author: JUSTICE GOLDENHERSH

text:
    RICHARD HAHNENKAMP et al., Plaintiffs-Appellants, v. MADISON COUNTY et al., Defendants-Appellees.
    Fifth District
    No. 5—87—0606
    Opinion filed May 2, 1989.

      Farrell & Long, P.C., of Godfrey (J. Thomas Long, of counsel), for appellants.
    Dick Allen, State’s Attorney, of Edwardsville (Lewis E. Mallott, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Richard and Janet Hahnenkamp, appeal from a declaratory judgment of the circuit court of Madison County granting plaintiffs’ request for a special use permit against defendants, Madison County, a body politic, Nelson Hagnauer, in his capacity as chairman, Madison County board (county board), and Roy Fruit in his capacity as chairman, Madison County zoning board of appeals (zoning board), but imposing restrictions on plaintiffs’ use of the property under the special use permit. Plaintiffs also appeal from the order of the circuit court which found the zoning ordinance in question constitutional. We affirm as to the constitutionality of the zoning ordinance. We reverse as to the imposition of restrictions on the special use permit.

Plaintiff, Richard Hahnenkamp, is a businessman. He and his wife, Janet, reside in Madison County and own property located at 3034 Godfrey Road, Godfrey, in Madison County, which is the subject of this suit. Said property is zoned B-2, general business use, under the Madison County zoning ordinance (ordinance). Any permitted use in a B-l zone, limited business use, is also permitted in a B-2 zone pursuant to section 210.3 of the ordinance. A restaurant is a permitted use under a B-l zone, and is, therefore, permitted in a B-2 zone. Under section 210.4 of the ordinance, bars/nightclubs are permitted uses and require a special use permit for operation.

Plaintiffs intended to open a gourmet Italian restaurant on the property and spoke to Manuel Romaro about managing the restaurant. Mr. Romaro already operates an Italian restaurant in Alton, and the plan between plaintiffs and Mr. Romaro was to open the same type of restaurant. Plaintiffs desired to serve alcohol at their restaurant, intending to serve drinks to diners who were seated. Additionally, plaintiffs planned a waiting area with a bar, five bar stools, and a bartender. Plaintiffs requested the issuance of a liquor license from the liquor commissioner of Madison County, Nelson Hagnauer. Plaintiffs were given an application and told to go to the Madison County zoning office to ascertain the zoning of the property. At the zoning office, plaintiffs were told by the zoning administrator, Paul Hawkins, that a special use permit would be required under section 210.4 of the ordinance before a liquor license could be issued.

Plaintiffs applied for a special use permit. In conjunction with plaintiffs’ application, a hearing was conducted on the site of plaintiffs’ property on November 5, 1986, by the zoning board. The zoning board then presented their findings to the county board. On November 19, 1986, the county board voted to deny plaintiffs’ application for a special use permit under section 210.4 of the ordinance. On Decernber 17, 1986, plaintiffs filed a complaint for declaratory judgment seeking to overturn the action of the county board and to obtain an injunction to rezone plaintiffs’ property. At trial, the following facts were adduced.

Plaintiffs’ first witness was Nelson Hagnauer, chairman of the Madison County board for 16 years. Mr. Hagnauer is also the liquor commissioner. He was called as an adverse witness pursuant to section 2 — 1102 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1102). As the liquor commissioner, he is the ultimate authority on the issuance or nonissuance of liquor licenses. Mr. Hagnauer testified that there is a liquor code in force in Madison County, but no empirical studies have been done to determine the number of licenses to be issued, and at this time, there is no limitation on the number of liquor licenses which will be issued. Further, Madison County has no comprehensive zoning plan.

According to Mr. Hagnauer, the cost for a liquor license to sell package liquor and the cost for a license to sell liquor by the drink are the same. Mr. Hagnauer granted plaintiffs a license to sell package liquor, which does not allow plaintiffs to sell liquor by the drink because plaintiffs’ land was not zoned correctly. There is no written authority to differentiate between package liquor licenses and by-the-drink liquor licenses, but it has been the practice of the liquor commission to grant these licenses separately. Mr. Hagnauer also testified that the requirements to obtain a liquor license are twofold: first, applicant can have no prior felony convictions, and, second, applicant must be, or the manager must be, a resident of Madison County. If these two requirements are met, the applicant is automatically granted a liquor license.

Plaintiff Richard Hahnenkamp was the next to testify. He testified that the land in question already had a building in place that was approximately 4,300 square feet. Plaintiff planned to use 3,000 square feet for his Italian restaurant. A travel agency was renting the rest of the building, and plaintiff expected the travel agency would renew its lease. The building has a 10,000-square-foot parking lot in front, with paved parking on the side and potential parking in the back. Plaintiff estimated he would need to add $40,000 to $50,000 worth of improvements to the building in order to convert it into the type of business he desired. Further, plaintiff testified that he planned to work out an arrangement with Manuel Romaro to be the chief chef and to manage the restaurant. Plaintiff and Mr. Romaro would share in the profits. The expected times of operation of the restaurant are 11 a.m. to 2 p.m. for lunch and 5 p.m. to midnight for dinner. Plaintiff testified that he desires to serve alcohol on the premises in order to make the business more profitable. Plaintiff said he wanted to have a bar which would seat five people and also make alcohol available by the glass to diners. Plaintiff said when he applied for a liquor license and received it, he did not know that he had a package liquor license. It was not until six months later that he realized he had a package liquor license, but he had no intention of serving package liquor.

Plaintiff also testified as to the businesses operating in the surrounding area of his proposed restaurant. There is a Pizza Hut on the south side of plaintiff’s building. The Pizza Hut has a liquor license and serves beer and wine. There is a bowling alley on the north side of plaintiff’s building that has a full-service liquor license. Patrons of the bowling alley can get food and alcoholic beverages by the drink. Across from plaintiff’s property is the Highway House Hotel and Restaurant. The Highway House Restaurant has a full-service liquor license. There is a bar, Wicks, approximately 200 feet down the road from plaintiff’s property. Wicks is a small bar with a full liquor license. On cross-examination, plaintiff testified he intended to hire a bartender. Patrons would' be able to drink at the bar without ordering food.

Mr. Roy Fruit, chairman of the zoning board, was called next as an adverse witness pursuant to the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1102). Mr. Fruit has been a member of the board for approximately 17 years and chairman for 10 years. The board conducts hearings and makes decisions on zoning matters. Members are appointed by the county board to make determinations on zoning hearings. Mr. Fruit testified that the zoning board relies on the county zoning code to make its decisions along with the members’ best judgment. Board members have no special training in the area of zoning matters.

Mr. Fruit chaired the hearing on plaintiffs’ application for a special use permit. According to Mr. Fruit, plaintiffs’ request was denied by the zoning board because the zoning board felt the liquor licenses had reached a “saturation point” in Godfrey in the particular area where plaintiffs wanted to operate their business. No studies were conducted prior to the hearing to determine that there were too many liquor licenses in the area. Mr. Fruit could not say how far the “saturation point” extended into that particular area. Mr. Fruit testified that if there were a hearing held on a different piece of property 100 yards up the road, it could be determined that the saturation point did not extend that far and a special use permit could be granted. In addition to the saturation point, Mr. Fruit testified that the zoning board denied plaintiffs’ application for a special use permit because the zoning board believed that any additional business in the area would add to traffic congestion. The witness agreed that a restaurant with a liquor license would not necessarily increase traffic more than other uses allowed under the B-2 classification. According to Mr. Fruit, the position of the zoning board is that there are enough liquor and food licenses in the area.

Mr. Fruit participates in approximately 500 hearings per year. A hearing can last between five minutes and one hour. After a hearing, the zoning board members go to the back office to discuss the evidence and make a decision the same day. Then the zoning board’s secretary, who is not a member, drafts the findings based on the discussions. No transcript or recordings are made of the zoning board’s discussions. After the zoning board’s initial determination, there is never another vote. No vote is taken on the written findings. The report of findings on plaintiffs’ application drafted and typed by the zoning board’s secretary does not mention a “saturation point.” The written findings state that plaintiff’s application “would be in conflict with the aims and goals of the ordinance in that we are trying to orderly develop land and add to the growth pattern in the area.” Mr. Fruit acknowledged that the aims and goals of the zoning board are not written or published in any form. In order to determine the aims and goals, one must ask the zoning board.

David Brammeier, an engineer with a firm specializing in traffic and transportation engineering, was the next witness to testify. In addition to being an engineer, Mr. Brammeier is a city council member in Glen Carbon and deals with zoning ordinances and problems in that capacity. Mr. Brammeier inspected the property in question, reviewed the zoning ordinance, and completed a study on plaintiffs’ property. As part of the study, he concluded that the greatest traffic flow and worst traffic conditions in the area in question occur on Friday. Without plaintiffs’ business, there are 23 cars that pass plaintiffs’ property during the peak evening hour on Friday. With the addition of plaintiffs’ business, Mr. Brammeier gave an estimate that 18 to 30 cars would pass plaintiffs’ property during the peak evening hours of Friday. On Saturday, the peak evening hour would have an increase from 20 vehicles to 30 vehicles. This is an insignificant increase in Mr. Brammeier’s opinion. It is an addition of less than one car every two minutes. Mr. Brammeier testified that there would be no difference in these rates whether or not alcohol was available at plaintiffs’ establishment. Additionally, Mr. Brammeier testified that the 10,000 feet of parking space at plaintiffs’ building was adequate for plaintiffs’ proposed use of the building and there is no evidence of a greater risk of accidents in front or around a restaurant which serves liquor. Mr. Brammeier also concluded that several other B-l and B-2 uses would create more traffic than plaintiffs’ proposed eating and drinking establishment.

