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Soldano v. Illinois Liquor Control Com.

OPINION FILED FEBRUARY 4, 1985.

ALFRED SOLDANO, D/B/A CHESTERFIELD LOUNGE, PLAINTIFF-APPELLANT,

v.

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



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 21, 1985.

Plaintiff appeals an order of the circuit court affirming the revocation of his liquor license. On appeal, plaintiff contends (1) the order of revocation was based in part on a violation of an ex post facto law and the violation of this law cannot be used as ground for revocation, and (2) the finding that plaintiff allowed solicitation for prostitution is against the manifest weight of the evidence.

We affirm in part, and reverse in part and remand.

On October 15, 1982, plaintiff Alfred Soldano received notice of a hearing on a complaint issued by the Calumet City police department regarding liquor license violations. Plaintiff was charged with violations of sections 3-38 and 3-40 of the Calumet City Municipal Code, which prohibit solicitation of drinks and solicitation for prostitution. Plaintiff was also charged with violating sections 11-14, 11-15 and 11-17 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 11-14, 11-15 and 11-17). The Calumet City liquor commission held a hearing on the charges on November 12, 1982.

At the hearing, Officer John Wilkens testified he went to the Chesterfield Lounge on July 16, 1982, at about midnight to check for illegal activity. He was approached by Sharon DeMoff, who asked him if he would like to buy her a drink. At the request of DeMoff and the bartender, Patricia Coffel, Wilkens bought DeMoff three or four more drinks. DeMoff also asked Wilkens if he would like to buy her a bottle of champagne for $45. Wilkens bought the champagne, and DeMoff and the bartender drank it. Wilkens asked DeMoff why the champagne was so expensive. DeMoff said Wilkens "would get a blowjob along with it" and she would do it when she was finished dancing on stage. Wilkens further testified that while he was seated at the bar, he observed a male employee directing females to sit by men who came into the bar.

Sharon DeMoff, called as a witness for plaintiff, testified she worked as a go-go dancer at the Chesterfield Lounge. Part of her job was to furnish conversation and company for male customers who bought her drinks. Employees were not allowed to date patrons and prostitution was not permitted at the lounge. Regarding her encounter with Wilkens, she testified he bought her two drinks and a bottle of champagne. Wilkens offered to buy her the cocktails. Before buying the champagne, Wilkens asked whether he would get anything with it. DeMoff told him she was not a prostitute and he was entitled to her conversation only.

Patricia Coffel, the bartender, testified Officer Wilkens was seated at the bar and motioned for DeMoff to sit by him. He ordered several cocktails and a bottle of champagne for DeMoff.

Diane Masterson, a friend of Coffel's, testified she was an occasional patron of the Chesterfield Lounge. On the evening in question, she was seated at the bar near Wilkens and heard him ask DeMoff to sit by him. Wilkens asked DeMoff if she wanted a drink, and DeMoff accepted. Masterson saw the bartender serve champagne to Wilkens and DeMoff. She heard half of the conversation between Wilkens and DeMoff and did not hear DeMoff offer to perform any sexual acts. Masterson had been at the lounge on previous occasions and never saw anyone engaged in sexual activity.

John Mundo testified he had worked at the lounge as manager for 10 years. During that time, no arrests had been made for prostitution. Women are hired as dancers and barmaids. They are instructed that no prostitution is permitted on the premises and that they cannot date customers. Employees could sit with customers only at the customers' request.

In his order revoking plaintiff's liquor license, the local liquor control commissioner of Calumet City found that "the license and/or its agent did allow soliciting for drinks and soliciting for prostitution in the licensed establishment." Plaintiff appealed to the State of Illinois Liquor Control Commission, and the order of revocation was affirmed. Plaintiff thereafter filed an action under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.). The circuit court affirmed the decision of the Illinois Liquor Control Commission.

On appeal, plaintiff first contends the finding that solicitation for prostitution occurred on the licensed premises is against the manifest weight of the evidence. Plaintiff raises four points in support of his contention: (1) there is no evidence that DeMoff offered to perform an act within the purview of the prostitution statute; (2) no evidence was presented that DeMoff offered to perform such an act for money; (3) the testimony indicated there was no place in the lounge where sexual activity could take place; and (4) the licensee neither had knowledge of nor permitted prostitution on the premises.

Initially, we note that the findings of the local commissioner are presumed to be correct and will not be disturbed unless contrary to the manifest weight of the evidence. (Roque v. Quern (1980), 90 Ill. App.3d 1015, 414 N.E.2d 161; Show of Shows, Inc. v. Illinois Liquor Control Com. (1967), 86 Ill. App.2d 109, 230 N.E.2d 268.) It is the function of the commissioner to determine the credibility of witnesses and the weight accorded their testimony. Starnawski v. License Appeal Com. (1981), 101 Ill. App.3d 1050, 428 N.E.2d 1102.

• 1 Regarding his first point, plaintiff argues that the local commissioner irrationally inferred that the term "blowjob" referred to an act prohibited by the prostitution statute. During oral argument, plaintiff's attorney stated the term has various connotations. For example, counsel argued, a blowjob could be ...


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