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Wernikoff v. Vanneman

FEBRUARY 18, 1975.

JAY WERNIKOFF, D/B/A JAY'S CAMPUS RESTAURANT, PETITIONER-APPELLEE,

v.

EDGAR VANNEMAN, JR., LOCAL LIQUOR COMMISSIONER OF THE CITY OF EVANSTON, DEFENDANT-APPELLANT.



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

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Jay Wernikoff (hereinafter petitioner) brought an action seeking a writ of mandamus to compel Edgar Vanneman, Jr., the Mayor and Local Liquor Control Commissioner of the City of Evanston (hereinafter defendant), to issue to petitioner a class D liquor license. The trial court granted petitioner's motion for summary judgment and ordered a writ of mandamus directing the issuance of the liquor license to the petitioner. Defendant now prosecutes this appeal from that order.

The following chronology of events provides the factual setting for the issues raised in this appeal.

Prior to

February 19, 1973 — Petitioner, the owner of Jay's Campus Restaurant located in Evanston, Illinois, filed an application for a class D liquor license accompanied by the requisite $1,000 license fee.

Defendant, acting in his capacity as local liquor control commissioner of Evanston, recommended *fn1 that the application be denied.

February 19, 1973 — The Evanston City Council, pursuant to section 4-202(5) of its code, overruled defendant's decision by two-thirds vote of the council. A member of the council then introduced proposed ordinance 15-0-73 which would amend the municipal code so as to add an additional class D license. *fn2

March 5, 1973 — The city council adopted proposed ordinance 15-0-73 thereby increasing the number of class D liquor licenses from two to three.

March 12, 1973 — Defendant having vetoed ordinance 15-0-73 this action was sustained by a vote of the city council. The council further passed a motion to rescind its action of February 19, 1973, whereby it had overruled defendant's decision and authorized the issuance of a liquor license to petitioner.

March 26, 1973 — Proposed ordinance 27-0-73 was introduced for the city council's consideration. Intended to amend section 4-202(5) of the municipal code, it prescribed a different procedure for the city council to follow in overruling the local liquor control commissioner's refusal of a license application. *fn3

April 2, 1973 — The city council adopted proposed ordinance 27-0-73.

April 9, 1973 — The council adopted an ordinance which increased the number of class D licenses in force from two to three and the additional license was subsequently issued to an applicant other than petitioner.

Based on the facts as presented in the pleadings and exhibits and as argued before the bench, the trial court found that, by the action on February 19, 1973, overruling defendant's rejection of petitioner's application, the city council created an additional class D license and imposed a clear legal duty upon the defendant herein to issue said license to petitioner. The court then granted petitioner's motion for summary judgment and ordered a writ of mandamus to issue directing the defendant to issue a class D liquor license to petitioner.

On appeal defendant suggests that (1) the motion for summary judgment was improperly granted and that (2) the writ of mandamus should not have been issued since (a) petitioner failed to demonstrate a clear, legal right to the relief requested and (b) at the time of ...


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