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59Th & State Street Corp. v. Emanuel

Court of Appeals of Illinois, First District, Sixth Division

December 23, 2016

59th & STATE STREET CORPORATION, JOSE VASQUEZ, President, Plaintiff-Appellant,
RAHM EMANUEL, Mayor of the City of Chicago and Local Liquor Control Commissioner; MARIA GUERRA, Acting Director of the Department of Business Affairs; THE LOCAL LIQUOR CONTROL COMMISSION OF THE CITY OF CHICAGO; DENNIS M. FLEMING, Chairman of the License Appeal Commission of the City of Chicago; and Members of the License Appeal Commission of the City of Chicago, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County No. 13 CH 18191 Honorable Rita M. Novak, Judge, Presiding.

          PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Cunningham and Rochford concurred in the judgment and opinion.



         ¶ 1 The plaintiff, 59th & State Street Corporation, appeals from orders of the circuit court of Cook County, affirming a final administrative decision of the License Appeal Commission of the City of Chicago (LAC) which affirmed an order of the Local Liquor Control Commission of the City of Chicago (LLCC) which revoked its retail liquor license for the premises at 5901 South State Street and imposed fines totaling $17, 000 against it for firearms related violations of State statutes and Chicago municipal ordinances. For the reasons which follow, we affirm.

         ¶ 2 The plaintiff has not argued that any of the factual findings upon which the order of the LLCC is based are against the manifest weight of the evidence. As a consequence, the following factual recitation is taken from the factual findings of the deputy hearing commissioner who presided over the hearing held in connection with the disciplinary proceedings regarding the plaintiff's liquor license and the transcript of those proceedings contained within the record.

         ¶ 3 The City of Chicago (City) issued a license to the plaintiff for the sale of liquor on the first floor at 5901 South State Street.[1] On January 21, 2011, at approximately 5:44 p.m., a task force of City employees arrived at the store to conduct an inspection. The task force consisted of seven police officers, one fire inspector, two health inspectors, one building inspector, and one official from the Department of Business Affairs and Consumer Protection. Carlos Vasquez, the plaintiff's corporate secretary, was at the store when the task force arrived.

         ¶ 4 The front portion of first floor of the building at 5901 South State Street contained a sales area. Located within the sales area were shelves of food; coolers containing beer, soda, and frozen food items; and a cash register. A doorway in the rear of the sales area provided access to stairs leading to the second floor, stairs leading to the basement, and a first-floor storage area. The first-floor storage area contained cases of liquor, supplies, and a large safe. A door leading to a small first-floor office was located near the rear of the building.

         ¶ 5 One of the Chicago police officers, Greg Golucki, went through the doorway at the rear of the sales area and ascended the stairs to the second floor. According to Officer Golucki, the second floor consisted of a large open space with six doors along two of the walls. He testified that none of the doors were locked, and he entered each of the rooms. One of the rooms was an office in which he found documents relating to the first-floor business and a safe containing a gutter-like spout running through the floor to the cash register area on the first floor. Another room was a bathroom. The remaining rooms appeared to be bedrooms, each containing a box spring, a mattress, and a desk.

         ¶ 6 Officer Golucki testified that he found a .38 caliber bullet in an ashtray located on a nightstand in the first bedroom which he entered. He did not see any personal items located in the room. Officer Golucki returned to the first floor where he showed the bullet to Officer Brian Kavanaugh. When Officer Golucki asked Carlos who occupied the room in which the bullet was found, Carlos responded "nobody." Officer Kavanaugh asked Carlos if there were any firearms on the premises. Carlos responded in the negative, after which Officer Kavanaugh asked him to open the large safe located in the rear storage room. Claiming not to know the combination, Carlos declined. In response to an inquiry by Officer Kavanaugh, Carlos stated that his brother, Jose Vasquez, knew the combination. After calling his brother, Carlos opened the safe. When the safe was opened, the officers discovered what Officer Kavanaugh described as two "assault type weapons:" an Iver Johnson Arms .320 caliber pistol with an eight-inch barrel and an AA Arms, model AP9, 9 millimeter Luger. Also discovered in the safe was a quantity of ammunition.

         ¶ 7 After the weapons were discovered in the safe, Officer Golucki asked Carlos to open the door to the first-floor office. Carlos complied, and upon entering the office, Officer Golucki observed papers, file cabinets and a computer with a surveillance feed from the sales area. In addition, Officer Golucki found a Remington shotgun next to one of the file cabinets. Following the discovery of the weapons on the first floor, Officer Golucki returned to the second floor and entered the office located on that floor where he found a Dan Wesson Arms .357 Magnum pistol in a cabinet and a quantity of ammunition in a sack beneath the gun.

         ¶ 8 Following the discovery of the guns, the officers determined that Carlos did not have an Illinois Firearm Owner Identification (FOID) card and that none of the recovered weapons were registered with the City. Carlos was arrested and charged criminally.

         ¶ 9 As a consequence of the discovery of the firearms and ammunition, the City initiated disciplinary proceedings against the plaintiff regarding its liquor license, charging 12 firearms related violations of the City's ordinances and State statutes. Pursuant to notice, a hearing was conducted over seven days before a deputy hearing commissioner (hearing officer) appointed by the City's Department of Business Affairs and Consumer Protection. At the beginning of the hearing, the plaintiff attempted to present a motion seeking the suppression of all evidence obtained during the warrantless search of its premises on January 21, 2011. The City objected on the grounds that the plaintiff had failed to provide it with a copy of the motion in advance of the hearing. The hearing officer denied the motion, and the City presented evidence in support of the charges against the plaintiff which included the testimony of Officers Golucki and Kavanaugh, photographs of the areas where the firearms and ammunition were found, a certification from the Illinois State Police stating that Carlos had not been issued a FOID card, and a certification from the Chicago police department stating that none of the weapons found at the plaintiff's premises were registered.

         ¶ 10 Due to the pending criminal charges, Carlos did not testify at the hearing, and the plaintiff offered no exculpatory evidence. Rather, in closing argument, the plaintiff urged the hearing officer to strike and disregard the City's evidence as having been obtained as the result of an unlawful warrantless search of portions of its property which were not part of the licensed premises.

         ¶ 11 Following the hearing, the hearing officer issued written findings of fact and recommendations. Addressing the plaintiff's request that he strike the testimony of Officers Golucki and Kavanaugh and suppress the evidence obtained as a result of their search of its premises, the hearing officer found that the provisions of section 4-4-290 of the Chicago Municipal Code (Code) (Chicago Municipal Code § 4-4-290 (amended Nov. 19, 2008)) and section 4-4(2) of the Liquor Control Act of 1934 (Liquor Control Act) (235 ILCS 5/4-4(2) (West 2010)) allowed the officers to enter upon the plaintiff's licensed premises "at any time to investigate any potential violations of the law." As a consequence, he concluded that the search of the plaintiff's premises was "conducted legally" and relied upon the evidence presented by the City which established the existence of firearms on the plaintiff's premises in support of his findings and recommendation. Finding the testimony of Officers Golucki and Kavanaugh "credible and reliable, " ...

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