Paul Hawkins, the building, zoning, and environmental official for Madison County, was the next witness. Mr. Hawkins stated that it is the position of his office that plaintiffs needed a special use permit because the county takes the position that, under the B classifications 1 through 4, in order to get a liquor license, the licensee must have a special use permit. While this is not written anywhere specifically, Mr. Hawkins stated that the language he was ultimately depending on was section 210.4, which requires bars and restaurants to obtain a special use permit. It is the county’s position, according to Mr. Hawkins, that a bar or nightclub includes a restaurant serving liquor by the glass. Mr. Hawkins agreed that Pizza Hut and Wicks are both operating through special use permits. The bowling alley and the Highway House Restaurant were both in operation prior to the 1974 zoning ordinance, and therefore they are nonconforming uses. The zoning ordinance was changed in 1974 because Madison County was having problems with certain establishments allowing gambling and prostitution. The county liquor commission revised the ordinance in order to make special use permits necessary for bars and nightclubs in an attempt to stop gambling and prostitution. Taverns also require special use permits. Mr. Hawkins could not remember if plaintiffs told the zoning board whether the restaurant would have a bar with a bartender, but he knew that there was some type of bar proposed. On cross-examination, Mr. Hawkins agreed that there is a difference between nightclubs and restaurants that serve liquor. Mr. Hawkins agreed that these two are now lumped together by the ordinance, but he would like to see them given separate consideration. Mr. Hawkins does not believe there is a gambling or prostitution problem in the area of plaintiffs’ proposed restaurant. Mr. Hawkins further testified that he had not heard about a “saturation point” in liquor licenses in the area of plaintiffs’ proposed restaurant. Finally, Mr. Hawkins testified that if plaintiffs are granted a special use permit and over the years the character of the establishment should change from a restaurant with incidental sales of alcohol to a bar primarily serving alcohol, the county could revoke plaintiffs’ liquor license after a hearing. The court then questioned Mr. Hawkins about businesses that change their characteristics over the years and about the limitations which may be placed on a special use permit to prohibit such changes. The witness agreed that stipulations, such as requiring a certain percentage of gross sales of food, can be made in the special use permit.

Mr. Edwin Roller, a real estate appraiser in the Alton-Godfrey area, testified that he inspected plaintiffs’ property. Sixty to seventy percent of the buildings in this area are zoned commercial. He also testified that while zoning classifications do have an effect on property values, he sees no adverse effects on the surrounding property values should plaintiffs be given a special use permit. On cross-examination, the witness agreed that certain types of bars or restaurants could cause property values, especially residential properties, to diminish. However, he does not see any diminution in value of surrounding properties by the addition of plaintiffs’ proposed establishment.

Carl Lossau was the next witness to testify. He testified as an expert. Mr. Lossau has a Ph.D. with his specialization in urban geography. Additionally, he was an alderman in Edwardsville for eight years, a member and chairman of the Edwardsville city planning commission, and project director of the development of the regional land use . plan for the East-West Gateway Coordinating Council. He also taught graduate courses in city and regional planning at Southern Illinois University at Edwardsville. Mr. Lossau testified that he is familiar with zoning ordinances. The purpose of a definition section of a zoning ordinance, according to Mr. Lossau, is to reduce to the greatest extent possible any kind of ambiguity that might arise out of language which is used in the rest of the text. In the Madison County Zoning Ordinance, Mr. Lossau believes that a significant ambiguity arises because the words “restaurant” and “bar” are not defined, while “tavern or lounge” is defined.

In the instant case, a restaurant is a permitted use in a B-2 area. If a use is permitted, then whatever other permits are necessary should be automatically administered, i.e., a building permit. Mr. Lossau testified that he could find no references in the zoning ordinance that a restaurant that desired to serve liquor required a special use permit. After looking at the area in question, Mr. Lossau believed that there was no real conflict between the planned restaurant serving liquor and the existing uses of property located near plaintiffs’ land. Further, according to Mr. Lossau, the proposed use of plaintiffs’ property does not have any deteriorating effect on the health, welfare, safety, or morals of the people of that area. Mr. Lossau bases this opinion on the premise that there has been no deterioration as a result of Wicks bar or the bowling alley. Further, the proposed restaurant serving alcohol is not much different than the uses already existing in that area. Madison County does not have a comprehensive plan and Mr. Lossau believes that causes problems because the county has to control land use through zoning without determining in advance how much land is going to be used for each particular type of use. There is a land use plan for Madison County which has never been adopted. Mr. Lossau testified that preparing a plan without adopting it poses problems because without adoption there is no commitment to the plan. Consequently, decisions can be made with guidance by the plan when it is convenient to use the comprehensive or land use plan, but when it’s inconvenient, the plan can be ignored. This leads to inconsistency in development. Mr. Lossau believes that the better way to limit the use of property to serve liquor is through the issuance or nonissuance of liquor licenses, not through zoning laws.

The court then asked this expert to give a ratio of food to liquor sales that would serve as a definition for a restaurant serving liquor. Mr. Lossau testified that the range would be somewhere between 80% to 90% for food sales. One way municipalities could enforce this imposed ratio would be to require that the owner ring up sales for the bar separate from sales for food. In order for a licensee to maintain his special use permit, the dollar sales of food could be equal to 80% to 90% of total revenue. Mr. Lossau then testified on redirect that looking at revenue is only one way to impose restrictions. Another way which many restaurants figure this ratio is in terms of total space. With this method, 80% to 90% of the floor space of the building would be devoted to food service with 10% to 20% devoted to alcohol sales.

At the close of the evidence, the trial court found the Madison County zoning ordinance constitutional. Plaintiffs were granted a special use permit for their proposed eating and drinking establishment because the trial court found that the denial of the permit was arbitrary and unreasonable and bore no substantial relation to the public health, safety, welfare or morals. The court imposed a restriction on the special use permit that at least 80% of the restaurant business must be food service.

Plaintiffs’ first issue on appeal attacks the constitutionality of the county zoning ordinance as applied to plaintiffs’ property. The basis of the attack is that the language of the ordinance is unconstitutionally vague. According to plaintiffs, it is impossible to determine by a thorough reading of the Madison County zoning ordinance, sections 210.1 through 210.4, that restaurants desiring to serve liquor must also obtain a special use permit. Section 210.3 is the pertinent portion of the zoning ordinance setting forth the permitted uses in a B-2 area. It clearly states that any use permitted in a B-l zone is also permitted in a B-2 zone. Section 210.4 sets forth the special uses in a B-2 zone. This section clearly states that “bars/nightclubs” require a special use permit. Additionally, section 209.3 states that a restaurant is a permitted use in a B-l zoned area. The statute does not define the terms restaurants, bars, or nightclubs. A tavern or lounge, however, is defined as a building where liquors are sold to be consumed on the premises, but not including restaurants where the principal business is serving food. In summary, plaintiffs argue that a special permit is not required because (a) the zoning ordinance does not within its term require a restaurant seeking to serve liquor to apply for a special use permit; (b) the term “bars/nightclubs” found in the zoning ordinance is undefined and as such is ambiguous and cannot be expanded through an unwritten policy to include plaintiffs’ restaurant.

The special use technique is a valid means of land use control. (Kotrich v. County of Du Page (1960), 19 Ill. 2d 181, 166 N.E.2d 601.) Further, the rule that an ordinance is void if it is indefinite and uncertain and its precise meaning cannot be ascertained applies to zoning ordinances. (County of Lake v. First National Bank (1980), 79 Ill. 2d 221, 402 N.E.2d 591.) The test for determining whether a zoning ordinance is unconstitutionally vague is whether men of ordinary intelligence must guess at its meaning. Lakin v. City of Peoria (1984), 129 Ill. App. 3d 651, 472 N.E.2d 1233.

The facts indicate that plaintiffs’ proposed establishment was not merely a restaurant. If plaintiffs’ establishment were only a restaurant it would be a permitted use under section 209.3 and no hearing would have been necessary. However, plaintiffs’ testimony revealed that, in addition to the planned Italian restaurant, there was to be a bar area, complete with a bar, five stools, and a bartender. While the words “restaurant,” “bar,” and “nightclub” were not defined by the ordinance, we believe that these words are distinguishable and that plaintiffs or any other person of common intelligence or understanding could read the Madison County ordinance and realize that a special use permit would be necessary for the type of establishment plaintiffs envisioned. There is no need or requirement to list definitions for words that have a common meaning and can be understood by the average person. To require counties to define such words would result in lengthy and cumbersome ordinances.

Plaintiffs analogize this case to County of Lake v. First National Bank (1980), 79 Ill. 2d 221, 402 N.E.2d 591. We find that the cases are distinguishable. In County of Lake, the defendant’s property was zoned agricultural and the zoning ordinance required a “conditional use permit” for the operation of an “airport” or “heliport” in an agricultural zone. Neither term was defined in the ordinance. The plaintiff was, and had been, using his land for a restricted landing area and a museum when the county brought suit to enjoin such use of the land. The supreme court found that the definitions of an airport and a restricted landing area contained in the Illinois Aeronautics Act (Ill. Rev. Stat. 1975, ch. 151/2, pars. 22.6, 22.8), as well as municipal and county airport acts, were mutually exclusive. It was held that the zoning ordinance was ambiguous and thus did not apply to the restricted landing area. Unlike County of Lake, which dealt with highly specialized terms, the instant case deals with words that are common and have an accepted meaning.

