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Kaminski v. Ill. Liquor Control Com.

JUNE 6, 1974.

THADDEUS M. KAMINSKI ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS LIQUOR CONTROL COMMISSION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County affirming the order of the Illinois Liquor Control Commission revoking plaintiffs' liquor license. Plaintiffs present two issues for review. First they argue that the Commission erred in construing section 127 of the Illinois Liquor Control Act (Ill. Rev. Stat. 1971, ch. 43, sec. 127) as prohibiting the licensing of an establishment which sells liquor within 100 feet of a school, as measured from lot line to lot line. Plaintiffs contend that the proper measurement is from building to building, in which case their supermarket was more than 100 feet from the Oak Forest High School. Second they contend that the action of the trial court in dismissing their complaint for administrative review without hearing denied them due process of law.

We affirm.

Plaintiffs filed their complaint for administrative review in the circuit court of Cook County on February 2, 1971. The complaint included a recitation of the following findings which the Illinois Liquor Control Commission made in its order of revocation:

"(1) That on April 24, 1970, Bernard J. Kelly, Local Liquor Control Commissioner of the Village of Oak Forest, Illinois, issued a local liquor license to Thaddeus M. Kaminski, John N. Lapka, Anton S. Plebanek, for the premises at 15130 South Central Avenue, Oak Forest, Illinois.

(2) That on April 27, 1970, the Illinois Liquor Control Commission issued its License No. R-19718 to Thaddeus M. Kaminski, John N. Lapka, Anton S. Plebanek, d/b/a Oak Food and Family Center, for the premises at 15130 South Central Avenue, Oak Forest, Illinois, said license to expire April 30, 1971.

(3) That question number 15 on the application for license states * * * is this business located within one hundred feet of any school * * *. In answer to said question licensee answered "no."

(4) That Section 127 of the Liquor Act provides that no license shall be issued for the sale at retail of any alcoholic liquor within 100 feet of any * * * school.

(5) That at the time of the issuance of the local and state liquor licenses the Oak Forest High School, located at the southeast corner of 151st Street and Central in Oak Forest, was under construction, said school being completed in August of 1970 and currently in operation for school purposes. That the property was acquired for school purposes in or around 1962. That the Village of Oak Forest approved the plans for the development of the school site in or around 1968.

(6) That in September 1968 Thaddeus M. Kaminski, licensee herein, at an official meeting of the Village of Oak Forest Zoning Board of Appeals seeking a building set back variation for the subject property, stated that no liquor would be sold at the subject premises for the reason that there is a school going in across the street.

(7) That licensee, prior to the application for a liquor license, was conducting on the premises a combination food and variety store. That this use still prevails.

(8) That the licensed premises is located approximately 83 feet from the Oak Forest High School premises, but in any event less than 100 feet, as measured from property line to property line.

(9) That Bernard J. Kelly, Local Liquor Control Commissioner for the Village of Oak Forest, testified that Village records and his investigations showed the licensed premises to be located less than 100 feet from the school property but that he issued the license on the basis that the school buildings were more than 100 feet from the licensed premises. He stated that if the proper measurement were to be taken between property lines he would not have issued the license.

(10) That the Illinois Appellate Court in DeLoian v. Illinois Liquor Control Commission, 109 Ill. App.2d 71 (1969) stated that the 100 foot distance prescribed by Section 127 of the Liquor ...


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