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Occhino v. Liquor Control Com.

MAY 14, 1975.

JOHN OCCHINO, PLAINTIFF-APPELLANT,

v.

ILLINOIS LIQUOR CONTROL COMMISSION ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, John Occhino, filed a complaint for administrative review against the Illinois Liquor Control Commission and the Calumet City Liquor Control Commissioner, seeking a reversal of their actions in revoking his liquor license for a tavern known as the "Rumpus Room," 301 State Street, Calumet City, Illinois. The revocation was based upon the testimony of Harold Eyum at hearings before the defendants that, on June 15, 1972, he and a friend were having a drink at plaintiff's tavern when they were asked by two female employees to purchase drinks for them. Soliciting, inducing or requesting a patron to purchase beverages for a female employee, and employing or permitting a female employee or entertainer to engage in such acts, are prohibited by State statute and local ordinance. *fn1

This appeal is from an order entered by the circuit court of Cook County which sustained the revocation of plaintiff's liquor license. The trial judge found that the statute and ordinance in question are constitutional and that the revocation was not against the manifest weight of the evidence. The questions presented by plaintiff for review are:

1. Whether or not the statute and ordinance which permit the revocation of a liquor license for the solicitation of beverages by female employees are constitutional; and,

2. Whether or not there was sufficient evidence to support the revocation of his liquor license.

The first question we shall discuss is plaintiff's contention that the State statute and local ordinance which permit the revocation of a liquor license for the solicitation of beverages by female employees are unconstitutional. Plaintiff argues that these laws violate the equal protection clauses of the United States and Illinois constitutions in that they discriminate against females solely on the basis of sex without any legitimate basis.

The determination of whether a classification violates the equal protection clause was recently discussed by the United States Supreme Court in the case of Reed v. Reed (1971), 404 U.S. 71, 30 L.Ed.2d 225, 92 S.Ct. 251, where the Court stated at 75-76:

"* * * [T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. [Citations.] The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'"

Thus, a statute will not be found violative of the equal protection clause if the classification is reasonable and based upon a difference in the sexes that is substantially related to the object of the legislation. A classification based upon sex will suffice as a basis for legislation if that classification is based upon a rational difference of situation or condition found to exist in the persons or objects upon which the classification rests. Duley v. Caterpillar Tractor Co. (1969), 44 Ill.2d 15, 19, 253 N.E.2d 373, 375; Gaca v. City of Chicago (1952), 411 Ill. 146, 149, 103 N.E.2d 617, 620.

In an effort to meet this standard, the defendants argue that the legislative classification before us is a reasonable way for the State to combat the problem it was designed to alleviate. According to the defendants, solicitation by female employees has posed a more serious problem than by male employees. They argue that the experiences of the past years have not revealed any appreciable difficulties with solicitation of beverages in liquor establishments by males. There has, however, been a considerable problem with the solicitation of drinks by women. The defendants further argue that many taverns have employed women precisely for this purpose and that it is to this problem that the legislation in question is addressed.

• 1 The State's police power to regulate and restrict the liquor trade is very broad and at times has been held to take precedence over fourth and first amendment rights. In Daley v. Berzanskis (1971), 47 Ill.2d 395, 269 N.E.2d 716 cert. denied (1971), 402 U.S. 999, stolen property was recovered in a warrantless search of the basement of a licensed tavern. The court ruled that the merchandise/property was properly admitted in the license revocation hearing and stated at page 398:

"* * * `The business of selling liquor is attended with danger to the community and is a recognized subject for regulation by the police power of the State. There is no inherent right to carry it on and it may be entirely prohibited. The manner and extent of its regulation, if permitted to be carried on at all, are to be determined by the State, so as to limit, as far as possible, the evils arising from it.' (256 Ill. at 106.) Because the business of selling liquor is closely related to certain evils in society, it is subject to any regulation which has any substantial relation to the public health, comfort, safety or welfare. `It is axiomatic that the legislative judgment as to what the public welfare requires is not open to judicial dispute so long as that judgment is not exercised in such an arbitrary, oppressive and unreasonable manner as to constitute a deprivation of due process of law. The legislature's discretion is broad, and its determinations may not be overturned because a court may think them unwise or inappropriate.' (44 Ill.2d at 158.)"

The United States Supreme Court, in the recent case of California v. La Rue (1972), 409 U.S. 109, 34 L.Ed.2d 342, 93 S.Ct. 390, upheld a statute prohibiting explicitly sexual live entertainment and films in licensed bars against a claim of the violation of freedom of expression under the first amendment. The Court considered the constitutional challenge in the context of licensing bars and nightclubs to sell liquor rather than censoring a dramatic performance in a theatre. Citing from the case of Joseph E. Seagram & Sons v. Hostetter (1966), 384 U.S. 35, 16 L.Ed.2d 336, 86 S.Ct. 1254, the Court stated:

"`Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of ...


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