Likewise, we are able to distinguish Union National Bank & Trust Co. v. Village of New Lenox (1987), 152 Ill. App. 3d 919, 505 N.E.2d 1, in which a land trustee brought an action for declaratory injunctive relief against the village asking the court to declare invalid a zoning ordinance which required a special use permit to use land for an asphalt plant. An asphalt plant was not specifically listed under permitted uses, prohibited uses, or special uses. The court found that whether an asphalt plant might fit into one of the categories was uncertain because the list of prohibited and permitted uses was not comprehensive as evidenced by the language “but not limited to” in both the permitted and prohibited use categories. The problem was compounded because under the special use category it allowed uses which were similar and compatible to an incomplete list of permitted uses. The court found such language unconstitutionally delegated legislative power to the village board because it did not prescribe any standards or guidelines to determine what uses were “similar and compatible.” In the instant case, there is no open-ended language such as “but not limited to” which caused the vagueness problems in Village of New Lenox. The ordinance in question contains, in our estimation, exhaustive lists of both permitted and special uses.

Plaintiffs further argue that the ordinance as applied to them is vague, arbitrary, and unreasonable, and has no substantial relation to the public health, safety or welfare. The trial court found that there was clear and convincing evidence that defendants’ denial of the zoning permit for plaintiffs to establish a restaurant was arbitrary and unreasonable and bore no substantial relationship to the health, welfare, safety and morals of the county’s residents, and ultimately gave plaintiffs the special use permit they requested. We agree with the trial court and find no reason why plaintiffs should not be granted a special use permit.

This brings us to plaintiffs’ second and third issues, which can be discussed together inasmuch as both allege the trial court erred by imposing restrictions upon the special use permit issued to plaintiffs. The trial court imposed the following restrictions:

“The premises shall be used primarily for the sale of food. The sale of liquor shall be only incidental as described by Plaintiffs’ testimony. The criteria to determine that the premises be used as a restaurant, rather than as a tavern or lounge, is that at least 80 percent of the business of the establishment shall be food service. This percentage figure is based upon testimony from Plaintiffs’ expert, Doctor Carl Lossau.”

Plaintiffs agree that the county board may attach conditions to a special use permit pursuant to section 805.0 of the ordinance. Section 805.0 allows the board to impose restrictions on the granting of the special use permits, including

“(b) Limitations on periods of use and operation.
(c) Imposition of operational controls, sureties, and deed restrictions.”

Plaintiffs contend that only the loosest of interpretations would warrant the conclusion that limitations on “operation” means that the county board can step in and restrict the percentages of sales in the restaurant. Further, plaintiffs argue that even if such language is found to grant to the county board the ability to impose such restrictions, said restrictions imposed by the trial court do not bear a real and substantial relation to the public health, safety, morals or general welfare of the public and, further, are against the manifest weight of the evidence.

We find that the language of section 805.0 of the ordinance empowered the county board to impose restrictions on a special use permit. Additionally, Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406, has provided the trial courts with the ability to frame a declaratory judgment ruling based upon the proposed use of the property as represented at trial.

The general rule that the person attacking the ordinance, or in this case the restrictions, must prove by clear and convincing evidence that the zoning ordinance and its restrictions, as to him, are arbitrary and unreasonable and without substantial relation to public health, safety, morals, or welfare applies. (Schultz v. Village of Lisle (1972), 53 Ill. 2d 39, 289 N.E.2d 614.) If a court determines that the denial of the special use permit, including the conditions and restrictions suggested by the zoning procedures and record as a part of such permit, does not bear a real and substantial relation to the public health, safety, and morals or the general welfare, judicial relief must be granted. (La Salle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 325 N.E.2d 105.) In considering the validity of the ordinance and the conditions imposed on the special use permit as applied to plaintiffs’ property, the following factors may be considered:

“(1) The existing uses and zoning of nearby property ***, (2) the extent to which property values are diminished by the particular zoning restrictions ***, (3) the extent to which the destruction of property value s of plaintiff promotes the health, safety, morals or general welfare of the public ***, (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner *** (5) the suitability of the subject property for the zoned purposes.” (Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 532, 449 N.E.2d 69, 76.)

We find that these factors weigh substantially in favor of plaintiffs. As previously noted, there is a Pizza Hut next to plaintiffs’ property which serves beer and wine and operates under a special use permit. There is a bar, Wicks, which is also operating under a special use permit. There is also a bowling alley located next to plaintiffs’ proposed establishment and a restaurant, the Highway House, both of which serve alcohol and both of which were operating before the 1974 ordinance and thus did not need to apply for a special use permit. There was testimony that surrounding property values would not be diminished by the operation of plaintiff’s proposed business. It was found that 60% to 70% of the surrounding area is already commercial. Plaintiff Richard Hahnenkamp himself said that he intended to open an Italian restaurant which is family oriented. Additionally, plaintiff stated, “When you get into an establishment where there’s a lot of drinking going on, it would definitely hurt the restaurant business.” After considering all the testimony of all the witnesses, we cannot find any evidence to lead us to believe that it is plaintiffs’ intention to run anything other than a family-oriented Italian restaurant with incidental sales of alcohol.

Plaintiffs have already taken several steps toward developing their Italian restaurant. Most importantly, they have found a chef to do the cooking and to manage the business. Plaintiffs have also developed plans for the restaurant and have estimated that $40,000 to $50,000 in improvements will be necessary to convert the present ■ building into a restaurant.

Defendants argued that there would be relative gains to the public compared to the hardships imposed upon plaintiffs if the special use permit were denied. Defendants contend that these same gains would be made by imposing the 80% food service restrictions. Defendants contend the gain to the public would be that the residents of Madison County could be assured that this would not become yet another establishment where drinking was the predominant activity. Again, we find this to be mere speculation and conjecture unsupported by the evidence. However, the hardships imposed on plaintiffs would be real: not only is there the potential for lost profits, but also the added expense to plaintiffs to monitor the 80% levels. Additionally, there is a system already in place which would allow the county to make sure that plaintiffs’ proposed establishment does not change its character over the years. Mr. Hawkins, the building, zoning, and environmental official for Madison County, testified that if plaintiffs are granted a special use permit and over the years the character of the establishment changes from a restaurant with sales of alcohol incidental to a bar or tavern where the primary sale is alcohol, the county could revoke plaintiffs’ liquor license after a hearing.

As to the suitability of the subject property for the zoned purposes, we can find nothing in the record which would indicate that these restrictions would in any way make the property more suitable for zoned purposes. In the vicinity of plaintiffs’ property, there are four other establishments which serve alcohol without such restrictions.

For the above reasons, we cannot find that the restrictions imposed by the trial court bear a real and substantial relation to the public health, safety, morals, or general welfare. However, the nature of a special use permit requires the court to consider added factors in reviewing the reasonableness of the denial of the special use permit or, in this case, the restrictions imposed upon the permit. A court may take into consideration the fact that the proposed special use complies with any and all standards for special uses established by a county since denial of the special use permit for a proposed use which complies with all the established standards is an indication that such denial may be arbitrary and unreasonable. The fact that the proposed special use complies with all standards required does not necessarily mean that the denial, and in this case the imposed restrictions, is arbitrary since zoning is a legislative function and issuance of a special use is not mandatory upon compliance with county standards. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 312 N.E.2d 625.) In the instant case, the deciding factor that such restrictions are arbitrary and unreasonable is because, as plaintiffs argued, the restrictions placed on plaintiffs by the trial court are against the manifest weight of the evidence.

The court based its decision to restrict plaintiffs’ special use permit on the testimony of plaintiffs’ expert witness, Mr. Carl Lossau. In response to the court’s question whether there is an accepted ratio of food to liquor sales as a way of defining an ordinance, the following colloquy ensued:

“THE COURT: *** [I]s there a standard ratio of food sales to liquor sales?
A. No; you don’t see that necessary in the ordinances.
THE COURT: What would be a range, in your experience?
A. Well, I would say that 90 percent of the sales, anywhere from 80 to 90 percent of the sales would be food.
THE COURT: That, in your professional opinion, would define an establishment as being a restaurant serving liquor by the drink on the premises—
A. Yes.
THE COURT: — as opposed to a tavern or a lounge?
A. Yes, Sir. With a tavern or a lounge, the primary service would be alcohol, alcoholic beverages, and food would be completely incidental. The food might consist of no more than a hamburger that’s prepared in the—
THE COURT: As I understand it, the municipalities might enforce such an ordinance by requiring that the owner ring up sales for the bar separate from the sales for the food service.
A. It is done this way.
THE COURT: — and in that manner determine dollar sales of food must be 80 or 90 percent of total revenue in order to maintain the Special Use Permit of a restaurant serving liquor by the drink on the premises, correct?
A. That would be a legitimate—
THE COURT: Very good. Thank you.
Anything further, based strictly on that line of questioning, from the attorneys?
MR. LONG ¡plaintiffs’ attorney]: I guess this opens a new area. We have never discussed about percentages—
A. Yes, we hadn’t looked at that.
MR. LONG: — being 80 or 90 percent. And I guess I’m kind of put into a position of asking my own expert where does he come up with the number of 80 or 90 percent.
THE COURT: Sure.
MR. LONG: And I really don’t like to be in that position at all. I didn’t ask those questions, and I didn’t elucidate that.”

