Spiros Lounge, Inc. v. State of Ill. Liquor Control Commission

• Decision Date: 14 July 1981
• Docket Number: No. 80-1913,80-1913
• Parties: , 53 Ill.Dec. 562 SPIROS LOUNGE, INC., Plaintiff-Appellee, v. STATE OF ILLINOIS LIQUOR CONTROL COMMISSION and Harry Robin, Lake County Liquor Control Commissioner and the Lake County Liquor Control Commission, Defendants- Appellants.
• Court: United States Appellate Court of Illinois

Page 1366

423 N.E.2d 1366

98 Ill.App.3d 280, 53 Ill.Dec. 562

SPIROS LOUNGE, INC., Plaintiff-Appellee, v. STATE OF ILLINOIS LIQUOR CONTROL COMMISSION and Harry Robin,

Lake County Liquor Control Commissioner and the

Lake County Liquor Control Commission,

Defendants- Appellants.

No. 80-1913.

Appellate Court of Illinois, First District, Second Division.

July 14, 1981.

Rehearing Denied Aug. 11, 1981.

Fred L. Foreman, State's Atty. of Lake County, Waukegan (Helen S. Rozenberg, Asst. State's Atty., Waukegan, of counsel), fordefendants-appellants.

Steven C. Huston, Michael A. Moses, Siegel, Denberg, Vanasco, Shukovsky, Moses & Schoenstadt, Ltd., Chicago, for plaintiff-appellee.

PERLIN, Justice:

On November 11, 1979 the Lake County Liquor Control Commission (hereinafter County Commission) revoked the retail liquor license of Spiros Lounge, Inc. (hereinafter Spiros) after finding that on October 13, 1979 the licensee, through its agent, served alcoholic liquor to a person under 19 years of age, in violation of Article VI, Section 12 of the Illinois Liquor Control Act (Ill.Rev.Stat.1977, ch. 43, par. 131), and Section 11, Paragraph 1 of the Lake County Liquor Control Ordinance. The County Commission found further that a breach of the peace occurred in the licensee's establishment on that occasion. The County Commission also found that on May 11, 1979 Spiros' license had been suspended for 30 days for selling alcoholic liquor to a minor and operating a disorderly house.

Spiros appealed the revocation to the Illinois Liquor Control Commission (hereinafter State Commission). On February 4, 1981, following a hearing de novo, the State Commission entered an order of revocation, finding that Spiros, through its agent, delivered two mixed alcoholic drinks to a person who was 18 years of age, and that no adequate written evidence of age was produced before delivery of the drinks. It was further found that the County Commission had entered a 30-day suspension order against Spiros on May 11, 1979 for selling liquor to a minor.

Acting on a complaint for administrative review, the circuit court of Cook County reversed the order of the State Commission. Defendants, the State Commission, the County Liquor Control Commissioner and the County Commission, appeal.

The issues presented on appeal are: (1) whether the trial court erred in determining that the findings of the State Commission were contrary to the manifest weight of the evidence; and (2) whether the trial court erred in finding that the State Commission considered irrelevant or prejudicial testimony in reaching its decision.

For the reasons hereinafter set forth, we reverse.

On the evening of October 13, 1979 Debra Stimes and a companion, Terry Moore, entered Spiros Lounge, located at 3480 Sheridan Road, Zion, Illinois. At the hearing before the State Commission, the bartender, Johnny M. Livingston, testified that Stimes was seated at the bar, while Moore remained standing. Moore ordered a drink for himself and one for Stimes. Livingston stated that he had asked Debra Stimes for an "I-D" card prior to serving her, and that she took a card out of her purse and handed it to him. He could not recall what type of identification it was. After determining that the girl was over 21 years of age, Livingston served her a "screwdriver," a mixed alcoholic drink. On cross-examination Livingston stated that Terry Moore was not present when the drink was served to Stimes, and he could not remember if Moore had been present when Stimes was asked to show her identification card.

Livingston recounted that an argument began between Moore and another customer of the tavern (later described as a man of Mexican descent). Livingston tried to break up the argument. When he believed that the argument was ended, he returned to his bartending duties. The next thing of which he was aware was that Debra Stimes had been shot. Livingston stated that neither he nor Spiros Vlahos, the tavern's owner, nor any other employee of the tavern was involved in the altercation or the shooting.

Terry Moore testified that after entering the tavern, Debra Stimes was seated on the only stool available next to the bar. Moore went to look for another stool and upon returning ordered two drinks for Stimes and himself. Livingston served the drinks, and both Moore and Stimes drank from their glasses. Joe Kent, a patron at the tavern, ordered a round of drinks for everyone in the tavern, and Moore and Stimes were then served a second drink. Moore stated that at no time prior to drinking her first drink was Debra Stimes asked to produce identification.

