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Stevens v. County of Lake

NOVEMBER 27, 1974.

ARTHUR R. STEVENS III, D/B/A THE ROMAN HOUSE, PLAINTIFF-APPELLANT,

v.

THE COUNTY OF LAKE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. HENRY CALDWELL, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Plaintiff filed a three-count complaint against the chairman of the Lake County Liquor Control Commission, its commissioners, and the County of Lake. He sought to enjoin the commission from interfering in the operation of his liquor business, which featured nude dancing as entertainment, as well as a declaration that part of the Lake County Liquor Control Ordinance was unconstitutional. He also sought to require issuance of a local liquor license by writ of mandamus.

The trial court initially granted plaintiff's request for a temporary injunction but, after a subsequent hearing, vacated the order, finding that the plaintiff had never been issued a local liquor license and was therefore in violation of those sections of the County Liquor Control Ordinance requiring retail liquor businesses to obtain and display an appropriate license. Accordingly, Count I of the complaint, seeking injunctive relief, was dismissed. The plaintiff then filed notice of interlocutory appeal under the provisions of Supreme Court Rule 305(b)(4) (Ill. Rev. Stat. 1973, ch. 110A, par. 305(b)(4)), and this court entered a stay order pending appeal which would have permitted him to continue operation of his liquor business without interference providing that he refrained from conducting any nude dancing on the premises. A second hearing was then held in the trial court on the mandamus and declaratory judgment counts (II and III) of the complaint as amended, and the trial judge entered an order dismissing both counts with prejudice. It is from this order that plaintiff also appeals.

• 1 In count III of his complaint, plaintiff requested that the provisions of the Lake County Liquor Ordinance prohibiting nude dancing be declared unconstitutional. We deem this issue to be controlled by the opinion of this court in Cheetah Enterprises, Inc. v. County of Lake (1974), 22 Ill. App.3d 306, 317 N.E.2d 129, filed subsequent to plaintiff's present appeal. Accordingly, we hold the challenged provisions of the ordinance to be valid and conclude that the trial court properly dismissed count III of the complaint.

With reference to the remaining issues, plaintiff contends that the trial court erred in finding that no liquor license had ever been issued to him by the local liquor commission. He argues that he complied with all the requirements of the county liquor ordinance which are precedent to the issuance of a local liquor license and that delivery of the physical license was therefore a non-discretionary ministerial act as to which mandamus was a proper remedy. He also contends that his remedies were not barred, as the trial court also found, because of failure to pursue administrative review.

The County responds that the trial court's finding that no liquor license had been issued was a determination of fact and must stand since it was not against the manifest weight of the evidence and that the trial court lacked jurisdiction to order the issuance of a license or to grant other relief because plaintiff had not exhausted his administrative remedies. Additionally, the County has filed motions which we have taken with the case urging a dismissal of this appeal because of plaintiff's failure to exhaust administrative remedies and seeking an order to hold plaintiff in contempt of this court for his alleged violation of the stay order by advertising and providing nude dancing entertainment and solicitation of patrons in conjunction with the sale of liquor on his business premises.

We first consider the motion to dismiss the appeal. It appears that the plaintiff's original complaint for mandamus and injunction dated July 5, 1974, was filed after the first hearing before the Liquor Control Commission of Lake County during which plaintiff claims he was informed that a license would be issued to him in due course. On July 11, 1974, however, plaintiff was required to participate in a further hearing before the local Liquor Control Commission, and at that time he testified that he had hired nude dancers beginning on July 3, 1974, and that solicitation of patrons was made by girls who earned a certain commission for each drink solicited. He said that he made the decision to hire the nude dancers between June 28 and July 2. On the contrary, Mr. Coles, chairman of the Commission, testified that no decision to grant or deny plaintiff's application for a liquor license had been reached at the initial hearing and that hearings in the matter were therefore never terminated. It was not until July 25, 1974, that plaintiff's application for a local liquor license was finally acted upon. In a letter from the chairman of the local commission, Stevens was advised that his application had been denied. The reasons included a finding that Stevens was not a resident of Lake County at the time of his application, that he had failed to establish his ownership of the premises sought to be licensed and that he had failed to properly describe the premises as required by the Lake County Liquor Control Ordinance. Furthermore, it was noted that, after representing to the commission under oath that he would not engage nude dancers, Stevens provided nude dancing entertainment and permitted the solicitation of customers in conjunction with the sale of liquor on the premises without having first been issued an appropriate liquor license.

