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H.b. Invest. & Dev. v. License Appeal Com.

OPINION FILED APRIL 7, 1977.

H.B. INVESTMENT & DEVELOPMENT, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from an order of the circuit court in an administrative review action which affirmed a 30-day suspension of a retail liquor license. They contend that the findings are contrary to the manifest weight of the evidence and that the suspension is "unconscionable" and should be overturned.

Plaintiffs were notified by the Commissioner to appear at a hearing for the revocation of its license on charges that plaintiff H.B. Investment & Development, Inc., owner of the Tap Root Pub, through plaintiff, Harley A. Budd, its president, (1) "knowingly possessed unregistered firearms" on the licensed premises contrary to chapter 11.1-1 of the Municipal Code of Chicago, *fn1 (2) "knowingly discharged a firearm within the city" contrary to chapter 193-29 of the Municipal Code of Chicago, *fn2 and (3) "knowingly committed acts of reckless conduct by discharging a firearm within the licensed premises" contrary to section 12-5 of the Criminal Code of 1961. *fn3 Ill. Rev. Stat. 1975, ch. 38, par. 12-5.

The following pertinent evidence was adduced at the hearing.

For the City:

Phillip Rogers

On February 13, 1975, he was employed as nightwatchman at the Tap Root Pub at 634-638 West Willow Street. When he arrived for work at 1 a.m. Budd was present. At 3 a.m., Ada Rivera, a neighbor, arrived at the Pub to use the telephone. At approximately 7 a.m. Budd "accidentally discharged a firearm in his pocket. Shot himself in the leg." Although his leg was bleeding, Budd refused to go to the hospital. At approximately 8 a.m. Budd discharged two pistols into the bar. One pistol was a Smith and Wesson snubnose .38 and the other was a World War II P. 38. Budd then threw barstools over the bar, and lit napkins and threw them into open liquor bottles. Budd forced him to sit at the bar and would not allow him to call the police. He told Budd that he would look out back to see if anyone was there and then ran to the fire department's station at Larrabee and Armitage to report the fire.

On cross-examination, over the City's objection, he stated that he was fired by Budd in March 1975. However, he denied that he was fired for stealing. He admitted that the building suffered only minor fire damage and that there were several operating telephones on the premises.

Officer Michael O'Brien, Chicago Police Department

When he arrived at the Pub that morning smoke was pouring through apertures in the door. He broke down the door and discovered Budd, unconscious, and Rivera, semiconscious, on the floor next to him. The Fire Department arrived and put out a fire near the bar. He found a Walther P. 38 and several cartridges on the floor. Although he did not personally examine the City's gun registration files, he did ascertain over the telephone that the Walther P. 38 was not registered.

Harley A. Budd for H.B. Investment & Development, Inc.

He admitted being in the Pub and having in his possession an unregistered firearm which he had recently purchased. He denied knowingly shooting himself, or discharging a pistol inside the Pub, or setting fire to the premises. He suffered from asthma and took medication which when combined with alcohol resulted in his being "knocked out." He took his medication and had a few drinks the prior evening, February 12, 1975, and again on February 13, 1975, at 7:30 a.m. During the early morning hours of February 13 he took inventory with Rogers. Ada Rivera arrived at 3 a.m. There were five telephones at the Pub and several residences and a call box along the route to the fire station. About $20 worth of fire damage was caused to the Pub.

After both sides rested, the Commissioner found that the corporation, by and through its president, had violated all three charges and suspended plaintiff's license for 30 days.

Following an administrative appeal and hearing, the License Appeal Commission sustained the findings and suspension entered by the Commissioner and ...


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