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Anderson v. Liquor Control Com.





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


The Illinois Liquor Control Commission upheld a local liquor commissioner's revocation of plaintiff's liquor license. On administrative review the circuit court affirmed and plaintiff appeals contending that: (1) the Local Liquor Control Commissioner improperly revoked his license due to noncompliance with the notice and hearing requirements of section 5 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1979, ch. 43, par. 149); (2) the commissioner committed abuses warranting reversal; and (3) he was not liable for wrongful acts of an alleged employee, nor was he liable for acts occurring outside the licensed premises.

Plaintiff Anderson owns and operates a tavern, the A & M Lounge, in Waukegan, Illinois. On September 27, 1980, Bill Morris, the Mayor and Local Liquor Control Commissioner of Waukegan, caused plaintiff to be served with a "Notice to Close" ordering the immediate closure of plaintiff's tavern. The notice stated that there existed sufficient information to believe that the continued operation of the licensed premises constituted an immediate threat to the welfare of the community and was predicated upon charges that certain agents or employees of plaintiff had participated in the sale of controlled substances with plaintiff's knowledge, in or about the licensed premises. The notice indicated that plaintiff would receive notice of a hearing to be held within seven days. Plaintiff closed his tavern on that date.

On October 1, 1980, at 10:51 p.m., plaintiff was served with a "Notice of Charges and Hearing" advising him that the hearing would be held on October 3, 1980, at 2 p.m. and enumerating several charges placed against him: that in September 1980 on three separate occasions Officer Herbert Milton purchased a substance represented to be heroin from Carl Banks in or around the premises; that in September 1980 plaintiff told Officer Milton that if he wanted to buy heroin he would have to wait until Carl Banks arrived; that Carl Banks was the employee or agent of plaintiff and had free access and use of the premises for the purpose of selling such substance; and that the above sale of substances represented to be heroin were conducted with the knowledge of plaintiff, and constituted a breach of the peace and a menace to the health, safety and welfare of the public, in violation of sections 24-11-3 and 4-27(a) of the City of Waukegan ordinances. Waukegan, III., Code §§ 24-11-3 and 4-27(a) (1960).

On October 3, 1980, plaintiff's attorney and the city attorney entered into an agreement whereby the latter would agree to continue the hearing date until October 16, 1980. In return, plaintiff agreed to keep his premises closed until such hearing date. The local commissioner granted the continuance and a hearing was held on October 16, 1980.

At this hearing the City of Waukegan produced the testimony of Officer Herbert Milton, a Chicago police officer then assigned to the Federal Drug Enforcement Administration. His testimony largely related to several incidents, occurring during September 1980, which had been cited in the notice of charges. The witness testified that the following incidents took place in or about the A & M Lounge:

(1) On September 4, 1980, while working under cover, he purchased four $25 bags of a substance represented by Carl Banks to be heroin outside the lounge.

(2) On September 8, 1980, at about 11 a.m. he had the following conversation with the plaintiff outside of the lounge:

"`I'd like to purchase four of those things I got from you yesterday.' Mr. Anderson stopped, and he said, `What things? What are you talking about?' I said, `Four $25 bags.' He said `$25 bags of what?' I say [sic] `Four $25 bags of heroin.' Mr. Anderson said, `You want to see Carl.' I said `Carl is not here.' He said, `So, you have to wait for him.'"

(3) On September 10, 1980, he arranged with Carl Banks a purchase of a substance represented by Banks to be heroin while inside the lounge. The delivery of the substance occurred outside of the lounge. On the same date, while sitting at the bar, he and Banks discussed the sale of weapons. Banks indicated that a display could be set up from which the officer could choose from any number of shotguns and handguns.

(4) On September 16, 1980, he arranged a purchase of heroin from Banks while in the lounge.

(5) On September 17, 1980, Banks delivered to the officer a substance represented to be heroin in the lounge.

Officer Milton further testified that he saw Banks behind the bar working on a cooler on at least four occasions. However, he stated that anybody could walk behind the bar and that plaintiff had never offered to sell him anything.

In addition, Lieutenant Lawrence Pasquini of the Waukegan Police Department testified that when he arrested Banks on September 27, 1980, Banks ...

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