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FIFTH DIVISION
December 10, 2004

Defendants, City of Chicago (City), Richard M. Daley, Winston Mardis and the Mayor'sLicense Commission (MLC), appeal the order of the circuit court reversing the decision of the LocalLiquor Control Commissioner (LLCC) to suspend plaintiff's liquor license for 15 days for permittingand engaging in acts of gambling on its premises. Upon appeal, defendants argue: (1) the trial courterred in finding that the LLCC's decision was against the manifest weight of the evidence; and (2)plaintiff waived his due process argument when he failed to raise the issue during the hearing. Wereverse.

At the hearing before the LLCC to revoke plaintiff's license, Officer James Henneghantestified that on November 6, 1999, he entered plaintiff's establishment in plain clothes, sat at the barand ordered a beer. The bartender gave him change from the register. As he sat, Officer Henneghannoticed a man playing a video game at one of three machines located directly across from him. Officer Henneghan recognized the machine as a "Cherrymaster" whereby a player purchases creditsand bets credits on a scrolling screen that displays pictures in a row. The player wins or loses creditsbased upon the pictures appearing on the screen. If a player loses all of his credits, he can either stopplaying or insert more money into the machine. A player may also be paid money corresponding tothe number of credits he has accumulated. The credit total is cleared to zero by pressing a button. Officer Henneghan testified that the Cherrymaster is a game of pure chance, not skill.

The man continued playing and Officer Henneghan observed him insert money into themachine. After playing for about an hour, the man stopped, stood up and called or motioned to thebartender, Verna Egert. From behind the bar, Egert looked at the machine, which showed that theman had accumulated 1,100 credits, and she nodded and motioned for the man to follow her. As theywalked, Officer Henneghan noticed that the credits total was scrolling down to zero. OfficerHenneghan saw Egert take United States currency from the register and hand it to the man, who thentook the money and left the premises.

Although Officer Henneghan did not arrest the man or learn his identity, he subsequentlyapplied for a search warrant based upon his observations. On November 8, 1999, after the warrantwas issued, Officer Henneghan returned with other officers and seized the circuit boards of the videomachines as well as currency found inside the machines. The officers issued a criminal citation toEgert.

Officer Ollie Gavin testified that on November 12, 1999, he entered plaintiff's establishmentin plain clothes and sat at the bar. He ordered a beer and the bartender gave him change from theregister. Apparently, new circuit boards were installed and Officer Gavin observed a man playingCherrymaster. Officer Gavin stated that the game was one of chance, not skill. The man continuedto play the game for approximately 30 minutes and Officer Gavin saw the man place money into themachine approximately four times during that period. When the man stopped playing, he turned andwaved towards the bartender. The bartender looked at the machine from behind the bar and itshowed 400 credits. She took the man to one of the cash registers and removed some currency whichshe gave to the man. The man then left the premises. After leaving, Officer Gavin obtained a warrantbased upon his observations, and on November 16, 1999, pursuant to the warrant, police officersseized the three video amusement machines and the cash inside.

On January 3, 2000, Officer Moises Flores entered plaintiff's establishment in plain clothes. Officer Flores sat at the bar and directly across from him were three video amusement machines. Officer Flores ordered a beer and observed a man playing Cherrymaster. Officer Flores testified thatthe game was one of chance, not skill.

The man continued to play the game for approximately 20 minutes in Officer Flores' presence,and once during that time the man inserted money into the machine. When he finished playing, theman left the machine and spoke briefly to the bartender. The bartender looked at the machine, whichshowed 4,000 credits, and then nodded and made some motions. The player returned to the machineand pushed a button which cleared the points from the screen. The bartender then took money outof the cash register and handed it to the man. As the man started to leave the premises, Officer Floresstopped him and issued criminal citations to the man and to the bartender. Officer Flores then hadthe machines opened and he confiscated the currency inside.

The City sought to revoke plaintiff's liquor license, based upon 17 charges.⁽¹⁾ The chargesallege that on each of the three occasions outlined above, plaintiff participated in and wagered upona game of chance, managed or permitted its premises to be used for gambling, and kept a gamblingplace, thereby maintaining a public nuisance. The hearing officer found the testimony of the officersto be "credible, reliable and uncontradicted" and that the City sustained its burden of proof upon all17 charges. He then determined that a 15-day suspension upon each charge, served concurrently, wasan appropriate sanction. The License Appeal Commission (LAC) affirmed the LLCC's decision. Upon administrative review, the trial court reversed the decisions of the LLCC and the LAC becauseit found "that there is no evidence in the record to support an intent to gamble by the licensee." TheLLCC filed this timely appeal.

Upon appeal, this court reviews the administrative agency's decision and not that of the trialcourt. Daley v. El Flanboyan Corp., 321 Ill. App. 3d 68, 71 (1998). Furthermore, review is limitedto whether the agency's factual findings are against the manifest weight of the evidence and whetherthe findings support the sanction given. El Flanboyan, 321 Ill. App. 3d at 71. A decision is againstthe manifest weight of the evidence only if the opposite conclusion is clearly evident. City ofBelvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). An administrativeagency's decision is not against the manifest weight of the evidence, and must be sustained uponappeal, if there is any evidence in the record supporting the agency's decision. Leong v. Village ofSchaumburg, 194 Ill. App. 3d 60, 65 (1990). The mere fact that the opposite conclusion isreasonable, or that a reviewing court would have ruled differently, does not render an agency'sdecision as against the manifest weight of the evidence. Abrahamson v. Illinois Department ofProfessional Regulation, 153 Ill. 2d 76, 88 (1992).

