Lopez v. State Liquor Control Com'n, 82-926

• Decision Date: 29 December 1983
• Docket Number: No. 82-926,82-926
• Citation: 120 Ill.App.3d 756,76 Ill.Dec. 199,458 N.E.2d 599
• Parties: , 76 Ill.Dec. 199 Horacio N. LOPEZ, d/b/a Shorty's Tap, Plaintiff-Appellant, v. STATE of Illinois LIQUOR CONTROL COMMISSION, Waukegan Liquor Control Commission, and Bill Morris As Local Liquor Control Commissioner for City of Waukegan, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 599

458 N.E.2d 599

120 Ill.App.3d 756, 76 Ill.Dec. 199

Horacio N. LOPEZ, d/b/a Shorty's Tap, Plaintiff-Appellant, v. STATE of Illinois LIQUOR CONTROL COMMISSION, Waukegan Liquor Control Commission, and Bill Morris As Local Liquor Control Commissioner for City of Waukegan, Defendants-Appellees.

No. 82-926.

Appellate Court of Illinois Second District.

Dec. 29, 1983.

Donald H. Geiger, Waukegan, for plaintiff-appellant.

Neil F. Hartigan, Atty. Gen., Kathleen M. Lien, Asst. Atty. Gen., Chicago, Michael J. Cummins, Waukegan, for defendants-appellees.

LINDBERG, Justice.

The holder of a local liquor license appeals from the revocation of his license, which was affirmed in the circuit court of Lake County. Because much of the evidence of wrongful conduct was not fairly related to the control of liquor, we reverse and remand for the imposition of a sanction, if any, less than revocation.

Plaintiff, Horacio N. Lopez (Lopez), had a city of Waukegan liquor license to operate a tavern known as Shorty's Tap. At the time of the occurrences at issue here, Lopez' son Temo was acting as manager of the tavern. On the evening of November 30, 1981, while Temo was beginning to close the tavern, three black men entered with a television set and attempted to sell it to one of the patrons. Temo told them to leave and they argued. Temo and two of his patrons physically fought with the three men to force them out. The three left, leaving the television set behind.

A few minutes later, as Temo continued the process of closing the tavern, he received a telephone call from his father. The three men ejected by Temo had proceeded to Lopez' home located about a block from the tavern. Temo grabbed a pistol kept inside the bar and, along with two patrons, went to the Lopez home. There, a fight ensued between the three black men and Temo and his friends. The three black men entered their car to drive away. Shots were fired at the fleeing car, both by Temo with the gun from the bar and by Lopez with a gun from the house. The car was later examined by police and found to be damaged by bullet holes and to have blood on one seat.

Temo returned to the tavern. Several policemen then arrived and saw Temo reloading his gun. Temo was in a very agitated state, waving his arms around, yelling and screaming obscenities at the black men. He appeared intoxicated to at least two of the officers. He refused to cooperate with the police and was arrested.

Defendant Waukegan Liquor Control Commission revoked Lopez' local liquor license on the basis of the recited incidents. That revocation was affirmed by defendant Illinois Liquor Control Commission. Lopez then filed a complaint for administrative review in the circuit court, which also affirmed the revocation. Lopez now appeals to this court, contending that (1) his right to due process was violated in various ways in the proceedings before the local liquor control commission, (2) the decision of that commission was against the manifest weight of the evidence, and (3) the sanction of revocation was too severe under the circumstances of this case.

With regard to the first contention, we note that, although a liquor license constitutes a privilege and not a right, a person is entitled to fair treatment in the granting, denial, suspension or revocation of these licenses. (Jager v. Illinois Liquor Control Commission (1979), 74 Ill.App.3d 33, 29 Ill.Dec. 619, 392 N.E.2d 176.) A licensee at a hearing for revocation or suspension of his liquor license must be afforded the basic rights of procedural due process. Golden Egg Club, Inc. v. Illinois Liquor Control Commission (1970), 124 Ill.App.2d 241, 260 N.E.2d 329. First, Lopez maintains that his right to due process was violated by the fact that there were no standards of procedure or rules of evidence to be followed in the revocation hearing before the local liquor control commission. As an illustration of the prejudice resulting from this lack of standards, he points to one instance where an out-of-court statement was allowed into evidence over his counsel's objection that it was hearsay.

Section 5 of article VII of the Liquor Control Act, a/k/a the Dramshop Act, sets out the procedures required before a local liquor control commissioner may revoke or suspend a local liquor license. (Ill.Rev.Stat.1979, ch. 43, par. 149.) The provisions of this statute, read together with the case law and the requirement that a licensee must be afforded the basic rights of procedural due process, constitute sufficient procedural and evidentiary standards.

