author: JUSTICE STEIGMANN

text:
      In re S.I., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. S.I., a Minor, Respondent-Appellant).
    Fourth District
    No. 4—92—0245
    Opinion filed September 17, 1992.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On February 5, 1992, the State filed a supplemental delinquency petition charging respondent minor, S.I., with committing the offense of aggravated assault on February 4, 1992 (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 2(a)(l)). The trial court conducted a detention hearing that same day and found that the State had failed to establish probable cause that S.I. committed the offense with which he was charged. The court then ordered S.I. released from detention but also allotted the case for an adjudicatory hearing at a later date. Subsequently— and over the objection of S.I.’s counsel — the trial court conducted an adjudicatory hearing, found that the State had proved the charge of aggravated assault against S.I. beyond a reasonable doubt, and committed him to the Illinois Department of Corrections, Juvenile Division (DOC). S.I. appeals and raises as his sole issue the claim that once the court found no probable cause, it was statutorily required to dismiss the supplemental delinquency petition and thereafter had no authority to reinstate that petition.

We disagree and affirm.

I. Background

In January 1991, the trial court adjudicated S.I. a delinquent minor and made him a ward of the court based upon a delinquency petition the State filed in August 1990. The court then placed S.I. on juvenile probation for 18 months, but in April 1991, the court revoked his probation and committed him to DOC. In doing so, the court noted that S.I.’s wardship was to continue. In August 1991, S.I. was released from DOC.

The State filed a supplemental delinquency petition regarding S.I. on February 5, 1992, and the trial court conducted a detention hearing on that date in accordance with the provisions of section 5— 10 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1991, ch. 37, par. 805 — 10). Section 5 — 10(1) of the Act reads as follows:

“If the court finds that there is not probable cause to believe that the minor is a delinquent minor it shall release the minor and dismiss the petition.” (Ill. Rev. Stat. 1991, ch. 37, par. 805-10(1).)

At the conclusion of the detention hearing, the court stated the following:

“I am going to find, for the purposes of this hearing only, that there has been no probable cause established. I am going to show the petition on file. I am going to show the minor is ordered released from custody at this time pending hearing ***.
I am going to set the matter down for *** hearing, February the 18th, at 2:00 in the afternoon. That’s a date certain for the hearing ***.”

At the beginning of the hearing on February 18, 1992, the court referred to discussions the court had just had in chambers with both counsel. The court explained that its finding of no probable cause was based on the prosecutor’s failure to properly have S.I. identified in court as the perpetrator of the aggravated assault. The court noted defense counsel that day had argued that section 5 — 10(1) of the Act requires the court to release the minor and dismiss the delinquency petition whenever the court finds no probable cause at the conclusion of the detention hearing. The court acknowledged that defense counsel correctly represented the statutory language, but the court also observed that the State would then immediately make an oral motion to reinstate the supplemental delinquency petition and to proceed thereon without any delay. The court stated for the record that it had indicated to both counsel that it would grant the State’s request. The court explained that the State “always [has] a right to refile a petition anytime that they [sic] want to.”

In response to the trial court’s remarks, defense counsel stated that the proceedings scheduled to take place that day should be a nullity based upon section 5 — 10(1) of the Act. Counsel then explained his position as follows:

“[Section 5 — 10(1) of the Act] states pretty clearly that the Court shall release the minor and dismiss the petition. If the petition is dismissed, it’s true that the State would have leave to refile that petition; however, I believe that things would reset to the start. The Respondent Minor would be entitled to an arraignment hearing, and notice would be required for that hearing. I don’t believe that you could simply reinstate things from the position where it — where the petition [was] dismissed, and, that being the case, I would move that the petition be dismissed by the Court and the State be granted leave to refile it, but I don’t believe any hearing can take place today.”

The trial court disagreed with defense counsel’s argument, noting that several teachers from the high school where S.I.’s aggravated assault allegedly took place were present in court pursuant to subpoena, and that not holding the hearing that date would inconvenience those witnesses. The court concluded that “to try to make citizens reappear back in court would be, clearly, putting form over any sort of substance and would be a pretty futile act.” The court then entertained the State’s oral motion to reinstate the supplemental delinquency petition filed February 5, 1992, and granted that motion over S.I.’s objection. As earlier stated, the State went on to prove the charge against S.I. beyond a reasonable doubt, and the trial court ultimately committed him to DOC.

II. Analysis

On appeal, S.I. argues that section 5 — 10(1) of the Act requires that when the trial court finds at a detention hearing that there is no probable cause to believe the minor is a delinquent minor, then the court must not only release the minor, it must also dismiss the petition. Thus, S.I. concludes, no pleading remained pending after the no-probable-cause finding upon which the court could conduct further proceedings. S.I. explains as follows:

“The simple fact is that in the instant case, the trial court chose to proceed against the minor after finding no probable cause, and without an additional hearing for the State to establish probable cause before adjudicating the minor a delinquent.”

Additionally, S.I. argues that section 5 — 13(5) of the Act also prohibits the trial court’s actions in this case. (Ill. Rev. Stat. 1991, ch. 37, par. 805 — 13(5).) Section 5 — 13(5) reads as follows: “At any time before dismissal of the petition or before final closing and discharge under Section 5 — 34 [of the Act], one or more supplemental petitions may be filed in respect of the same minor.” (Ill. Rev. Stat. 1991, ch. 37, par. 805 — 13(5).) Citing this section, S.I. then makes the following argument: “By the plain language of [section 5 — 13(5) of the Act], once the trial court finds no probable cause and dismisses the petition, it is too late for the State to file a supplemental petition alleging the same delinquent conduct.” We disagree with both of these arguments.

First, regarding S.I.’s argument concerning section 5 — 13(5) of the Act, we note that the trial court in the present case reinstated a previously filed and technically dismissed supplemental delinquency petition. To paraphrase S.I.’s argument, by the plain language of section 5 — 13(5) of the Act, that section does not address at all the court’s authority to reinstate previously dismissed petitions. Further, as the State points out, no “final closing and discharge” under section 5 — 34 of the Act ever occurred in this case. That section provides that once a minor has been adjudicated a ward of the court, that wardship continues until either (1) the minor attains the age of 19 years, or (2) the court finds that the best interests of the minor and the public no longer require the wardship and the court orders it terminated. Because neither of these events occurred in the present case, S.I.’s January 1991 adjudication of wardship continued unabated as of February 1992.

We also agree with the State’s argument that detention hearings conducted under section 5 — 10 of the Act are comparable in many ways to preliminary hearings conducted under section 109 — 3 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 109 — 3). Both such hearings are preliminary in nature and in both the State bears the burden to show probable cause to believe that (1) a crime was committed, and (2) the defendant (or alleged juvenile delinquent) committed the crime. (People v. Puleo (1981), 96 Ill. App. 3d 457, 465, 421 N.E.2d 367, 373.) Further, in both such hearings, the State may meet its burden of demonstrating probable cause by the presentation of hearsay testimony. (People v. Blackman (1980), 91 Ill. App. 3d 130, 133, 414 N.E.2d 246, 248.) Also, in both such hearings, the court need not (and ought not) make findings as to each count pending in either a multicount delinquency petition or a multicount criminal complaint or information. The purpose of the preliminary hearing has been fulfilled once the court can find that there is probable cause to believe defendant committed any felony offense of the several felony charges that are then before the court. (See Ill. Rev. Stat. 1991, ch. 38, par. 109—3(a); see also People v. Redmond (1977), 67 Ill. 2d 242, 248-49, 367 N.E.2d 703, 706-07.) Similarly, once the court has found probable cause to believe an alleged delinquent committed any offense of the several offenses charged in the delinquency petition then before the court, the first issues posed to the court in a detention hearing have been answered: (1) a crime was committed, and (2) the alleged delinquent committed it. All that remains for the court to decide is whether it is a matter of immediate and urgent necessity that the minor continue to be detained pending the adjudicatory hearing.

The primary purpose of a juvenile detention hearing is to ensure that no alleged juvenile delinquent will be held in custody more than 36 hours, exclusive of Saturdays, Sundays, and court-designated holidays, unless a judge — not just police officers or prosecutors — determines that sufficient probable cause exists to believe that the detained minor is a delinquent minor as charged. (See Ill. Rev. Stat. 1991, ch. 37, pars. 805 — 9(1), 805 — 10(6).) Therefore, consistent with this purpose, the significant remedy the law provides to a minor in detention when the State cannot show probable cause at a detention hearing is release from further detention. The court ordered that remedy in the present case.

While section 5 — 10(1) of the Act also speaks of the court “dismisspng] the petition,” that language provides only a minor remedy because nowhere does section 5 — 10 or any other provision in the Act suggest that the State would be barred from reinstating the dismissed delinquency petition. Indeed, to hold otherwise would turn a finding of no probable cause at a detention hearing into a jeopardy determination, barring reinstatement of charges just as fully as if the juvenile had been charged, been given a trial on the merits (an adjudicatory hearing), and found not guilty (not to be a delinquent minor).

We further reject S.I.’s argument that permitting the State to reinstate the dismissed delinquency petition somehow deprives him of a procedural protection afforded by the Act. As we quoted earlier, S.I. argues that the State cannot proceed to an adjudicatory hearing on the delinquency petition without first establishing probable cause at a detention hearing. However, the Act does not require a probable cause determination prior to an adjudicatory hearing when the State merely files a delinquency petition and does not seek to detain the alleged delinquent. Only when the State seeks to detain a minor after filing a delinquency petition against him does the Act require the State to show probable cause at a hearing conducted prior to the adjudicatory hearing, with the latter being the trial on the merits of the delinquency petition. See Ill. Rev. Stat. 1991, ch. 37, par. 805 — 20.

