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Daley v. License Appeal Commission of the City of Chicago

December 30, 1999

RICHARD M. DALEY, MAYOR AND LOCAL LIQUOR CONTROL COMMISSIONER OF THE CITY OF CHICAGO, PLAINTIFF-APPELLANT,
v.
LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO, WILLIAM O'DONAGHUE, CHAIRMAN OF THE LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO, MS. EVA'S GROCERY/DELI, AND GEORGE PERSON, PRESIDENT, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County Honorable Timothy C. Evans, Judge Presiding.

Plaintiff, Richard M. Daley, mayor and local liquor control commissioner of the City of Chicago, appeals from an order of the circuit court denying plaintiff's motion to review the sanction imposed upon defendants, Ms. Eva's Grocery/Deli, and George Person, president and owner of Ms. Eva's Grocery/Deli, on the grounds that the circuit court lacked jurisdiction. Plaintiff contends on appeal that: (1) the circuit court erred in finding that it lacked jurisdiction to decide whether the Local Liquor Control Commission's original revocation sanction was proper; (2) the License Appeal Commission lacked the authority to remand the case to the Local Liquor Control Commission for further proceedings; and (3) the Local Liquor Control Commission's revocation of defendants' liquor license was proper. For the reasons that follow, we affirm, but on grounds other than those given by the trial court as we may affirm a judgment of the circuit court upon any ground contained in the record, regardless of whether the circuit court relied upon it. See Ficken v. Alton & Southern Railway Co., 291 Ill. App. 3d 635, 642, 685 N.E.2d 1 (1996).

Ms. Eva's Grocery/Deli (Ms. Eva's), located at 807 North Monticello Avenue in Chicago, is co-owned and operated by George Person and Eva Anderson. On or about November 8, 1993, plaintiff, Richard M. Daley, in his capacity as mayor and local liquor control commissioner of the City of Chicago, issued a notice of hearing informing George Person, as owner and operator of Ms. Eva's, that the Local Liquor Control Commission (LLCC) sought to revoke its liquor license and other business licenses. The notice charged Person and his agents with knowingly possessing a controlled substance with intent to deliver in violation of several state statutes. The notice further alleged that Person and Anderson possessed two firearms and ammunition without obtaining an Illinois Firearm Owner's Identification Card (FOID card). Neither firearm was registered with the City of Chicago. The record indicates that this matter was the first time in Ms. Eva's 24-year business history that it was formally charged with a sanction.

Evidentiary hearings were held before the LLCC on March 24, April 21, and May 19, 1994. Chicago police officer Anthony Dicristofano testified that on July 16, 1993, he and his partner, Officer Daniel Gutierrez, were dressed as plainclothes officers and entered Ms. Eva's at approximately 6:45 p.m. pursuant to a narcotics investigation. Officer Dicristofano observed Person and Cynthia Sandifer, Eva Anderson's sister, behind the counter. Sandifer looked in Officer Dicristofano's direction and then carried a small envelope box to the meat cooler. After observing Sandifer, Officer Dicristofano walked behind the counter and entered the meat cooler, where he found the envelope box and discovered that it contained $25 and six small brown envelopes. Each envelope contained a green leafy substance, which he suspected was marijuana. The parties subsequently stipulated that if called to testify, chemist Timothy J. Chapman would testify that he weighed the substances in the envelopes and tested them. The test results were positive for the presence of marijuana. Officer Dicristofano testified that, in his opinion, the narcotics were to be used for distribution rather than personal consumption.

Upon further search of the premises, Officer Dicristofano discovered a loaded .380-caliber semi-automatic weapon under the counter. Officer Dicristofano also recovered "drug paraphernalia" consisting of small pill containers of anesitol powder, which is frequently used to cut cocaine, small glass tubes, and empty small brown envelopes which were similar to those found in the meat cooler.

