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Riching Corp. v. Daley

OPINION FILED OCTOBER 22, 1976.

RICHING CORPORATION ET AL., PLAINTIFFS-APPELLEES,

v.

RICHARD J. DALEY, MAYOR AND LOCAL LIQUOR CONTROL COMMISSIONER OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 23, 1976.

This is an appeal by defendants, Richard J. Daley, Mayor of the City of Chicago, who is the Local Liquor Control Commissioner for said city and its License Appeal Commission from a judgment of the circuit court of Cook County entered in an administrative review proceeding (Ill. Rev. Stat. 1975, ch. 110, pars. 267, 274). The circuit court reversed the determination of the License Appeal Commission which had affirmed the order of the Local Liquor Control Commissioner revoking the liquor license issued to the Quiet Knight. The plaintiffs in the administrative review proceedings were the licensees, Richard F. Harding and Riching Corporation. The issue presented on appeal is whether the administrative findings were against the manifest weight of the evidence.

On April 16, 1974, following a hearing, Richard J. Daley, as Local Liquor Control Commissioner, revoked the city retail liquor license issued to plaintiffs, for the premises located at 953 West Belmont Avenue in Chicago, and known as the Quiet Knight. The revocation order stated:

"1. That the licensee corporation is not operating the licensed premises as a `restaurant' within the meaning described in Chap. 43, § 2.23, Ill. Rev. Stat. 1971, and therefore, does not qualify to hold a retail liquor license in the State of Illinois, contrary to Chap. 43, § 142, Ill. Rev. Stat. 1971, Ordinances of the City of Chicago and Rules of the Illinois Liquor Control Commission.

2. That the licensee corporation is operating the licensed premises without a clear view into the interior of such licensed premises from the street, contrary to Chap. 43, § 141, Ill. Rev. Stat. 1971, Ordinances of the City of Chicago and Rules of the Illinois Liquor Control Commission."

The License Appeal Commission of the City of Chicago confirmed this decision. Plaintiffs then filed this action in the circuit court for administrative review. The circuit court reversed this order finding that it was contrary to the manifest weight of the evidence.

Chicago Police Officer John Spellman testified that he visited the Quiet Knight on February 6, 1974. The premises occupy the entire second floor. On the west end was a nightclub with small tables; on the north end was a bar; and on the south end was a kitchen. Near the kitchen was another room where there was a pool table and where they were building another bar. When asked if he was serving food, Richard Harding said the kitchen was in the process of being remodeled and that he served only "poor boy" sandwiches to his customers. The officer then issued a summons for a "clear view" violation (Ill. Rev. Stat. 1973, ch. 43, par. 141), which pertains to the requirement that business establishments serving liquor have an unobstructed view of their interior from the street. Restaurants and other specified enterprises not relevant to this case are excluded from this statutory requirement. *fn1

Chicago police officer John Rouzan testified he visited the premises on February 14, 1974. On the second floor was a room in which a band was playing and 11 customers were sitting at tables and chairs. Beer bottles and glasses containing some liquid were on the tables. An unidentified woman, who worked as a waitress, told him food had not been served for about three weeks. Richard Harding told him they were remodeling and moving the kitchen and that food would be served at a later date. The officer then issued a citation for a "clear view violation."

Richard Harding was called as an adverse witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 60.) He testified that he was the president and treasurer of the plaintiff corporation. He had served food since he opened the establishment over four years earlier. However, about January 17, 1974, the refrigeration system had broken down which necessitated ordering a new freezer. At the time of the hearing on April 11, 1974, he indicated that the kitchen remodeling had been completed and food service had been resumed about three weeks prior thereto. Paid bills totaling approximately $4,500 for a new broiler, refrigeration equipment, glassware, pots and pans, and other material and labor installed in the kitchen were admitted into evidence. Harding did most of the labor himself, but had also paid several thousand dollars for additional labor to complete the project. During the time he was remodeling, only liquor had been served.

In respect to business revenues, it was established only a small percentage directly resulted from the service of food. Harding stated that the largest portion of revenue was derived from entertainment. Harding said that his principal business was entertainment and not the service of food. Thus, patrons were required to pay a cover charge of two or three dollars depending on the day of the week and were also required to purchase a minimum of two drinks. He explained: "People do not have to order food, they can if they wish."

The plaintiffs called two customers to testify concerning the food service. One stated he had eaten chicken within the previous two weeks and had ordered from the current menu. It was pointed out that chicken was not listed as an item on that menu which was introduced into evidence. The second witness was married to the secretary of the corporate plaintiff. He testified that he ate at the premises the previous evening and that food had been served during the previous 4 1/2 years. The bartender also testified that in the three years he worked at the Quiet Knight food had been served.

• 1 The standard of review in cases such as this is well settled. In Daley v. Jack's Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App.2d 264, 277, 254 N.E.2d 814, the court stated:

"In cases of this kind, we, and the Circuit Court, and the License Appeal Commission are all required to accept the judgment of the Local Commissioner as to the credibility of the witnesses. It is only he, as the trier of the facts, who is authorized to assess credibility, weigh the evidence, reconcile conflicting evidence, if possible, and, if not possible, determine which witnesses are worthy of belief. [Citations.] Neither the Circuit Court nor this court should disturb the Commissioner's decision ...


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