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Local Liq. Cont. Com. v. Ill. Liquor Cont. Com.

OPINION FILED MAY 16, 1980.

CARBONDALE LOCAL LIQUOR CONTROL COMMISSION, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Jackson County; the Hon. BILL F. GREEN, Judge, presiding.

MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Plaintiff Carbondale Local Liquor Control Commission (Carbondale) appeals from a judgment of the circuit court of Jackson County upholding the action of defendant Illinois Liquor Control Commission (Commission) which gave a directed verdict in favor of defendant Booby's Submarine Sandwiches, Inc. (licensee). Plaintiff contends: (1) The warning issued by it to defendant licensee is not appealable under section 8 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, par. 153); (2) the trial court erred in striking a portion of a Carbondale ordinance and holding that review of plaintiff's actions should be "on the record" rather than "de novo"; and (3) the Commission improperly granted a verdict in favor of licensee because it had made a prima facie case for the alleged ordinance violation. We affirm the judgment of the circuit court.

On May 10, 1978, Carbondale held a hearing to determine whether licensee had violated section 2-1-6 of the Revised Code of the City of Carbondale, which reads as follows:

"Sec. 2-1-6. Hours.

A. The hours for the sale of alcoholic liquor in the City of Carbondale, Illinois, shall be as follows:

From 8:00 a.m. on Monday, Tuesday, Wednesday, Thursday and Friday and Saturday until 2:00 a.m. of the next day of each week;

From 1:00 p.m. on Sunday until 2:00 a.m. on Monday;

EXCEPT AND PROVIDED that on New Year's Day the closing time shall be: 3:00 a.m. regardless of the day on which it may fall.

B. No alcoholic liquor shall be sold during those hours not covered herein, and no person, except the licensee and his employees shall be allowed to remain in the building where alcoholic liquor is sold at retail by virtue of a license issued by the City of Carbondale, longer than fifteen (15) minutes after the closing hour as herein set forth.

C. Any person other than a licensee or employee of such licensee who remains in a building where alcoholic liquor is sold at retail by virtue of a license issued by the City of Carbondale, who refused to leave said building longer than fifteen (15) minutes after the closing hour, after having been advised or requested to leave, shall be liable to a fine." (Carbondale, Ill., Rev. Code, § 2-1-6.)

No record of the proceedings was made. Carbondale found the licensee in violation of said section, and issued an order which read in pertinent part:

"1. The Liquor Commission, having found that the Licensee was in violation of the Liquor Code of the City of Carbondale, and having found that said violation constitutes a serious and egregious violation, hereby notifies the Licensee of the finding by the Commission and hereby warns the Licensee that any future violation of any kind or nature whatsoever of the Carbondale Revised Code, the Liquor Code of the City of Carbondale, or of any other Ordinances of the City of Carbondale, shall result in the suspension the [sic] revocation of the license.

2. IT IS FURTHER ORDERED that a copy of this Order shall be placed in the permanent file of said Licensee, and made part of any future proceedings concerning any alleged violation by the Licensee of any provision of the Carbondale Revised Code, the Liquor Code of the City of Carbondale, or any other ordinance of the City of Carbondale conducted by or under the auspices of this Commission."

Licensee appealed the order to the Commission, whereupon Carbondale moved to dismiss the appeal on the grounds that the order was not appealable under section 8 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, par. 153). The motion was denied, and a de novo hearing before the Commission was held on July 19, 1978. Licensee made a motion to reverse the order of Carbondale on the ground the city's ...


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