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Fitzgerald v. Illinois Liquor Control Com.





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


John W. Fitzgerald (plaintiff), the mayor and local liquor commissioner of the city of Burbank, appeals from a judgment affirming the Illinois Liquor Control Commission's (defendant) reversal of plaintiff's order of license revocation. Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.

Plaintiff instituted proceedings to revoke the liquor license of Hank's Pub, Inc. (licensee), on charges licensee had violated certain ordinance provisions of the city of Burbank. Plaintiff alleged that on September 13, 1978, licensee: (1) suffered or permitted sale of a prohibited controlled substance, Phencyclidene, on its premises; (2) failed to report the sale to the police; and (3) failed to report possession of the Phencyclidene to the police.

A hearing was held by plaintiff on September 26, 1978. Investigator Fred Graca of the Cook County Sheriff's Police testified he entered the licensee's tavern on April 13, 1978, at 7:30 p.m. He was dressed in plain clothes and did not identify himself as a police officer. Graca sat down at the bar and ordered a beer from the bartender, Henry Jungers. A short time later, Graca was approached by a man named Tom Winchell who sat at the bar two chairs away. Graca and Winchell had a conversation concerning the purchase of Phencyclidene (PCP). Graca told Winchell he "was ready to cop [purchase drugs]" and asked Winchell "if he had anything on him." Winchell replied he had a gram. Graca asked, "How much?" Winchell said he wanted $75. The two men continued discussing the price. During this conversation, Jungers was standing on the other side of the bar at a distance of "maybe two or three feet, the width of the bar."

Following the conversation, Graca paid Winchell $75 and Winchell handed him a tinfoil packet of 1 by 1 3/4 inches. This exchange was made in open view on top of the bar. The exchange took 10 to 15 seconds. Graca observed Jungers looking at him at all times during the exchange. After completion of the purchase, Graca left the premises. The substance inside the packet given to Graca was Phencyclidene.

Graca further testified there were 10 to 15 people in the tavern and Jungers was the only bartender. The lighting was not bright and the jukebox was going on and off. There was a "fair" amount of noise as there would normally be in a bar with that many people. At that time, Graca was "not really" paying attention to Jungers. The entire transaction between Graca and Winchell took 10 to 15 minutes. During that time, Jungers was tending bar and waiting on other patrons. In the course of the conversation, there was an argument as to whether the drug was really PCP and some haggling about the price. Although Graca stated Jungers could have heard the entire conversation, he had no idea if Jungers actually heard him. Also, while Graca did observe Jungers looking at him during the transaction, Graca did not know what Jungers did or did not see.

Graca admitted a lay person observing the transaction would not know a violation of the law was being committed, and only a person buying narcotics would know the tinfoil which was passed contained a narcotic. However, Graca stated he believed Jungers and everyone else in the bar knew he was buying narcotics from Winchell because several other drug dealers Graca had purchased drugs from were present in the tavern. But Graca did not know for a fact that Jungers was aware Winchell was selling narcotics to Graca.

Jungers, who is president of the licensee corporation, testified he had no recollection of the particular date in question and did not recall Graca coming into the tavern around that date. In fact, he did not know Graca at that time. Jungers further testified he had no personal knowledge of the events Graca testified to although he was tending bar on the night in question. He did see Graca and Winchell in the bar at other times but as far as he knew, they had just been drinking in the tavern.

Plaintiff issued a final order in this case in which he made the following findings:

"8. That the said Fred Graca purchased from the said Tom Winchell for the sum of $75.00 a packet of a controlled substance known as Phencylidine [sic] (PCP); that said purchase and the conversation leading to the purchase was loud enough and in open view and in the presence of the said Henry K. Jungers.

9. That the said Henry K. Jungers' knowledge of the person by the name of Tom Winchell, the presence of Mr. Jungers at the time of the purchase, the testimony of Graca that everyone in the tavern knew what was occurring, the experience of Mr. Jungers in the tavern business, the passing of the silver packet for $75.00 in his presence and view, the Commissioner can only reasonably infer that the sale and transaction was made in his view and with his knowledge.

10. That the said Henry K. Jungers did not take any action to prevent or stop the sale of Phencylidine [sic] (a crime) from Tom Winchell to Fred Graca, a police officer who participated in the sale.

11. That Henry K. Jungers did not report to any police department or officer the sale of the controlled substance which occurred in his presence on the licensed premises, nor did he report the possession of the controlled substance."

On the basis of these findings, plaintiff found the licensee guilty of all three charges and ordered licensee's liquor license revoked. The licensee appealed to the defendant agency. By law, the scope of review by defendant was limited to the record of proceedings before plaintiff. (Ill. Rev. Stat. 1977, ch. 43, par. 153.) Defendant heard legal arguments of all parties and entered an order reversing plaintiff's order of revocation. Defendant concluded plaintiff's order was not supported by the findings and the findings were not supported by substantial evidence in light of the entire record. On administrative ...

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