• 2 Plaintiff thereupon amended his complaint in the trial court to allege the denial of his application for a local liquor license, and, on August 5, 1974, he filed his notice of appeal pursuant to section 8 of the Dram Shop Act (Ill. Rev. Stat. 1973, ch. 43, par. 153) from the written order of the Lake County Liquor Control Commission refusing to issue the license. He further requested a hearing de novo before the State Liquor Control Commission and it appears that the proceedings before the State Commission are still pending. The County argues that the plaintiff's failure to exhaust administrative review procedures precluded jurisdiction in the trial court and makes the proceedings here moot. We do not agree. We think that the question of exhaustion of administrative remedies goes to the propriety of the trial court's dismissal and not to its jurisdiction. In ruling on that question, therefore, we do not deal with a case that is moot. (See De Kalb Savings & Loan Ass'n, Inc. v. Hulman (1968), 91 Ill. App.2d 477.) This is not to say, however, that the trial court was in error in dismissing the complaint below. We conclude, to the contrary, that the court acted correctly and should be affirmed.

• 3 Mandamus is not a writ of right but is awarded solely in the exercise of sound judicial discretion in accordance with legal principles and only where the plaintiff establishes a clear right to the extraordinary remedy. (People ex rel. Hoagland v. Streeper (1957), 12 Ill.2d 204, 218; People ex rel. Hamer v. Jones (1968), 39 Ill.2d 360, 368.) Mandamus is a proper remedy to compel a public official to perform an official act which is purely administrative in scope or to compel a public official to perform a non-discretionary ministerial duty if the relator has a clear legal right to have the duty performed and it appears that the official has arbitrarily and without authority refused to perform it. (People ex rel. Richter v. Telford (1968), 103 Ill. App.2d 132, 134; People v. Civil Service Com. (1969), 117 Ill. App.2d 50, 57.) Where the acts to be directed are not ministerial, however, but rather within the discretion of a public official or administrative agency mandamus will not lie to compel the manner of exercise of that discretion unless an abuse has been shown. Lenert v. Wilson (1965), 56 Ill. App.2d 325, 332.

• 4 In making determinations with regard to the licensing of local liquor businesses it is established that a considerable degree of discretion is vested in local liquor control commissioners. (Daley v. License Appeal Com. (1956), 11 Ill. App.2d 421, 425-26.) The business of selling alcoholic liquors at retail when not properly done is a business "fraught with danger to the community" and raises peculiarly local problems pertaining to the public health, safety and morals of the community. (Day v. Illinois Liquor Com. (1963), 39 Ill. App.2d 281, 287.) Thus, a sound basis in public policy exists for vesting discretion in the local liquor control commission. Such power, however, must not be abused. One applying for a license is entitled to fair treatment and good cause must be shown for the denial of an application. McCray v. Daley (1971), 133 Ill. App.2d 67, 69; see also 52 Am.Jur.2d Mandamus § 213 (1970).

Plaintiff argues that he had met all of the conditions precedent to the granting of the license at the initial hearing on June 27, except for documentation, subsequently furnished and approved, and that mandamus should therefore lie to compel the liquor commissioner to perform the ministerial act of signing and issuing the document itself. He concludes that the license was constructively issued on July 2 when he deposited his $1,500 fee and was given a receipt which referred to license 159. Thereafter, he argues, the safeguards and procedures necessary to revoke a license once issued should apply.

Plaintiff Stevens testified at the hearing on July 11 that he talked with the chairman of the Liquor Control Commission at the conclusion of the June 27 hearing and was told that there would be no further hearings. He then inquired as to when he would have to pay the $1,500 fee and was told by Mr. Coles that he should pay when he got the license. Plaintiff further testified that the attorney for the commission had requested a waiver from the previous licensee and a copy of the purchase agreement and that these were delivered. On July 2, following delivery and approval of these documents, plaintiff claims that he went to the commission office and was told by the secretary, Linda Hensgen, that she had written a note to tell him that his license was ready to be picked up. According to his further testimony Stevens gave her the $1,500 check and received the receipt upon which the number 159 was written. He claims that Miss Hensgen told him that he could open up on the basis of the receipt and that the original license would be mailed to him.

Linda Hensgen testified that she assigned a license number on the receipt at Stevens request, that she did not tell him that the license was issued, that she was not authorized to issue licenses on behalf of the county, and that chairman Coles had never given her a signed license. The license fee check received from the plaintiff was never cashed by the county.

Chairman Coles testified that he probably had indicated to Stevens after the first hearing on June 27 that it would be possible Stevens would not have to return for any further hearings. Coles indicated that this was standard procedure, established to save an applicant the aggravation of coming back as the license was not usually issued until the commissioners had a final hearing and discussed the application. Further testimony established that the regular motion to issue a license had not been made at the June 27 hearing, that the hearing was continued to an unspecified date, ...


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