ILLINOIS POLLUTION CONTROL BOARD
April
22,
1993
VILLAGE OF MATTESON,
)
)
Complainant,
v.
)
PCB 90—146
(Enforcement)
DISCOVERY SOUTH GROUP,
LTD.,
)
MUSIC CENTER ASSOCIATES LIMITED
)
PARTNERSHIP and TINLEY PARK
)
JAM
CORP.,
)
Respondents.
ORDER OF THE BOARD
(by B.
Forcade):
On March
29,
1993,
respondents
(Theatre)
filed
a motion for
clarification of the Board’s February 25, 1993
order.
The
Village of Matteson
(Natteson)
filed its response
to the motion
on April
5,
1993.
On April
6,
1993,
Theatre filed a motion for
leave to file a reply and its reply to Matteson’s response.
The
Board grants Theatre leave
to file its reply.
On April
15,
1993,
Discovery South Group, Ltd filed
a “Motion for Leave to File
Stipulation and Amended Appearance”.
The motion for leave to
file
is granted and the Board accepts the filing of the
stipulation and the amended appearance.
Theatre seeks clarification of the following issues from the
Board’s final order dated February 25,
1993.
1.
On page
28 of the order Stephen Mccarthy was misspelled.
Page
37 and
39 refer to testimony by Mike McCarthy which
should be changed to Stephen Mccarthy.
2.
A sentence was omitted from the bottom of page
51 continuing
to the top of page
52.
3.
Theatre requests that the requirement that “Theatre shall
provide the complainants with a copy of the sound monitoring
report for each concert event within 3 days of such event”
on page 50 and
57 be changed to “within
3 working days of
such event.”
4.
The order should be clarified to reflect that Discovery
South Group is the only proper respondent to this action.
Theatre argues that many concerts occur
on Fridays and
Saturdays and consultants do not perform data analysis during
weekends.
Theatre contends that
3 working days
is consistent
with the procedure used with prior monitoring.
Theatre contends
that World Music Theatre
is a building and not a legal entity.
Theatre also contends that Jam Productions Ltd.
is a talent
O1~I-O!77
2
booking Agency but does not book talent for World Music Theatre.
Theatre asserts that Discovery South Group,
Ltd.
is solely
responsible for the management of the theater and
is therefore
the proper party.
Matteson contends that the court of first hearing loses
jurisdiction after 30 days from entry of a final order.
(Midwest
Bank and Trust Co.
v. Village
of Lakewood
(1983),
113 Ill.
App.
3d 962,
447 N.E.2d 1358.)
Matteson in its response presented no
objection to clarification of the first three issues but objected
to dismissing any of respondents.
In its reply, Theatre seeks to name the proper entities as
respondents.
Theatre contends that the proper respondents are
Discovery South Group,
Ltd.
(theater’s operator)
,
Music Center
Associates Limited Partnership
(theater’s owner),
and Tinley Park
JAM Corp.
(the booking agent for theater).
Theatre contends that
it has previously informed counsel for Matteson that Discovery
South Group,
Ltd.
was
the only properly named respondent
in the
petition.
Theatre maintains that this matter can be settled by
the Board on the present motions and that delaying resolution of
this matter will cause the expenditure of additional time and
money.
The stipulation entered by Matteson and Discovery South
Group states that the parties have agreed that the proper
respondents should be Discovery South Group,
Ltd., Music Center
Associates Limited Partnership and Tinley Park JAM Corp.
Further, the parties agree that World Music Theatre,
JAM
Productions and Gierczyk’s Development,
Inc.
should be dismissed
from the action and removed from the caption.
The stipulation
also states that Music Center Associates Limited Partnership and
Tinley Park JAM Corp. waive their due process right to have
participated
in the Board’s hearings and acknowledge they are
fully and completely bound by all Board orders entered
in this
matter.
Considering the filing of the stipulation, Matteson has
withdrawn the objections
presented
in its response and agrees to
a change of the respondents.
The Board finds that it has jurisdiction to review this
motion.
The Board’s procedural rules allow for the correction of
clerical mistakes or errors at any time.
(35 Ill.
Adm. Code
103.241.)
Therefore,
the motion for clarification is properly
before the Board.
As Matteson does not object to clarification
of the first three issues in the motion and the parties have
entered a stipulation on the fourth issue, the Board grants the
motion for clarification.
The Board notes that on page
37 and
39 of the February 25,
1993 order Mike Mccarthy should be changed to Stephen Mccarthy.
The Board further notes that the correct spelling
is Stephen and
was misspelled
on page
28 of the order.
01L41-0178
3
A sentence was inadvertently omitted from the final order on
page 51.
The last paragraph on page
51 should have read
(the
portion which was mistakenly omitted from the final order
is
underlined)
Based on the nature of this violation and the
history of this proceeding,
the Board finds
it
appropriate to assess
a penalty at this time.
While
the Board finds merit
in imposing an incremental
penalty to deter future violations,
due to the
particulars of the present situation an automatic
incremental penalty may be inappropriate.
Section
42(a)
of the Act allows the Board to impose a penalty,
not to exceed $50,000 for each violation and an
additional penalty, not to exceed $10,000 for each day
the violation continues.
In determining the
appropriate amount of any penalty the Board reviews the
factors
in Section 42(h)
of the Act.
The requirement that “Theatre shall provide the complainants
with
a copy of the sound monitoring report for each concert event
within
3 days of such event’t on page 50 and 57 should be changed
to “within 3 working days of such event.”
As the stipulation represents that the parties have agreed
to the change in respondents,
the Board grants clarification on
this issue.
The Board will add Music Center Associates Limited
Partnership and Tinley Park
JAM
Corp. as respondents
in this
matter.
The Board also dismisses World Music Theatre and
JAM
Productions,
Ltd. as respondents in this matter.
The stipulation
notes that Gierczyk Development,
Inc.
should be dismissed from
this proceeding and removed from the caption.
The Board notes
that Gierczyk Development,
Inc. was dismissed from this
proceeding
in the Board’s April 25,
1991 Interim Opinion and
Order for lack of service and that the caption was subsequently
modified.
The Board has modified the caption in this order to
reflect the change
in respondents as agreed to by the parties.
IT IS SO ORDERED.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, I~erebycertify that the above order was adopted on the
~~day
of
____________________
,
1993,
by a vote of
~
-o
•
I,
~
~.
Dorothy M. ,21,~nn, C1er~c
Illinois PoJ/Lution Control Board
OIL~I
-0179