ILLINOIS POLLUTION CONTROL BOARD
March 25,
1993
VILLAGE OF MATTESON,
)
)
Complainant,
)
v.
)
PCB 90—146
(Enforcement)
WORLD
MUSIC
THEATRE
)
JAM
PRODUCTIONS, LTD. and
)
DISCOVERY SOUTH GROUP,
LTD.,
)
Respondents.
ORDER
OF THE
BOARD
(by B. Forcade):
This matter comes before the Board on a motion for
reconsideration filed by World Music Theatre et.
al.
(Theatre)
on
March 12,
1993,
requesting the Board to reconsider its February
25,
1993 opinion and order.
Theatre also filed
a’ motion for stay
pending appeal if the Board denies the motion for
reconsideration.
The Village of Matteson (Matteson)
filed a
reply to the motion which was stamped as received on March 22,
1993.
On March 23, 1993, Matteson filed a motion to extend the
date for filing of its reply.
Matteson notes that the reply was
delivered to the Board on March 19,
1993 but after the 4:30 p.m.
deadline and was therefore date stamped as received the next
working day.
The Board grants the motion for extension of time
and accepts the filing of the reply.
Theatre raises the following issues for reconsideration:
1) The Board does not have the power to impose
5 minute L~
averaging on Theatre.
2) The Board’s final order violates the Theatre’s and
artists’ right to free speech.
3) The Board’s decision relied on hearsay evidence which was
erroneously admitted by the hearing officer.
4) The Board’s findings are against the manifest weight of
the evidence.
5) A fine is not appropriate in this matter.
Upon consideration of the issues presented by Theatre and a
review of the record, the Board grants reconsideration and
affirms its opinion and order dated February 25,
1993.
The Board
will first respond to the issues presented by Theatre in its
motion for reconsideration and then consider the motion for stay.
5 Minute L~Avera~ing
Theatre argues that the Board does not have the power to
apply an averaging period to Theatre that deviates from the
0
L~.U-0
I 79
2
averaging period found in the Board’s regulations.
Theatre
contends that in using a different averaging period the Board
violated the Board’s procedural rules for adopting new
regulations and violated Theatre’s rights to due process and
equal protection.
The Board finds that the use of a
5 minute L~averaging
period is within the Board’s authority and is required by the
nature of the noise source.
As noted in the February 25,
1993
opinion and order,
it
is well established that the Board has the
authority to impose specific controls on a case by case basis,
certainly in an enforcement action to remedy a violation such as
this.
The expert testimony and data collected by Theatre clearly
show that the one hour averaging period is inappropriate for
measuring the sound generated by Theatre and that a shorter
averaging period is required.
The numerical standards imposed by
the Board against Theatre are the same as those found in the
Board’ s regulations.
Freedom of Speech
Theatre contends that the Board’s order violates the right
to freedom of speech by imposing standards of acceptable sound
level and sound mix on the artists and imposes a chilling effect
on the artists’ performance.
The government may impose reasonable restrictions on the
time,
place,
or manner of protected speech providing that the
restrictions, are justified, do not reference content, are
tailored to serve a governmental interest and leave open other
channels for communications.
(Ward v. Rock Against Racism
(1989), 491 U.S.
781,
109 S.
Ct. 2746,
105 L.
Ed. 2d 661.)
The
Board finds that the restrictions placed on Theatre are
justified.
The Board’s order does not prohibit any artist from
performing at the theatre.
However, the order does require
Theatre to control the volume of any such performance so as not
to create a nuisance in the surrounding community in violation of
the Board’s noise regulations.
The Board’s order is not directed
at the content of the performance.
The Board’s order is intended
to serve the governmental interest in preventing “noise which
creates a public nuisance.”
(415 ILCS 5/23
(1992).)l
The order
does not affect other channels of communication.
The Board finds
that the restrictions placed on Theatre do not violate the right
to freedom of speech.
The case law cited by Theatre does not
convince the Board its order is in error.
1
Previously codified at Ill. Rev.
Stat.
1991,
ch.
111½,
par.
23.
0
~D-D
180
3
Hearsay Evidence
Theatre contends that the hearing officer erred in admitting
the compiled police reports from Matteson and Country Club Hills
and the letters from Janet Munchik, City Manager of Country Club
Hills,
to counsel for Theatre.
Theatre argues that these items
contain multiple layers of hearsay and are not admissible under
the business record exception.
Theatre further argues that these
items are not admissible under 35
Ill.
Adin.
Code 103.204(a)
because they are not documents that “would be relied upon by
reasonably prudent persons in the conduct of serious affairs.”
Theatre also contends that complainant failed to lay the proper
foundation for the admission of computer generated records.
Theatre contends that the Board’s reliance on these documents was
in error.
The documents which Theatre contends are inadmissible
include a listing of the noise complaints received on a
particular day.
