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12/09/96 COCHRANE'S CHAMPAIGN v. STATE ILLINOIS

December 9, 1996

COCHRANE'S OF CHAMPAIGN, INC., D/B/A COCHRANE'S, COCHRANE'S ON DANIEL, INC., D/B/A COCHRANE'S ON DANIEL, AND TWO NEW, INC., D/B/A CENTRAL TAP, PLAINTIFFS-APPELLEES,
v.
STATE OF ILLINOIS LIQUOR CONTROL COMMISSION AND DANIEL MCCOLLUM, LIQUOR CONTROL COMMISSIONER FOR THE CITY OF CHAMPAIGN, ILLINOIS, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Champaign County. No. 94L1356. Honorable George S. Miller, Judge Presiding.

Released for Publication December 9, 1996. As Corrected February 24, 1997.

Honorable Rita B. Garman, J., Honorable John T. McCullough, J. - Concur, Honorable Robert W. Cook, J. - Dissent. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Three bars in Champaign, Cochrane's, Cochrane's on Daniels, and Central Tap (licensee,s collectively), were charged by the local liquor commissioner for the City of Champaign (local commissioner) with violating the Champaign Municipal Code (Champaign Municipal Code §§ 5-44(a), 5-44.1(a) (amended April 5, 1988)) by selling alcohol to persons under the age of 21. Central Tap was charged for violations on two separate occasions, making a total of four cases consolidated for purposes of this appeal. Each bar was found guilty and fined. A $100 fine was imposed on Central Tap for the violation of section 5-44 of the Champaign Municipal Code for sale of alcohol to a person between the ages of 18 and 21 on October 7, and $600 fines were levied on Cochrane's, Cochrane's on Daniels, and Central Tap for violating section 5-44.1(a) by selling alcohol to a person below the age of 18, on November 5, 6, and 10, respectively. The State Liquor Commission (Commission) affirmed the fines on appeal, but on administrative review the circuit court reversed all of the fines, holding the result in each case was based on inadmissible hearsay. The Commission and local commissioner appeal.

The circumstances of each case are essentially the same. As part of a covert operation in 1993-94, persons under 21 were paid to enter the licensees' premises and attempt to purchase alcohol, accompanied by an undercover police officer. They were allowed to do so in each case. The undercover buyers did not testify at any of the hearings, however. Rather, each time the undercover officer who accompanied the buyer testified as to the events that took place in the establishment. Deputy Chief of Police John Gnagey and/or the accompanying officer then testified as to the buyer's age, which in every case but one was known only from reviewing the confidential source file, examining the minor's driver's license, speaking with the minor's parents, or some combination thereof. In the case against Central Tap for the events of November 10, Gnagey testified that he had personally known the buyer "since she was a baby," and knew her to be 17 at the time of the purchase, although he did verify her age by speaking with her parents and examining her driver's license. The age testimony was introduced over a hearsay objection in each case.

I. ANALYSIS

There is no dispute that the age of the purchaser is an essential element of the ordinance violations with which the licensees were charged. See Champaign Municipal Code §§ 5-44(a), 5-44.1(a) (amended April 5, 1988). Accordingly, in any case in which the purchaser's age was not proved by competent evidence, the fine was improper. The licensees argue in support of the circuit court's decision that only inadmissible hearsay evidence was introduced to establish the ages in each case. Additionally, they argue their rights to due process and confrontation were violated in each case by the failure to produce the buyer. We will consider each of these contentions in turn.

A. Hearsay

The Commission does not dispute that the officers' testimony as to the informants' ages was hearsay. Rather, it argues section 10-40 of the Illinois Administrative Procedure Act (Procedure Act) (5 ILCS 100/10-40 (West 1992)) applies to these proceedings through section 3-13 of the Liquor Control Act of 1934 (Liquor Act) (235 ILCS 5/3-13 (West 1992)), and the former allows admission of the hearsay evidence. Section 3-13 of the Liquor Act provides "the provisions of [the Procedure Act], as now or hereafter amended, are hereby expressly adopted and incorporated herein as though a part of this Act, and shall apply to all administrative rules and procedures of the State commission under this Act." 235 ILCS 5/3-13 (West 1992). Section 10-40(a) of the Procedure Act provides:

"The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed. Evidence not admissible under those rules of evidence may be admitted, however, (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs." 5 ILCS 100/10-40(a) (West 1992).

The Commission also argues the minors were "unavailable" because they were protected by the informer's privilege.

The licensees argue Rule 11(c) of the Rules of the Local Liquor Commissioner (Local Rule 11(c)) overrides the exception contained in the Procedure Act, making the hearsay testimony inadmissible. Local Rule 11(c) provides the "rules of evidence of the State of Illinois shall apply to the hearings held under Chapter 5 of The Municipal Code of Champaign." The State disputes that Local Rule 11(c) is more restrictive. It argues that while the rule does apply "the rules of evidence of the State of Illinois" to the instant proceeding, that term is intended to include the exception set forth in the Procedure Act.

State and local governments have concurrent jurisdiction of liquor control. Town of Normal v. Seven Kegs, 234 Ill. App. 3d 715, 718, 599 N.E.2d 1384, 1387, 175 Ill. Dec. 370 (1992). It is acceptable for a local rule to differ from a statute, so long as it is more restrictive than the statute or places additional requirements on licensees. Sip & Save Liquors, Inc. v. Daley, 275 Ill. App. 3d 1009, 1015-16, 657 N.E.2d 1, 5, 212 Ill. Dec. 306 (1995); Easter Enterprises, Inc. v. Illinois Liquor Control Comm'n, 114 Ill. App. 3d 855, 858-59, 449 ...


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