APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 27, 1978.
The plaintiff tavern's license was revoked by the Liquor Control Commission for certain improper acts. The trial court reversed, finding the evidence insufficient to support the charges. We affirm in part and reverse in part and remand to the local commissioner for reconsideration of the penalty.
While several charges were brought against the plaintiff, Dugan's Bistro (the Bistro), the local commissioner, and later the License Appeal Commission, found the Bistro guilty of three. These were that:
1. On June 17, 1973, the licensee corporation, by and through its agent, Edward Davison, knowingly permitted a violation of the laws of the State of Illinois and/or Rules and Regulations of the Illinois Liquor Control Commission to be committed on the licensed premises, to-wit: lewd fondling by patrons, contrary to chapter 39, section 11-9(a)(4), Ill. Rev. Stat. 1973.
2. On January 25, 1974, the licensee corporation, by and through its agent, James Hough, doorman, knowingly committed a battery upon Gerald Britt, a patron on the licensed premises, contrary to chapter 39, section 12-3(a)(1), Ill. Rev. Stat. 1973.
3. On February 13, 1974, the licensee corporation, by and through its agent, Michael O'Callahan, doorman, knowingly and without lawful reason denied Linda Deleonardis entry into the licensed premises, contrary to chapter 43, section 133, Ill. Rev. Stat. 1973.
For these violations, the Bistro's license was revoked. The order was affirmed by the License Appeal Commission of the city of Chicago. As already noted, it was reversed by the trial court on the basis the findings were against the manifest weight of the evidence, apparently because they were based on too much hearsay. The Bistro does not, before this court, contend that the judge's conclusion that the findings were based on too much hearsay is correct. It does contend, however, that the trial court's decision should be affirmed because (1) the commissioner's conclusions as to all three charges were against the manifest weight of the evidence; (2) the local liquor control commissioner lost jurisdiction because he failed to render his decision within the five day period prescribed by chapter 43, paragraph 149 of the Illinois Revised Statutes; and (3) the appellant failed to provide this court with a complete record on appeal. The Bistro also contends that even if the violations be shown, the determination of the commissioner that the license be revoked was arbitrary and unreasonable.
1 The first of the three charges before the commissioner and now before the court is that the Bistro knowingly permitted certain lewd conduct to occur on its premises. The gist of this charge is knowledge. It is immaterial whether such conduct did occur unless it is shown that the Bistro had knowledge of the conduct at the time of the occurrence and by its inaction permitted it. (Easy Life Club, Inc. v. License Appeal Com. (1974), 18 Ill. App.3d 879, 310 N.E.2d 705; Evans v. License Appeal Com. (1968), 95 Ill. App.2d 121, 237 N.E.2d 817.) The licensee cannot be charged with conduct over which it has no control. Childers v. Illinois Liquor Control Com. (1966), 67 Ill. App.2d 107, 213 N.E.2d 595; Middleton v. License Appeal Com. (1974), 20 Ill. App.3d 534, 314 N.E.2d 596.
The city's only witness was police officer Thomas Fuller. Fuller testified that he and his partner entered the Bistro at about 1:30 a.m. on June 17, 1973. At that time the Bistro was filled to maximum capacity. The police officers went up to the bar, and ordered a drink. The room they were in, including the whole length of the bar, was about 85' by 40'. There were about 100 people in that room and it was crowded at the bar. While the police officers were standing at the bar, they saw two men sitting in a booth kissing each other and fondling each other in and around the groin. This conduct continued off and on for approximately 10 or 15 minutes.
Officer Fuller noticed several of the Bistro's employees in the room. When he first entered, he had seen one employee at the door checking identification. This is how Fuller determined he was an employee. He later saw him in an area around the bar. He also observed a man with a bar cloth on one occasion approach the table where the acts were taking place. This man, whom he assumed to be a waiter, spent approximately one-half minute at the table about the time it takes to pick up five or six glasses and wiped the table with a wet towel. Fuller also observed persons whom he believed to be employees, because they were carrying trays and bar towels, passing within five or six feet of the table on two other occasions.
After about 15 minutes, the two men in the booth and the manager of the Bistro, Edward Davison, were arrested. The charges were later dismissed at a hearing.
The two men testified for the Bistro, denying that they had engaged in any lewd conduct. Mr. Davison also testified for the Bistro. He said that at the time of the arrest the Bistro had been open for 17 days and had no waiters at that time. It did have one waitress, Barry Carol, who was very obviously female and always wore dresses or skirts. If a customer wanted a table cleared it was customary for them to clear the table and pick up drinks. There were rags lying on the bar for customers to use. Doormen did not clear tables. He did not observe the two men in the Bistro before he was arrested.
The general policy of the Bistro was not to allow any necking or petting.
2 Judicial review of a decision of an administrative agency must always begin with the realization that a court must consider the agency's findings and conclusions to be prima facie true and correct. (Ill. Rev. Stat. 1975, ch. 110, par. 274.) This mandate, however, does not relieve the court of its duty to examine the evidence in an impartial manner and to set aside an order unsupported in fact; when the findings of the commissioner are against the manifest weight of the evidence or where they are unsupported by substantial evidence in the record, the order must be set aside. Middleton v. License Appeal Com. (1974), 20 Ill. App.3d 534, 314 N.E.2d 596.
3 Assuming that Officer Fuller's testimony was sufficient to prove that lewd conduct occurred in the Bistro, in no way does it prove the Bistro had knowledge of the conduct. For us to conclude that the Bistro did have knowledge we must assume (1) that the persons passing the booth and the person who went up to the booth were employees rather than customers; (2) that the conduct, which occurred "off and on" during the 10 or 15 minute period, occurred at a time when the employees were present, and (3) that the employees observed the conduct in question and thereafter did nothing about it. But there is no evidence in the record which would permit us to make these assumptions. For us to conclude from the testimony that the Bistro did have knowledge of the conduct and thereafter by its inaction permitted the conduct to continue would require us to indulge in conjecture and surmise. This we cannot do. (Middleton v. License Appeal Com. (1974), 20 Ill. App.3d 534, 314 N.E.2d 596.) Accordingly, since the local commissioner's finding as to this charge is unsupported by the evidence, it must be reversed.
The second charge was that the Bistro through its employee, James Hough, committed a battery on Lloyd Britt. Britt, a 33-year-old salesman, testified that he and three of his friends, Mike Miller, Jennie Anderson and another girl named Mary went to the Bistro about 11 p.m. on January 25, 1974. They had been together since about 7:30 p.m. They had gone to the London House for dinner, having an 8 p.m. reservation for its first show. He had a scotch on the ...