Plaintiffs’ attorney then completed a redirect examination of plaintiffs’ expert. The following testimony is pertinent:

"Q. So would you agree with me, Doctor, that that definition shouldn’t necessarily be pegged to a gross percentage of revenue being 90 percent, 80 percent of all the revenue is food, when there could be another mix that could be appropriate and still be the primary purpose as being a restaurant, with liquor being incidental?
A. Where the problem comes in here is finding the measure, finding the yard stick. And if a jurisdiction wants to use the dollar sales as the yard stick, you know, that is the elected official’s decision on that particular point. And that could be determined at whatever level they felt, based upon whatever study they do is reasonable. But again, the — . I’m sorry.
Q. But in this case they haven’t done that?
A. That’s right.
Q. And is there anything you can glean from that statutory interpretation of this Madison County Zoning Ordinance which indicates an intent to do that?
A. Nothing.”

The expert, Carl Lossau, clearly felt uncomfortable with stating a percentage of food sales to liquor sales in order to define plaintiffs’ establishment as somewhere between a pure “restaurant” and a pure “bar.” It cannot be discerned from the testimony whether Mr. Lossau’s opinion was based on any empirical study which would indicate that 80% would be a fair percentage in which to allow plaintiffs a fair profit margin. Additionally, Mr. Lossau indicated that there would be other ways to distinguish a restaurant from a bar such as a percentage of floor space devoted to each activity.

The trial court’s ruling was open to several interpretations. As plaintiffs pointed out in their brief, does the 80% restriction mean 80% of net profit, 80% of gross sales, or 80% of floor space? Is the calculation to be made on each ticket, monthly, quarterly, or annually? Who will monitor the percentages? Does either the county or the court have any enforcement rights, right to inspect, or right to audit? Zoning lies primarily within the province of the county. The trial court went too far in attempting to determine the details of this special use permit.

After analysis of the record and consideration of the specific findings of the trial court, we find that the 80% food service restriction was against the manifest weight of the evidence and bears no real and substantial relation to the public health, safety, morals, or general welfare.

For the foregoing reasons, we find that the judgment of the cir-cult court of Madison County that the Madison County zoning ordinance is constitutional is affirmed. We further affirm the judgment of the circuit court as to the issuance of a special use permit to plaintiffs. We reverse as to the restrictions placed on plaintiffs’ special use permit.

Affirmed in part, reversed in part.

CHAPMAN and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE E. RADER, Defendant-Appellant.
    Fifth District
    No. 5—87—0038
    Opinion filed May 2, 1989.

      Daniel D. Yuhas and Allen H. Andrews, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Randall J. Rodewald, State’s Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

On August 21, 1986, George E. Rader was charged by information in the circuit court of Randolph County with armed violence predicated on the unlawful manufacturing of more than 500 grams of a substance containing cannabis while armed with a pistol; with the unlawful manufacture of more than 500 grams of a substance containing cannabis; with the unlawful possession of more than 500 grams of a substance containing cannabis; with the unlawful use of a weapon, for knowingly carrying concealed on his person a pistol when he was not on his own land, in his own abode, or fixed place of business; and possession of a firearm without a firearm owner’s identification card.

At his trial, Harvey Eggemeyer testified that while cutting weeds on his property, he noticed several plots of unusual looking plants growing along a creek. He took several of the plants to the county agent, where they were identified as cannabis, and subsequently called the sheriff’s office.

The marijuana plants were placed under surveillance, and on August 20, 1986, DCI Agent Ed Thraikill observed two men approach the plots from the other side of the creek. He radioed this information to DCI agent Kenneth Sylvester and sheriff’s deputy Lyndon Thies, who were hiding in one of the plots of marijuana. When the two men came within a few feet of Thies and Sylvester, they stood up, identified themselves, and placed Rader and the other man, James Blockley, under arrest.

Upon searching the suspects, police found a .25 caliber semiautomatic pistol in one of Rader’s pants pockets. Rader also had a folding knife which had a resinous residue, later determined to contain cannabis, on the blade. In addition, police seized from the suspects a green bucket full of water, a brown pail, two cans of plant fertilizer, a camera, and a can of insect repellent. After being arrested, Rader told the police that he and Blockley were going to fertilize some of the-plants and take them out early, before “them,” and that he and Blockley were going to be blamed for “this.” Blockley also told police that he had seen a silver Pontiac in the vicinity and that the driver of that car had been cultivating the marijuana.

After Rader and Blockley were arrested, the plants were cut down and were all identified to be cannabis. From the height of some of the plants, it appeared that they had been planted several months prior to Rader’s arrest. Police found some plants that had been freshly cut and some that had been cut sometime earlier.

Testifying in his own behalf, Rader stated that Blockley lived next to the Eggemeyer farm near where the marijuana plants were found, and that Blockley had told him about the marijuana about mid-July. Rader also said that he had first seen the marijuana one week prior to his arrest and at that time had used his knife to cut some branches for his own personal consumption. Rader testified that he and Blockley had intended to fertilize some of the plants and harvest them before the growers returned. He also testified that he had the gun with him because he often used it to target shoot on Blockley’s property.

After a jury trial, Rader was convicted on all counts except possession of a firearm without an FOIC card, on which the State declined to have the jury instructed. Rader was sentenced to eight years’ imprisonment on the armed violence charge, seven years on the manufacturing charge, and five years on the possession charge, with all sentences to run concurrently. The court declined to sentence Rader on the unlawful use of a weapon charge. Additionally, Rader was fined $43,584, the street value of the marijuana, and $4,358.40 for the Traffic and Criminal Conviction Surcharge Fund. This appeal followed.

On appeal, Rader argues that the State failed to prove beyond a reasonable doubt that he was guilty of either manufacturing or possession of cannabis. Rader also argues that because the evidence is insufficient to prove the felonies on which the armed violence charge is predicated, it too must be vacated.

Under People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44, cert denied (1984), 465 U.S. 1036, 79 L. Ed. 2d 708, 104 S. Ct. 1310, a defendant may not be convicted of both armed violence and its predicate felony where both offenses are based on the same physical act. Rader argues that his armed violence conviction was based on the same physical acts as the underlying felonies of manufacturing and possession of cannabis. The State concedes that and Rader’s convictions for manufacturing and possession of cannabis should be vacated. Rader had also argued that he could not be convicted of both manufacturing and possession of cannabis as possession was a lesser included offense of manufacturing cannabis under the facts of this case, a point which the State conceded, but we need not address that argument. Rader further argued in his brief that he was denied due process of law where the jury was instructed that it could convict him of armed violence based on either the manufacturing charge or the possession charge, where the information charged him only with armed violence predicated on the manufacture of a substance containing cannabis. In his reply brief, however, Rader acknowledges that such an instruction was permissible under People v. Simmons (1982), 93 Ill. 2d 94, 442 N.E.2d 891.

The only remaining issue, with the exception of the propriety of the fines, is whether the evidence was sufficient to prove Rader guilty beyond a reasonable doubt of armed violence. To sustain a charge of armed violence, all of the elements of the underlying felony must be proved plus the additional element that the defendant was armed. The defendant need not, and indeed in cases such as this cannot, be convicted of the underlying felony. People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233.

Rader’s own testimony clearly establishes that he and Blockley knew the marijuana plants were there and that they were arrested as they prepared to fertilize at least some portion of the growing marijuana. Blockley and Rader were friends and Blockley lived adjacent to the section of the Eggemeyer farm where the marijuana was located. It is also clear from the record that the marijuana had been growing for some time. Rader contends that he and Blockley were simply going to fertilize a few plants for their own use and that the marijuana was actually being grown by someone else. While his story is plausible, the credibility of a witness is determined by the trier of fact, and the jury was under no obligation to believe Rader’s story. There is sufficient evidence for a jury to conclude that all of the requisite elements of both manufacturing and possession of cannabis were present in this case and Rader himself admits being armed with the pistol. We do not find the jury’s conclusion to be against the manifest weight of the evidence and affirm Rader’s conviction for armed violence.

Rader also challenges the propriety of the fines levied against him. Section 5 — 9—1.1 of the Unified Code of Corrections provides that “[w]hen a person has been adjudged guilty of a drug related offense involving possession or delivery of cannabis or *** a controlled substance *** a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.” Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1.1.

Rader maintains that because the trial court did not specify which conviction the fine was based upon and because the convictions for manufacturing and possession of cannabis must be vacated, his fine must be vacated as well. Rader argues that refusing to vacate the fine would be to shift it to the armed violence charge, which is improper under the recent holding of People v. Craddock (1987), 163 Ill. App. 3d 1039, 516 N.E.2d 1357. In Craddock, the defendant was convicted of both armed violence based on the unlawful delivery of a controlled substance and the predicate offense of unlawful delivery. The trial court sentenced the defendant to prison on both charges and imposed the street value fine on the unlawful delivery charge. The appellate court vacated the unlawful delivery charge because it was based on the same physical act as the armed violence charge and refused to shift the fine to the armed violence charge, holding that to do so would be to impermissibly increase the sentence for the armed violence conviction. Craddock, 163 Ill. App. 3d at 1048, 516 N.E.2d at 1363-64.