In contrast to juvenile court proceedings, Illinois law does require a probable cause determination to be made in every felony case before the accused felon may be brought to trial. That probable cause determination may be made either by a judge conducting a preliminary hearing under section 109 — 3 of the Code or by a grand jury under section 112 — 4 of the Code (Ill. Rev. Stat. 1991, ch. 38, pars. 109 — 3, 112 — 4). See People v. Mennenga (1990), 195 Ill. App. 3d 204, 210-11, 551 N.E.2d 1386,1390-91.

Section 109 — 3(b) of the Code reads, in pertinent part, as follows: “After hearing the testimony if it appears that there is not probable cause to believe the defendant guilty of any offense the judge shall discharge him.” (Ill. Rev. Stat. 1991, ch. 38, par. 109 — 3(b).) Again, the primary effect of this no-probable-cause finding is to have a criminal defendant released from custody (or, if he had previously made a bail bond, released from further required compliance with the conditions of that bond). As with juvenile delinquency petitions, the felony charges against the defendant for which no probable cause was found at the preliminary hearing should be dismissed; and again, as with juvenile delinquency petitions, the State may refile those charges.

In People v. Zook (1988), 177 Ill. App. 3d 62, 63, 531 N.E.2d 1066, 1067, this court addressed the consequences of a finding of no probable cause at a preliminary hearing and wrote the following: “An order of dismissal for lack of probable cause is not an acquittal and is not final, as the State may later indict the accused or submit a new information.” More recently, in Mennenga, this court again addressed the same issue and wrote the following:

“The State cannot appeal from a dismissal on a finding of no probable cause. [Citation.] The defendant has not been convicted or acquitted, and has not been placed in double jeopardy. [Citations.] In absence of double jeopardy, or a violation of the speedy-trial provisions, public policy justifies the State being able to proceed if additional evidence of the offense is obtained. *** We recognize that no additional evidence was indicated in the present case.
If the State proceeds first by information, and a finding of no probable cause results from the preliminary hearing, our courts have recognized that the State can subsequently proceed with a grand jury indictment for the same offense. [Citation.] The State also can proceed by filing an information and then, prior to the preliminary hearing, obtain grand jury indictments, thus avoiding the necessity of the preliminary hearing. [Citation.] A finding of no probable cause at a preliminary hearing does not, in itself, bar proceeding on a new information charging the same offense and with a new preliminary hearing. [Citation.] This court *** [has] conditioned the validity of a second preliminary hearing upon the absence of harassment, bad faith, or fundamental unfairness.” Mennenga, 195 Ill. App. 3d at 210-11, 551 N.E.2d at 1390-91.

We conclude that because of the similarity between juvenile detention hearings under section 5 — 10 of the Act and preliminary hearings under 109 — 3 of the Code, the State should be permitted to refile or reinstate juvenile delinquency petitions regarding which no probable cause has been found at detention hearings, just as the State is permitted to refile or reinstate felony charges for which no probable cause was found at preliminary hearings. Furthermore, we agree with the trial court in the present case that requiring the State here to file a new delinquency petition and to repeat the technical processes of securing service of summons upon all respondents (see Ill. Rev. Stat. 1991, ch. 37, pars. 805—15, 805—16), as well as requiring the inconvenience to civilian witnesses who had already responded to subpoenas by appearing in court, would in fact elevate form over substance and would not further any legitimate procedural protections enjoyed by S.I. Thus, we hold that the trial court had discretion to handle the charging instruments in the fashion it did, and we find no abuse of that discretion.

III. Conclusion

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

KNECHT and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT JUSTICE COOK,

license: Public Domain

text:
    THE TOWN OF NORMAL, Plaintiff-Appellee, v. SEVEN KEGS et al., Defendants (B and J Sales, Inc., Intervener-Appellant).
    Fourth District
    No. 4—91—0573
    Opinion filed September 17, 1992.
    Rehearing denied October 19, 1992.

      COOK, J., dissenting.
    Costigan & Wollrab, P.C., of Bloomington (Paul R. Welch, of counsel), for appellant.
    Wayne Karplus, Town Attorney, of Normal, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On June 28, 1991, the circuit court of McLean County ordered the forfeiture of seven kegs, two beer tappers, and two ice barrels which had been seized by the Normal police department, pursuant to a municipal ordinance, after being used in the unlawful sale of alcohol. Intervenor, B & J Sales, Inc. (B & J), claiming an interest in these items, appeals the order of June 28, 1991, contending (1) in enacting this ordinance, the Town of Normal (Normal) exceeded its powers as a home-rule municipality under the Illinois Constitution (Ill. Const. 1970, art. VII, §6); and (2) the ordinance deprived B & J of its property without due process of law pursuant to the United States and Illinois Constitutions (U.S. Const., amend. XFV; Ill. Const. 1970, art. I, §2). We agree and reverse.

On September 7, 1990, Officer Timothy Freesmeyer of the Normal police department purchased alcohol at a private party while acting undercover. The vendors did not have a license to sell alcoholic beverages. Later, Freesmeyer used a municipal ordinance (Normal, Ill., Municipal Code, ch. 17, §17 — 3—1 (1990)) to secure a warrant to seize any property associated with the unlawful sale of alcohol. He returned to the apartment where he had purchased the alcohol, and seized seven kegs of beer, two tappers, two plastic ice barrels and $254 in United States currency. B & J claims no interest in the currency and does not challenge its forfeiture.

Municipal charges for the unlawful sale of alcohol were filed against eight individuals. Charges for violation of the municipal ordinance were dropped against all individuals except one in return for those individuals forfeiting any claim to the property in question. The last defendant pleaded guilty to the offense of the unlawful sale of alcohol (Normal, Ill., Municipal Code, ch. _, §4.1 — 2 (1980)), and also waived any claim to the property in question. Normal then published a notice of property forfeiture in a local newspaper on September 20, 27, and October 3,1990.

B & J filed a claim with Normal for return of the items and, in response, on November 6, 1990, Normal filed a complaint in forfeiture to perfect title for the seven kegs, two tappers and two plastic ice barrels. The suit was brought under a municipal ordinance which provided for the forfeiture of property used to facilitate the unlawful sale of alcoholic liquor.

The forfeiture ordinance basically provides items such as the kegs, tappers and plastic ice barrels are contraband if used to facilitate the unlawful sale of alcoholic liquor under the ordinances of Normal. The forfeiture ordinance provides for notice by publication to persons claiming an interest in the property, and provides Normal may retain the property unless the person or persons charged with the use of the property in an unlawful manner are acquitted of the ordinance violation. Here, one of the defendants who was charged with the unlawful sale of alcohol pleaded guilty. Thus, the property seized as contraband, because it was used by the defendant to facilitate the unlawful sale of alcohol, could be retained by Normal.

The trial court granted the forfeiture despite arguments by B & J that the ordinance violated due process and exceeded the town’s home-rule authority. B & J owned the two tappers and the two ice barrels. B & J also had a property interest in the seven kegs, although they were nominally owned by Anheuser-Busch.

B & J is the sole distributor and agent for Anheuser-Busch in the McLean County area. The distributor receives full kegs of beer from the brewery and distributes them to local liquor retailers. AnheuserBusch imposes a refundable deposit charge, which B & J pays. The retailer pays a refundable deposit on the keg to B & J. The retailer then sells the beer in the keg to consumers. B & J also owns tappers and barrels, which are also provided to the retailer upon payment of a refundable deposit. Thus, customers purchase beer from a retailer and acquire temporary control over the keg and assorted equipment such as the tappers and barrels owned by B & J. Both the retailer and B & J assume the equipment will be returned.

The forfeiture occurred in this context. A retailer which sells products distributed by B & J sold kegs of beer to a customer or customers who then used the kegs, tappers, and barrels to unlawfully sell alcohol at a party in an apartment. B & J is not involved in how or with whom liquor retailers conduct their business. It was stipulated B & J had no prior knowledge of the unlawful use of the equipment.

B & J first contends the forfeiture ordinance violates the Illinois Constitution because Normal, as a municipality, does not have the power to order a forfeiture for a violation of its local ordinances. The Illinois Constitution of 1970 gave certain “home-rule” municipalities broad power to deal with problems which were local in nature. Normal is a home-rule municipality. Under the 1970 Constitution, a home-rule municipality “may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare.” Ill. Const. 1970, art. VII, §6(a).

The power given to a municipality to deal with local problems is broad and generally considered to be coextensive with that of the sovereign, except where such powers are limited expressly by the General Assembly. (City of Urbana v. Houser (1977), 67 Ill. 2d 268, 273, 367 N.E.2d 692, 694.) Municipalities have broad powers with respect to the control of alcoholic beverages. (Illinois Liquor Control Comm’n v. City of Calumet City (1975), 28 Ill. App. 3d 279, 283, 328 N.E.2d 153, 156.) This power is exercised concurrently by the State and local municipalities. Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 1110, 398 N.E.2d 1150, 1156-57.

Under the Illinois Constitution of 1970, it is necessary to determine whether the subject regulated properly pertains to local government and affairs. For a home-rule municipality to enact a valid ordinance, the subject to be regulated must pertain to local government affairs and not be of a statewide or national concern. City of Carbondale v. Yehling (1983), 96 Ill. 2d 495, 498, 451 N.E.2d 837, 839.

