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Weinstein v. Daley

JULY 28, 1967.

MAX WEINSTEIN AND JACK D. GOLDBERG D/B/A DELAWARE DRUG CO., PLAINTIFFS-APPELLEES,

v.

HONORABLE RICHARD J. DALEY, LOCAL LIQUOR CONTROL COMMISSIONER, HONORABLE JOHN J. CASHIN, HEARING OFFICER LOCAL LIQUOR CONTROL COMMISSIONER, DEFENDANTS-APPELLANTS, HONORABLE A.L. CRONIN, HOWARD S. CARTWRIGHT AND WILLIAM MCGUFFAGE, COMMISSIONERS: LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO, ILLINOIS, DEFENDANTS.



Appeal from Circuit Court of Cook County; the Hon. THOMAS S. DONOVAN, Judge, presiding. Judgment reversed.

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

Rehearing denied September 12, 1967.

This is an appeal by the defendants-appellants, the Honorable Richard J. Daley, Mayor of Chicago as Local Liquor Control Commissioner, and the Honorable John J. Cashin, Hearing Officer for the Local Liquor Control Commissioner. The appeal is taken from the entry of a judgment on November 15, 1965, by the Circuit Court of Cook County, which judgment reversed, vacated, and set aside said Local Commissioner's order of revocation of the retail liquor license of the instant plaintiffs, Max Weinstein and Jack Goldberg, d/b/a Delaware Drug Company, entered some nine months prior thereto. The judgment ordered that the license (No. 5870) issued to the plaintiffs be reinstated accordingly. The order of the Commissioner had been theretofore appealed by plaintiffs to the License Appeal Commission pursuant to the provisions of the Administrative Review Act (Ill Rev Stats 1963, c 110, pars 264-279) which tribunal sustained the order of revocation on July 21, 1965.

The license revocation which gave rise to this cause was based upon the alleged unlawful sale of certain barbiturates, amphetamines, and hypodermic needles from the licensed premises contrary to the statutes of the State of Illinois and the ordinances of the City of Chicago. The sale was alleged to have been made by one of the principals to this action, plaintiff Weinstein, by and through his agent Albert Gumer, both of whom were licensed pharmacists. The drug company was operated by the colicensees as a joint pharmacy and liquor store enterprise with miscellaneous sundries similarly available for purchase therein.

At approximately 9:15 p.m. on July 9, 1964, Police Officer John Rosanne, Detective Donald Dura, and a Sergeant Gill, all being attached to the Narcotics Unit, travelled to the instant premises then under surveillance in an attempt to conduct a controlled unlawful sale of certain dangerous drugs. The three men had with them a "special employee" or "informer" through whom they had hoped to make the purchase. This informer was later identified at the hearing as William Gato. The customary initial precautions were taken, Gato being first completely searched and then supplied with a quantity of preinventoried currency of varying denominations with which to make the eventual purchase.

Gato entered the questioned establishment empty handed and emerged some 10 to 12 minutes subsequent carrying a brown paper bag. None of the policemen witnessed the actual sale although they had all been stationed in proximity to the premises. Rosanne examined the contents of the bag finding two bottles labeled "Amphetamine," twenty-one red capsules containing a white powder, and three hypodermic needles. Gato gave the officer a description of the man with whom the sale had been consummated, which description corresponded to Albert Gumer.

The officers thereafter entered the store and arrested Weinstein and Gumer for unlawful sale of dangerous drugs. A search of the premises discovered the prerecorded currency in a can under the counter. Rosanne testified that Sergeant Gill examined the day's prescription blanks and could find no prescription bearing the name of the informer. Gato, himself, was then under arrest for his prior possession of dangerous drugs.

Charles Vondrak, a graduate registered pharmacist and 17 year employee of the Chicago Police Crime Laboratory, testified that his random testing of the red capsules discovered the presence of a barbitural derivative. He stated that he had similarly tested two tablets from the bottles and concluded they contained amphetamine hydrochloride, considered a dangerous drug. Plaintiffs attempted to cross-examine Vondrak relative to the laboratory procedures employed by him, but it was prohibited by the Hearing Officer.

Gumer, called on behalf of the colicensees, admitted to knowing the purchaser as William Gato. The witness explained that Gato had handed him a piece of paper bearing a prescription number which number corresponded to a prescription already on file in the pharmacy. He stated that that prescription bore the letters "PRN," a Latin abbreviation for "refill as needed." Gumer was unable to produce the alleged piece of paper, offering the explanation that he had thrown it away. As a consequence, the Hearing Officer ruled that Weinstein could not introduce his prescription records into evidence nor could Gumer testify as to those portions of the transaction to which they purportedly related.

Gumer continued by describing the prescription on file as calling for ampules to be injected intravenously. The witness claimed to have thereafter substituted the same drug in tablet form, but only after he had made an unsuccessful attempt to reach the prescribing doctor by telephone. Gumer contended that the reddish colored capsules he had sold to Gato were Nytime, a nonprescriptive sleep inducing product. Gumer admitted to having sold to Gato, three hypodermic needles without a prescription upon the purchaser's representation that he might have some ampules remaining from a previous prescription for which the needles would be needed. The witness claimed that an oral prescription for those needles had been tendered by a Doctor Esposito in behalf of Gato several years prior when the latter had first become a customer.

On cross-examination, Gumer acknowledged that he had recognized all of the merchandise which the arresting officers displayed to him as the same drugs he had sold to Gato some thirty minutes earlier. Neither Sergeant Gill, Detective Dura, nor William Gato testified before the Hearing Officer. This was the extent of the testimony adduced at the Commission hearing.

It is the defendants' theory of the case (1) that the Commissioner acted within his statutory powers; (2) that the evidence overwhelmingly supported his conclusion that an unlawful sale had, in fact, been made; and (3) that the Circuit Court erred in reweighing the evidence and in considering matters not of record.

It is the plaintiffs' theory of the case (1) that the Commissioner acted outside the scope of the powers available to him; (2) that the evidence offered fails to sustain his finding that an unlawful sale had been made, hence the lower court properly reversed the order of revocation; and (3) that the Hearing Officer erred in barring the introduction of the prescription records and those portions of Gumer's testimony which related thereto.

Under the Administrative Review Act, a Circuit Court's consideration of an appeal of a license revocation brought before it from the License Appeal Commission is limited to matters of record. The court, in that capacity, can consider but two questions; to wit, (1) whether the local commission had acted arbitrarily or in clear abuse of its discretion, and (2) whether the order entered by that commission was contrary to the manifest weight of the evidence. Nechi v. Daley, 40 Ill. App.2d 326, 188 N.E.2d 243 (1963). Moreover, in this conjunction, the licensee's conviction of the crime to which his alleged misconduct related is neither necessary to sustain the order of ...


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