In People v. Costales (1988), 166 Ill. App. 3d 234, 520 N.E.2d 421, the defendant was found guilty of both armed violence and its predicate felony, unlawful delivery. The court sentenced the defendant only on the armed violence charge and imposed a street value fine on that charge. The appellate court vacated the unlawful delivery charge but refused to vacate the fine as it was imposed specifically upon the armed violence charge. This case falls somewhere between Costales and Craddock because, here, the court did not specify upon which charge the fine was being assessed. The State argues that we should presume the fine was being assessed upon the most serious charge, armed violence, while Rader argues that to do so would be to shift the fine, impermissibly increasing his sentence on that charge.

Where a defendant receives multiple convictions for offenses arising out of a single physical act, sentence is to be imposed on the most serious offense. (People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880.) Contrary to Rader’s characterization, Mack is not merely a rule of guidance for trial courts, it is binding authority. On review, a sentence is presumed to be proper and we must therefore presume that, in accordance with Mack, the trial court assessed the fine on the most serious charge, armed violence, and Rader has made no showing which would rebut that presumption. (See People v. McCue (1977), 48 Ill. App. 3d 41, 362 N.E.2d 760.) Further, section 5— 9 — 1.1 of the Unified Code of Corrections makes imposition of the street value fine mandatory. Any sentence for a drug-related offense which does not include this fine falls below the minimum applicable sentence. Even if the trial court had specifically imposed the street value fine on the manufacturing or possession convictions, we would be compelled to shift it to the armed violence conviction upon vacating the other two offenses. Contrary to Rader’s assertion, this would not be an impermissible increase in his sentence, merely a modification bringing the sentence into conformity with the minimum sentence required by statute. We recognize that this conflicts with the holding in Craddock, and to the extent it does, we choose not to follow it.

Rader also argues that the trial court erred in assessing a surcharge of $4,358.40 for the Traffic and Criminal Conviction Shortage Fund. Section 9.1 of Illinois Police Training Act (Ill. Rev. Stat. 1985, ch. 85, par. 509.1) provides that “[i]n addition to every fine imposed by a court for a criminal or traffic offense, an additional assessment, *** shall be imposed *** in accordance with subsection *** (c) of Section 5 — 9—1 of the ‘Unified Code of Corrections.’ ” (Emphasis added.) The statute clearly mandates that the surcharge shall be assessed on all fines imposed. Subsection (c) of section 5— 9 — 1 imposes an additional penalty of 10%. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1.

Rader relies on People v. Ruff (1983), 115 Ill. App. 3d 691, 450 N.E.2d 1369, for the proposition that section 5 — 9—1(c) is inapplicable to fines levied under section 5 — 9—1.1. In Ruff, the defendant argued that in levying an automatic fine under section 5 — 9—1.1, the trial court erred because it failed to consider her financial resources and future ability to pay, as mandated by section 5 — 9—1(d). In holding that the trial court was not required to consider defendant’s financial resources or ability to pay, the court stated:

“Moreover, we conclude that the provisions of section 5 — 9— 1 have no bearing upon a fine imposed pursuant to section 5— 9 — 1.1. A fine assessed pursuant to the latter is to be levied ‘in addition to any other penalty imposed.’ Unlike section 5— 9 — 1, section 5 — 9—1.1 contains no provision requiring an examination into an offender’s personal situation. It calls for the mandatory imposition of a fine. Accordingly, a defendant’s financial resources and ability to pay are irrelevant considerations when imposing a fine pursuant to section 5 — 9—1.1.” (Ruff, 115 Ill. App. 3d at 695, 450 N.E.2d at 1373.)

We do not believe the holding in Ruff can be read as broadly as Rader asserts. Ruff stands only for the proposition that a trial court need not consider defendant’s financial resources or ability to pay when assessing a mandatory street value fine. We find no error in assessing the surcharge of $4,358.40.

The convictions for manufacturing and possession of cannabis are vacated. The conviction for armed violence and the related fines are affirmed.

The judgment of the circuit court of Randolph County is affirmed in part and vacated and remanded in part.

Affirmed in part; vacated and remanded in part.

LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN DEAN KERNER, Defendant-Appellant.
    Fifth District
    No. 5—87—0351
    Opinion filed May 3, 1989.

      Curtis G. Quindry, of Newton, for appellant.
    James Tomaw, State’s Attorney, of Newton (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

After a jury trial, the circuit court of Jasper County sentenced the defendant on April 10, 1987, to a term of seven years’ imprisonment for aggravated criminal sexual abuse in violation of section 12 — 16(cXl) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12— 16(c)(1)). The defendant appeals. We reverse the judgment and remand the cause for further proceedings.

The prosecution arose from allegations of sexual abuse made by three young girls, aged 6, 7, and 10. The defendant was accused of having fondled the vaginas of two young girls at Sam Parr State Park in Newton, Illinois, on Sunday, August 3, 1986, and of having fondled breasts of another young girl at Boys Baseball Park in Newton on Thursday, August 14, 1986. At trial, Boyd Vieregge, a child-protective investigator with the Department of Children and Family Services (DCFS), testified that he had received a report from one of the children that the defendant had committed “bad touches” upon her on at least five occasions. Vieregge contacted Officer Lawrence Sroka of the Newton police department, who told Vieregge that the Newton police were also investigating the defendant. Vieregge requested the officer to assist in setting up a meeting with the defendant at the police station.

On August 20, 1986, Vieregge met the defendant, who had been escorted to the Newton police station by Officer Bryan Green, to discuss the allegations of child abuse. While the defendant spoke with Vieregge in the office of the Newton chief of police, Officers Green and Sroka and the State’s Attorney waited outside of the office. Vieregge advised the defendant that he would have to notify the police and the State’s Attorney if the defendant inculpated himself in the criminal activity, but did not advise the defendant that he had the right to remain silent and the right to an attorney. The defendant then spoke with Vieregge for approximately IV2 hours and made several incriminating remarks during the interview. Vieregge asked the defendant if he would execute a written statement, and the defendant subsequently executed a statement inculpating himself in the alleged offense. Officer Sroka then entered the chief-of-police’s office and arrested the defendant.

Subsequent to placing the defendant under arrest, Officer Sroka admonished the defendant pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and interrogated him regarding the alleged abuse. The defendant then made some incriminating remarks to Sroka, which Sroka testified to during the trial.

The defendant argues on this appeal that: (1) the trial court erred by admitting in evidence the statement taken by Vieregge, an investigator for the DCFS, without Vieregge’s having admonished the defendant pursuant to Miranda-, (2) the trial court erred by allowing Officer Sroka to testify to an oral statement taken from the defendant immediately after the statement given to Vieregge; (3) the trial court erred by refusing to give jury instructions defining the offense of battery; and (4) the trial court abused its discretion in sentencing the defendant to a term of seven years’ imprisonment.

The defendant initially contends that the trial court erred by admitting in evidence a statement that he executed at the request of Vieregge of the DCFS in the office of the Newton chief of police on August 20, 1986. The defendant asserts that Vieregge acted as an investigative officer for purposes of Miranda without having admonished the defendant pursuant to Miranda. On February 24, 1987, the circuit court denied the defendant’s pretrial motion to suppress the written statement, and the statement was admitted over objection as State’s exhibit No. 4.

In Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612, the Supreme Court held that a prosecutor may not use an exculpatory or inculpatory statement arising from a custodial interrogation of a defendant unless the prosecutor can demonstrate the use of procedural safeguards effective to secure the defendant’s privilege against incriminating himself. The Miranda decision requires the agent of the prosecution to warn the defendant prior to questioning that: (1) he has the right to remain silent; (2) anything he says can be used against him in a court of law; (3) he has the right to have an attorney present; and (4) if he cannot afford an attorney, one will be appointed for him prior to questioning if he so desires. Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.

Previous case law indicates that the Miranda decision applies to any interrogating party who acts as an agent of the prosecution. In People v. Baugh (1974), 19 Ill. App. 3d 448, 451, 311 N.E.2d 607, 609, cert. denied (1975), 421 U.S. 920, 43 L. Ed. 2d 789, 95 S. Ct. 1587, the appellate court held that the trial court must exclude statements resulting from an interrogation of a defendant when the interrogating party failed to admonish the defendant pursuant to Miranda, and the interrogating party’s “interests were so integrated and closely aligned with the authorities that his role in [the] case was adversary in nature and his conduct and questions directed at defendant were accusatory in character.”

In People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628, a case with facts similar to those of the instant case, the appellate court affirmed the trial court’s suppression of a statement given to two DCFS investigators by a defendant charged with aggravated criminal sexual assault. The Hagar court distinguished People v. Bradley (1984), 128 Ill. App. 3d 372, 470 N.E.2d 1121, a case where the appellate court determined that the trial court did not err by denying the defendant’s motion to suppress a statement taken by a DCFS caseworker who received a defendant’s incriminating statement without admonishing the defendant pursuant to Miranda. In Hagar, the defendant made the statement in a custodial environment, where in Bradley the defendant made the statement at his home. Additionally, in Hagar the DCFS employees were “investigators” whose role was to inquire into abuse and neglect charges, and to instigate charges where appropriate, where in Bradley the DCFS employee was a “caseworker” whose role was to counsel the defendant, and not to solicit or encourage the incriminating remarks. Hagar, 160 Ill. App. 3d at 375, 513 N.E.2d at 631.

