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Starnawski v. License Appeal Com.

OPINION FILED NOVEMBER 17, 1981.

SOPHIE STARNAWSKI, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. JAMES P. MURRAY, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Sophie Starnawski, appeals from a judgment of the circuit court of Cook County entered in an action under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). The circuit court judgment affirmed a decision of the License Appeal Commission of the City of Chicago, which sustained the revocation of Starnawski's liquor license by Mayor Jane Byrne, the local liquor control commissioner of the City of Chicago.

The following issues are presented for review: (1) whether refusal to provide a licensee a copy of the administrative hearing officer's report to the local liquor control commissioner is a denial of due process of law; (2) whether sections 5 and 8 of article VII of the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, pars. 149 and 153), which provide for different procedures for reviewing revocation orders based on the population of the community in which the licensed premises is located, create an unconstitutional classification; (3) whether the conversation between Officer Lamb, the City of Chicago's sole witness, and Judy Martin, an alleged prostitute, was properly admitted into evidence at the license revocation hearing; and (4) whether the decision of the local liquor control commissioner is supported by the manifest weight of the evidence.

For the reasons which follow, we affirm the judgment of the circuit court.

Sophie Starnawski was the holder of a local retail liquor license for the Subway Inn tavern located at 1549 West Division Street, Chicago, Illinois. She had operated the tavern since 1967 and resided in the same building in which the tavern is located.

Based on events which occurred on October 20, 1978, Starnawski was charged by the Chicago local liquor control commission with having: (1) "by and through her agent, Judy Martin, knowingly offered or agreed to perform an act of prostitution for money with L. Lamb, said offer or agreement being made on the licensed premises, contrary to Chapter 38, § 11-14(a), Ill. Rev. Stat. 1977"; and (2) "by and through her agent, Henry Thomas, who was exercising control over the licensed premises, knowingly permitted the licensed premises to be used for the purposes of prostitution, contrary to Chapter 38, § 11-17(a)(1), Ill. Rev. Stat. 1977."

On May 14, 1979, proceedings to revoke Starnawski's retail liquor license were held. Deputy Liquor Control Commissioner Max Rittenberg presided at the evidentiary hearing. Jory Wishnoff, assistant corporation counsel for the City of Chicago, called, as the City's sole witness, Officer Leslie Lamb.

Officer Lamb testified that he was a Chicago police officer, assigned at that time to the Sixth District. On October 20, 1978, at approximately 1:20 a.m., he entered the Subway Inn. He was dressed in civilian attire. Upon entering the premises, he looked for a seat at the bar, sat down and ordered a drink from the bartender, Henry Thomas.

Lamb asked Thomas "where all the women were because there were only two women in the place, and he [Thomas] told me that they had been in earlier but they had just left before my arrival." Lamb told Thomas that he was "looking for a girl to either get a blow job or a lay."

Thomas allegedly replied that he would "take a look outside" if Lamb "really wanted" a girl. Thomas walked outside the tavern and returned three to five minutes later. He told Lamb that he had not seen "any of the girls outside." A few minutes later a female, later identified by Lamb as Judy Martin, entered the tavern.

Thomas called to Judy, and Lamb overheard him ask her if she was "busy." Thomas asked her if she wanted a drink, pointed at Officer Lamb, and told her to sit with Lamb. Thomas then introduced Martin to Lamb.

Lamb told Martin that "my wife had just had a baby and I haven't been laid or had a blow job in a long time and that I was willing to pay her for either one and how much would it cost me." Martin replied that "it would cost $20 for either * * *," and that they could "go around the corner to a hotel." Lamb agreed to pay her the $20. He told her that he only had a $50 bill, but she said, "Don't worry, I'll get Henry to change the fifty." She then called Thomas over to the table where she and Lamb were sitting.

Lamb informed Thomas that "I was going to pay Judy the twenty for a lay and I also wanted to have the money broken so I could pay for the hotel and I would give him a tip for getting her for me." Taking the money out of the tavern's cash register, Thomas "broke the fifty dollar bill" for Lamb. Lamb then paid for the drinks, gave Thomas a five dollar tip and thanked him for "getting Judy." Thomas placed the tip in a glass next to the cash register and remarked that Judy "is all right" and that "Judy would go with [Lamb]."

Lamb and Martin left the tavern together. Once outside, Martin was arrested by Lamb and charged with prostitution. Lamb then reentered the tavern and arrested Henry Thomas, charging him with being the "keeper of a disorderly house." *fn1

The only other witness to testify at the revocation hearing was Sophie Starnawski. She stated that from 1967 until January 1978 she had worked in her tavern seven days a week. On January 4, 1978, her son underwent surgery and remained in the hospital until March 10, 1978. On that date Starnawski brought her son home. As he was in a comatose state, it was necessary for her to give him constant care and attention. She thereafter hired a bartender, Henry Thomas, to work in the tavern. Starnawski's son died on January 19, 1979.

Following the arrest of Thomas on October 20, 1978, Starnawski "fired him." She stated at the hearing that she was not working in the tavern on the evening of Thomas' arrest, and that she had no knowledge of the events that occurred on the premises at that time. She also stated that she had "never heard" of Judy Martin and that Martin was not in Starnawski's employ.

On July 16, 1979, after reviewing a transcript of the hearing and a report by the deputy commissioner, the local liquor control commissioner for Chicago, Mayor Jane Byrne, revoked Starnawski's license. The commissioner found that "the licensee, by and through her agent, Henry Thomas, who was exercising control over the licensed ...


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