The Committee on Local Government of the constitutional convention stated:

“[T]he powers of home-rule units relate to their own problems, not to those of the state or the nation. Their powers should not extend to such matters as divorce, real property law, trusts, contracts, etc. which are generally recognized as falling within the competence of state rather than local authorities. *** The intent of this draft, as in the Committee’s proposal, is to give broad powers to deal with local problems to local authorities.” 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1621-22.

At trial, the chief of police of Normal testified an inordinate amount of police time is spent dealing with underage drinking and associated crimes such as vandalism and battery. Underage drinkers and lawful drinkers buy beer at college parties. This contributes to vandalism, loud noise, fights and public urination. Normal has responded to these serious problems by enacting an ordinance which imposes greater or different penalties than State law. It is an appropriate local response to a local problem. While the evils associated with alcohol abuse are widespread, the constitution does not prohibit home-rule municipalities from dealing with these problems in different ways as long as the method does not conflict with or run contrary to State law. The ordinance is intended to motivate both retailers and wholesale distributors to become more responsible in their dealings with college students and other young people. The subject of alcohol control is a matter which is properly addressed by both State and local authorities. Normal has not exceeded its home-rule powers in attempting to control the abuse of alcohol by using a forfeiture ordinance.

Next, B & J contends that Normal’s forfeiture ordinance, as applied to innocent owners, violates its substantive due process rights. The fourteenth amendment to the United States Constitution provides “No State shall *** deprive any person of life, liberty, or property, without due process of law ***.” (U.S. Const., amend. XIV.) A similar provision is found in article I, section 2, of the Illinois Constitution. Ill. Const. 1970, art. I, §2.

If an affected person is not in a protected class, or the right infringed upon is not fundamental, the challenged legislation is permissible if it has a rational relationship to a legitimate governmental interest and is neither arbitrary nor discriminatory. Kidd v. Industrial Comm’n (1981), 85 Ill. 2d 534, 538, 426 N.E.2d 822, 824.

The control of alcoholic liquor is recognized as a legitimate governmental interest. A legitimately empowered governmental unit can address various problems associated with the sale, disposition or even prohibition of alcoholic liquor. (Illinois Liquor Control Comm’n v. City of Joliet (1975), 26 Ill. App. 3d 27, 30-31, 324 N.E.2d 453, 454-55.) Here, Normal regulates the sale and transfer of alcoholic beverages and provides remedies if these ordinances are violated. The control of alcoholic beverages and eradication of associated abuses are clearly legitimate governmental interests. However, the legislation being attacked must also bear a rational relationship to that interest.

A rational relationship exists if the challenged legislation, to some degree, tends to prevent some offense or evil or to preserve public health, morals, safety and welfare. (People v. Weiner (1915), 271 Ill. 74, 78, 110 N.E. 870, 872.) Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, 680, 40 L. Ed. 2d 452, 466, 94 S. Ct. 2080, 2090, examined the rationality of a forfeiture statute as applied to innocent owners.

Calero-Toledo involved the forfeiture of a yacht under a Puerto Rico forfeiture statute. The owner, who lived in New York City, leased a boat to two residents of Puerto Rico for a five-year period. The boat was seized after authorities discovered a marijuana cigarette on board. The owner, who had no knowledge of the forfeiture until he tried to repossess the yacht for nonpayment of rent, sued for return of his boat. The Supreme Court rejected the owner’s claim, holding that the innocence of the owner in a forfeiture proceeding is almost uniformly rejected as a defense. The Court justified the application of a forfeiture statute to an innocent owner by noting that its application to an innocent owner “may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.” CaleroToledo, 416 U.S. at 688, 40 L. Ed. 2d at 471, 94 S. Ct. at 2094.

However, the Supreme Court, in dicta, acknowledged under certain circumstances a forfeiture, as against an innocent owner, may invite constitutional challenge:

“It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. [Citations.] Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.” Calero-Toledo, 416 U.S. at 689, 40 L. Ed. 2d at 471, 94 S. Ct. at 2094-95.

According to Caler o-Toledo, a forfeiture may violate a party’s due process rights if (1) the owner is not in privity to the wrongdoer; (2) the property is taken without the owner’s consent and then used in an unlawful manner; or (3) the owner was unaware of and uninvolved in the wrongful activity and he did all that reasonably could be expected to prevent the unlawful use of his property.

The existence of these exceptions has been referred to by numerous Federal courts. (See, e.g., United States v. One Boeing 707 Aircraft (5th Cir. 1985), 750 F.2d 1280, 1288; United States v. 1966 Beecheraft Aircraft Model King Air (4th Cir. 1985), 777 F.2d 947, 951; United States v. Twenty Thousand, Seven Hundred Fifty-Seven Dollars & Eighty-Three Cents (8th Cir. 1985), 769 F.2d 479, 482; United States v. Six Thousand, Seven Hundred Dollars (1st Cir. 1980), 615 F.2d 1, 3; United States v. One 1975 Pontiac Lemans (1st Cir. 1980), 621 F.2d 444, 448; United States v. One Tintoretto Painting (2d Cir. 1982), 691 F.2d 603, 607; United States v. One 1976 Lincoln Mark IV (W.D. Penn. 1979), 462 F. Supp. 1383, 1390; United States v. One Brown 1978 Mercedes Benz (E.D. Mo. 1987), 657 F. Supp. 316, 318-19.) Likewise, the probable existence of a privity exception has long been noted. See Calero-Toledo, 416 U.S. at 689, 40 L. Ed. 2d at 471, 94 S. Ct. at 2094; J.W. Goldsmith, Jr.-Grant Co. v. United States (1921), 254 U.S. 505, 512, 65 L. Ed. 376, 379, 41 S. Ct. 189, 191; United States v. One Ford Coupe Automobile (1926), 272 U.S. 321, 333, 71 L. Ed. 279, 286, 47 S. Ct. 154,158.

Where a wrongdoer and property owner stand in direct privity to one another, the property owner has the opportunity to select to whom he shall entrust his property, to establish safeguards to ensure the safe return of this property and to see his property is used in accordance with the law. The more distant the relationship between the owner and the wrongdoer, the less opportunity an owner will have to meet the goal espoused in Calero-Toledo, i.e., to exercise greater care in the transfer of his property to ensure it is used in accordance with the law.

Under the retailing scheme involved here, Anheuser-Busch shipped kegs of beer to B & J, which in turn delivered those kegs to local retailers. The retailers would then sell the beer to consumers. The kegs therefore were not sold, but were bailed. Their return was secured by a refundable deposit. B & J owned the tappers and ice barrels and distributed them to local retailers in exchange for a refundable deposit. Given the commercial scheme involved, B & J did not stand in direct privity to those who eventually used the property in an unlawful manner. This lack of privity, deprives B & J of a meaningful opportunity to exercise control over the party who eventually used the property in an unlawful manner.

Perhaps companies such as Anheuser-Busch and distributors such as B & J should step forward and energetically develop procedures and safeguards to be recommended to retailers to avoid the problems encountered in Normal. However, whether the distributors and companies meet the social obligation they owe to the communities in which they do business is not the measure of what is constitutionally permissible. In this case B & J has no direct relationship to the consumer. B & J has no opportunity to see the purchaser or query his or her purpose in buying seven kegs of beer. Wedding receptions, political gatherings, social club fish frys and charitable fundraisers may all be served by beer kegs, tappers and ice barrels.

B & J is not charged with any greater legal duty simply because some of the retailers it services are located in a college community. This ordinance fails to meet even a minimal test of rationality because it extends its application to innocent owners not in privity with the wrongdoer and thus causes a burden to fall on the shoulders of the least culpable party in the transaction.

In so holding, we do not mean to discourage the laudable efforts of city legislators who attempt to deal with local problems in innovative ways. We would not be sympathetic if it appeared B & J artificially distances itself from wrongdoers, but the relationship between distributor and retailer is carefully regulated (Ill. Rev. Stat. 1991, ch. 43, par. 123), and B & J meets the exception of Calero-Toledo. In constructing innovative solutions, legislators must not ensnare those who lack culpability and whose lack of privity prevents them from establishing safeguards to ensure the lawful use of their property.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

GREEN, P.J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent. I would find Normal’s forfeiture ordinance to be a constitutional exercise of Normal’s powers, and would affirm the decision of the trial court.

The majority correctly states the law which applies to this case. For purposes of substantive due process a test similar to that used in equal protection cases is employed: the statute will be upheld if it bears a rational relation to a legitimate legislative purpose and is neither arbitrary nor discriminatory. There is a presumption that the statute in question is valid; the burden of showing its invalidity is on the defendants. If there is any conceivable basis for finding a rational relationship, the law will be upheld. (People v. Hamm (1992), 149 Ill. 2d 201, 216, 595 N.E.2d 540, 546.) Where a statute deals with some fundamental right a more demanding form of review may be employed; such a statute might not be upheld unless it were shown to be necessary to promote a compelling or overriding interest. More demanding review is certainly not appropriate in this case. The control of alcoholic liquor has long been recognized as a legitimate governmental interest, one where extensive regulation is possible at various levels of government.

I cannot agree that an ordinance providing for seizure of beer kegs and other items used to facilitate violations of Normal’s alcoholic liquor ordinance is not rationally related to Normal’s purpose to reduce underage drinking and associated crimes such as vandalism and battery.