In the case sub judice, as in Hagar, the DCFS employee was an investigator and interviewed the defendant as part of his investigation for the DCFS. Vieregge admitted during the pretrial suppression hearing that he was “required by law to notify the [S]tate’s [A]ttomey and the police department of the complaint.” Vieregge told the defendant that he would have to notify the police and the State’s Attorney if the defendant’s statements indicated criminal activity. Vieregge was thus prepared, subsequent to taking the defendant’s statement, to assist the police and the State’s Attorney in their prosecution of the defendant. The defendant executed his written statement on a form Vieregge obtained from the Newton police. Officers Sroka and Green, and the State’s Attorney, waited for Vieregge to finish interviewing the defendant before entering the room, where Officer Sroka immediately arrested the defendant. Furthermore, Vieregge exchanged information with Officer Sroka, who was handling the criminal investigation of the defendant, both before and after Vieregge’s interview with the defendant. These factors indicate that Vieregge’s role in the investigation was integrated with that of the Newton officers and the State’s Attorney, and adverse to the interests of the defendant. Vieregge acted as a “conduit for information elicited from defendant and used by the authorities in the prosecution of defendant.” (People v. Baugh (1974), 19 Ill. App. 3d 448, 451, 311 N.E.2d 607, 609.) Thus, Vieregge was an agent of the prosecution for purposes of Miranda.

We also note that the setting of the investigation was custodial in nature. The Miranda decision applies only to “custodial” interrogations, which the Court defined as “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” (Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) The determination of whether the defendant was in custody at the time of the interrogation depends on several relevant factors, including: (1) the place of the interrogation; (2) statements or nonverbal conduct indicating an accused is not free to leave; (3) the extent of the knowledge of the officers and the focus of their investigation; and (4) the intention of the officers. (People v. Newsome (1983), 117 Ill. App. 3d 1005, 1007-08, 454 N.E.2d 353, 355.) In the instant case, the circumstances of Vieregge’s interrogation indicate that the defendant was in a custodial setting during the questioning. Vieregge interrogated the defendant in the office of the chief of police. The door of the office was kept closed and locked at all times. Officers Green and Sroka, and the State’s Attorney, blocked the only exit from the office. Vieregge had information regarding the defendant’s culpability of the offense prior to the questioning, and the focus of Vieregge’s investigation was at all times upon the defendant. Officer Sroka intended to arrest the defendant, and did arrest the defendant, immediately after the interview. Thus we find, from the factors prescribed in Newsome, that the defendant was in custody for purposes of Miranda.

The standard of review for a motion to suppress is whether the finding of the trial court was manifestly erroneous. (People v. Brown (1980), 88 Ill. App. 3d 514, 519, 410 N.E.2d 505, 509, cert. denied (1981), 451 U.S. 1019, 69 L. Ed. 2d 392, 101 S. Ct. 3010.) Vieregge’s role in the interrogation clearly indicates that he was an instrumentality of the prosecution, and the evidence indicates that the interrogation took place while the defendant was “in custody” for purposes of Miranda. Consequently, Vieregge was required to give Miranda warnings to the defendant prior to interrogating him. The trial court’s failure to suppress Vieregge’s statement was manifestly erroneous, and we must therefore reverse the court’s judgment and remand the cause for a new trial.

The defendant’s second contention is that the trial court erred by allowing Officer Sroka to testify to an oral statement of the defendant taken immediately after the statement to Vieregge. The trial court denied the defendant’s pretrial motion to suppress the statement to Sroka and Sroka testified at trial as to the defendant’s statement. The defendant objected to Officer Sroka’s testifying because the defendant alleged that the statement made to Sroka was “fruit of the poisonous tree” obtained from Vieregge, and the statement was thus tainted by Vieregge’s failure to give Miranda warnings.

“Under Illinois law, the admissibility of defendant’s subsequently warned confession after an initial Miranda violation depends upon the voluntariness of the second statement. [Citation.] Voluntariness is determined after a consideration of the totality of the circumstances and depends upon whether the accused’s will was overborne at the time of the statement. [Citations.] The fact that the first statement is inadmissible does not automatically render a subsequent statement inadmissible.” (People v. Fuller (1986), 141 Ill. App. 3d 737, 744, 490 N.E.2d 977, 983.) We are unable to determine from the record whether the defendant made his statement to Officer Sroka voluntarily. Upon remand, the court should conduct a rehearing to determine the voluntariness of the defendant’s statement to Sroka.

The defendant next contends that the trial court erred by refusing to give jury instructions defining the offense of battery. The record indicates that the defendant tendered proposed jury instructions setting forth the elements of battery, accompanied by verdict forms for battery. The court sustained the State’s objection to these instructions and the instructions were not given to the jury.

Section 12 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 3(a)) defines battery as where an individual “intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” In People v. Reynolds (1987), 152 Ill. App. 3d 216, 218, 504 N.E.2d 163, 165, the appellate court acknowledged that a defendant may be entitled to instruct a jury on a lesser included offense. However, the court noted that the evidence must permit a jury rationally to find the defendant guilty of the lesser offense and not guilty of the greater offense. (Reynolds, 152 Ill. App. 3d at 218, 504 N.E.2d at 165.) The Reynolds court determined that the record failed to indicate any evidence under which the jury could find the defendant guilty of the lesser offense of attempted burglary because the evidence was clear that someone had burglarized the victim’s house. The court concluded that, when the evidence indicates that a defendant is either guilty of the greater offense or not guilty of any offense, the court may properly refuse an instruction on the lesser offense. Reynolds, 152 Ill. App. 3d at 219, 504 N.E.2d at 165.

In the instant case, the court properly refused to give the instruction on the lesser offense of battery because the defendant is either guilty of the greater offense of aggravated criminal sexual abuse or not guilty of any offense. The defendant has consistently argued that he did not touch the victims’ sex organs or breasts, or, if he had, that the touching was unintentional. If the jury believed the defendant’s version of the facts, then it could only conclude that he had not committed any offense. The only other possibility is that the touching was intentional. If there were an intentional touching, under the evidence presented, the touching of the victims’ sex organs or breasts could only have been for sexual gratification. Thus the defendant would have committed aggravated criminal sexual abuse, not merely battery. Accordingly, the jury could either find the defendant guilty of aggravated criminal sexual abuse or find him not guilty of any offense. The trial court therefore correctly refused to give the instruction for battery.

The defendant’s final contention is that the trial court abused its discretion in sentencing him to an extended term of seven years’ imprisonment. We need not rule on this point since we are reversing the lower court’s judgment and remanding the cause for a new trial.

For the foregoing reasons, we reverse the judgment of the circuit court of Jasper County and remand the cause for further proceedings.

Reversed and remanded.

WELCH, P.J., and HOWERTON, J., concur.


text:
      In re ESTATE OF ORAN K. HAWLEY, Deceased (Edna Hawley, Petitioner-Appellee, v. Richard Gregory, Respondent-Appellant.)
    Fifth District
    No. 5—88—0136
    Opinion filed May 3, 1989.
    James O. Beavers and Edward T. Graham, Jr., both of Hershey, Bliss, Beavers & Periard, of Taylorville, for appellant.
    Robert W. Ohlsen, of Walden, Cole, Ohlsen & Coryell, of Decatur, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Petitioner brought this action in the circuit court of Christian County seeking removal of Richard Gregory as trustee of a testamentary trust. After trial- the court entered an order removing Gregory as trustee.

Oran K. Hawley died on August 31, 1986, naming in his will his nephew, Richard Gregory, to serve as executor. Hawley’s will provided for the payment of all funeral expenses and the bequest of household furnishings and personal car to the decedent’s surviving spouse, Edna Hawley. The will further directed that the balance of the residual estate be converted to cash, $300,000 of which was bequeathed to Richard Gregory in trust for the purposes set forth in the will, and the remainder distributed equally to the decedent’s nephew, Richard Gregory, the decedent’s niece, Patricia Ann Turnbull, the decedent’s sister, Maribell Hawley, and the remaining one-fourth to certain other named relatives. Edna Hawley was to receive all net income from the trust estate during her lifetime and upon her death the principal was to be distributed equally to Richard Gregory, Patricia Ann Turnbull, and Maribell Hawley.

Oran Hawley’s estate included 194 units of Insured Municipal Income Trust (IMIT) certificates and three tracts of farmland, one of which consisted of Hawley’s residence, several farm buildings and other improvements, and related acreage. After Oran Hawley’s death, Richard Gregory made arrangements with Haldon Burgener, a licensed auctioneer, to sell the real estate at a public auction on November 6, 1986. The executor’s son, Jeffrey Gregory, an associate auctioneer in Burgener’s employ, purchased the tracts of farmland containing the Hawley residence for $95,000, and Richard Gregory, as trustee, purchased the other two for $156,283, although the trust had no money at the time. According to the terms of the sale, Richard Gregory was to pay 10% of the sale price at the close of bidding and agree in writing to pay the balance in 30 days. The down payments were not made and the sales not finalized until February 17, 1987, at which time the price was paid in full.

In his capacity as executor, Richard Gregory sold the IMIT certificates in early December 1986 for $208,241.49, depositing $185,935.95 in the executor’s account and the remainder in the trustee’s account. The amount deposited in the executor’s account was subsequently transferred to the trustee’s account and used to satisfy the trust’s commitment to purchase the land from the estate. Richard Gregory thereafter leased the farmland acquired in trust to Jeffrey Gregory, who was at the time a 21-year-old college student at the University of Illinois.

The trial court entered an order removing Richard Gregory as trustee, finding that in purchasing the farmland and renting it to his son, he was not acting in the best interest of the trust income beneficiary, but was utilizing the trust in such a way as to benefit himself and his son, and to cast doubt as to whether his actions were self-serving or for the trust. The trial court further found that while the purchase of the farmland was within the trustee’s broad powers, when these powers were used in a way such that the trustee and his family would be materially benefited, and when the beneficiary’s income could be affected by the business dealing between the trustee and his son, the ability of the trustee to faithfully perform his fiduciary duties was compromised.