Moore testified that after the second drink was served to them, he went into the washroom. ¹ When he returned, he found that a man, whom he described as a "Mexican," was "bothering" Stimes. Moore argued with the man, and a fight began. Moore heard shots and looked back to find Debra Stimes on the floor, dead. Moore stated that he saw Joe Kent holding a gun.

Two police officers who investigated the shooting, Ralph Connard and Donald O'Meara, Jr., testified that they searched Debra Stimes' purse for evidence of identification. Among other personal papers and items in the purse, four pieces of identification were discovered in the wallet. The purse, which accompanied the body to the hospital, was later turned over to the Deputy Coroner. Ultimately Stimes' purse was returned to her parents.

Over Spiros' objection, three pieces of identification were entered into evidence: (1) a white plastic card identifying a "Christina Gates" as a patient at the Mile Square Health Center; (2) a Social Security card for Christina Gates; and (3) Debra Stimes' Illinois driver's license reflecting her birthdate as November 13, 1960. ²

Over further objection, evidence was introduced regarding a prior suspension of Spiros' liquor license on May 11, 1979. The Commissioner allowed this evidence to be entered for the suggested purpose of assessing the severity of the penalty that could be imposed.

Three witnesses testified for Spiros. The first two, James Lane and Donald Kepcham, acquaintances of Spiros Vlahos and customers of the tavern, stated that they saw the bartender ask Debra Stimes for an identification card, and that she handed him a plastic-coated card before she was served. Both testified that Stimes returned the card to her purse. On cross-examination the witnesses admitted that the tavern had been crowded and noisy that evening, and that Stimes was sitting several persons away from them. The testimony of the third witness, Irvin Klecka, who was not present at the State Commission hearing, was stipulated and read from the transcript of the local hearing. This witness, who had occasionally bartended for the tavern and who was a customer that evening, stated only that he saw Stimes hand something to the bartender before she was given a drink.

The appellants, in seeking a reversal of the order of the Circuit Court, contend that the findings of the State Commission are not contrary to the manifest weight of the evidence; that irrelevant or prejudicial testimony was not considered by the State Commission in reaching its findings; and that the penalty of revocation was not an abuse of discretion.

I.

In an administrative review proceeding the trial court and the appellate court are limited to a consideration of the record to determine (1) whether the findings and orders of the commissioner are against the manifest weight of the evidence, and (2) whether the commissioner acted arbitrarily and without cause or in clear abuse of his discretion. (Askew v. Daley (1st Dist. 1978), 62 Ill.App.3d 370, 19 Ill.Dec. 560, 379 N.E.2d 75; Daley v. Jack's Tivoli Liquor Lounge, Inc. (1st Dist. 1969), 118 Ill.App.2d 264, 254 N.E.2d 814; Legones v. License Appeal Commission (1st Dist. 1968), 100 Ill.App.2d 394, 241 N.E.2d 499.) The findings and conclusions of the agency on questions of fact are accepted as prima facie true and correct (Ill.Rev.Stat.1977, ch. 110, par. 274), and courts have generally held that it is not the function of either the trial court or the appellate court to reweigh the evidence or assess the credibility of the witnesses. In order to find that an agency's findings are contrary to the manifest weight of the evidence, the reviewing court must determine that an opposite conclusion was clearly evident from the record. Giampa v. Illinois Civil Service Commission (1st Dist. 1980), 89 Ill.App.3d 606, 44 Ill.Dec. 744 411 N.E.2d 1110; Okino v. Department of Corrections (1st Dist. 1980), 84 Ill.App.3d 1084, 40 Ill.Dec. 277, 405 N.E.2d 1369; Brown v. Sexner (1st Dist. 1980), 85 Ill.App.3d 139, 39 Ill.Dec. 947, 405 N.E.2d 1082.

In view of the conflicting testimony in the instant case, the State Commissioner's determination was presumptively based on his assessment of witness credibility. The State Commissioner saw and heard the witnesses testify, and his finding that no adequate written evidence of age was presented to Spiros' bartender prior to serving Debra Stimes cannot be said to be contrary to the manifest weight of the evidence simply because he may have chosen to believe the testimony of one witness over another. Only the Commissioner as the trier of fact is authorized to assess credibility, weigh and reconcile conflicting evidence and make a determination as to which witnesses are worthy of belief. Haggerty v. License Appeal Board (1st Dist. 1979), 71 Ill.App.3d 767, 28 Ill.Dec. 107, 390 N.E.2d 89; Dugan's Bistro, Inc. v. Daley (1st Dist. 1977), 56 Ill.App.3d 463, 14 Ill.Dec. 63, 371 N.E.2d 1116; Legones v. License Appeal Commission (1st Dist. 1968), 100 Ill.App.2d 394, 241 N.E.2d 499.

The record reflects that Terry Moore was present when Debra Stimes was served, and Moore testified that at no time before Stimes began to drink did the bartender ask her for identification. The bartender contended in direct conflict with Moore's testimony that he asked for and...