“Forfeiture of conveyances that have been used — and may be used again — in violation of the [liquor control] laws fosters the purposes served by the underlying criminal statutes, both by preventing further illicit use of the conveyance and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.” Calero-Toledo, 416 U.S. at 686-87, 40 L. Ed. 2d at 470, 94 S. Ct. at 2093-94.

The innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense. (Calero-Toledo, 416 U.S. at 683, 40 L. Ed. 2d at 468, 94 S. Ct. at 2092.) As stated in CaleroToledo, application of forfeiture statutes to innocent purchasers “may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.” (Calero-Toledo, 416 U.S. at 688, 40 L. Ed. 2d at 471, 94 S. Ct. at 2094.) The majority focuses, however, upon dicta in Calero-Toledo setting out a potential exception to its broad sweep:

“It therefore has been implied that it would be difficult, to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. [Citations.] Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.” Calero-Toledo, 416 U.S. at 689, 40 L. Ed. 2d at 471, 94 S. Ct. at 2094-95.

The imprecise Calero-Toledo dicta provides no justification for striking down the considered decision of a legislative body in the facts of this case. Looking at the second sentence of the Calero-Toledo dicta, there is no evidence that intervenor was unaware of the underage drinking and related problems testified to by Normal’s chief of police. Intervenor does not argue the incident leading to forfeiture in this case did not involve a violation of Normal’s liquor control ordinance, or that intervener's property was not used in the incident. In Calero-Toledo the boat owner was not shown to be involved with the marijuana found aboard the boat, but that is not true here. Intervenor in a very real sense was involved in the unlawful consumption of beer testified to by the witnesses; intervenor actually supplied that beer. Although intervenor no doubt intended that the beer be consumed lawfully, intervenor did profit financially from illegal consumption.

Nor can it be said that intervenor has done all that reasonably could be expected “to prevent the proscribed use of its property.” There was evidence that security deposits were required for the items seized here, but those deposits were kept to an artificially low level, apparently to promote the sale and consumption of beer. An increase in security deposit may be one method “to prevent the proscribed use” of the property. Intervenor argues that a higher deposit would inhibit beer sales in general, but not illegal beer sales, where the consumers might be willing to risk the penalty. Intervenor could at least protect itself by higher deposits, and Normal might well have concluded that the risk to the illegal consumer of losing higher security deposits would tend to reduce illegal consumption. Normal may have concluded that any burden on legal sales was warranted in light of the burden imposed on illegal sales. Even if Normal could not identify a specific method by which intervenor could do more to prevent illegal use of its property, the reasonable possibility that experienced distributors could devise such a method is sufficient to sustain the ordinance and the incentive it provides distributors to exercise greater care.

Intervenor argues the ordinance is not rational because it will only force illegal consumption into other alternatives, such as the use of cans. The quick answer to that argument is that the legislature “ ‘ “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489.’ ” (Hamm, 149 Ill. 2d at 211, 595 N.E.2d at 544.) Normal may also have concluded that a switch to other alternatives would involve an increase in cost which would have a deterrent effect on illegal consumption.

The majority indicates the Calero-Toledo dicta contains three separate exceptions: (1) where there is no privity, (2) where the property was taken without consent, and (3) where the owner was uninvolved, unaware, and had done all he could do. In my view only one exception is suggested, and it is not sufficient for intervenor to simply show he was not in privity with the user. The fact that the owner was not in privity is just one more consideration in determining whether the intervener has proved “that he had done all that reasonably could be expected to prevent the proscribed use of his property.” The cases cited by the majority which follow Calero-Toledo focus on that final sentence of the Calero-Toledo dicta; none of them rely on a lack of privity.

Intervenor here is a beer distributor, which buys from manufacturers and sells to retailers such as taverns, liquor stores, and grocery stores, which in turn sell beer to the ultimate consumer. Whatever weight the privity argument may have in other contexts, it has little here, especially an argument of vertical privity. In this case the manufacturer, the distributor, and the retailer shared a common objective, the sale of beer. Intervenor intended that retailers would resell the beer sold them, and to assist the retailers in that objective intervenor made the beer kegs and other items owned by it available to the retailers. Some statutes, such as the Drug Asset Forfeiture Procedure Act (Ill. Rev. Stat. 1991, ch. 561k, par. 1678), provide an “innocent owner” exception. It is interesting that that particular exception does not apply unless the owner “could not reasonably have known of the conduct or that the conduct was likely to occur,” and “did not stand to acquire substantial proceeds from the conduct.” Ill. Rev. Stat. 1991, ch. 56½, pars. 1678(A)(i), (B).

Nor is intervenor aided by its horizontal privity argument that the users who purchased the beer and leased the kegs were of legal age, but those users allowed others, with whom the retailers were not in privity, to use the products illegally. Intervenor has not shown that it was unaware of that practice. A lessor of a yacht may not have reason to suspect the lessee will allow others to use it, but a lessor of beer kegs must expect that others than the customer dealt with will use the product. The risk of illegal consumption may be more acute when the lessee is not in the regular business of selling alcoholic beverages. I disagree with the statement of the majority that “lack of privity deprives B & J of a meaningful opportunity to exercise control over the party who eventually used the property in an unlawful manner.” (Emphasis in original.) (234 Ill. App. 3d at 722.) Intervener has not sustained its burden of proving facts which would support that statement.

Because the legislation challenged here, at least to some degree, tends to prevent some offense or evil or to preserve public health, morals, safety and welfare (People v. Weiner (1915), 271 Ill. 74, 78, 110 N.E. 870, 872), the legislation has a rational relationship to a legitimate governmental interest, and does not violate substantive due process. Intervener should direct its arguments to the legislative body, not to the courts.

Accordingly, I dissent.


author: JUSTICE COOK

text:
    LARRY LITTLE et al., Plaintiffs-Appellees, v. TUSCOLA STONE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—91—0923
    Opinion filed September 30, 1992.

      Brian L. McPheters, of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellant.
    J. Michael O’Byrne, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellees.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiffs, Larry Little and Joan Little (the Littles), brought this action for declaratory relief, an injunction, and an accounting to recover damages occasioned by the alleged conversion by defendant, Tuscola Stone Company (Tuscola), of overburden from a quarry operated by defendant on plaintiffs’ land. The trial court granted plaintiffs’ motion for directed verdict on the issue of liability at the close of all the evidence. The jury returned a verdict for compensatory damages of $44,455.80 upon which the court entered judgment, and from which this appeal is taken. On appeal, Tuscola argues (1) the trial court erred in granting a directed verdict in favor of the Littles, (2) the trial court erred in two of its evidentiary rulings, and (3) the jury verdict for $44,455.80 was excessive.

On February 10, 1970, the Littles entered into an agreement entitled “LIMESTONE, DOLOMITE, STONE, SAND, AND GRAVEL AGREEMENT AND LEASE” with Tuscola’s predecessors in interest for the opening of a quarry in Douglas County. The quarry was opened and subsequently Tuscola became assignee of the lease.

Prior to 1985, Larry Little was the only individual who handled the sale of dirt, also known as overburden, from the quarry. This dirt covering the limestone was 35 to 40 feet deep and had to be removed to quarry the limestone. Generally, a buyer would contact Little to purchase the dirt, pay the price set by Little, and load his own dirt for hauling. Tuscola received no proceeds from the sale of the dirt. In 1985, after the arrival of a new manager, Tuscola began selling the dirt exclusively and at the time of this trial had sold 49,342 units of dirt from the quarry. A “unit” is equal to either the weight of one ton or the volume of one cubic yard. Tuscola received $26,397.24 in total revenue for the dirt and paid the Littles $4,888.20 in royalties. When the Littles learned of this practice they immediately objected, and eventually brought this action alleging conversion of the dirt by Tuscola, claiming that the dirt belonged to them and nothing in the lease agreement gave Tuscola the right to sell the dirt from the quarry.

On appeal, Tuscola first claims that the court erred in granting plaintiffs’ motion for a directed verdict. Tuscola contends that when properly construed the lease agreement gives the lessee the right to remove and sell the dirt or otherwise dispose of it without any obligation to the plaintiffs to account for the same or to pay royalties thereon. Tuscola’s alternative theory is that the lease agreement gives it the right to quarry or otherwise remove and sell the dirt if it pays a royalty to the Littles.

The question before this court is one of contract construction. Ambiguous contracts, including leases, are those that are capable of more than one interpretation. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288, 565 N.E.2d 990, 994; First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 866, 530 N.E.2d 521, 525; Harris Trust & Savings Bank v. La Salle National Bank (1990), 208 Ill. App. 3d 447, 453, 567 N.E.2d 408, 412.) In such a case, extrinsic evidence is admissible to ascertain the parties’ intent. (Quake Construction, 141 Ill. 2d at 288, 565 N.E.2d at 994.) However, a document is not ambiguous merely because the parties fail to agree upon its meaning. (First National Bank, 175 Ill. App. 3d at 866, 530 N.E.2d at 525.) In determining the intent of an unambiguous instrument, the court must consider the entire document giving words their plain and ordinary meaning. (Oldweiler v. Peoples Bank (1987), 161 Ill. App. 3d 317, 321, 514 N.E.2d 541, 543-44.) When interpreting an unambiguous agreement, construction of the agreement is to be decided by the court as a matter of law. The appellate court is not bound by the trial court’s findings, but may independently construe the instrument unrestrained by the trial court’s determination. Oldweiler, 161 Ill. App. 3d at 320, 514 N.E.2d at 543.