The trial court also found that evidence suggested that a fair price was paid for the land, that the rental agreement entered into was common in the area, that the anticipated rate of return was not unreasonable, and that no evidence was presented which would support any allegation of waste to the trust or loss of income to the beneficiary.

On appeal, Gregory argues that there was no evidence in the record to support the trial court’s finding that he exercised his powers as trustee in such a way to materially benefit himself or his family. While he acknowledges that the lease of the trust farmland to his son gives the appearance of impropriety, Gregory maintains that because there is no evidence of waste to the trust property or loss of income to the beneficiary, there was no benefit to either him or his son. Further, Gregory argues, even if profit or advantage was obtained, it was not the result of bad faith and his removal as trustee was therefore not warranted. At most, he argues, he should be required to account for any such profit or advantage.

It is a well-settled rule of law in this State that a trustee may not engage in any form of self-dealing with the trust (In re Will of Gleeson (1955), 5 Ill. App. 2d 61, 124 N.E.2d 624) or place himself in a position where his interests conflict with those of the trust beneficiaries (Campbell v. Albers (1942), 313 Ill. App. 152, 39 N.E.2d 672). Gregory correctly points out that there is a well-recognized exception to this rule. Where the instrument creating the trust expressly contemplates, creates, and sanctions a conflict of interest, it may be permitted to exist. (Conant v. Lansden (1950), 341 Ill. App. 488, 94 N.E.2d 594.) For that reason, it was permissible for Gregory to be both trustee of the trust and executor of the Hawley estate. That exception does not, however, permit the conflict of interest created by Gregory when he leased trust property to his son. There is no evidence at all which would support an argument that the trust instrument sanctioned such a conflict of interest, and Gregory’s argument that the decedent would have approved is pure conjecture.

As a fiduciary, a trustee has a duty to act with the utmost good faith and the highest degree of fidelity toward the trust beneficiaries (Wallace v. Malooly (1954), 4 Ill. 2d 86, 122 N.E.2d 275), and while there are no allegations against Gregory of any bad faith or wrongdoing, the duty of a trustee is such that it will suffer not the remotest possibility of a conflict of interest, nor the faintest appearance of impropriety. Gregory has placed himself in a position where, because of his relationship with his son, his responsibility to the income beneficiary could be compromised. Because the potential conflict of interest is a continuing one, we do not find that the trial court abused its discretion in removing Gregory as trustee.

The judgment of the circuit court of Christian County is affirmed.

Affirmed.

CHAPMAN and HOWERTON, JJ„ concur.


author: JUSTICE CHAPMAN

text:
    WILLIAM MOORE, Adm’r of the Estate of Minnie Moore, Deceased, Plaintiff-Appellant, v. JANIS BELLAMY, Defendant-Appellee.
    Fifth District
    No. 5—87—0628
    Opinion filed May 3, 1989.

      Peter E. Popit, of Caldwell, Troutt, Alexander, Quindry & Popit, of Benton, for appellant.
    Charles E. Schmidt and Rebecca Whittington, both of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On a cold and drizzly morning on April 1, 1983, plaintiff’s decedent was killed in a head-on vehicular collision in Franklin County, Illinois. Just prior to the collision, a line of cars was traveling west on Illinois State Route 14. The first of these was occupied by Apryl Malkovich, followed by one or more unidentified vehicles, followed by a car driven by Janis Bellamy and then the decedent’s vehicle. At the time of the accident, William Collier was driving a semitractor trailer eastbound on Route 14, when he collided head-on with the pickup truck driven by the decedent. Illinois State Route 14 intersects with the Eakin Grove Road. Immediately prior to the accident Apryl Malkovich activated her turn signal and slowed her vehicle in order to turn left onto Eakin Grove Road. Ms. Malkovich testified that she waited to make her turn while the semitractor trailer that was traveling eastbound drove past. Upon executing her turn and continuing down Eakin Grove Road, Ms. Malkovich heard the collision.

Plaintiff, as administrator of the decedent’s estate, filed a complaint against Janis Bellamy alleging that, at the time of the accident, Apryl Malkovich brought her vehicle to a stop in preparation for making a left turn and that Janis Bellamy acted negligently in suddenly and unreasonably slowing or stopping her vehicle on the roadway and in failing to keep a proper lookout. Plaintiff alleged that as a proximate result of Janis Bellamy’s negligence Janis Bellamy did apply the brakes on her vehicle and did slide upon the roadway and onto the shoulder, thereby proximately causing plaintiff’s decedent to turn or slide out of the westbound lane of travel and into the eastbound lane, running head-on into the semitractor trailer.

Following a jury trial, verdict was returned for the defendant and judgment was entered upon the verdict, from which plaintiff appeals. Plaintiff asserts that judgment should be reversed and a new trial ordered. As grounds, plaintiff argues that the trial court committed prejudicial error by failing to rule upon plaintiff’s motion in limine seeking the exclusion of a hearsay statement and thereafter denying plaintiff’s motion for mistrial made after the defendant improperly testified concerning the hearsay statement. Plaintiff also urges on appeal that the trial court abused its discretion in not finding the improper closing argument of defense counsel so prejudicial as to deny plaintiff a fair trial.

Prior to trial plaintiff’s counsel moved in limine that the defendant not make reference to any statement allegedly made by an unidentified occurrence witness. The court denied the motion in limine, ruling that if and when the problem developed at trial counsel could then voice an objection and the court would deal with the matter at that time. At trial defendant Bellamy testified that, just prior to the accident, she was traveling westbound when she came upon vehicles in the westbound lane. She stated that when she saw the vehicles in her lane she applied her brakes, and in sensing that there was a lack of traction, she drove off the road onto the shoulder and stopped. She then turned to reassure her two boys in the backseat. Mrs. Bellamy stated that she then heard a noise and got out of her car to investigate. The testimony of Mrs. Bellamy as to what then happened is as follows:

“MRS. BELLAMY: I got out of the car and walked to the back of my car, when I heard, she tried to pass; help that lady.
MR. MITCHELL: I am going to object to that. That’s inappropriate.
THE COURT: All right. Sustained.
MS. WHITTINGTON: You got out of your car—
THE COURT: The jury is instructed, also, to disregard that answer.
MS. WHITTINGTON: Why did you go to the back of your car, to look at something?
MRS. BELLAMY: Because I thought perhaps I had done something to the muffler or exhaust system. I had no idea what the noise was.
MS. WHITTINGTON: Did you look around besides the area of your car?
MRS. BELLAMY: No, not until I was hollered at.
MS. WHITTINGTON: Then did you look at any particular area?
MRS. BELLAMY: Yes, I did. I looked at the lady in the yard across the road who was hollering at me.
MS. WHITTINGTON: Okay. And is there a general direction, if you remember, from where your car was that you turned and looked?
MRS. BELLAMY: It would have been southeast just a bit.
MS. WHITTINGTON: Did you then continue to look at the area around your car and any other area around?
MRS. BELLAMY: Not around my car because the lady was pointing back down the road.
* * *
MS. WHITTINGTON: Did you notice anything about the automobile accident before you looked back east and north?
MRS. BELLAMY: No, only what the lady told me.
MR. MITCHELL: Show my objection again. Actually, I think it has gone so far at this point with that and with shouting or saying that answer loudly over my objection previously that it is impossible to cure. I move for a mistrial. Excuse me.”

Out of the presence of the jury, plaintiff’s counsel again stated its objection to Janis Bellamy’s reference to the unidentified occurrence witness. The court ruled that the testimony with regard to Mrs. Bellamy’s conversation with the unidentified lady was improper. The court further ruled that there was no foundation laid to create a spontaneous utterance, which may have rendered the testimony admissible. Defense counsel and the defendant were then instructed not to make any further references to the unidentified witness. The following offer of proof was then made by defense counsel:

“COUNSEL: Mrs. Bellamy, did you hear a lady at the scene of the occurrence make a statement to you?
MRS. BELLAMY: Yes, I did.
COUNSEL: What was the statement she made?
MRS. BELLAMY: She tried to pass; help that lady.
COUNSEL: And can you tell me when that statement was made after you heard the noise which you believed to be the accident?
MRS. BELLAMY: I was out of the car and around to the back of my car.
COUNSEL: Was it moments after the impact occurred in your judgment?
MRS. BELLAMY: Yes.
COUNSEL: Okay. And when the lady made those statements, what tone of voice, what was her mannerism when she made those statements?
MRS. BELLAMY: Very excited.”

The court sustained the objection as to the offer of proof. Upon bringing the jurors back in, the court instructed them to disregard the statement of Mrs. Bellamy as to the unknown woman at the scene of the occurrence. On appeal plaintiff contends the trial court erred in denying plaintiff’s motion in limine seeking exclusion of the hearsay statement, and also in denying plaintiff’s motion for mistrial after the hearsay declaration of the unidentified bystander was improperly admitted into evidence. We first consider the court’s denial of plaintiff’s pretrial motion in limine.

