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Move N Pick Convenience, Inc. v. Emanuel

Court of Appeals of Illinois, First District, Sixth Division

March 31, 2015

MOVE N PICK CONVENIENCE, INC., d/b/a Red Apple Convenience, an Illinois Corporation, Plaintiff-Appellee,
v.
RAHM EMANUEL, as Mayor of the City of Chicago and Local Liquor Control Commissioner, LOCAL LIQUOR CONTROL COMMISSION OF THE CITY OF CHICAGO, MAYOR'S LICENSE COMMISSION OF THE CITY OF CHICAGO, GREGORY STEADMAN, as Commissioner of the Local Liquor Control Commission of the City of Chicago, and the CITY OF CHICAGO, a Municipal Corporation, Defendants-Appellants

Page 662

Appeal from the Circuit Court of Cook County. No. 13 CH 1795. The Honorable Kathleen M. Pantle, Judge Presiding.

FOR DEFENDANTS-APPELLANTS: OF Benna Ruth Solomon, Deputy Corporation Counsel, Myriam Zreczny Kasper, Chief Assistant Corporation Counsel and David H. Decelles, Assistant Corporation Counsel, Stephen R. Patton, Corporation Counsel of the City of Chicago, Chicago, IL.

FOR PLAINTIFF-APPELLEE: OF Harlan C. Powell, Webster Powell, P.C., Chicago, IL.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Hall concurred in the judgment and opinion.

OPINION

LAMPKIN, JUSTICE.

Page 663

[¶1] Defendants, Rahm Emanuel, as the mayor of the City of Chicago and the local liquor control commissioner, the Local Liquor Control Commission of the City of Chicago, the Mayor's License Commission of the City of Chicago, Gregory Steadman, as the commissioner of the Local Liquor Control Commission of the City of Chicago, and the City of Chicago (the City), a municipal corporation, appeal the order of the circuit court reversing the License Appeal Commission's finding which upheld the Local Liquor Control Commission's denial of the application for a liquor license by plaintiff, Move N Pick Convenience, Inc., d/b/a Red Apple Convenience, an Illinois corporation, on the basis that a liquor license at the desired location would " tend to create a law enforcement problem." Defendants contend the License Appeal Commission (Appeal Commission) properly upheld the denial of the liquor license application by the Local Liquor Control Commission (Local Commission) where the unrebutted evidence demonstrated that issuing a liquor license for plaintiff's desired location would " tend to create a law enforcement problem" in the form of increased crime and the associated strain on limited police resources. Based on the following, we reverse the circuit court and affirm the decisions of the Local Commission and the Appeal Commission.

[¶2] FACTS

[¶3] In early 2012, Move N Pick, which operated the Red Apple Convenience store located at 2000 West Chicago Avenue in Chicago, Illinois, applied for a packaged goods liquor license. The Local Commission and various other City departments reviewed the application. The background investigation revealed no criminal incidents or history of disobeying liquor laws or other laws by plaintiff. Notwithstanding, in a letter dated May 3, 2012, Steadman, as the Commissioner for the Local Commission, denied plaintiff's application pursuant to section 4-60-040(h) of the Chicago Municipal Code (Municipal Code) (Chicago Municipal Code § 4-60-040(h) (amended Nov. 16, 2011)), finding the license would " tend to create a law enforcement problem." The letter advised plaintiff that the 13th District commander of the Chicago police department, later identified as Frank Gross, opined " the issuance of a merchant selling packaged goods in this area will increase the calls for service and criminal activity[,] *** includ[ing] loitering, drinking on the public way, verbal and physical disputes from the misuses of alcohol and violence resulting from these disputes." Police Commander Gross cited 139 arrests in the vicinity of the Red Apple Convenience store and 68 calls for service. In addition, the letter advised plaintiff that the alderman of the 32nd ward stood with the residents of the ward and supported the opposition of a liquor license being issued at the subject location. Plaintiff appealed the Local Commission's decision.

[¶4] On August 15, 2012, a hearing was held before the Appeal Commission. Police Commander Gross testified to the same information listed in the May 3, 2012, letter in support of the denial of the application. In addition, Police Commander Gross testified regarding the statistics of crime incidents and " violence and gang-related" incidents within a " few blocks" of plaintiff's business: 121 and 22, respectively, between March 13, 2010, and December 31, 2010; 140 and 41, respectively, between January 1, 2011, and December 31, 2011; and 19 and 5, respectively, between January

Page 664

1, 2012, and March 12, 2012. The crime incidents included shoplifting from the nearby grocery store, thefts, assaults, criminal sexual assaults, and gang disturbances. According to Police Commander Gross, crime incidents included calls for service, arrests, 911 calls, and any stops made by police officers on the street. Police Commander Gross stated " every time you make an arrest, you've got to go to the location, you have got to make the physical arrest, you have got to bring them to the district, and then you have to start the processing." Police Commander Gross explained that " the 13th district does not have a lock up, so we process the prisoners in the station, then we in turn have to transport those prisoners after we're done with all the paperwork to the holding facility, which presently is in the 18th[1] District, the near north station at Laramie and Division, so it could take four hours plus."

[¶5] Police Commander Gross admitted that a " substantial portion of the arrests and incidents in this area" were because of shoplifting. The reports did not specify which crime incidents involved alcohol. Police Commander Gross noted that he had observed an increase in late-night robberies " right in that general vicinity there." Police Commander Gross added that a street gang, the Insane Disciples, was a " huge problem" in the area adjacent to plaintiff's business. He concluded that " in my years, my 26 years, I know that calls for service related to liquor are substantial, and my concern is that if we allow liquor to be sold there that I have *** increased calls for service, and tie up officers when I'd rather have them working on robberies and gang conditions."

[¶6] A number of local residents testified at the hearing in support of the denial of plaintiff's liquor license application, citing past crime associated with stores that sold liquor in the neighborhood. The local residents specifically voiced concerns regarding safety of the surrounding neighborhood, decreased property value, public drinking and intoxication, public urination, loitering, litter, noise, and increased traffic. In response to one of the local resident's testimony, plaintiff's attorney noted that her comments addressed " the deleterious impact on the community *** which is a different story." The Appeal Commission Chairman responded:

" There's an aspect of deleterious impact that can be argued under a law ...

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