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Palmer v. Illinois Liquor Control Com.

OPINION FILED OCTOBER 26, 1979.

DAVID S. PALMER, MAYOR AND LOCAL LIQUOR CONTROL COMMISSIONER OF THE CITY OF DANVILLE, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Vermilion County; the Hon. JAMES R. WATSON, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On February 23, 1978, defendant Security Venture Corp. (Venture) filed with plaintiff David S. Palmer, mayor of the city of Danville, an application for a class "P" liquor license to operate a package liquor store at 2807 N. Vermilion St. Those premises, although within the city, were also within Newell Township. On March 21, 1978, the mayor denied the application. On April 5, 1978, Venture appealed to the Illinois Liquor Control Commission (Commission), which after an evidentiary hearing, reversed the mayor and ordered the license to issue. The mayor appealed to the circuit court of Vermilion County which affirmed the Commission. The mayor then appealed to this court. We also affirm.

The mayor asserts that the Commission erred in (1) substituting its discretion for his, (2) concluding that Newell Township was wet, and (3) disregarding the nature of the area of the proposed location of the liquor store.

The city of Danville had made no provision for a record to be kept of the proceedings before its mayor as local liquor commissioner and no such records were kept. However, upon denial of Venture's application, the mayor wrote a letter to the parties stating these three reasons for his ruling:

(1) In 1937, Newell Township, except the portion then in the city of Danville, had, by a majority vote of its people, validly elected to be dry. The area in question was then outside the city.

(2) A liquor license at this location would increase the already dangerous traffic hazards on Route 1.

(3) The area does not lend itself to a liquor store location.

Only three witnesses testified at the subsequent hearing before the Commission: Mayor Palmer; Robert Fox, incumbent Newell Township supervisor; and John Smith, a long-time Newell Township resident. The major factual issue before the Commission was whether Newell Township had been voted to be dry. Although a dry referendum had been conducted in 1937, official records of the vote were not produced.

Mayor Palmer stated Venture's proposed site was within a commercial strip containing a K-Mart, a gas station, eating establishments, some industry, and grocery stores. He further testified that there were no liquor establishments in the immediate vicinity, and according to engineers and State highway officials the area was the most hazardous place in Danville since the entrance went onto a four-lane highway without any traffic signals. The mayor stated that the area of Newell Township which had been annexed to the city of Danville since 1937 had three places which were licensed to dispense alcoholic beverages, two private clubs and a package liquor store. One of the private clubs was the American Legion Hall which was operating prior to the 1937 "dry" referendum and was expressly excluded from the 1937 proposed prohibition. The other private club was the Elks Club, located several miles north and east of the proposed site and in an open nonresidential area. The package liquor store was in the Zayre Shopping Center just north of the southern border of Newell Township. It was about three miles from Venture's proposed site. Mayor Palmer testified that he did not issue any of the original licenses, but he has renewed them.

During the mayor's testimony the city tried to offer into evidence 1937 newspaper articles to show that the area of Newell Township, where Venture now sought a liquor license, had voted to be dry. Venture objected and the city stated that it was only being introduced to show the mayor's objective belief that Newell was dry and that it was for this reason that he rejected Venture's application. Venture then stipulated that the mayor's rejection was based on his good-faith belief that the township was dry. After this stipulation the city did not make further attempts to introduce the articles into evidence, and they were not accepted into evidence.

Robert Fox testified that he had been the Newell Township Supervisor since 1963, that the township had no office and that township books given him by his predecessor were maintained by him and the township clerk. He stated that he had township records which included those for the year 1937 but that neither he nor the township clerk had been able to locate a record of the outcome of the election. He also stated that he did not know whether a bound book, in which the dry referendum vote should have been recorded, ever existed. Mr. Fox did not indicate what kind of a search was made to locate the record, and the township clerk did not testify.

John Smith testified that he had (1) resided in Newell Township continuously since 1925, and (2) led the campaign to have the 1937 petition for Newell Township to be dry put on the ballot. Over continuing objection of Venture, he also testified that the outcome of the 1937 referendum was that the proposal that the township be dry carried.

The Commission's findings included those that (1) the proposed site was not in a dry area, (2) three liquor establishments were licensed in the area, and (3) while the city and mayor had acted in good faith, no legally sufficient reason for the denial of the license existed.

The question of whether the Commission was required to give deference to the mayor's determination to deny the requested license turns upon the meaning of article VII, section 8 of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, par. 153). That section provides that appeals from rulings made by local liquor commissions on requests for liquor licenses, revocations thereof, and certain other matters shall be "de novo" (emphasis added) unless the appeal be from the commissioner of a city of over 500,000 inhabitants or a home ...


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