A motion in limine, made before trial, seeks an order excluding certain evidence on the ground that it is inadmissible (Department of Public Works & Buildings v. Sun Oil Co. (1978), 66 Ill. App. 3d 64, 383 N.E.2d 634; Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 359 N.E.2d 752), and its grant or denial is a matter within the trial court’s discretion (People v. McClain (1978), 60 Ill. App. 3d 320, 376 N.E.2d 774). When a motion in limine is made, the trial judge must exercise his discretion in granting the motion or in denying it, thereby leaving to the unsuccessful movant the procedure of objecting to the evidence when it is offered at trial. Peo ple v. McClain, 60 Ill. App. 3d at 324, 376 N.E.2d at 777, citing Department of Public Works & Buildings v. Roehrig, 45 Ill. App. 3d at 195, 359 N.E.2d at 759; Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1040, 522 N.E.2d 1341, 1347.

In the instant case the court denied plaintiff’s motion in limine, and in its post-trial memorandum of decision and final order, the court commented that when a motion in limine is presented which deals with the hearsay rule and its numerous exceptions, the court prefers to wait until the matter is presented at trial and have objections made at that time. Although we find the hearsay statement of the unidentified occurrence witness admissible as a spontaneous utterance, we find the trial court did not follow the appropriate procedure in ruling upon the motion in limine.

It is well recognized that, in ruling on a motion in limine, the threshold question is whether the rules of evidence require exclusion of the subject matter of the motion. If not the motion must be denied. If the subject matter should be excluded, the trial court then has the discretion to grant or deny the motion, leaving it to the moving party to specifically object at trial. (People v. Williams (1978), 60 Ill. App. 3d 529, 532-33, 377 N.E.2d 367, 370; Department of Public Works & Buildings v. Roehrig, 45 Ill. App. 3d at 194-96, 359 N.E.2d at 759.) It is apparent that the trial court did not even consider the initial question of whether the rules of evidence required exclusion of the subject matter of the motion. During pretrial argument on plaintiff’s motion in limine, the court interposed its ruling to deny the motion, stating that it could not deal with a complex question such as the parties presented on the basis of a motion in limine.

We find that the trial judge acted improperly in denying the motion when it was offered. Had the court not summarily denied the motion because it dealt with the hearsay evidence rule, as is suggested was done by the court’s memorandum and decision of final order, the parties could have presented argument as was presented during trial when the issue of admissibility of the declaration arose. It is clear that the admissibility of the declaration could easily have been tested during pretrial, and the court could have properly applied the accepted procedure for ruling on a motion in limine. Notwithstanding the improper procedure employed in ruling on the motion in limine, the court’s ruling must be regarded as harmless error because we find the hearsay statement of the unidentified occurrence witness admissible as a spontaneous utterance.

Three factors are necessary to bring a statement within the excited utterance exception to the hearsay rule: (1) an occurrence suffíciently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804, 807.) These factors were present in the instant case, and the statement qualifies under the exception. Nevertheless, plaintiff maintains that the trial court properly ruled the evidence was inadmissible, because the bystander was unknown. Plaintiff argues that there were no eyewitnesses to the decedent’s operation of her vehicle prior to the accident, and the hearsay remark could do nothing but influence the minds of the jurors and lead them to the self-serving conclusion which defendant desired.

The declaration need not be made by a participant of the event to qualify as an excited utterance, but may be that of a bystander. (People v. Poland, 22 Ill. 2d at 181, 174 N.E.2d at 807; People v. Fields (1979), 71 Ill. App. 3d 888, 893, 390 N.E.2d 369, 372.) Here the defendant testified that it wasn't until she heard the woman shout to her to help the lady who tried to pass that she realized there had been an accident. It clearly appears the declarant personally observed the accident, but it is the declarant’s existence and observation which is challenged here. Plaintiff’s contention that the inability to cross-examine the declarant prevented effective argument regarding the reliability of the observation is not persuasive. The declaration is admissible regardless of declarant’s presence at trial, and regardless of whether the declarant’s identity is established. (People v. Fields, 71 Ill. App. 3d at 893-94, 390 N.E.2d at 372.) Furthermore, spontaneous declarations or excited utterances, even if self-serving, are admissible if they otherwise meet the test of admissibility. (Walczak v. General Motors Corp. (1976), 34 Ill. App. 3d 773, 776-77, 340 N.E.2d 684, 687; Sullivan v. Heyer (1939), 300 Ill. App. 599, 601, 21 N.E.2d 776, 777.) The factors relating to the declarant’s subjective or objective ability to observe could ordinarily be sufficiently developed through examination of other witnesses at trial and argued to the finder of fact to discredit the accuracy and unreliability of the declaration. The weight and credibility to be given to the declaration would be considered with the other evidence in reaching a verdict. (People v. Fields, 71 Ill. App. 3d at 894, 390 N.E.2d at 372.) In the instant case, plaintiff could have argued to the jury that the only person who claimed they saw the unknown bystander was the defendant and that the police who investigated the accident were unable to locate the unidentified bystander. In this manner the unreliability of the declaration could properly and effectively have been argued to the jury.

Plaintiff on appeal next urges this court to reverse the judgment of the trial court, on grounds that defense counsel’s improper closing argument was so prejudicial that it denied plaintiff a fair trial. As this issue concerns the giving of Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter cited as IPI Civil 2d), we must first consider whether the giving of IPI Civil 2d No. 5.01 over defendant’s objection was improper. We think not.

Josh and Joey Bellamy were ages 9 and 10 at the time of the accident herein. They were passengers riding in the backseat of their mother’s, Janis Bellamy’s, car. Neither boy was called to testify at trial. During the jury instruction conference, plaintiff tendered and the court accepted over defendant’s objection IPI Civil 2d No. 5.01, which reads:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witnessJf he believed the testimony would be favorable to him.
4. No reasonable excuse for the failure has been shown.”

The giving of this instruction is within the sound discretion of the trial court, and a reviewing court will reverse only where a clear abuse of discretion appears of record. Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1046-47, 460 N.E.2d 464, 468; Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 342 N.E.2d 144.

Defendant contends that the first two elements of IPI Civil 2d No. 5.01, requiring the witness to be under the control of the party and not equally available to the adverse party, were not shown in this case. Defendant argues that plaintiff previously deposed Josh and Joey Bellamy and that plaintiff could easily have subpoened the boys as witnesses at trial. Where a witness who has knowledge of the facts and is accessible to a party is not called by a party, an inference arises that his testimony would be adverse to that party, and an instruction could or should be given to that effect upon request. (Tonarelli v. Gibbons, 121 Ill. App. 3d at 1047, 460 N.E.2d at 468; Bassi v. Morgan (1965), 60 Ill. App. 2d 1, 208 N.E.2d 341.) Although the inference does not apply if the witness was equally available to either party, a witness is not considered equally available to a party if there is a likelihood that he would be biased against that party (Tonarelli v. Gibbons, 121 Ill. App. 3d at 1047, 460 N.E.2d at 468; Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865), as for example a relative or an employee of the other party. (See IPI Civil 2d No. 5.01, Comment, at 42.) In the instant case, Josh and Joey Bellamy were of tender years and are the defendant’s sons. Under such circumstances it is highly probable that they would have been biased against the plaintiff, and therefore, we cannot say the boys were equally available to both parties.

Defendant also argued against allowance of IPI Civil 2d No. 5.01 on grounds that elements 3 and 4 of the instruction were not shown to exist. Defendant contends that the boys knew nothing of the facts involving the accident and that a reasonably prudent person under similar circumstances would not have called the boys as witnesses. Defendant cites the depositions of Josh and Joey as proof that the boys knew nothing of any relevance which would serve this case. The trial court dismissed defendant’s argument, reasoning that as the boys were passengers in the car at the time of the accident, they were privy to the action of the car itself and the occurrences surrounding it, and there was no reasonable excuse for failure to call them as witnesses. We find no abuse of the trial court’s discretion in allowing IPI Civil 2d No. 5.01.

Counsel for defendant, in an attempt to lessen the effect of IPI Civil 2d No. 5.01, took the opportunity in closing argument to advise the jury that plaintiff could have called the boys as witnesses, just as easily as defendant could have called them. Plaintiff objected to defendant’s argument as being against IPI Civil 2d No. 5.01, which was to be presented to the jury. The court sustained the objection. The question for our review is whether counsel’s comment was so prejudicial as to deny plaintiff a fair trial.

Defendant argues that her closing argument comment was made in rebuttal to the comments plaintiff made in her closing argument stressing the defendant’s failure to call Josh and Joey Bellamy as witnesses. Defendant fails to recognize that the failure of a litigant to call a witness within the control of such litigant is a proper subject of comment. (Tonarelli v. Gibbons, 121 Ill. App. 3d at 1048, 460 N.E.2d at 469; Nakis v. Amabile (1981), 103 Ill. App. 3d 840, 846, 431 N.E.2d 1255, 1260.) Reference to the defendant’s failure to call the boys in the plaintiff’s closing argument was not improper. However, reference by defendant to the plaintiff having equal ability to call the boys as witnesses was improper. Closing argument of counsel must conform to the instructions which the court has indicated it will give. (Abrams v. City of Mattoon (1986), 148 Ill. App. 3d 657, 668, 499 N.E.2d 147, 154.) It is apparant to this court that counsel for defendant was undertaking to slant or distort the jury instruction which was to be given. It was proper for the court to sustain the plaintiff’s objection as to defendant’s comment. Although the comment was improper, it was only a small part of the argument, objection to the comment was sustained, and no other improper comments were made in the presence of the jury. For the foregoing reasons, judgment of the circuit court is affirmed.

Affirmed.

GOLDENHERSH and HOWERTON, JJ., concur.