Daley v. Berzanskis

• Decision Date: 25 January 1971
• Docket Number: No. 42698,42698
• Citation: 269 N.E.2d 716,47 Ill.2d 395
• Parties: Richard J. DALEY, Mayor and Liquor Control Comr., Appellee, v. Frank BERZANSKIS, Appellant.
• Court: Illinois Supreme Court

Page 716

269 N.E.2d 716

47 Ill.2d 395

Richard J. DALEY, Mayor and Liquor Control Comr., Appellee, v. Frank BERZANSKIS, Appellant.

No. 42698.

Supreme Court of Illinois.

Jan. 25, 1971.

Certiorari Denied May 24, 1971.

See 91 S.Ct. 2173.

Warren D. Wolfson and Patrick S. Filter, Jr., Chicago, for appellant.

Richard L. Curry, Corp. Counsel, Chicago (Marvin E. Aspen and Edward Krasnove, Asst. Corp. Counsel, of counsel), for appellee.

KLUCZYNSKI, Justice.

After a hearing before the local liquor control commissioner the liquor license of defendant, Frank Berzanskis, was revoked. The basis for the finding was testimony concerning property which had been seized on defendant's premises by Cook County sheriff's police. The evidence was admitted over defendant's objection that the search and seizure violated his rights under the fourth and fourteenth amendments of the Federal constitution. On defendant's appeal the license appeal commission of the city of Chicago reversed the order of the commissioner who then brought proceedings in the circuit court of Cook County under the Administrative Review Act. (Ill.Rev.Stat.1963, ch. 110, pars. 264--276.) The court reversed the order of the appeal commission and affirmed the order of the commissioner. Defendant has appealed directly to this court because the case involves questions arising under the Federal constitution.

On August 4, 1966, defendant was operating a tavern in the city of Chicago under a license issued by the local liquor control commissioner. In addition to the tavern, the building also housed a grocery store, defendant's five-room living quarters and a basement. There was a front entrance leading to the tavern, a side entrance leading to the grocery and a back entrance leading to one of the bedrooms. The basement had in it a bar room and a laundry room with access by way of a stairway at the end of the upstairs bar. A door at the top of the stairway was kept open at all times. The basement was used by defendant for storage of empty containers in connection with the operation of the upstairs tavern.

On the date indicated two officers of the Cook County sheriff's police armed with a search warrant proceeded to the premises in question and searched defendant's living quarters and the basement where numerous items of stolen property were found and seized. Defendant was then arrested and charged with the offense of receiving stolen property. At a hearing on September 21, 1966, the search warrant was quashed and the evidence seized ordered suppressed in the criminal case. The defendant was then discharged and no appeal was taken by the State from the order quashing the warrant. Subsequent to the ruling, a complaint was filed to revoke defendant's liquor license. The only issue before this court is whether the suppressed evidence was admissible before the liquor control commissioner.

Appellant contends that the search was a violation of his fourth amendment right to privacy and therefore the evidence seized should be excluded from all proceedings. There are two questions involved: whether the search was authorized by statute and whether authorization for a warrantless search would be a violation of the fourth amendment.

We consider first whether authorization for a warrantless search is constitutional. 'Like other courts, this court has often held that because of its nature the right to engage in the liquor trade is not an inherent one, but is subject to regulation by the State in the exercise of its police power. (Oak Park Nat. Bank v. Village of Broadview (1963), 27 Ill.2d 151, 154, 188 N.E.2d 679; Schreiber v. Illinois Liquor Control Comm. (1957), 12 Ill.2d 118, 121, 145 N.E.2d 50; Hornstein v. Illinois Liquor Control Comm. (1952), 412 Ill. 365, 369, 106 N.E.2d 354.)' (Miller v. Illinois Liquor Control Comm., 44 Ill.2d 155, 157--158, 254 N.E.2d 502, 504.) The court, in People ex rel. Fitzgerald v. Harrison, 256 Ill. 102, 99 N.E. 903 noted: 'The business of selling intoxicating liquor is attended with danger to the community and is a recognized subject for regulation by the police power of the state. There is no inherent right to carry it on and it may be entirely prohibited. The manner and extent of its regulation, if permitted to be carried on at all, are to be determined by the state, so as to limit, as far as possible, the evils arising from it.' (256 Ill. at 106, 99 N.E. at 904.) Because the business of selling liquor is closely related to certain evils in society, it is subject to any regulation which has any substantial relation to the public health, comfort, safety or welfare. 'It is axiomatic that the legislative judgment as to what the public welfare requires is not open to judicial dispute so long as that judgment is not exercised in such an arbitrary, oppressive and unreasonable manner as to constitute a deprivation of due process of law. The legislature's discretion is broad, and its determinations may not be overturned because a court may think them unwise or inappropriate.' (44 Ill.2d at 158, 254 N.E.2d at 504.) Considering the nature of the business we do not believe that a close scrutiny of the operation of the business through warrantless searches is unreasonable or arbitrary.

In Solomon v. Liquor Control Commission (1965), 4 Ohio St.2d 31, 212 N.E.2d 595, cert. denied (1966), 384 U.S. 928, 86 S.Ct. 1445, 16 L.Ed.2d 531, the Ohio Supreme Court upheld the revocation of a liquor license based on the finding that certain bottles seized in a warrantless search were diluted. Defendant there, as here, argued that the evidence was illegally obtained and should be inadmissible under the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Section 4301.10 of the Revised Code of Ohio, permits a warrantless inspection of the place of business of any permit holder. The Ohio court found that the search and confiscation of the bottles were valid under section 4301.10, stating: 'Our conclusion is that the appropriation of appellee's bottles of whiskey and the analysis of their contents were authorized under the Liquor Control Act, and that by applying for and accepting a permit to sell intoxicating beverages appellee made herself amenable to the provisions of that law and thereby consented to the inspection of the premises, and the appropriation for analysis of any intoxicating liquor suspected to be in violation of the liquor control laws * * *. It follows that such bottles of whiskey were properly admitted in evidence at the hearing before the Liquor Control Commission.

'Because of the position taken, it becomes unnecessary to consider and discuss the question of whether the exclusionary rule announced by the Supreme Court of the United States in the criminal case of Mapp v. Ohio, Supra, and kindred cases is applicable to hearings before a public administrative agency like the Liquor Control Commission in instances where only the suspension or revocation of a liquor permit is involved.' 4 Ohio St. at 34, 36, 212 N.E.2d at 599.

We agree with the Ohio...