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12/31/97 BENCHWARMERS v. RICHARD M. DALEY

December 31, 1997

BENCHWARMERS, INC., D/B/A HI-TOPS CAFE, AN ILLINOIS CORPORATION, AND EDWARD M. WARM, PRESIDENT, PLAINTIFFS/COUNTERDEFENDANTS-APPELLEES/CROSS-APPELLANTS,
v.
RICHARD M. DALEY, MAYOR AND LOCAL LIQUOR CONTROL COMMISSIONER OF THE CITY OF CHICAGO, DEFENDANT/COUNTERPLAINTIFF-APPELLANT/CROSS-APPELLEE, AND LOCAL LIQUOR CONTROL COMMISSION OF THE CITY OF CHICAGO; WINSTON L. MARDIS, AS DIRECTOR, MAYOR'S LICENSE COMMISSION OF THE CITY OF CHICAGO; THE CITY OF CHICAGO, A MUNICIPAL CORPORATION; WILLIAM J. O'DONAGHUE, AS CHAIRMAN, IRVING KOPPEL AND ALBERT MCCOY, AS COMMISSIONERS OF THE LICENSE APPEAL COMMISSION; AND THE LICENSE APPEAL COMMISSION CITY OF THE CITY OF CHICAGO, DEFENDANTS.



Appeal from the Circuit Court of Cook County. Nos. 95-CH-0918, 95-CH-1344. Honorable Edwin M. Berman, Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court. Greiman and Zwick, JJ., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

This case involves cross-appeals from an order of the circuit court determining the propriety of a liquor license suspension for plaintiff, Benchwarmers, Inc., d/b/a Hi-Tops Cafe (Benchwarmers). The Local Liquor Control Commission of the City of Chicago suspended Benchwarmers' liquor license for selling alcoholic liquor to a minor in violation of section 4-60-140 of the Municipal Code of Chicago (the Code). Chicago Municipal Code § 4-60-140 (1990). The License Appeal Commission of the City of Chicago affirmed the decision but reduced the penalty to a one-day suspension. On consolidated cross-complaints for administrative review filed with the circuit court, the circuit court reversed the suspension order in its entirety, finding that Benchwarmers had been entrapped and held that the License Appeal Commission does not have authority to modify a decision of the Liquor License Control Commission.

On appeal, defendant, Richard M. Daley, mayor of the City of Chicago and the local liquor control commissioner of the City of Chicago, challenges that portion of the circuit court order reversing suspension of Benchwarmers' liquor license for selling alcoholic liquor to a minor in violation of section 4-60-140 of the Code. Plaintiffs and counterdefendants, Benchwarmers and Edward Warm, president, cross-appeal from the second portion of the circuit court's order holding that, as a matter of law, the License Appeal Commission may not modify a decision of the Local Liquor Control Commission of the City of Chicago. For the following reasons, the order of the circuit court is reversed in part and affirmed in part.

On June 30, 1993, at approximately 9:30 p.m., Carla Stockton, then 20 years old, entered into Benchwarmers' establishment, the Hi-Tops Cafe, and approached the bar. Stockton requested a bottle of Genuine Miller draft beer from the bartender, Nicole Montgomery. Montgomery served Stockton the beer and Stockton paid for the beer with a marked $10 bill. A few minutes later, Chicago police officer, Detective Edward Walz, who had been stationed at the bar in street clothes, informed Montgomery that she had served a minor. Montgomery summoned the manager, Thomas Mulcahy.

On August 17, 1993, Richard M. Daley, in his capacity as both mayor and the local liquor control commissioner of the City of Chicago, served a notice of hearing upon Hi-Tops to respond to allegations:

"That on or about June 30, 1993, the licensee by and through its agent, Nicole Montgomery, sold, gave or delivered alcoholic beverages on the licensed premises to Karla Stockton, a person under the age of 21 years, in violation of Title 4, Chapter 172, § 140, Municipal Code of Chicago." Chicago Municipal Code § 4-60-140 (1990).

At the hearing before the Local Liquor Control Commission, Detective Edward Walz testified regarding the set up of the sale of alcohol to the minor. Walz entered Hi-Tops a few minutes before the minor and sat at the bar. Walz ordered a draft beer and spoke to the bartender for a few moments.

The minor, Carla Stockton, testified that on June 30, 1993, she was 20 years old. Stockton testified that she was wearing black jeans, a black silk shirt, and make-up. As Stockton entered the bar, the doorman asked her for identification. When she explained that she did not have any and asked if she needed identification to enter, the doorman said she did not need any identification. Stockton approached the bar, asked Montgomery for a Miller Genuine draft and proceeded to pay for the beer.

According to the bartender, Nicole Montgomery, Stockton entered the bar with two men who appeared to be close to 50 years old. Montgomery testified that Stockton was dressed in "a sweater and a dowdy skirt *** cut very matronly" and was wearing loafers. Montgomery testified that Detective Walz sat at the bar and talked about sports. Walz did not pay for his beer right away and Montgomery testified that she felt Walz was wasting her time. Montgomery served Stockton the beer and took the money. Montgomery stated that she did not ask for identification because Stockton had entered with the two older men and Stockton looked as if she was over 25 years old. According to Montgomery, Stockton was not nervous but instead was "very aggressive and very secure" in her demeanor. The manager of Hi-Tops, Thomas Mulcahy, also testified that Stockton appeared to be at least 24 years old.

The president of Benchwarmers, Edward Warm, testified that the Hi-Tops doorman is instructed to ask for identification from anyone who appears to be younger than 25 years old. The bartenders also are required to ask for identification if the person looks to be under 25 years of age.

Based on the foregoing evidence, the hearing officer of the Mayor's License Commission first determined that the defense of entrapment was "inapplicable to these administrative proceedings." Even if the defense were appropriate, the hearing officer determined that the licensee failed to comply with the legal prerequisites for an entrapment defense. Regardless, the hearing officer found that, under the facts of the case, Benchwarmers had not shown the inducement or incitement necessary to establish an entrapment defense. On May 13, 1994, the Local Liquor Control Commission (LLCC) entered an order finding Benchwarmers guilty of serving alcohol to a minor, in violation of section 4-60-140 of the Code and imposed as a penalty a five-day license suspension on Benchwarmers. Benchwarmers appealed to the License Appeal Commission (LAC). On December 19, 1994, the LAC entered an order affirming the decision of the LLCC but reduced the penalty imposed from a five-day suspension to a one-day suspension. The LAC denied both parties' petitions for rehearing.

Benchwarmers filed a complaint for administrative review with the circuit court to review the LLCC's decision that Benchwarmers was not entrapped. Mayor Daley and the LLCC also filed a complaint seeking judicial review of the administrative decision of the LAC in modifying the sanction imposed by the LLCC. That action named Benchwarmers and the License Appeal Commission of the City of Chicago as ...


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