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01/12/96 ROACH ENTERPRISES v. LICENSE APPEAL

January 12, 1996

ROACH ENTERPRISES, INC., AN ILLINOIS CORPORATION, D/B/A/ CHICAGO PLAYERS; AND STEVEN INCROCCI, PLAINTIFFS-APPELLANTS/CROSS-APPELLEES,
v.
LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO; AND RICHARD M. DALEY, MAYOR AND LIQUOR CONTROL COMMISSIONER, OF THE CITY OF CHICAGO, DEFENDANTS-APPELLEES/CROSS-APPELLANTS.



Appeal from the Circuit Court Cook County. The Honorable Thomas P. Durkin, Judge Presiding.

As Corrected January 23, 1996.

The Honorable Justice Egan delivered the opinion of the court: Zwick, P.j., and McNAMARA, J., concur.

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

On June 19, 1992, the Chicago police raided Chicago Players (Players), a tavern, restaurant and amusement arcade, pursuant to a search warrant and seized six unregistered, and hence by municipal ordinance, illegal handguns hidden in a pizza box. A Players employee was attempting to take them out a rear exit when the police arrived. On September 3, 1992, Chicago police discovered a person under the age of 21 in the tavern, also in violation of a municipal ordinance.

Subsequently, the defendant, Richard M. Daley, acting through the Mayor's License Commission and the Local Liquor Control Commission (LLCC) in his capacity both as mayor and as local liquor control commissioner of the city of Chicago, sought and obtained the revocation of the liquor and non-liquor licenses held by the plaintiff, Roach Enterprises, Inc. (Roach), which is owned by the plaintiff, Steven Incrocci, and which operated Players. The defendant, License Appeal Commission of the City of Chicago (LAC), affirmed the revocation of the liquor license.

The plaintiffs filed for review of all of the revocations in the circuit court, where the judge affirmed the liquor license revocation, but reversed the revocation of the plaintiffs' non-liquor licenses. As they did in the circuit court, the plaintiffs contend that revocation of Roach's liquor license was an excessive and arbitrary sanction in light of the evidence. The defendants argue that the judge, having affirmed the liquor license revocation, was required to affirm the revocation of the remaining licenses, as well. This court has stayed the revocation of the liquor license pending the outcome of this appeal.

The Mayor initiated these license revocation proceedings pursuant to the Liquor Control Act of 1934 (Ill. Rev. Stat. 1991, ch. 43, par. 93.9 et seq.)( now 235 ILCS 5/1-1 et seq. (West 1992) (the Act) and section 4-4-280 of the Municipal Code of Chicago (Municipal Code of Chicago, sec. 4-4-280 (1992) (the Code), charging the plaintiffs with 17 violations of state law and local ordinance, including six counts of possession of unregistered firearms on the licensed premises; six counts of failure to produce a valid registration for firearms; two counts of failure to produce a valid register of firearms sold or given away; one count of selling deadly weapons without a license; one count of permitting a minor to enter or remain on the licensed premises; and one count of permitting the installation or use of a retail cigarette machine without affixing to it a valid retail tobacco tax emblem.

At a hearing on the charges before the LLCC, Chicago Police Officer Peter Bukiri testified that at about 10:30 p.m. on June 19, 1992, he and other officers were executing a search warrant at Players, which is located at 3640 West 59th Street, Chicago. Bukiri's primary assignment is the interdiction of guns coming into Chicago. Before entering Players, Bukiri placed a telephone call to the establishment and spoke to a woman, whom he informed that the police were on the way with a search warrant. Subsequently, Bukiri entered the front door of Players and proceeded to the rear door, where he found Officer Juan Rivera standing with a man holding a pizza warming box who said he worked as a cook at Players. Officer Bukiri looked inside the pizza warmer and found five .380 caliber Davis semi-automatic pistols and one nine-millimeter FIE spectra semi-automatic pistol. The man told Officer Bukiri that "Steve upstairs gave him the box and told him to throw it out."

Officer Rivera confirmed Bukiri's account of events. As he stood by the rear entrance to Players with his partner, the man carrying a pizza delivery box opened the rear door and begin to exit. The man told them that the owner of Players told him to remove the firearms from the establishment because the police were coming. He was supposed to hide the guns, either in the car parked by the side of the building or otherwise in the alley.

Officer Bukiri went to the second floor of Players and found Steven Incrocci. According to Bukiri, Incrocci told him that the guns belonged to him and that, for the convenience of his customers, he was making gun deliveries at Players. Bukiri also found boxes of ammunition as well as forms used in conjunction with the sale of firearms.

Incrocci testified that he had purchased the confiscated weapons on May 13, 1992 and admitted that he owned them and that none of them was registered in the City of Chicago. Incrocci is a registered firearms dealer in Justice, Illinois. Incrocci testified that he brought these weapons to Players on Sunday, June 14, 1992 as a matter of convenience. He placed them, still in their original containers, into a pizza box which was placed inside the pizza warmer. He placed the warmer inside an unused pizza oven on the second floor of Players. The second floor of Players is used only on weekends; Incrocci said he did not serve pizza during the summer months.

Incrocci denied having been informed shortly after 10:00 p.m. by Carolyn Mata, a Players bartender, that she had received a phone call from police warning that they were coming to Players. Nonetheless, at that precise time, Incrocci instructed his cook to take the pizza warmer containing the weapons to Incrocci's car, which was located in the alley behind Players. Incrocci also denied having told Officer Bukiri that he kept the guns at Players to make deliveries to local purchasers. However, Incrocci acknowledged that his gun dealer's license was valid only at his premises located in Justice.

Carolyn Mata was the bartender at Players on June 19, 1992. At about 10:15 p.m., Mata answered a telephone located behind the bar. Mata listened as an unidentified person stated that the police were on their way. She proceeded upstairs to tell Incrocci about the call. She did not see him place firearms in a ...


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