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05/16/94 GRANNY'S ROCKER v. ILLINOIS LIQUOR CONTROL

May 16, 1994

GRANNY'S ROCKER, INC., PLAINTIFF-APPELLANT,
v.
ILLINOIS LIQUOR CONTROL COMMISSION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. Nos. 91-MR-291 & 91-MR-341. Honorable Lola P. Maddox, Judge Presiding.

Chapman, Goldenhersh, Maag

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

This appeal is from a decision of the circuit court affirming a ruling of the Illinois Liquor Control Commission (the Commission) which found Granny's Rocker, Inc. (Granny's Rocker), to be in violation of sections 6-28 and 10-1 of the Liquor Control Act of 1934 (235 ILCS 5/6-28, 10-1 (West 1992)) and section 100.30 of the rules and regulations of the Commission (11 Ill. Adm. Code § 100.30 (1992)). We reverse.

In January 1991, the Commission charged Granny's Rocker with violations of sections 6-28(b)(2) and 10-1 of the Liquor Control Act of 1934 (the Act) in that Granny's Rocker: (1) conducted a promotion in which women received unlimited alcoholic beverages for $3.00; (2) encouraged patrons to sit in a barber chair, receive multiple shots of alcoholic beverages in their mouths, spin around in the chair, and upon completion of three sets of the foregoing, receive a T-shirt; and (3) advertised and promoted these practices. Granny's Rocker was also charged with violating section 100.30 of the Commission's rules and regulations, which provides that it is unlawful for any person holding a liquor license issued by the Commission to violate any law of Illinois in the conduct of the licensee's business. (11 Ill. Adm. Code § 100.30 (1992).) Following a hearing, the Commission determined that Granny's Rocker had violated sections 6-28 and 10-1 of the Act and section 100.30 of the Commission's rules and regulations, and the Commission suspended Granny's Rocker's State liquor license for 30 days. On judicial review the circuit court affirmed the decision of the Commission and stayed the suspension pending appeal to this court.

Granny's Rocker raises three issues on appeal: (1) whether section 6-28 of the Act is unconstitutionally vague; (2) whether the Commission's decision was an abuse of discretion; and (3) whether the sanction imposed is too harsh and should be reduced. As for the first issue, the Commission contends that Granny's Rocker waived this issue because it did not raise it below. Our review of the record reveals that Granny's Rocker did not waive the issue. At the hearings before the commission and the circuit court, both parties disputed the interpretation of the terms "game" and "contest" in section 6-28. In addition, plaintiff's brief submitted to the circuit court specifically addressed whether section 6-28 is unconstitutionally vague. While the circuit court's order did not expressly state that section 6-28 is constitutional, such a finding is implicit in its decision. We turn, therefore, to the merits of the issue.

Section 6-28 of the Act provides in pertinent part:

"Happy hours prohibited. ***

b. No retail licensee or employee or agent of such licensee shall:

(5) encourage or permit, on the licensed premises, any game or contest which involves drinking alcoholic liquor or the awarding of drinks of alcoholic liquor as prizes for such game or contest on the licensed premises." (235 ILCS 5/6-28(b)(5) (West 1992).)

Granny's Rocker contends that the terms of the statute are so vague that persons of common intelligence are forced to guess at its meaning. To illustrate, plaintiff points out the different constructions given to the statute by the Commission, the attorney general, and the trial court.

At the hearing before the Commission, Commissioner Kneafsey argued that he believes the purpose of section 6-28 is to stop all types of promotions that encourage the consumption of liquor. At the hearing before the trial court, both attorneys pointed out that there have been no specific court rulings on the definition of the words "game" or "contest" as used in the Act. Our research has not revealed any decision interpreting those terms as used in the Act. When a statutory term is undefined, that term is to be given its ordinary and popularly understood meaning. ( Union Electric Co. v. Department of Revenue (1990), 136 Ill. 2d 385, 397, 556 N.E.2d 236, 241, 144 Ill. Dec. 769.) Both parties submitted dictionary definitions of the terms "game" and "contest" for the trial court to rely on. Counsel for Granny's Rocker argued that the definition of "game" or "contest" is "that which involves some type of competition," and counsel relied upon Webster's Third New International Dictionary of 1981, which defines contest in a variety of ways, all of which involve competition or conflict. Webster defines the term game" as "an amusement or pastime." The assistant Attorney General, representing the Commission, did not argue that section 6-28 prohibits all types of promotions that encourage drinking. He argued that the statute prohibits a game or a contest involving drinking alcoholic liquor. The assistant Attorney General argued that he consulted the American Heritage Dictionary, Second College Edition of 1982, which defines "game" as "a way of amusing oneself; a diversion." He argued that, whether one focuses on the term "game" or the term "contest", the activity involving the barber chair is prohibited by the statute. Counsel contends that the barber-chair activity, whether viewed as a way of amusing oneself or a diversion or as a competition between the individual participant and the tavern, is in violation of the Act.

In its order the trial court opined that the facts presented clearly support the Commission's determination that the practice engaged in by Granny's Rocker in connection with the barber chair is a game or contest which involves drinking alcoholic liquor and which was encouraged or permitted by the plaintiff. The court stated, "Both parties presented dictionary definitions of game or contest and the court holds that the facts established concerning the barber chair[,] poured drinks[,] and t-shirt come within either of those dictionary definitions."

The operative words we are concerned with here are, 'No retail licensee *** shall encourage or permit *** any game or contest which involves drinking alcoholic liquor." (235 ILCS 5/6-28(b)(5) (West 1992).) We note that there is a strong presumption of the constitutionality of a statute, and the burden of demonstrating its invalidity is on the challenging party. ( Bernier v. Burris (1986), 113 Ill. 2d 219, 227, 497 N.E.2d 763, 767, 100 Ill. Dec. 585; Earnhart v. Director of Illinois ...


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