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Miller v. Daley

AUGUST 31, 1973.

FRANK MILLER, PLAINTIFF-APPELLANT,

v.

RICHARD J. DALEY, LIQUOR CONTROL COMMISSIONER, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment affirming the revocations of plaintiff's City of Chicago retail liquor licenses for the premises located at 1445 N. Paulina and 1347 N. Paulina. Initially, this appeal was filed with the Illinois Supreme Court which transferred it to this court.

On appeal plaintiff's contentions concerning the revocation of the first license at 1445 N. Paulina are (1) the defendants failed to comply with the time requirements of section 5 of article VII of "An Act relating to alcoholic liquors" (hereinafter the Liquor Control Act) (Ill. Rev. Stat. 1969, ch. 43, par. 149) in that the order of revocation was not served upon him within five days, and (2) the provision in that section that he "shall have the privilege" of appealing within 20 days to the License Appeal Commission was directory and not mandatory so that his appeal should have been heard by the Commission even though filed 32 days later.

His contentions concerning the revocation of the second license at 1347 N. Paulina are (1) the revocation of one liquor license does not automatically revoke the other, and (2) the evidence presented to revoke the first license was insubstantial and, therefore, the findings revoking both licenses were against the manifest weight of the evidence.

The record reveals that plaintiff was the licensee of two taverns, one at 1445 N. Paulina and the other at 1347 N. Paulina. On June 12, 1970, the local liquor control commissioner made the following findings in revoking plaintiff's license at 1445 N. Paulina:

"1. On February 7, 1970, William Moore, a patron on the subject premises, was assaulted by the licensee, in front of subject premises with a deadly weapon, to-wit: a pool cue, contrary to the ordinances of the City of Chicago, Statutes of the State of Illinois and Rules of the Illinois Liquor Control Commission.

2. On February 7, 1970, following an assault in front of the subject premises, the licensee, failed to protect said patron, failed to render aid to said victim and failed to notify the police department of the above altercation."

The revocation order was served June 12, 1970, on plaintiff and he filed his appeal to the License Appeal Commission 32 days later on July 14, 1970. Defendant's motion to dismiss, grounded on the failure to appeal within 20 days, was allowed by the Commission on September 18, 1970, and plaintiff's petition for rehearing was denied by the Commission on October 6, 1970.

During the pendency of the appeal of the 1445 N. Paulina license revocation, the plaintiff received notice of a hearing on July 27, 1970, to revoke his other liquor license. Subsequently, on August 7, 1970, the local liquor control commissioner revoked his license for the premises located at 1347 N. Paulina. Its sole finding was as follows:

"That the licensee, Frank Miller, is not a fit and proper party to hold a retail liquor license in the City of Chicago by reason of the revocation of his City of Chicago Retail Liquor License by the Local Liquor Control Commission on June 12, 1970, in case No. 70 LR 93 (1445 N. Paulina)."

An appeal was taken on August 11, 1970, to the License Appeal Commission which, on September 25, 1970, sustained the order of revocation stating that the findings "are supported by substantial evidence in the light of the whole record."

A complaint was then filed in the circuit court for review of the revocation orders of both licensees under the Administrative Review Act and this appeal was taken after the trial court affirmed these orders.

OPINION

I

We will first consider whether the defendants failed to comply with the time requirements of section 5 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1969, ch. 43, par. 149), which provides, in pertinent part, after a hearing has been held to revoke a liquor license, that:

"The local liquor control commissioner shall within 5 days after such hearing, if he determines after such hearing that the license should be revoked or suspended, state the reason or reasons for such determination in a written order of revocation or suspension and ...


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