Officer Dicristofano testified that Sandifer told the officers that there was also a .357 Magnum revolver in Anderson's purse under the counter. Anderson subsequently told the officers that she possessed the gun for protection. Officer Dicristofano eventually discovered that neither of the recovered weapons was registered. Person told Officer Dicristofano that he owned the weapons but was not aware that there was marijuana on the premises. Officer Daniel Gutierrez testified that he was working with Officer Dicristofano on July 16, 1993, and accompanied Dicristofano to Ms. Eva's on that day. Officer Gutierrez discovered the loaded .357 Magnum revolver in Anderson's purse, which was under the counter. Officer Gutierrez further testified that all employees working at Ms. Eva's on that day were detained for questioning.

The defense produced three witnesses at the hearing. Anderson testified that she opened the store that day and that Person and Anthony, the cook, were scheduled to work that afternoon. It was Anthony's job to cut the meat and prepare the food at the meat counter. Anderson testified that Anthony worked in the area where the meat cooler was located. When Anderson returned to the store that afternoon, Person, Sandifer and Jerome, another employee, were present, along with Officers Dicristofano and Gutierrez. Anderson stated that the items in the store described as "drug paraphernalia" had been discontinued and placed in plastic bags in a storage area because they were no longer legal to sell. Anderson further testified that her husband, Person, had been shot during an armed robbery in May 1993; therefore, they possessed the guns for protection.

Sandifer testified that she was not an employee of Ms. Eva's, but worked at the store that day in order to help her sister. After the officers arrived, Sandifer saw one of the officers pull something out of the meat cooler, but at the time, the officer did not show her what he retrieved. Sandifer also testified that although the item the officer removed from the meat cooler was near the area in which Anthony worked, the officer did not detain Anthony. Sandifer further testified that Person attempted to produce an FOID card, but that the officer would not allow him to retrieve it from his wallet.

George Person testified that, at the time the police officers arrived, he was behind the counter at the cash register. There were customers in the store and one of the officers told Anthony to leave. Person further testified that he had possessed the handguns for approximately one week prior to the officers finding them and that he had obtained the handguns for protection because he was robbed and shot approximately one month before the police searched the store. Person admitted that one of the handguns was loaded. Person also testified that he was not aware of the presence of any marijuana in the store. Regarding the presence of "drug paraphernalia," Person testified that when these items could no longer be sold legally, he removed them from the sale counter and stored them.

Person next testified that he did in fact have an FOID card, but that he was told that he had to plead guilty to possession of a firearm without an FOID card in misdemeanor court. When asked whether he had the FOID card the day of the hearing, he testified that it was lost.

On July 15, 1994, the LLCC sustained all charges brought against defendants and issued an order revoking Ms. Eva's business licenses. The LLCC found that by and through Person's agent, Sandifer, Person possessed cannabis with an intent to deliver while on the premises and that Person and Anderson possessed firearms without obtaining state and city firearm registration certificates. Based on these findings, the business licenses were revoked on August 1, 1994, pursuant to section 7-5 of the Illinois Liquor Control Act of 1934 (Liquor Control Act or Act)(235 ILCS 5/7-5 (West 1994)) and section 4-4-280 of the Municipal Code of Chicago (Chicago Municipal Code §4-4-280 (1990)).

Person then filed a timely appeal to the License Appeal Commission (LAC). On June 7, 1995, oral arguments were held and the LAC issued an order sustaining all of the LLCC's findings on July 3, 1995. However, the order issued by the LAC reduced the LLCC's revocation penalty to a 30-day suspension. The order indicated that although the LLCC's findings were not arbitrary or capricious, they were not related to the intent of the Liquor Control Act (235 ILCS 5/1-1 et seq. (West 1994)). The LAC further determined that revocation was an unduly harsh penalty in light of the appellate court's decision in Hanson v. Illinois Liquor Control Comm'n, 201 Ill. App. 3d 974, 559 N.E.2d 1092 (1990).

On July 24, 1995, the LLCC filed a petition for rehearing and a request for oral argument. The LLCC argued that the LAC had no authority to modify a sanction imposed by the LLCC and that the LAC erred when it found that the revocation order was arbitrary and conflicted with the intent of the Liquor Control Act. The LAC denied the LLCC's petition for rehearing on October 18, 1995.

On November 22, 1995, plaintiff filed a complaint for administrative review and sought reversal of the LAC order. The complaint alleged that the LAC's decision to reduce the LLCC's revocation order was arbitrary and against the manifest weight of the evidence because the LAC ...


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