Here, three officers testified without contradiction that on three separate occasions theyobserved a man playing a Cherrymaster machine. On all three occasions, the players inserted moneyinto the game to continue playing, and when they stopped playing, they had accumulated a numberof credits. The players approached the bartender, who looked at the machine and then motioned forthem to follow. On two occasions, the officers noticed that the total credits on the screen scrolleddown to zero. The bartender then gave the players some cash from the register after which theplayers left the premises. The officers did not observe any of the players engage in any otheractivities, nor did they observe that the players were being paid by the bartender for servicesperformed or for a refund on a tab.

Although there is no direct evidence of wagers and payoffs, the circumstantial evidence issufficient to support the LLCC's decision. See People v. Diesel, 128 Ill. App. 2d 388, 394-95 (1970)(police observation that defendant and others were seated at a table with cards in their hands andcurrency in front of them constituted sufficient circumstantial evidence to find defendant guilty ofgambling beyond a reasonable doubt, although officers never observed actual wagers); see alsoPeople v. Galan, 110 Ill. App. 2d 98, 100 (1969) (circumstantial evidence has the same weight andvalidity in gambling cases as in other offenses). The LLCC's findings are not against the manifestweight of the evidence. Therefore, the trial court erred when it reversed the decisions of the LLCCand the LAC.

Plaintiff, however, contends that defendants were required to present substantial evidence ofplaintiff's intent to engage in gambling. The case cited by plaintiff, Finnerty v. Personnel Board, 303Ill. App. 3d 1 (1999), holds that courts must review agency decisions under the manifest weightstandard unless a statute specifically states that review must be under the substantial evidencestandard. Finnerty, 303 Ill. App. 3d at 11. However, no statute here requires courts to review theLLCC's and LAC's decisions under the substantial evidence standard. The statute cited by plaintiff,section 7-9 of the Liquor Control Act of 1934 (235 ILCS 5/7-9 (West 2002)) sets forth the standardby which the LAC reviews the LLCC's decisions, not the standard for judicial review of the LLCC'sand LAC's decisions. Accordingly, the manifest weight standard applies.

Further, even if the substantial evidence standard applied, the outcome would be the same. Substantial evidence has been defined as "'more than a mere scintilla'" and also as "'such relevantevidence as a reasonable mind might accept as adequate to support a conclusion [citation].'" Finnerty, 303 Ill. App. 3d at 11, quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842,853, 91 S. Ct. 1420, 1427 (1971). The testimony of the three officers constituted substantialevidence of plaintiff's intent to engage in gambling. See our discussion above.

Plaintiff also argues that the circumstantial evidence presented by defendants does not supporta finding of illegal gambling because it did not eliminate all other explanations for why the bartenderpaid the men cash from the register. Plaintiff relies upon Illinois Pattern Jury Instructions, Criminal,No. 3.02 (2d 1981) (hereinafter, IPI Criminial 2d No. 3.02) and People v. Crow, 108 Ill. 2d 520(1985), which approved of that paragraph of the jury instruction. IPI Criminal 2d No. 3.02, whichaddresses circumstantial evidence in a criminal case, instructs jurors that they "should not find thedefendant guilty unless the facts or circumstances proved exclude every reasonable theory ofinnocence." However, our supreme court has explained that this language is an attempt "to expressthe reasonable-doubt standard in the vocabulary of circumstantial evidence." People v Bryant, 113Ill. 2d 497, 511 (1986). The reasonable doubt standard does not apply to license revocation cases. See S&F Corp. v. Bilandic, 62 Ill. App. 3d 193, 196 (1978) ("in a license revocation proceeding theelements of the crime charged need not be proved beyond a reasonable doubt, but proof by apreponderance of the evidence is sufficient").

Next, plaintiff argues that he was denied due process because the police officers did not arrestor identify the Cherrymaster players. Plaintiff contends that as a result, he could not confront thesewitnesses. Plaintiff waived review by failing to raise this due process issue before the administrativeagency. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278 (1998). The waiver ruleapplies even to constitutional issues. Texaco, 182 Ill. 2d at 278-79.

Plaintiff's argument also fails on the merits. Plaintiff cites a number of cases holding that adue process violation occurs where the State loses or destroys physical evidence that was materialto the defense. Those cases are inapposite, as the police officers did not lose or destroy any physicalevidence. Rather, plaintiff's argument relates to the officers' alleged failure to identify theCherrymaster players. The police issued a criminal citation to one of the three Cherrymaster players,but plaintiff did not call him to testify. Plaintiff has not argued that the City in any way prevented himfrom investigating, identifying, and subpoenaing the Cherrymaster players, nor has plaintiff made anyshowing that the Cherrymaster players would have been favorable to his defense. Plaintiff's dueprocess argument fails in the absence of any showing of prejudice. See United States v. Valenzuela-Bernal, 458 U.S. 858, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982).

Reversed.

CAMPBELL, P.J., and GALLAGHER, J., concur.

1. Three other charges pertaining to a pistol seized during a search on November 16, 1999,were withdrawn before the LLCC reached its decision.