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Binder v. Illinois Liquor Control Commission

DECEMBER 31, 1963.

ROMAN J. BINDER, PRESIDENT AND LOCAL LIQUOR CONTROL COMMISSIONER OF THE VILLAGE OF HILLSIDE, ILLINOIS, PLAINTIFF-APPELLANT,

v.

ILLINOIS LIQUOR CONTROL COMMISSION OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

This appeal is taken by the President of the Village of Hillside from an order of the Circuit Court affirming a decision of the Illinois Liquor Control Commission. Plaintiff, as Local Liquor Control Commissioner, had revoked the retail liquor license of Carmela Marino d/b/a Fitz's Hideout, but on review the Commission's order provided instead for a ten-day suspension of the license.

On April 11, 1961, the bartender of Fitz's Hideout was arrested for selling liquor to a minor. He was convicted of that offense on April 29, and no appeal was taken. On that same day, an order of revocation was issued by plaintiff, and served upon the licensee, for the unlawful sale of liquor to a minor in violation of Ill Rev Stats 1959, c 43, § 131, and pursuant to Ill Rev Stats 1959, c 43, § 187, by reason of the conviction of the bartender.

The license period expired by its terms on April 30, 1961. On May 5, the Board of Trustees of the Village passed an ordinance reducing the number of retail liquor licenses from 16 to 15. (Section 110.) *fn1

On May 18, the licensee filed an appeal to the Illinois Liquor Control Commission to review by a trial de novo the action of the plaintiff in revoking her license.

On May 19, the son of the licensee attempted to present a check for $250 for a retail liquor license on behalf of his mother. He was refused an application, apparently on the ground that no license was available at that time due to the reduction in number of licenses by the ordinance of May 5.

The Illinois Liquor Control Commission heard the appeal on July 6, and on July 18 entered an order finding:

That the evidence adduced at the hearings before the Commission showed the sale of alcoholic liquor to a minor of the age of 19 years but this evidence was not sufficient of itself, this being a solitary instance of a sale to a minor, to warrant a severe penalty of revocation of the appellant's local retail liquor license.

The Commission, thereupon, modified the order of revocation to provide for a suspension of the license for ten days.

After denial of his petition for rehearing, plaintiff filed a complaint in the Circuit Court for administrative review. On February 8, that Court affirmed the order of the Commission, and this appeal followed.

Plaintiff advances four contentions: (1) that when the employee on licensee's premises was convicted of selling liquor to a minor, it became mandatory under Section 187 for the Local Liquor Control Commissioner to revoke the license; (2) that the Illinois Liquor Control Commission had no authority to alter or modify the order of revocation, but could only pass upon the propriety of the act of the Local Liquor Control Commissioner, under section 153; (3) that no administrative review had been obtained because the Circuit Court failed to consider the record before the administrative agency; and (4) that the appeal of the licensee to the Illinois Liquor Control Commission had become moot, there having been no license then available for issuance under the ordinance of May 5 which reduced the number of retail liquor licenses in the village.

To support his first contention that revocation was mandatory, plaintiff cites Section 187 which reads as follows:

Revocation of license when employee convicted — Forfeiture of bond and license fees.

Whenever any officer, director, manager or other employe (sic) in a position of authority of any licensee under this Act shall be convicted of any violation of this Act while engaged in the course of his employment or while upon the premises described by said license, said license shall be revoked and the fees paid thereon forfeited both as to the holder of said license and as to said premises, and said bond given by said licensee to secure the faithful ...


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