The lease reads, in pertinent part, as follows:

“Lessor *** does hereby grant, lease, let and convey to Lessee, the exclusive right of entering into and upon lands hereinafter described, for the purposes of mining, quarrying, or otherwise removing limestone, dolomite, stone, gravel, sand, or a combination thereof, and any part or portion of any earth, rock or other strata that may be attached to, combined with, constituting a part of, or anything that might be in the way of, said limestone, dolomite, stone, sand, or a combination thereof, that may be or shall be removed from said lands ***.”

The parties do not dispute that the lease allows Tuscola to “remove” the dirt from the ground in its attempt to reach the limestone, dolomite, stone, sand, or a combination thereof. However, the parties differ regarding the meaning of “removal” of the dirt. Tuscola contends the lease allows it to remove the dirt and sell it. The Littles contend that Tuscola may only remove and reposition the dirt from the top of the limestone. According to the Littles, the dirt belongs to them and may not be sold by Tuscola.

We find this lease to be unambiguous, and consequently we hold that no evidence need have been taken by the circuit court. On its face the lease grants Tuscola only the right to remove the dirt, i.e., relocate it on the Littles’ property, in order for it to reach the limestone, dolomite, stone, gravel, sand, or combination thereof. The lease also gives Tuscola the right to remove limestone, but that right is certainly not a right to keep it, use it, or own it without paying for it. The only right to deal with removed limestone is set out in the subsequent provision dealing with royalties. This construction is consistent with the construction given the lease by the parties. During the first 15 years of the lease (from 1970 to 1985), only Larry Little sold dirt derived from his property. We find that because the lease did not give Tuscola the right to remove and use the overburden from the Littles’ land, the lease shows an intent to deny that right to Tuscola. (Grove v. Winter (1990), 197 Ill. App. 3d 406, 409, 554 N.E.2d 722, 724.) The parties may have viewed the overburden as a nuisance, something to be disposed of to get to the valuable limestone underneath. Still, nothing in the lease gives Tuscola any right to sell the dirt and retain the proceeds.

Tuscola’s alternative theory, that it can sell the dirt from the quarry as long as it pays a royalty to the Littles, arises out of its interpretation of the royalty provision within the lease. The royalty provision reads, in pertinent part, as follows:

“Lessee does hereby agree to pay to Lessor for all useable limestone, dolomite, stone, gravel, sand or combination thereof, 5<f per ton royalty for such material actually sold and removed from the premises, said royalty *** shall, except as provided below, constitute the entire compensation and rentals due the Lessor for the use of said premises and material removed therefrom ***.”

Tuscola maintains that the royalty provision indicates that it may remove any material from the premises provided it pays a royalty, and that it did pay a royalty for the dirt ($4,888.20). The Littles contend that the royalty payments cover only the specified materials, the limestone, dolomite, stone, gravel, and sand. We hold that the royalty provision means what it says. As written, the royalty provision applies only to “limestone, dolomite, stone, gravel, sand or combination thereof.” Consequently, we hold that the royalty provision does not give Tuscola the right to sell the dirt.

Tuscola next argues that the trial court erred in several of its evidentiary rulings. Although a contract or lease may appear unambiguous on its face, a trial court may still admit relevant evidence regarding the existence of an ambiguity at the time of execution of the contract or lease. URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 235, 427 N.E.2d 1295,1300.

The first evidentiary issue raised by Tuscola is that the trial court erred in limiting its direct examination of Raymond Lee, who represented the Littles in the negotiation of the lease. At trial Lee affirmed that the language of the lease reflected the intent of the parties. He testified that the “language used in the lease was to be all inclusive” and that there would be a royalty paid on “whatever they [lessee] removed from the quarry.” Tuscola inquired as to Lee’s belief on the Littles’ intent at the time of execution of the lease, but the trial court sustained the Littles’ objections. On appeal, Tuscola argues that Lee’s testimony would have shown a conflict between the Littles’ intent at the time of execution of the lease and the description of that intent proffered by the Littles at trial. However, no offer of proof was made.

Just as the objection is the key to saving for review any error in admitting evidence, the offer of proof is the key to saving error in excluding evidence. (Miller v. Chicago Transit Authority (1966), 78 Ill. App. 2d 375, 383, 223 N.E.2d 323, 327.) The purpose of the offer of proof is to disclose the nature of the offered evidence to which the objection is interposed, for the information of the trial judge and opposing counsel, and to enable the reviewing court to determine whether the exclusion was erroneous and harmful. Wright v. Stokes (1988), 167 Ill. App. 3d 887, 891, 522 N.E.2d 308, 311; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 19 (5th ed. 1990).

Here, there is nothing in the record that indicates that Lee would have testified that the Littles intended to transfer ownership of the dirt to Tuscola, and Tuscola did not make an offer of proof indicating that Lee would testify the Littles had such an intent. Absent an offer of proof, we cannot speculate as to what Lee would have testified. Furthermore, we cannot say that the trial court abused its discretion or that Tuscola was prejudiced by the exclusion of Lee's testimony regarding the Littles’ intent; Lee was allowed to testify that the language of the lease contained what he believed to be the intent of the parties and as to what he believed that language to mean.

Next, Tuscola contends that the trial court erred in denying admission into evidence Tuscola’s exhibit No. 3. The trial court admitted into evidence Tuscola’s exhibit Nos. 1 and 2, records and tables kept in the ordinary course of business relating to the costs involved in selling the dirt. The trial court, however, refused to admit exhibit No. 3, which was a table summarizing exhibit Nos. 1 and 2. Two of Tuscola’s witnesses, Kyle Johnson and Mark Stephen Walsh, testified at length regarding the contents of exhibit Nos. 1 and 2.

When original documents are voluminous and cannot be examined to extract the fact to be proved, any competent witnesses, such as Johnson and Walsh in the present case, who have seen the originals may testify to the facts, provided they are capable of being determined by calculation. (In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 176, 516 N.E.2d 566, 571; Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co. (1990), 195 Ill. App. 3d 1036, 1051, 552 N.E.2d 1336, 1345.) The admission of exhibits into evidence is largely within the discretion of the trial court; furthermore, the admission of exhibits into evidence which contain a summary of testimony given is within the discretion of the trial court. (Landmark Structures, 195 Ill. App. 3d at 1051, 552 N.E.2d at 1345; see People v. Crawford Distributing Co. (1978), 65 Ill. App. 3d 790, 798, 382 N.E.2d 1223, 1229, affd (1979), 78 Ill. 2d 70, 397 N.E.2d 1362.) The exclusion of demonstrative evidence which is largely cumulative is within the discretion of the trial court. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.7, at 138 (5th ed. 1990).

The exclusion of exhibit No. 3 was within the trial court’s discretion, especially in light of the facts that exhibit No. 3 was merely a summary of exhibit Nos. 1 and 2 (which were already admitted into evidence); exhibit No. 3 was prepared in anticipation of trial (exhibit Nos. 1 and 2 were prepared in the ordinary course of business); and two witnesses testified regarding the contents of exhibit Nos. 1 and 2. To admit exhibit No. 3 would have been cumulative and may have influenced the jury to give the evidence contained therein undue weight.

Tuscola also asserts that it was error for the trial court to exclude Tuscola’s exhibit No. 5, which listed the royalties paid to the Littles for the limestone from the quarry. The trial court found that the royalties for the limestone were not a relevant consideration in this case. We agree. The instruction the jury received clearly directed it to determine the value of the dirt removed. The only issue before the jury was as to the damages due the Littles for the dirt wrongfully removed from the premises and evidence of the royalties paid on the dirt was admitted. Evidence regarding the royalties paid on the limestone, as contained in exhibit No. 5, was not relevant as to the issue of damages. Consequently, it was within the trial court’s discretion to exclude exhibit No. 5.

Finally, Tuscola contends that the jury verdict of $44,453.80 was excessive. Tuscola’s jury instruction regarding damages, which was given, provided in pertinent part as follows: “Plaintiffs are entitled to damages measured by the value of the dirt you find the Defendant has sold, less a credit to Defendant for the reasonable costs and expenses of selling said dirt.”

Generally, jury determinations can be set aside only when a court of review, or a trial court upon proper motion, is clearly satisfied that they were occasioned by passion or prejudice or found to be wholly unwarranted from the manifest weight of the evidence. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 623, 126 N.E.2d 836, 841.) A verdict will not be set aside merely because the jury could have found differently or because judges find that other conclusions would be more reasonable. Kahn, 5 Ill. 2d at 623,126 N.E.2d at 841.

The parties stipulated that 49,342 units of dirt had been sold from the quarry by Tuscola. Tuscola’s exhibit No. 1, its price list, listed “fill dirt” at $1 per ton. However, Tuscola’s treasurer and comptroller testified that the total sales of the dirt in the five years in question amounted to $26,397.24, indicating a price less than $1 per ton. Tuscola’s exhibit Nos. 1 and 2 indicated that the costs of preparing and selling the dirt was $16,430.66, leaving a net on dirt sales to Tuscola for the five years in question of $9,966.58. The evidence showed that when Larry Little was exclusively selling the dirt the prices ranged from $1 to $2 per ton. Testimony also established that prior to 1985, the Littles incurred no expenses in selling the dirt as the purchaser was required to load his or her own dirt. In light of the evidence regarding the value of the dirt and the reasonable costs and expenses of selling said dirt, we hold that the jury verdict in favor of the Littles for $44,453.80 was reasonably supported by the facts.

