Appeal from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding. Judgment reversed.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
Plaintiff, John P. Zito, doing business as Mary Ann's Tavern, filed a statutory action in the Circuit Court under the Administrative Review Act, Ill Rev Stats, c 110, §§ 264-279 (1967), to review the administrative order of the defendant, Illinois Liquor Control Commission, which revoked plaintiff's previously issued license. The court affirmed the order of the Commission and this appeal followed.
A citation to show cause why his license should not be suspended or revoked was served on plaintiff on November 4, 1966. It alleged the following violations of Revised Rule 3 of the Rules and Regulations of the Commission:
(1) That the licensee, or his agents, did violate the ordinance of the Village of Melrose Park in that they served alcoholic spirits on the licensed premises after 6:00 a.m. on October 15, 1966;
(2) That the licensee, or his agents, did permit a shooting to occur on the licensed premises as a result of which one patron was charged with murder;
(3) That the licensee is of such reputation that he should show cause why the Commission should not suspend or revoke his retail state liquor license.
Plaintiff contends that there was no substantial evidence to support any of the charges contained in the Commission's citation to show cause and that the court erred in not striking from the answer certain documents not in evidence which were included in the certified record furnished by the Commission.
The record discloses that the following testimony was given at the hearing before the Commission:
ROBERT NARDELLA, called as a witness on behalf of the Illinois Liquor Commission testified as follows:
He is a detective in the Melrose Park Police Department and on October 15, 1966 he had the occasion to participate in an investigation at the plaintiff's tavern. At 6:32 a.m. he was off duty and at his home when he received a call from the police station that a shooting had occurred at plaintiff's tavern. Upon arrival at the tavern at 6:50 a.m. he and his partner were met by police officers DiSantis and Stellotto who turned over to them a .45 calibre automatic taken from Matias Montemayor who had been apprehended fleeing the scene and arrested for the fatal shooting of Mrs. Daphne Studt. Plaintiff had an all night license which required his tavern to be closed from 6 to 7 a.m.
JAMES V. SAMMAURO, called as a witness on behalf of the Illinois Liquor Commission testified as follows:
He is a part-time bartender at the tavern and was on duty October 15, 1966 and was present when the shooting took place, but did not see what occurred. The shooting occurred at about 5:50 a.m. and the witness called the police. He could not say at what time the police arrived, but testified it was quite a while after he called for them, although the police station is only three blocks from the tavern. He was paid for his services in cash by the tavern owner and works only on the weekends. In July of 1964 the witness was arrested for violation of probation. He further testified nothing was served after 6:00 a.m. and about 19 or 20 patrons were in the tavern at the time the shooting took place. He heard the shot and had no knowledge before the shooting that anyone in the tavern was in possession of a firearm. The plaintiff advised him to call the police and directed the patrons not to leave and they remained waiting for the police.
JAMES DIAFERIA, called as a witness on behalf of the Illinois Liquor Commission testified as follows:
He is a police sergeant with the Melrose Park Police Department and accompanied Detective Nardella to the tavern in response to a call that a shooting had occurred and they arrived at approximately 6:55 or 6:50 a.m. He was off duty and at his home when he responded to the call. The witness participated in the interview of five persons regarding the shooting.
JOHN P. ZITO, called as a witness on behalf of the Illinois Liquor Commission testified as follows:
He was the licensee of the tavern and was present when Mrs. Studt was shot and killed in the tavern. He had been arrested on February 2, 1963, March 9, 1963, ...