With regard to the alleged use of hearsay evidence, the evidentiary rule against the use of hearsay has been held applicable generally to license revocation hearings before a local liquor control commissioner. (Cox v. Daley (1981), 93 Ill.App.3d 593, 49 Ill.Dec. 55, 417 N.E.2d 745; see Starnawski v. License Appeal Commission of City of Chicago (1981), 101 Ill.App.3d 1050, 57 Ill.Dec. 422, 428 N.E.2d 1102; Rincon v. License Appeal Commission of City of Chicago (1978), 62 Ill.App.3d 600, 19 Ill.Dec. 406, 378 N.E.2d 1281.) In admitting the challenged testimony over Lopez' hearsay objection, the commissioner here did not indicate a belief that hearsay evidence was admissible. Rather, he overruled the objection after the attorney for the local commission argued that the out-of-court statement was offered, not for its truth, but for the fact that the statement was made. Lopez' assignment of error is not that this particular alleged hearsay was improperly admitted, but rather that his right to due process was violated by the lack of rules barring incompetent evidence such as hearsay. Whether or not this particular alleged hearsay was improperly admitted, the commissioner's treatment of it does not demonstrate a failure to abide by the rules of evidence so as to violate procedural due process.

Lopez next maintains that he was denied due process in that the notice of charges against him did not adequately advise him of the precise law or ordinance he had allegedly violated. Section 5 of Article VII of the Liquor Control Act permits revocation if the licensee has violated any of the provisions of that act or any ordinance of the municipality or any rule of the local liquor control commission. (Ill.Rev.Stat.1979, ch. 43, par. 149.) Case law has required the specific itemization of the statute, ordinance, rule or regulation the licensee is charged with violating. Beer & Brat, Inc. v. Illinois Liquor Control Commission (1976), 44 Ill.App.3d 713, 3 Ill.Dec. 338, 358 N.E.2d 736; Daley v. Resnick (1972), 5 Ill.App.3d 683, 284 N.E.2d 39.

The local commission's Notice of Charges and Hearing on Suspension or Revocation of Liquor License addressed to Lopez alleged that certain conduct constituted "a breach of the peace and a menace to the health, safety and welfare of the public in violation of Section 24-11-3 and 4-27(2) of the City of Waukegan Ordinance and Chapter 43, Illinois Revised Statutes, Section 120(2), 149 and 185 [and] Rule 3 (1(a) and (4)) of the Rules and Regulations of the Illinois Liquor Control Commission." This specifically itemizes the statutes, ordinances, rules or regulations Lopez was charged with violating by the conduct alleged in the notice. Lopez' arguments to the effect that the evidence did not support the findings that these laws had been violated go to his sufficiency-of-the-evidence issue. We hold that he was given sufficient notice of the violation charged.

Lopez' final argument with regard to due process is that he was denied a fair and impartial hearing. Administrative due process requires a full and impartial hearing. (Cox v. Daley (1981), 93 Ill.App.3d 593, 49 Ill.Dec. 55, 417 N.E.2d 745.) Lopez maintains that this requirement was violated here because there was no division among the police, prosecutorial, and adjudicatory functions. He points out that the police chief and the counsel for the commission, who prosecuted him, are answerable to the mayor and the mayor sits in judgment at the revocation hearing as chairman of the local liquor control commission.

However, the combination of the judging and investigating or prosecuting functions in the same agency is not a violation of due process. (Scott v. Department of Commerce and Community Affairs (1981), 84 Ill.2d 42, 48 Ill.Dec. 560, 416 N.E.2d 1082; American Acoustic and Plastering Co., Inc. v. Department of Revenue (1982), 107 Ill.App.3d 616, 62 Ill.Dec. 892, 437 N.E.2d 419.) Although conferring investigative and adjudicative powers on the same individuals may create the possibility of an unconstitutional risk of bias, one who asserts this contention necessarily carries or assumes a difficult burden of persuasion: he must overcome the presumption of honesty and integrity in those serving as adjudicators and he must convince that, under a realistic appraisal of psychological tendencies and human weaknesses, conferring the dual powers poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Scott v. Department of Commerce and Community Affairs (1981), 84 Ill.2d 42, 55-56, 48 Ill.Dec. 560, 416 N.E.2d 1082, citing Martin-Trigona v. Underwood (7th Cir.1975), 529 F.2d 33, 37.

Here, Lopez merely notes one question put by the mayor to the police chief at the revocation hearing. The mayor asked, in light of the earlier testimony regarding a stolen television set brought to the tavern, whether there had ever been reports that there was a fencing operation at the tavern. Lopez suggests that the "obvious innovation" for this question had to have been prior discussions between the mayor and the police chief. However, the mayor certainly might have thought of the question himself. In any event, we hold that this does not meet the heavy burden described in Scott to establish a due process violation.

Lopez next contends that the decision of the local...