Evidence of this nature was first submitted as
Exhibit G at the December 10,
1990 hearing.
(Tr.
1 at 220.)2
Theatre objected to the admission of this document as being
inadmissible hearsay.
(Tr.
1 at 220.)
Matteson argued that the
document was admissible under the public records and reports
exception to the hearsay rule.
(Tr.
1 at 221.)
(See People v.
Lacey
(3rd Dist.
1968),
93
Ill. App.2d 430, 235 N.E.
2d 649.)
This exception allows the submission of any
records, reports, statements or data compilations,
in
any form,
of public offices or agencies,
setting forth
(A) the activities of the office or agency,
or
(B)
matters observed pursuant to duty imposed by law to
which matters there was a duty to report
.
.
.
or
(C)
in civil actions and proceedings or against the
Government in criminal cases, factual findings
resulting from an investigation made pursuant to
authority or granted by law, unless the sources of
information or other circumstances indicate a lack of
trust worthiness.
(Fed.
R.
Evid. 803(8))
The hearing officer admitted the document under this
exception and also found the document to be admissible under 35
Ill. Adm. Code 103.204(a), which allows the admission of evidence
“relied upon be reasonably prudent persons in the conduct of
serious affairs.”
The reasonably prudent person standard is the
same standard applied to administrative hearings by the
2
Tr.
1 references the transcript from the hearing held on
December 10,
1990.
01 ~.Q-3
181
4
Administrative Procedure Act.
(5 ILCS 100/10—40 (l992).)~
(See
Starkey
V.
Civil Service Commission,
etc
(1st Dist.
1982),
105
Ill. App.
3d 904, 435 N.E.2d 687.)
Similar documents were submitted by Matteson at subsequent
hearings.
(Comp. Exh.
2,
5
&
6 from January 1993,
Comp.
Exh.
6
from July 1992.)
Theatre continued to object to the submission
of the documents but noted that the hearing officer had
previously allowed such exhibits.
The Board affirms the hearing officer’s ruling that the
documents are admissible under the public records exception to
the hearsay rule and the Board’s procedural rules pertaining to
the admission of evidence.
The documents were prepared by the
village administrator from police records of complainants
received by the police department.
The police department has a
duty to make a record of all complainants received.
The village
administrator is concerned with the activities of the police
department and relies on the records that the department
generates.
The records from the police department would also be
used by the village administrator to investigate the noise
complaints.
A proper foundation for computer generated reports is
established when it is shown that:
the equipment which produced the record is recognized
as standard, the entries were made in the regular
course of business at or reasonably near the happening
of the event recorded and the source of information,
method and time of preparation were such to indicate
their trustworthiness and to justify their admission.
(citations omitted).
Riley v. Jones Bros.
Construction (1st Dist.
1990),
198
Ill. App.
3d 822,
556 N.E.
2d 602.
Theatre did not raise an objection to the admission of the
documents for lack of proper foundation at hearing.
Theatre does
not present any facts to show that the documents qualify as
computer generated reports.
However, the Board finds that the
record does contain information on the police dispatch operation,
how entries where made and how the information from the police
department was used to create the reports submitted.
The Board
finds that evidence submitted concerning the preparation of the
documents is sufficient to “indicate their trustworthiness and to
justify their admission.”
~ Previously codified at Ill. Rev.
Stat.
1991,
ch.
127,
par.
1012.
01 40-0182
5
The Board notes that Theatre presented a similar exhibit
showing dates and locations of complaints, based on the same
police reports, to support their argument that the number of
violations had decreased.
(Resp.
Exh.
2
&
3 from January 1993).
When asked if Theatre’s tabulated information was the same as the
information already presented (which Theatre now challenges as
improperly admitted), Mr Mickelson stated,
“Yes.
They are taken
exactly from the documents that have already been submitted to
this hearing.”
(Tr.
9 at 234).
Theatre submitted its documents
asserting the truth contained therein to show that actual noise
complaints had been reduced over time.
Theatre contests the
admissibility of documents presented by Matteson but relies on
similar documents containing the exact same information to
support its arguments.
The Board finds Theatre’s objections
without merit.
The Board notes that Theatre did not appeal any of the
hearing officer rulings regarding admission of the evidence,
nor
did Theatre identify the specific documents and portions thereof
which are purported to contain hearsay.
Even if the Board were
to strike the tabulated results from Matteson, the Board would
reach the same conclusions, based upon the same facts,
only
relying on the 237 identified complaints from Theatre’s evidence
(Resp.
Exh.
2
&
3 from January 1993)
rather than the 250 noise
complaints asserted by complainant.
Decision Against the Evidentiary Standard
Theatre has incorrectly asserted that the evidentiary
standard is the manifest weight of the evidence.
In an
enforcement proceeding before the Board,
the burden of proof
is a
preponderance of the evidence.