For all of the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY S. RINER, Defendant-Appellant.
    Fourth District
    No. 4—92—0089
    Opinion filed September 30, 1992.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender's Office, of Springfield, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial in the circuit court of Ford County, the defendant, Timothy Riner, was convicted of theft by deception. (Ill. Rev. Stat. 1991, ch. 38, pars. 16 — l(a)(2)(A), (b)(2).) Defendant’s prior record included two theft convictions and a burglary conviction. The defendant was sentenced to two years in the Illinois Department of Corrections and ordered to make restitution of $100. The defendant appeals, contending he was not proved guilty beyond a reasonable doubt because the State failed to prove he intended to permanently deprive John and Kathleen Carson of the use and benefit of their property. We disagree and affirm.

On November 4, 1991, Riner was tried by jury. John and Kathleen Carson testified on August 11, 1991, Riner visited their home. Riner and the Carsons discussed the removal of a dying cottonwood tree on the Carsons’ property. During this conversation, Riner looked at the Carsons’ used chain saw, which was not working properly. Riner repaired the chain saw by winding up a coil. He did not charge the Car-sons for this job, which took only a few minutes. Riner also contracted with the Carsons to remove the tree. The Carsons testified the defendant told them he was employed by a tree service but would remove the tree on his own time. Mrs. Carson presented the defendant with a check in the amount of $100. The defendant gave the Car-sons a receipt which stated, “one cottonwood tree southeast garage. $100 paid. Check #1560. 8 — 11—91. T.R. Tim Riner.” Although the receipt did not specify the date by which the tree was to be removed, the Carsons testified Riner represented he would remove the tree on the following day. Mrs. Carson testified she stayed home and waited for Riner on August 12 and 13. Riner did not appear. He did, however, cash the check.

On August 15, 1991, Mrs. Carson went to Ace Hardware to make a purchase. Mrs. Carson saw Riner working as an employee at Ace. She asked Riner about removing the tree. Mrs. Carson testified Riner told her he would cut it down that night. Riner did not show up at the Carsons’ house that night.

On August 16, 1991, Mr. Carson went to Ace Hardware to speak with Riner regarding the removal of the tree. Mr. Carson testified Riner was working at Ace, but left when Carson appeared. Later that evening, Riner telephoned Mr. Carson and informed Carson the tree would be cut down when Riner was “damn good and ready.”

On August 30, 1991, Mr. Carson went to see Riner at Ace. Mr. Carson testified he requested Riner refund his money. Riner promised he would go to the Carsons’ house that evening to discuss the removal of the tree. Again, Riner did not show up. The Carsons then reported the matter to the sheriff’s department.

Officer Duffy testified he arrested Riner on the charge of theft by deception on September 24, 1991. The Carsons testified that on September 27, 1991, they received a bill for $100 from Riner for the repair of the chain saw. The bill was dated August 11, 1991. The envelope in which the bill was contained was postmarked September 26, 1991. Defendant’s motion for a directed verdict at the close of the State’s case was denied. The defendant then called three witnesses.

David Hahn testified he became acquainted with Riner when they were both employed by a tree service, and he and Riner were now neighbors. Hahn testified Riner mentioned a job cutting down a tree and consulted him regarding the rope which Riner planned to use. Hahn found the rope to be of poor quality and advised Riner to buy a stronger rope. Hahn testified this conversation took place toward the middle or end of August. Hahn admitted telling the investigating officer it took place in the middle of September. At first Hahn explained this inconsistency by stating he was using the beginning of the school year as his frame of reference, and, since the officer told him that the school year began in September, he thought the conversation must have occurred in September. However, later Hahn testified that he told the officer the conversation took place in late August.

Russell Noblett, the fiance of Riner’s sister, testified he and Riner trimmed and cut trees together. Noblett testified Riner had contacted him regarding removing a cottonwood tree during the fall. Noblett could not remember the name of the owner of the property on which the job was to be performed. Nor could Noblett remember the names or addresses of any property owners for whom he and Riner had done previous jobs even though Noblett testified they had three or four jobs per month. Noblett testified the cottonwood tree was not cut down in August because it would have been too heavy. After the fall, once the sap had drained out of the tree, the tree would be much lighter. Noblett then testified that on the second to last weekend in September, Riner told him they would be cutting down the tree on the following weekend.

Phillip Menninga testified he was a co-worker and a social friend of Riner. Menninga testified that the first weekend of August he and Riner placed an order for rope through Ace Hardware. Menninga and Riner did rappelling for a hobby. Menninga testified he planned to use his share of the rope for rappelling, and Riner had told him Riner’s share would be used to remove a tree. Menninga testified the rope did not arrive until four to seven days before Riner was arrested. Menñinga also testified he thought he was present for a short time on August 16, 1991, while Carson and Riner talked. Menninga testified he could hear a little bit of the conversation and believed Riner said he would get to the tree job as soon as he could.

The jury found Riner guilty of theft by deception. Riner was sentenced to two years’ imprisonment and ordered to make restitution to the Carsons. Riner appeals, alleging the State presented insufficient evidence to prove his guilt beyond a reasonable doubt.

When a defendant challenges the sufficiency of the evidence, we do not retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Instead, once the defendant has been found guilty of the charged crime, we view the evidence in the light most favorable to the prosecution, and ask whether any rational trier of fact could have found the essential elements of the crime. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

An individual may be found guilty of theft by deception where he obtains control over the owner’s property by deception and intends to permanently deprive the owner of the use and benefit of the property. (LI. Rev. Stat. 1991, ch. 38, par. 16 — l(a)(2)(A).) Some cases brought under this section result from situations in which a defendant contracts with a person to perform services or deliver goods. The defendant then accepts money, but does not perform the contract. Often the defendants in these cases contend they did not intend to permanently deprive the owners of the use and benefit of their money; rather, the defendants argue, they just had not gotten around to performing the contract.

Where the defendant’s actions between the time of the contract and the arrest manifest an intention to perform the contract, a conviction for theft by deception should not stand. However, in this case, the defendant’s conduct between the making of the contract and the arrest demonstrate, and permitted the jury to infer, that he had no intention of performing the contract. The defendant’s mere assertion here that he had not gotten around to performing the contract will not negate the intent to permanently deprive.

In People v. Wheadon (1989), 190 Ill. App. 3d 735, 546 N.E.2d 1119, the appellate court affirmed defendant’s conviction, despite defendant’s contention he did not intend to permanently deprive the owners of the use and benefit of their money. Wheadon had taken some preliminary steps which he argued indicated he had the intention to perform the contract. In affirming his conviction, the appellate court found Wheadon converted the money he was given to his own use, represented himself as the president of a defunct corporation, and made only a token pretense of fulfilling the contract. Moreover, the court found Wheadon’s actions, after the investigation had begun, to be of little persuasive value.

In People v. McManus (1990), 197 Ill. App. 3d 1085, 555 N.E.2d 391, the appellate court affirmed defendant’s conviction for theft by deception although he claimed he did not intend to permanently deprive the owners of the use and benefit of their money. McManus falsely represented himself as affiliated with a publicly traded corporation. McManus took down payments on lots and homes on a tract of land which he did not own. McManus told his clients he would hold the down payments in an escrow account or in “jumbo” certificates of deposit; however, McManus used the money for the benefit of his company. Although McManus took steps to negotiate for the purchase of the lots and obtain construction financing, he did not follow through with these steps and could not have been reasonably expected to succeed.

Just as Wheadon and McManus misrepresented their business affiliations, Riner told the Carsons he was employed by a tree service. Riner, like Wheadon and McManus, used the money received for his own benefit. Riner alleges he took steps in preparation of performing the contract. Even if this contention is accepted as true, the Wheadon and McManus decisions indicate a token pretense at performing the contract is insufficient to overturn a jury’s finding the defendant intended to permanently deprive the owner of the use and benefit of the money.

The defendant analogizes this case to People v. Rolston (1983), 113 Ill. App. 3d 727, 448 N.E.2d 965. Rolston had been trained by Thermal Industries and was an authorized dealer of Thermal Industries windows. According to company policy, Thermal would pay for shipping on orders of 100 or more windows; on orders of less than 100 windows, the dealer would be required to bear this cost. Rolston took orders from customers and accepted their down payments; however, he did not place their orders with Thermal, because he had not yet received orders for 100 windows. Rolston’s conviction for theft by deception was reversed by the Third District Appellate Court, which held the State did not prove Rolston intended to permanently deprive his customers of the use and benefit of their money. The court found it significant that Rolston received professional training and had established a dealership for the purpose of selling the windows. Rolston had put the bulk of the down payments back into the business. Moreover, Rolston partially performed one contract and completed another. Rolston did not avoid his customers and reasonably explained his failure to order the windows.

The present case differs from Rolston in several ways. While Rolston did not avoid his customers, Riner fled from Carson on August 16, 1991. On August 30, 1991, Riner once again avoided Carson by agreeing to go to the Carsons’ home to discuss the matter, and then failing to appear. Unlike Rolston, Riner did not perform any part of the contract, nor did he offer any reasonable explanation of his failure to perform. Riner promised he would remove the tree or go out to the Carsons’ home on August 12, 15, and 30. He failed to show up on any of these occasions, and made no attempt to contact the Carsons to explain the reasons for his absence. The only communication Riner directed to the Carsons was that he would remove the tree when he was “damn good and ready.”

