State ex rel. Favazza v. Ketchum, 49527

• Decision Date: 13 May 1963
• Docket Number: No. 1,No. 49527,49527,1
• Citation: 367 S.W.2d 542
• Parties: STATE ex rel. Anna Belle FAVAZZA, d/b/a Opera Cocktail Lounge, Respondent, v. Hollis M. KETCHUM, Supervisor of Liquor Control, State of Missouri, Appellant
• Court: Missouri Supreme Court

Page 542

367 S.W.2d 542

STATE ex rel. Anna Belle FAVAZZA, d/b/a Opera Cocktail

Lounge, Respondent, v. Hollis M. KETCHUM, Supervisor of Liquor Control, State of

Missouri, Appellant.

No. 49527.

Supreme Court of Missouri, Division No. 1.

May 13, 1963.

Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., Jefferson City, for appellant.

Burton M. Greenberg, St. Louis, London Greenberg, St. Louis, of counsel, for respondent.

DALTON, Presiding Judge.

This is an appeal by the Supervisor of Liquor Control of Missouri from a decision of the Circuit Court of the City of St. Louis, Honorable James F. Nangle, Judge, reversing an order of the Supervisor of Liquor Control suspending for thirty days the license of Anna Belle Favazza to sell intoxicating liquor by the drink. The court found ('from all the files and records in the action') that the decision of the Supervisor was not supported by competent and substantial evidence on the whole record. See Article V, Section 22, Constitution of Missouri 1945, Section 311.700 RSMo 1959, V.A.M.S.

Respondent had been issued a license by the Supervisor of Liquor Control, effective July 1, 1961 and expiring June 30, 1962, authorizing her to sell at 'retail liquor by the drink' on the premises described as 'All of first floor of building know as 5646-48 Pershing Ave., St. Louis, Missouri,' known as the 'Opera Cocktail Lounge.'

On October 5, 1961 said licensee was notified that a hearing would be held at the Supervisor's office in Jefferson City on October 25, 1961, to inquire into certain charges made against her, as in said notice set out, and she was directed to be present at said hearing and show cause why her said License No. 1330 should not be revoked or suspended. Section 311.680 RSMo 1959. The notice charged violations of Regulation 15, subsection (k) of the Regulations of the Supervisor of Liquor Control, 1960, which subsection, as set out in the notice, was as follows:

'(k) No licensee shall employ or allow the loitering upon or about the licensed premises of any police character, felon, gangster, racketeer, pickpocket, swindler, confidence man, female impersonator, prostitute, narcotic addict, vagrant, delinquent minor or other degenerate or dissolute person.' See Section 311.660(6) and (10).

The dates on which the alleged violations occurred were stated as follows: July 29, July 31, August 3, August 9, August 16, August 21, August 22, all in the year 1961. The specific manner of violation of the regulations was not stated.

The licensee appeared in person and by her attorney, Dewey Godfrey, and a hearing was held at Jefferson City on October 25, 1961.

A certified copy of licensee's License No. 1330 and a copy of Regulation 15(k), as set out supra, and Regulation 15(a) were offered and received in evidence, Regulation 15(a) of said Rules and Regulations being as follows:

'(a) Licensees are at all times responsible for the conduct of their business and are at all times directly responsible for the conduct or act of any employee on the premises which is in violation of the Intoxicating Liquor Laws or the Non-intoxicating Beer Laws or the Regulations of the Supervisor of Liquor Control.'

At the hearing it appeared that the essence of the several charges against licensee was that she had permitted an alleged felon and police character, to wit, one Vincent Marchesi, to loiter upon and about the licensed premises. By stipulation and agreement of the parties, the records of the St. Louis Police Department with reference to Vincent Marchesi were read in evidence by witness Joseph Soehngen, as follows:

'The records in the St. Louis Police Department show that he has a bertillon number and in this reading the first two figures of the number are blurred out. The last three are 875, however, the blurred out numbers in this particular reading are not blurred out in the files of the Police Department at St. Louis, and they are available. In the identification section, which is the fingerprint section, the records disclose that on the 4th of December, 1930, he was arrested as a result of an investigation of violation of the Federal Drug Laws and on 11-7-31 he was convicted of a violation of the Harrison Drug Act and sentenced to 2 years and 6 months in Leavenworth Federal Penitentiary. The identification section records further show several arrests. One on May 1, 1954, investigation. Another 2-9-56, suspect of homicide and 2-25-58 suspect of violating the liquor laws. * * *