Goose Lake Association v. Robert
J.
Drake,
et.
al.
(February 25,
1993)
PCB 90-170 at 11,
PCB
_;
Lefton Iron
& Metal Companv~Inc.
v. City of East St. Louis
(April 12,
1990), PCB 89—53 at 3,
110
PCB 19,
21; Bachert v. Village of Toledo Illinois, et al.
(November 7,
1985), PCB 85—80 at
3,
66 PCB 279, 281; Industrial
Sa1va~eInc.
v. County of Marion
(August
2,
1984), PCB 83-173 at
3-4, 59 PCB 233,
235-236,
citing Arrington v. Water
E. Heller
International Corp.
(1st Dist.
1975),
30 Ill. App.
3d 631,
333
N.E.2d 50.
58.
A proposition is proved by a preponderance of the
evidence when it
is more probably true than not. Industrial
Salvage at 4,
59,
233,
236, citing Estate of Ragen
(1st Dist.
1979),
79
Ill.
App.
3d
8,
198 N.E.2d 198,
203.
It is
complainant’s burden to prove a proposition by a preponderance of
the evidence.
The Board employed the preponderance standard in
deciding this case.
While the Board has determined that the evidence considered
in its final decision was properly admitted by the hearing
officer, the Board finds that even if the contested evidence was
not considered, there is sufficient evidence in the record to
0
40-0
I
83
6
support the Board’s finding.
Testimony from residents concerning
noise violations was admitted at each set of hearings.
Expert
testimony was provided to support the resident’s testimony.
The expert testimony presented by Theatre’s expert, Joel
Lewitz, concluded that vibrations and sound would not be
experienced by the residents in their homes at the specified
noise levels.
Mr. Lewitz conclusions were based on several
assumptions.
Several residents testified to experiencing
vibrations and sound in their homes on certain nights when
concerts were taking place.
The Board found against the
testimony presented by Mr. Lewitz on the issue of vibrations and
audibility of sound inside the home.
However, the Board fully
considered Mr. Lewitz’s testimony.
Penalty
Theatre contends that a fine is not appropriate because the
number of violations have decreased over time.
In addition
Theatre argues that unrebutted evidence shows that
3 of the 5
violations
in 1992 were due to abnormal weather conditions.
Theatre also argues that additional physical modification to
Theatre will not affect sound emissions and Theatre should not be
penalized for not pursuing such measures.
Theatre notes that it
has performed sound monitoring and hired experts in accordance
with prior Board orders.
Theatre contends that it has made a
good faith effort to collect data to conform with Board orders.
The Board finds that the factors presented by Theatre were
considered by the Board in deciding to impose a monetary penalty
in this matter.
While the number of found violations have
decreased from season to season,
Theatre has not presented any
evidence that indicates that the decrease is due to any measures
taken by Theatre or that future violations will not occur,
Other
factors could explain the decrease in found violations or
complaints against the Theatre, such as weather conditions,
different performing artists, the pending action before the
Board,
ongoing monitoring, extent of evidence presented by
Matteson and frustration by residents.
While adverse weather conditions are a contributing factor
to the propagation of sound into the surrounding community,
it
does not alleviate the violation.
The standards imposed by the
Board’s noise regulations are applicable under all weather
conditions.
Theatre’s claim of a good faith effort to collect data still
contains no explanation of the failure by Theatre to provide the
Board with ‘one year’s worth of monitoring data.
0
40-01
81~
7
Stay Pending Appeal
The Board denies Theatre’s request for a stay from the
monitoring requirements as specified by the Board’s order.
The
Board has found that the evidence clearly demonstrates that
violations have occurred and that the provisions of the final
order are necessary to prevent additional violations.
Granting a
stay of the final order would allow Theatre to continue its
operation in a manner that violates the noise standards and
creates
a nuisance in neighboring areas.
In addition, the Board
concludes that it is possible to obtain an appropriate sound
level for the performance to be enjoyed by all patrons in the
Theatre without transmitting an inappropriate amount of sound
onto the surrounding community.
The Board further maintains that
this can be obtained with no or minimal effect on the artist and
performance.
As an additional matter, the Board notes that even if it
were inclined to grant a stay on some matters,
it’ would
specifically not be inclined to grant a stay of the sound
monitoring obligations.
Those requirements will for the first
time settle the debate about how loud the music is at the mix and
in the community from concert to concert, as well as from minute
to minute.
Should future noise complaints arise, those
measurements would provide the only analytical characterization
of the nature of the problem.
Theatre has not objected to the
cost or technical practicability of that monitoring.
Therefore
the Board would be specifically not inclined to grant a stay of
those provisions.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board
hereby certify that the above order was adopted on the
~26~
day of
_____________________,
1993,
by a vote of
~.
~
~Dorothy
N.
pi~nn,Clerk
Illinois P?l,&ution Control Board
0
40-0185