Riner did not begin to explain his failure to remove the tree until after his arrest. However, even then Riner’s excuses were not the rational explanations contemplated by the Rolston court, but a series of belated efforts to escape his predicament. Riner’s first theory for failing to remove the tree was apparently that he did not do the job for the Carsons because they still owed him for previous work, i.e., the bill for $100 (for the repair of a chain saw) mailed September 26 but dated August 11, 1991. The Carsons testified that on August 11, Riner told them there was no charge related to the chain saw. The defense presented no evidence in support of this theory at trial.

Another theory for the failure to remove the tree was presented through the testimony of Noblett. Noblett testified the tree was too heavy to be removed until after the fall, when the sap would have drained from the tree. However, Noblett also testified Riner told him — on the second to last weekend in September — that they would remove the tree on the last weekend of September. Noblett did not explain what had changed between August and September to suddenly enable them to remove the tree before the sap drained. No other evidence was offered in support of this theory at trial.

The defendant’s third excuse for his failure to remove the tree was that he had equipment difficulties. Although the defense presented witnesses who testified Riner had discussed the removal of the tree, and had ordered supplies for the purpose of doing the job, it is uniquely within the province of the jury to weigh the evidence and the credibility of the witnesses. (Collins, 106 Ill. 2d at 261-62, 478 N.E.2d at 277.) We will not substitute our judgment for that of the jury on issues of witness credibility unless the evidence itself is so implausible, improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319.

The jury could have found the defense witnesses less credible due to their close association with the defendant and their difficulty in remembering dates and events. For example, Hahn had difficulty remembering exactly when his alleged conversations with Riner took place. Noblett testified to removing three or four trees per month with Riner, but could not remember the locations of the jobs performed. Menninga testified to believing he was present at a conversation between Riner and Carson at Ace on August 16, 1991; however, according to Carson’s testimony, on that date Riner fled from Ace before Carson had a chance to speak with him. In this case, the jury could have reasonably found the defense witnesses to be lacking in credibility.

Moreover, the jury could have found that, even if credible, the testimony of the witnesses for the defense did not establish that Riner had equipment difficulties. The defendant contends he intended to remove the tree but, after consulting with Hahn, determined his rope was inadequate and ordered another rope for the job. The chronology of this scenario is conflicting with the testimony offered at trial. Riner contracted with the Carsons on August 11 to remove the tree on August 12. The alleged conversation in which Hahn advised Riner to purchase a new rope took place in either mid to late August or mid to late September. According to the testimony of Menninga, Riner did not order the rope during that time period. Rather, Riner began talking to Menninga about ordering rope around July 4 and the order was placed the first weekend in August, one week prior to Riner’s contract with the Carsons and at least several weeks prior to his alleged consultation with Hahn. Moreover, the defendant’s contention that he could not remove the tree due to difficulties with his rope has additional flaws. Riner did not communicate any equipment difficulties to the Carsons. Nor did Noblett, a man who allegedly performed three or four tree jobs per month with the defendant, testify regarding any equipment difficulties. Noblett did not explain why the equipment used in the alleged other tree jobs was inadequate for this job. The jury could have reasonably determined the inconsistencies and shortcomings of the testimony of the defense witnesses rendered the story of equipment difficulties unbelievable.

In this case the State presented sufficient evidence for a rational trier of fact to conclude Riner intended to permanently deprive the Carsons of the use and benefit of their property. The State presented testimony the defendant accepted a check for $100 on August 11, 1991, in return for a job to be completed on August 12, 1991. The defendant did not do the job at that time. Later he avoided the Carsons and failed to appear on several occasions when he.promised he would do so. Simply put, he made assorted promises and failed to keep them. He also made no effort to contact the Car-sons to explain. He promised to remove the tree on August 12, and the tree had not yet been removed by September 23 when an information was filed.

In view of Riner’s failure to remove the tree or refund the money to the Carsons, and in light of his conduct during the months of August and September, a rational trier of fact could have determined Riner intended to permanently deprive the Carsons of the use and benefit of their property by keeping the $100 without performing the contract. The jury apparently believed Riner did not intend to remove the tree or refund the money.

That conclusion is supported by the evidence, and the judgment of the circuit court of Ford County is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


author: JUSTICE LUND

text:
    DOWNSTATE TAX PURCHASER ASSOCIATION et al., Plaintiffs-Appellees, v. STEPHEN BEAN, as County Clerk of Macon County, Illinois, Defendant-Appellant.
    Fourth District
    No. 4—92—0221
    Opinion filed September 30, 1992.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Barr & Barr, of Decatur, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

The dispute arises from that portion of section 253 of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1991, ch. 120, par. 734), which was amended (now section 253(c)(8) of the Act) and now provides:

“[IJncluding (i) a fee of $35 if a petition for tax deed has been filed, which fee shall be posted to the tax judgement, sale, redemption, and forfeiture record, to be paid to the purchaser or his or her assignee; (ii) a fee of $4 if a notice under Section 241a of this Act has been served, which fee shall be posted to the tax judgment, sale, redemption, and forfeiture record, to be paid to the purchaser or his or her assignee ***.” (Ill. Rev. Stat. 1991, ch. 120, par. 734(c)(8).)

Section 253(c) of the Act lists the items to be included in computing the amount the owner of the certificate of redemption must pay to redeem from one who has purchased real property at a tax sale. (Ill. Rev. Stat. 1991, ch. 120, par. 734(c).) The $35 fee and the $4 fee did not exist prior to the adoption of the quoted provision.

Downstate Tax Purchaser Association (a not-for-profit association) and Dennis D. Ballinger, plaintiffs, filed this action to compel defendant County Clerk of Macon County (Clerk) to collect a $35 fee from the redeeming certificate holder if a petition for tax deed had been filed, to collect a $4 fee if a notice under section 241a of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 722a) had been served, and to pay the $35 and $4 payments to the tax purchaser upon the redemption.

The Clerk defended the action, contending plaintiff failed to comply with section 253(d) of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 734(d)). He further contended the $35 and $4 fees are to be paid by plaintiffs, not the holder of the certificate of redemption. The trial court granted the relief requested by plaintiffs, and we now affirm that decision.

Defendant’s first contention arises from an apparent conflict between the provisions of the quoted portions of sections 253(c)(8) and 253(d) of the Act. Section 253(d) of the Act provides:

“Posting requirements. The county clerk shall not be required to include amounts described in paragraphs (3) through (11) of subsection (c) of this Section in the payment for redemption or the amount received for redemption, nor shall payment thereof be a charge on the land sold for taxes, unless the tax certificate holder shall have filed and posted with the county clerk not less than 30 days prior to the expiration of the period of redemption or extended period of redemption an official, original or duplicate receipt for payment of those fees, costs and expenses permitted under paragraphs (3) through (11) of subsection (c) of this Section.” (Ill. Rev. Stat. 1991, ch. 120, par. 734(d).)

Plaintiffs did not pay the $35 or $4 fees and had not “filed and posted” with the county clerk a “receipt for payment of those fees” as stated in section 253(d) of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 734(d)).

We recognize some confusion may exist because of the apparent conflict between the two subsections of section 253 of the Act. Section 253(d) incorporates section 253(c)(8) by referring to paragraphs “(3) through (11).” However, section 253(c)(8) directs the automatic posting of the $35 and $4 fees.

When apparent conflicts arise in construing statutory provisions, the function of the court is to ascertain and give effect to the intent of the legislation, examining the entire statute and seeking to determine the objective sought to be accomplished and the evil to be remedied. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 362, 489 N.E.2d 1374, 1379.) Generally, the purpose of the tax sale sections of the Act is to facilitate collection of tax funds required by tax-supported agencies. The policy is to encourage purchasers to buy at tax sales. City of Bloomington v. John Allan Co. (1974), 18 Ill. App. 3d 569, 581, 310 N.E.2d 437, 446.

We determine the statute is clear as to who is responsible for the $35 and $4 fees — it is to be paid by the redeeming party. If we should decide otherwise, we would be suggesting that the legislature intended the tax purchaser to pay the fee and then have it refunded— a meaningless act. The Clerk argues the only way to read the sections as consistent is to say the tax purchaser must pay the fees so as to have the receipt to file and post as required by section 253(d) of the Act. We recognize the apparent inconsistency. We will not, however, interpret the legislation as creating a meaningless act.

The tax sale purchaser, or assignee thereof, is required to file a petition in the circuit court for a tax deed under section 266 of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 747). The filing fee for this petition is provided by the Clerks of Courts Act (Ill. Rev. Stat. 1991, ch. 25, par. 0.01 et seq.). This fee is separate from the $35 fee provided in section 253(c)(8) of the Act. The purchaser is also required by section 241a of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 722a) to deliver a redemption notice to the county clerk and pay the cost of postage (plus $10 in counties with a population of 3 million or more). This cost is separate from the $4 fee provided in section 253(c)(8) of the Act. It is apparent the $35 and $4 fees are for the purpose of somewhat compensating the tax sale purchaser for the expense of preparing the petition for deed and the section 241a notice. This is consistent with encouraging tax sale purchases.

Section 266 of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 747) requires that the county clerk be notified of the filing of a petition for deed. Section 241a notice is mailed by the county clerk. Thus, section 253(d) filing and posting is not necessary to inform the county clerk of the factors triggering the $35 and $4 additional charges to the redeeming party.