'The record section of the police department that keeps a file on only arrests in the St. Louis Police Department has the following record. April 26, 1930, suspect violation of the Bone Dry Law, released. May 31, 1930, suspect of assault to kill. He was forwarded to headquarters for disposition and subsequently released. December 4, 1930, the same as in the identification section, a violation of the Harrison Drug Act and 2 1/2 years in the Leavenworth Penitentiary. 3-6-31 violation of Volstead Act, forwarded to headquarters. June 25, '31, suspect of affray and released. March 1, '33, investigation, released. April 12, '33, investigation, released. July 6, '33, investigation, released. April 27, '34, investigation, released. October 29, '35, investigation, released. August 12, '43, suspect of gambling and released. December 26, keeping a common gambling house, warrants refused. August 18, 1952 keeping lottery tickets and assessed the fine of $200.00 and costs. May 2, 1954 suspect of robbery, released. February 9, 1956, suspect homicide, released. June 27, '59, suspect violation of the liquor laws and released. And an arrest was made * * * on August 22, 1961, that didn't show in the records at the time these were checked. That last arrest being suspect violation of the liquor laws.'

Other evidence offered by the Supervisor on behalf of the Department of Liquor Control tended to show that Gene Killoren, a police officer of the City of St. Louis who was so employed in July and August 1961 as a member of the 'Gambling, Liquor and Morality Section,' was familiar with licensee's place of business known as the 'Opera Cocktail Lounge'; that on July 29, 1961 about 6:15 p. m. he was at said place conducting himself as a patron; that he saw Vincent Marchesi on the premises outside the bar and drinking as a customer or patron; that witness again visited the 'Opera Cocktail Lounge' on July 31, 1961 and saw Marchesi there at 1:35 p. m. and noted that he was directing people to the food or buffet luncheon, asking them if they had enough, telling them where to get the plates and telling them where they could sit; that on August 3, 1961 he also visited the cocktail lounge and again on August 9, 1961 at about 3 p. m., when he saw Marchesi there; that, when witness first entered the longe Marchesi was drinking with the rest of the patrons, sitting about the middle of the bar; and that witness saw a gentleman come into the establishment and ask the bartender if he would cash a check for him; that the bartender, who was known as 'Sam,' said, 'You will have to ask the boss'; that 'Sam' handed the check to Vincent Marchesi and Mr. Marchesi looked at it a while, a second or two, turned it over and said to 'Sam,' 'Go ahead and cash it' and 'Sam' did so. On the same date witness observed Mr. Marchesi go with a man into an annex room of the tavern, where liquor is sold by the package, and witness saw the man purchase some beer from Marchesi and he saw Marchesi open the cash register and ring up the sale on the cash register; and that the man left the premises with the beer. On August 16, 1961 witness again visited the said lounge and observed Vincent Marchesi at that time. Marchesi was then behind the bar but he later joined the customers outside the bar.

On cross-examination the witness testified that, on July 31, 1961, a buffet luncheon was laid out on two tables that had been pushed together, right north of the bowling machine; that Marchesi was not behind the bar on this occasion; and that on August 16, when he visited the lounge at 3 p. m., Marchesi was just standing behind the bar and a bartender was also present behind the bar. He did not see Marchesi handle any drinks or do anything of that nature at that time. Witness was present in the lounge on July 31, 1961 for some thirty minutes; that each of the several visits by witness to the lounge would average about twenty minutes, with a minimum of twenty minutes and a maximum of thirty minutes, and that on each occasion he saw Mr. Marchesi there. He also visited the lounge on July 30 but did not see Marchesi.

Joseph Soehngen, a member of the St. Louis Police Department and so employed in July and August 1961, testified that he had had an occasion to enter the 'Opera Cocktail Lounge' on August 3, 1961 about 4:45 p. m. He remained there 'Possibly 40 minutes.' If the licensee was present he did not see her, but he did see and recognize Vincent Marchesi, who was on the premises when he arrived and when he left, and Marchesi was mingling with the patrons. Witness knew that Marchesi had a police record and that he had been convicted.

Licensee Anna Belle Favazza testified in her own behalf to the effect that she resided at 5912 Pershing Avenue; that her occupation was tavern owner; that her tavern was located at 5946-48 Pershing and the name of the place was 'Opera Cocktail Lounge'; that she had owned it for nine years; that she knew Vincent Marchesi, and had known him for sixteen years; and that she knew that he came to her establishment.

She further testified:

Q And for what purpose does he come to the Opera Lounge?

'A When I am there he is supposed to be there. He is a friend of mine.

'Q Then he comes to visit you? A Yes.

'Q And you have never authorized him nor told him nor allowed him to take any part in the operation of rumming of your business?

'A No, sir.'

The witness further testified to the effect that Marchesi was not supposed to be there...