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Amigo's Inn, Inc. v. License Appeal Commission of the City of Chicago

December 30, 2004

AMIGO'S INN, INC. , D/B/A AMIGO'S INN, HECTOR GONZALEZ, PRESIDENT, PLAINTIFF-APPELLANT,
v.
THE LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO; ANTHONY CALABRESE, CHAIRMAN; IRVING KOPPEL, LICENSE APPEAL COMMISSIONER; RICHARD M. DALEY, MAYOR OF THE CITY OF CHICAGO AND LIQUOR CONTROL COMMISSIONER; PHILIP CLINE, SUPERINTENDENT, CHICAGO POLICE DEPARTMENT, DEFENDANT-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Richard A. Siebel, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Campbell

Plaintiff, Amigo's Inn, Inc., d/b/a Amigo's Inn, appeals from an order of the circuit court of Cook County affirming an administrative decision of defendant, Mayor Richard M. Daley, by and through the License Appeal Commission of the City of Chicago (Commission), revoking plaintiff's liquor license. On appeal, plaintiff contends that: (1) the finding of the Commission that a security guard was an agent of Amigo's Inn was against the manifest weight of the evidence and an error of law; and (2) the sanction of revocation was an abuse of discretion. For the following reasons, we reverse the judgment of the trial court.

[9]     BACKGROUND

The record reveals the following relevant facts. Plaintiff, Amigo's Inn, Inc., and doing business as Amigo's Inn, held a tavern license for the premises located at 1615 W. 43rd Street, Chicago. Hector Gonzalez is the president of the Amigo's Inn, Inc. On July 31, 2001, defendants, the Local Liquor Control Commissioner, acting through the Local Liquor Control Commission (LLCC), published an amended notice of hearing charging Amigo's Inn with five violations of the Liquor Control Act (235 ILCS 5/1.1 et seq. (West 2000)), alleging that Amigo's Inn, by and through its agent, Francisco Sanchez, possessed the controlled substances of cocaine or cannabis on the premises, with intent to deliver on March 17, 2001.

The following facts were adduced at an evidentiary hearing conducted by the LLCC:

Initially, prior orders of disposition of the LLCC involving the sale of alcohol to minors and gambling on the premises of Amigo's Inn were admitted into evidence without objection. In addition, the toxicology report on the drugs confiscated at the premises was admitted without objection.

Chicago police officer John Valtierra testified that on March 17, 2001, he and his 9th District Tactical team were investigating drug and gang problems and in that capacity entered Amigo's Inn at about 10 p.m. Upon entering the premises, Officer Valtierra observed Francisco Sanchez, a security guard about two or three feet away from the door standing near a jukebox. Sanchez was dressed in what appeared to be a police officer uniform lacking police badges or insignia. Sanchez wore a badge around his neck displaying an insignia of a flag and a hat displaying the word "Security."

Officer Valtierra observed Sanchez make a "furtive" or "concealing movement" with his left hand and drop three plastic bags to the ground. The officer recovered the bags and opined that two of the bags contained cannabis while a third contained a white powder which he thought to be cocaine. Officer Valtierra placed Sanchez under arrest and handed the bags to his partner while he searched Sanchez. Officer Valtierra recovered six additional plastic bags from Sanchez' person all containing what appeared to be cocaine. Concurrently, the other members of the team conducted a license investigation of the premises. Later, at the police station, another officer recovered an additional three bags of controlled substances in Sanchez' pocket, $340 United States currency and a cellular telephone.

Officer Valtierra testified as to statements made by Sanchez after his arrest and removal from the premises. Officer Valtierra stated that Sanchez told him that he was a security guard for Amigo's Inn and that he sold drugs to make extra money for himself. Plaintiff objected to admission of Sanchez' statements. The Commission admitted Sanchez' statements as "admissions against interest, and not for the purpose of establishing that Sanchez acted within the scope of his authority or that he was an 'agent' of Amigo's Inn."

On cross-examination, Valtierra acknowledged that when he arrived at Amigo's Inn, Sanchez was not standing outside the premises or at the door and did not ask Officer Valtierra for identification or payment of a cover charge. Officer Valtierra did not see Sanchez talking to anyone inside the premises nor did he see Sanchez make any attempted sale or transfer of a controlled substance in Amigo's Inn. Officer Valtierra spoke to the bartender, who had no knowledge of the existence of narcotics on the premises that evening.

On redirect examination, Officer Valtierra testified that no more than 10 seconds elapsed between his entry into the premises and his observations about Sanchez. The officer testified, over plaintiff's objection, that he spoke with one of the four bartenders on duty and she told him that Sanchez was a security guard employed by the "owner" and that she did not know the owner's name.

Police officers Ignacio Hernandez and Thomas Buehler testified to the same essential facts as those testified to by Officer Valtierra, including the fact that Sanchez was not observed doing anything except standing by the juke box, and dropping three bags on the floor as the officers entered the premises. Officer Hernandez stated that the team went to Amigo's Inn in response to Chicago Alternative Policing Strategy (CAPS) complaints of narcotics being sold and "gang bangers loitering in that establishment."

Hector Gonzalez testified that he has been president of Amigo's Inn since 1990. Gonzalez was not present at Amigo's Inn on the night of March 17, 2001. Gonzalez stated that March 17, 2001, was the first and only day Sanchez worked at Amigo's Inn. Gonzalez never met Sanchez. Sanchez worked at Amigo's Inn for only a couple of hours. A security company, Aguila Security Consultants, provide personnel to check identification at the door of the tavern. Gonzalez contacted an individual named "Raoul," later identified as Raoul Aguila, who supplied and sent security guards to the premises "as needed." Gonzalez paid Aguila Security for services. Gonzalez neither hired nor compensated Sanchez directly.

On cross-examination, Gonzalez testified that he had been using Aguila Security for about one year and that Aguila supplied guards two days per week, Fridays and Saturdays. Gonzalez did not know whether Aguila Security is a licensed facilitator of security guards. The security guards are given their assignments by Aguila Security. Once on the assigned premises, guards checked identification, searched people and kept an eye on the premises. When the guards report for duty, they take direction from the tavern manager.

Lisa Gilbert, a forensic chemist, testified that the substances recovered from Sanchez tested ...


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