We conclude the only logical interpretation of section 253 of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 734) is consistent with plaintiffs’ position. The circuit court order directing the Clerk to collect the fees, as provided in section 253(cX8) of the Act, from the redeeming party and directing those fees to be paid over to the tax sale purchasers on redemption is affirmed.

Affirmed.

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


author: JUSTICE CHAPMAN

text:
    THE CITY OF WATERLOO, Plaintiff-Appellant, v. DENNIS MARKHAM et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0222
    Opinion filed October 5, 1992.

      Crowder & Scoggins, Ltd., of Columbia (Mark S. Rohr, of counsel), for appellant.
    Dennis M. Field, of Strellis, Nester, Faulbaum & Field, of Waterloo, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The plaintiff, City of Waterloo, brought this action against the defendants, Dennis Markham and Barbara Markham, for violation of the city’s zoning ordinances dealing with the posting of free-standing and temporary signs within the city’s limits. The trial court allowed the defendants’ motions to dismiss on first amendment grounds. We reverse.

On January 30, 1990, the City of Waterloo filed suit in Monroe County, Illinois, against defendants, Dennis Markham and Barbara Markham, seeking to impose a fine for violation of a Waterloo zoning ordinance. The defendants maintained a temporary sign on their private premises which read “No 3 on 3.” This sign reflected the Mark-hams’ opposition to a proposed widening of Illinois State Route 3 from two lanes to three lanes through the City of Waterloo.

The complaints alleged that as of December 6, 1989, and each day thereafter, the Markhams maintained a temporary sign at their home in Waterloo, Illinois, in excess of the period permitted by section 4.17(n) of Waterloo’s zoning ordinance. Section 4.17(n) prohibits temporary signs from being maintained for a period in excess of 90 days, although time extensions may be granted by the Zoning Board of Appeals.

On March 13, 1990, the defendants filed a motion to dismiss the complaints and asserted that section 4.17(n) violates the United States Constitution (a) by according disparate treatment to commercial and noncommercial speech in violation of the equal protection clause of the fourteenth amendment, (b) by imposing unnecessary restrictions on political speech in violation of the first amendment, and (c) by being vague in violation of both the first amendment and the equal protection clause of the fourteenth amendment. The court allowed the motion on first amendment grounds.

The Waterloo zoning ordinance, section 4.17(n), reads as follows:

“Temporary signs, such as election signs, shall be allowed for a period not to exceed ninety (90) days, and shall not exceed ten (10) square feet of sign area. Time extensions may be granted by the Board of Appeals.”

Temporary signs are defined in section 1.09(b) as:

“A sign, banner, or other advertising device or display constructed of cloth, canvas, cardboard, wallboard, or other light temporary materials, with or without a structural frame, intended for a temporary period of display, such as decorative displays for holidays or public demonstrations.”

Plaintiff contends that the trial court’s findings that section 4.17(n) violated the free speech aspect of the first amendment were in error.

The United States Supreme Court has held that government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. Ward v. Rock Against Racism, (1989), 491 U.S. 781, 791, 105 L. Ed. 2d 661, 675,109 S. Ct. 2746, 2753.

We first address the content restrictions involved. The principle inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. (Ward, 491 U.S. at 792, 105 L. Ed. 2d at 676, 109 S. Ct. at 2754.) The controlling consideration is the government’s purpose. The government, in this case the City of Waterloo, contends that the purpose of these ordinances was purely a matter of aesthetics controlling the appearance of the city by requiring temporary signs to be removed after 90 days, regardless of their content or message.

The defendants allege that section 4.17(n) is not content neutral in that it regulates only temporary election signs as opposed to holiday displays, public demonstrations, or signs advertising the sale of homes. Unfortunately, the defendants have misinterpreted the term “such as election signs” in section 4.17(n) as limiting the ordinance to election and political messages. Such an interpretation, however, is contrary to the plain meaning of the ordinance as a whole. The quoted words were clearly inserted for illustrative purposes rather than as a limitation to election signs only. This is made all the more apparent by section 1.09, where a temporary sign (which would thus be subject to section 4.17(n)) is defined as “[a] sign, banner, or other advertising device or display *** such as decorative displays for holidays or public demonstrations.” (Emphasis added.)

Contrary to their claims, defendants have failed to demonstrate that the ordinances do not apply equally to commercial as well as to noncommercial signs, and given the ordinance’s plain meaning, no such interpretation is warranted. The government’s aesthetic purpose has nothing to do with content, and we find the ordinance to be content neutral.

We next determine if section 4.17(n) serves a significant governmental interest. In Members of City Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 805, 80 L. Ed. 2d 772, 787, 104 S. Ct. 2118, 2129), the Supreme Court held that the State may legitimately exercise its police powers to advance aesthetic values. Aesthetics have been recognized as a significant interest warranting governmental regulation of signs. Vincent, 466 U.S. at 805-07, 80 L. Ed. 2d at 787-89, 104 S. Ct. at 2129-30; Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882; see also Quadres, Content-Neutral Public Forum Regulations: The Rise of the Aesthetic State Interest, the Fall of Judicial Scrutiny, 37 Hastings L.J. 439 (1986).

The next question is whether section 4.17(n) is sufficiently narrowly tailored to serve the governmental interest. A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate content-neutral interest. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, the regulation is not invalid. (Ward, 491 U.S. at 800, 105 L. Ed. 2d at 681, 109 S. Ct. at 2758.) The City of Waterloo seeks to discourage and prevent the unsightly clutter and inevitable deterioration intrinsic to temporary signs. Section 4.17(n) does this with clear specificity, workable efficiency and complete content tolerance. Thus, the means chosen are not substantially broader than necessary.

Finally, we determine if the ordinance leaves open ample alternative channels for communication of the information. Section 4.17(n) easily meets the requirement. As plaintiff points out, numerous methods of communication remain available to the defendants, and other citizens as well, including handbills, radio, newspaper, bumper stickers, and window signs. But what is most important is section 4.17(n)’s liberal provision for temporary signs themselves. Nothing in the ordinance prohibits the defendants from erecting a different temporary sign one day after dismantling their first temporary sign. The city’s ordinance leaves open an ample and identical channel of communication.

As one commentator has noted:

“This is not to say that every content-neutral law that restricts the opportunities for free expression is unconstitutional. Rather, in recognition that some limitations may be justified by countervailing governmental interests, the Court generally tests content-neutral restrictions with an implicit balancing approach: the greater the interference with the marketplace of ideas, the greater the burden on government to justify the restriction." (Emphasis added.) (Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 58 (1987).)

Since the defendants, and others, can abide by the requirements of section 4.17(n) and still communicate their ideas by simply erecting a new temporary sign after the 90 days expire, there is very little, if any, interference with the marketplace of ideas. Therefore, we conclude that section 4.17(n) is valid and reverse the trial court.

Reversed and remanded.

GOLDENHERSH, P.J., and WELCH, J., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KURT A. LEINWEBER, Defendant-Appellant.
    Third District
    No. 3—92—0111
    Opinion filed September 23, 1992.

      Ira B. Goldstein, of Ira B. Goldstein, Ltd., of Joliet, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

In this case, we address the question of whether Officer Kevin Delaney properly stopped the defendant, Kurt A. Leinweber, while Delaney was outside his jurisdiction. We find that the stop was lawful and affirm.

The record shows that Officer Delaney was employed by the City of Wilmington. On the evening of November 8, 1991, he was on patrol when he saw Leinweber’s truck proceeding south on West River Road. The truck was moving at a high rate of speed. As Delaney followed the truck, it crossed the white shoulder line three times.

Delaney continued following the truck beyond the Wilmington city limits. The truck then crossed the double center lines twice. The first time it did so, passing was prohibited for southbound traffic. The second time it crossed, passing was prohibited for northbound traffic only. Delaney then activated his flashing lights. The truck weaved within its lane before pulling over and stopping.

Leinweber stumbled slightly when he got out of the car. Delaney noted the odor of alcohol on his breath and asked him to perform some field sobriety tests. When Leinweber refused, Delaney took him to the police station.

At the station, Delaney issued citations to Leinweber for improper lane usage, improper registration, and driving under the influence of alcohol. After Delaney gave him the standard motorist’s warning, Leinweber refused to take a breathalyzer test.

Thereafter, Leinweber filed a petition to rescind his statutory summary suspension. He alleged, among other grounds, that he had been unlawfully arrested. Following a hearing, the trial court found that the arrest was proper and denied the petition to rescind. Leinweber appeals.

On appeal, Leinweber argues that his arrest was improper because Officer Delaney lacked legal authority to stop him outside of Wilmington. We disagree.

We note that an officer may make an investigatory stop outside his jurisdiction if he has reasonable grounds to believe that a suspect committed an offense while within his jurisdiction. (People v. Pollard (1991), 216 Ill. App. 3d 591, 575 N.E.2d 970; People v. Carraher (1990), 199 Ill. App. 3d 965, 557 N.E.2d 975.) Here, Leinweber crossed the white shoulder lines three times and the double center lines twice before he was stopped. His erratic driving gave the officer reasonable grounds to believe that Leinweber had driven through Wilmington while under the influence of alcohol. (See People v. Carraher (1990), 199 Ill. App. 3d 965, 557 N.E.2d 975.) Consequently, Delaney had lawful authority to make an investigatory stop, even though the stop ultimately occurred outside of Wilmington.

For the reasons indicated, we affirm the judgment of the circuit court of Will County.

Affirmed.

GORMAN and SLATER, JJ., concur.