complaint alleged that a five-year-old boy fell through a glass door while playing on that defendant’s porch. The trial court dismissed the complaint against the defendant landowner, and the appellate court affirmed, holding that plaintiff failed to establish that defendant had a duty to protect plaintiff from injuring himself on the door. In particular, the appellate court concluded that plaintiff’s complaint did not contain any allegation that transformed a glass door into a dangerous condition.

The Bonamie court reasoned that, without additional circumstances, a defendant cannot be expected to protect children from injuring themselves on common household items under plain ordinary circumstances. An “exercycle” is an item which is becoming more common in households. However, the element of comparing the risk to the child with the expense and inconvenience of remedying the condition set forth in Kahn (5 Ill. 2d at 625, 126 N.E.2d at 842) comes into play in determining whether material differences exist between the Bonamie complaint and the complaint here. Replacing a glass door would be much more expensive and inconvenient than moving an ex-ercycle to a confined place or closing the room where an exercycle is kept.

We, thus, hold that each of the Kahn factors imposing a duty on landowners to very young children is sufficiently alleged by the first amended complaint.

In Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 219 N.E.2d 483, a seven-year-old boy was injured while playing with a trash pile which contained some paint or lacquer cans and which was on defendant’s property. Another child playing with the injured child apparently opened one of the lacquer cans which the injured child then stepped on, causing lacquer to be sprayed on his leg. The injured child then came near burning leaves on adjacent property where the boys had been playing. The boy’s pant leg caught on fire. The father of one of the other boys had started the leaf fire. He had noticed the boys had been playing with the fire and had warned them to stop doing so but had gone to another part of the lot to rake some more leaves when the injured child was burned. A judgment on a verdict for the child was eventually reversed by the supreme court. The court concluded the evidence failed as a matter of law to show any negligence upon the part of the defendant which was a proximate cause of the child’s injury and it failed to show that the trash pile was a dangerous condition. The basis of the decision seemed to be that the defendant could not be required to have foreseen that leaving paint cans in the trash pile would likely cause a child to be burned.

The Driscoll court further stated:

“It is always unfortunate when a child gets injured while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself Others can be held responsible for injuries only if they are at fault under some recognized theory of liability.” (Emphasis added.) Driscoll, 35 Ill. 2d at 79, 219 N.E.2d at 486.

Similarly, in Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184, the appellate court affirmed the circuit court’s grant of summary judgment in favor of that defendant holding defendant did not have a duty to protect the eight-year-old mentally handicapped plaintiff from falling off a slide. Further, that court deemed the risk of falling off a slide was obvious and “if a child is too young chronologically or mentally to be ‘at large,’ the duty to supervise that child as to obvious risks lies primarily with the accompanying parent.” Salinas, 189 Ill. App. 3d at 62, 545 N.E.2d at 188.

We share the concern of the Driscoll, Salinas, and Bonamie courts that landowners cannot protect against all injuries which small children may incur. Numerous injuries to small unsupervised children resulting from such appliances as lamps that can be pulled from tables and electrical sockets which can be penetrated with slender metal objects are easily foreseeable. We agree with the Driscoll and Salinas courts that primary responsibility for injury to very young children must be placed on parents of children or those who are entrusted with their supervision. We note that the parents may ultimately be liable for their negligent supervision of the child. (Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 969, 435 N.E.2d 221, 224.) However, the Driscoll court did not say that owners and occupiers of land are absolved of all duty to very young children because of responsibility of their parents. In Salinas, the owner had no duty to warn of the danger of the slide or prevent its use when the danger to an impaired child was obvious to an accompanying parent.

When small children are being watched by their parents, or entrusted persons in supervision, landowners may be relieved of duty to warn them of or remove dangerous instrumentality the danger from which is apparent. In Kay v. Ludwick (1967), 87 Ill. App. 2d 114, 230 N.E.2d 494, this court held a landowner operating a mowing machine had no duty to discontinue use of the machine while a small child accompanied by the child’s mother was playing in the yard. In Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 516 N.E.2d 684, a split court held a landlord had no duty to protect a very young child from an uninsulated steam pipe, which was near the child’s bed. The child’s mother was well aware of the condition of the pipe. See also Keller v. Mols (1984), 129 Ill. App. 3d 208, 472 N.E.2d 161; O’Clair v. Dumelle (N.D. Ill. 1990), 735 F. Supp. 1344.

Any diminution of duty upon the landowner which may arise because a minor child on the. landowner’s premise? is trader the control of a parent or another person having superintendence need not be negated in a pleading seeking recovery for injury to the minor. The fact that the instant complaint alleges the child’s parent accompanied the child to defendant’s home does not, of itself, negate duty on the part of defendant. However, the existence of duty is a question- of law. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 396, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) If, at subsequent proceedings, the evidence develops that a parent were' with the child while it was playing near the exercycle or knew of the existence and condition of the exercycle, the holdings in Kay and Trotter should then be considered. However, that issue is not before this court at this time. Likewise, the actual condition of the exercycle, which is so scantily pleaded, can also have a significant bearing upon the existence of a duty by defendant. However, as we have indicated, we hold the first amended complaint is sufficient to state a cause of action.

We reverse the judgment dismissing the complaint with prejudice and remand for further proceedings.

Reversed and remanded.

LUND, J., concurs.

JUSTICE STEIGMANN,

dissenting:

I respectfully dissent. I would affirm the judgment of the trial court dismissing the complaint because, accepting all well-pleaded facts as true, the complaint fails to demonstrate a duty on the part of the defendant to protect the plaintiff from the injury which occurred in this case. The complaint contains no claim that the exercycle was in a dangerous or defective condition. All the complaint shows was that the exercycle was in an area of the residence to which this 21!z-year-old child had access, and when the exercycle was operated by another child, the plaintiff was injured when he stuck his fingers into the spokes of the machine.

Section 2 of the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, par. 302) imposes a duty upon a homeowner-occupier to exercise reasonable care under the circumstances regarding the state of the premises for those persons lawfully upon the premises. However, that statute does not impose a duty upon a homeowner-occupier to insure the safety of toddlers who might roam throughout the premises without supervision.

In our increasingly litigious society, our courts are often faced with the difficult challenge of making specific value judgments about the duties to be imposed upon the people of this State. This case is no exception. The plaintiff has asked this court to find that defendant was under a legal obligation to warn and protect a 21/2-year-old child against the potential danger a household item might present. However, every household item might present a danger to a 21/2-year-old child. The plaintiff has not pleaded any extraordinary liability facts, nor has the plaintiff effectively argued why social policy should recognize such a broad duty.

Most modern households are filled with items which could injure a toddler who is left free to roam and give vent to his curiosity. I do not believe it appropriate for this court to find a duty upon a homeowner to insure that this roaming, curious toddler will not be injured. This duty appropriately belongs with the child’s parents or other person to whose supervision the child has been entrusted.

I fear the holding in this case gives new meaning to the term “child-proofing” a home.