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Docket No. 93389-Agenda 25-September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
JASON A. LAW, Appellee.

Opinion filed December 5, 2002.

CHIEF JUSTICE McMORROW delivered the opinion of thecourt:

In June 2001 defendant, Jason A. Law, was charged withviolating section 6-16(c) of the Liquor Control Act of 1934 (theAct) (235 ILCS 5/6-16(c) (West 2000)). Defendant filed a motionto dismiss the case and have the statute declared unconstitutional.Following a hearing, the circuit court of Whiteside County grantedthe motion, declaring section 6-16(c) unconstitutionally vague anddismissing the information. The State appealed directly to thiscourt. 134 Ill. 2d R. 603; 188 Ill. 2d R. 604(a)(1). For the reasonsset forth below, we affirm the judgment of the circuit court.

BACKGROUND

The factual background of this case is limited. Defendant'smotion to dismiss raised only issues of law, not fact, and noevidence was presented by either side during the hearing.

In February 2001 the State filed a criminal complaint againstdefendant charging him with the offense of "Resident AllowingPerson/s Under 21 to Leave Residence after Consuming Alcohol,"in violation of section 6-16(c) of the Act. Section 6-16(c)provides in pertinent part:

"Any person shall be guilty of a Class A misdemeanorwhere he or she knowingly permits a gathering at aresidence which he or she occupies of two or morepersons where any one or more of the persons is under 21years of age and the following factors also apply:

(1) the person occupying the residence knows thatany such person under the age of 21 is in possession ofor is consuming any alcoholic beverage; and

(2) the possession or consumption of the alcohol bythe person under 21 is not otherwise permitted by thisAct; and

(3) the person occupying the residence knows thatthe person under the age of 21 leaves the residence inan intoxicated condition." 235 ILCS 5/6-16(c) (West2000).

The complaint alleged that on or about January 30, 2001,defendant "knowingly permitted" his residence "to be used for agathering and knew that an invitee, Brock L. Boss[,] was under theage of 21 and the invitee was consuming alcohol while at hisresidence." The complaint added: "[D]efendant then allowedBrock Boss and others to leave the residence after consumingalcohol."

Defendant filed a motion to dismiss. In his motion, defendantalleged, inter alia, that section 6-16(c) was unconstitutionalbecause it "purport[ed] to require the Defendant to commit theoffense of Unlawful Restraint in order to avoid criminalresponsibility for such violation of the Liquor Control Act."

The State voluntarily dismissed the complaint andsubsequently filed an amended information. While the amendedinformation more closely tracked the language of section 6-16(c),it did not address defendant's unlawful-restraint objection. Theinformation stated:

"[O]n or about the 30th day of January, 2001,[defendant] committed the offense of LIQUOR TOMINOR/PRIV RESIDENCE in that said defendantknowingly permitted his residence *** to be used as agathering of two or more persons with knowledge that aninvitee, Brock Boss, was under the age of 21, and thatsaid invitee was consuming alcohol not otherwisepermitted by [the Act], while at his residence. SaidDefendant knew that Brock Boss left the residence in anintoxicated condition, in violation of [section 6-16(c) ofthe Act]."

Defendant moved to dismiss the information and declare thestatute unconstitutional. Following a hearing, the circuit courtgranted the motion. In a written opinion and order, the courtstated:

"Although this statute appears to be intended to preventa person from providing a place for underage drinking inwhich the minor subsequently leaves the residence in anintoxicated state, its language fails to give fair notice as towhat type of conduct is prohibited. Clearly, it is illegal fora minor to possess or consume alcohol, but it is likewiseillegal to unlawfully restrain an individual. Yet, if a minorconsumes alcohol at the residence of a Defendant, thisstatute requires the Defendant to commit a criminaloffense (Unlawful Restraint) in order not to violate thisstatute. Therefore, the statute is vague."

The circuit court declared section 6-16(c) unconstitutionaland dismissed the information. Because the statute was declaredunconstitutional, the State appealed directly to this court. 134 Ill.2d R. 603.

ANALYSIS

This court reviews de novo a circuit court's determinationregarding the constitutionality of a statute. Russell v. Departmentof Natural Resources, 183 Ill. 2d 434, 441 (1998). Statutes arepresumed constitutional, and a party challenging theconstitutionality of a statute has the burden of establishing itsinvalidity. Russell, 183 Ill. 2d at 441; People v. Wright, 194 Ill. 2d1, 24 (2000).

The question before us is whether section 6-16(c) isunconstitutionally vague. A criminal law may be declaredunconstitutionally vague for either of two independent reasons.First, the statute may fail to provide the kind of notice that wouldenable a person of ordinary intelligence to understand whatconduct is prohibited. City of Chicago v. Morales, 527 U.S. 41,56, 144 L. Ed. 2d 67, 80, 119 S. Ct. 1849, 1859 (1999); see Peoplev. Izzo, 195 Ill. 2d 109, 113 (2001); People v. Warren, 173 Ill. 2d348, 356 (1996); see also Grayned v. City of Rockford, 408 U.S.104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99 (1972)(due process requires that a statute "give the person of ordinaryintelligence a reasonable opportunity to know what is prohibited,so that he may act accordingly"). Second, a statute may bedeclared unconstitutionally vague if it fails to provide explicitstandards for those who apply it, thus authorizing or evenencouraging arbitrary and discriminatory enforcement. Morales,527 U.S. at 56, 144 L. Ed. 2d at 80, 119 S. Ct. at 1859; seeGrayned, 408 U.S. at 108-09, 33 L. Ed. 2d at 227-28, 92 S. Ct. at2299; Izzo, 195 Ill. 2d at 113; Warren, 173 Ill. 2d at 356.

In determining whether section 6-16(c) provides proper noticeof the conduct that is prohibited, we apply a somewhat modifiedapproach. In most criminal statutes, the actus reus, or wrongfuldeed, refers to an affirmative act. See 1 W. LaFave & A. Scott,Substantive Criminal Law