Weinstein v. Daley

• Decision Date: 28 July 1967
• Docket Number: Gen. No. 51190
• Citation: 85 Ill.App.2d 470,229 N.E.2d 357
• Parties: Max WEINSTEIN and Jack D. Goldberg, d/b/a Delaware Drug Co., Plaintiffs-Appellees, v. Honorable Richard J. DALEY, Local Liquor Control Commissioner. Appeal of Honorable John J. CASHIN, Hearing Officer Local Liquor Control Commissioner, Defendants. Honorable A. L. Cronin, Howard S. Cartwright and William McGuffage-- Commissioners: License Appeal Commission of the City of Chicago, Illinois, Defendants.
• Court: United States Appellate Court of Illinois

Page 357

229 N.E.2d 357

85 Ill.App.2d 470

Max WEINSTEIN and Jack D. Goldberg, d/b/a Delaware Drug Co. Plaintiffs-Appellees, v. Honorable Richard J. DALEY, Local Liquor Control Commissioner Appeal of Honorable John J. CASHIN, Hearing Officer Local Liquor Control Commissioner, Defendants Honorable A. L. Cronin, Howard S. Cartwright and William McGuffage-- Commissioners: License Appeal Commission of the City of Chicago Illinois, Defendants.

Gen. No. 51190.

Appellate Court of Illinois, First District, Second Division.

July 28, 1967.

Rehearing Denied Sept. 12, 1967.

Ross, Hardies, O'Keefe, Babcock, McDugald & Parsons, Chicago, George J. O'Grady, Chicago, of counsel, for plaintiffs-appellees.

Raymond F. Simon, Corp. Counsel of City of Chicago, Chicago, Sydney R. Drebin, Howard C. Goldman, Asst. Corp. Counsel, of counsel, for defendants-appellants.

LYONS, Presiding Justice.

This is an appeal by the defendant-appellants, the Honorable Richard J. Daley, Mayor of Chicago as Local Liquor Control Commissioner, and the Honorable John J. Cashin, Hearing Officer for the Local Liquor Control Commissioner. The appeal is taken from the entry of a judgment on November 15, 1965, by the Circuit Court of Cook County, which judgment reversed, vacated, and set aside said Local Commissioner's order of revocation of the retail liquor license of the instant plaintiffs, Max Weinstein and Jack Goldberg, d/b/a Delaware Drug Company, entered some nine months prior thereto. The judgment ordered that the license (No. 5870) issued to the plaintiffs be reinstated accordingly. The order of the Commissioner had been theretofore appealed by plaintiffs to the License Appeal Commission pursuant to the provisions of the Administrative Review Act (Ill.Rev.Stat. (1963) Chap. 110, par. 264--279) which tribunal sustained the order of revocation on July 21, 1965.

The license revocation which gave rise to this cause was based upon the alleged unlawful sale of certain barbiturates, amphetamines, and hypodermic needles from the licensed premises contrary to the statutes of the State of Illinois and the ordinances of the City of Chicago. The sale was alleged to have been made by one of the principals to this action, plaintiff Weinstein, by and through his agent Albert Gumer, both of whom were licensed pharmacists. The drug company was operated by the co-licensees as a joint pharmacy and liquor store enterprise with miscellaneous sundries similarly available for purchase therein.

At approximately 9:15 P.M. on July 9, 1964, Police Officer John Rosanne, Detective Donald Dura, and a Sergeant Gill, all being attached to the Narcotics Unit, travelled to the instant premises then under surveillance in an attempt to conduct a controlled unlawful sale of certain dangerous drugs. The three men had with them a 'special employee' or 'informer' through whom they had hoped to make the purchase. This informer was later identified at the hearing as William Gato. The customary initial precautions were taken, Gato being first completely searched and then supplied with a quantity of pre-inventoried currency of varying denominations with which to make the eventual purchase.

Gato entered the questioned establishment empty handed and emerged some 10 to 12 minutes subsequent carrying a brown paper bag. None of the policemen witnessed the actual sale although they had all been stationed in proximity to the premises. Rosanne examined the contents of the bag finding two bottles labeled 'Amphetamine,' twenty-one red capsules containing a white powder, and three hypodermic needles. Gato gave the officer a description of the man with whom the sale had been consummated, which description corresponded to Albert Gumer.

The officers thereafter entered the store and arrested Weinstein and Gumer for unlawful sale of dangerous drugs. A search of the premises discovered the prerecorded currency in a can under the counter. Rosanne testified that Sergeant Gill examined the day's prescription blanks and could find no prescription bearing the name of the informer. Gato, himself, was then under arrest for his prior possession of dangerous drugs.

Charles Vondrak, a graduate registered pharmacist and 17 year employee of the Chicago Police Crime Laboratory, testified that his random testing of the red capsules discovered the presence of a barbitural derivative. He stated that he had similarly tested two tablets from the bottles and concluded they contined amphetamine hydrochloride, considered a dangerous drug. Plaintiffs attempted to cross-examine Vondrak relative to the laboratory procedures employed by him, but it was prohibited by the Hearing Officer.

Gumer, called on behalf of the co-licensees, admitted to knowing the purchaser as William Gato. The witness explained that Gato had handed him a piece of paper bearing a prescription number which number corresponded to a prescription already on file in the pharmacy. He stated that that prescription bore the letters 'PRN,' a Latin abbreviation for 'refill as needed.' Gumer was unable to produce the alleged piece of paper, offering the explanation that he had thrown it away. As a consequence, the Hearing Officer ruled that Weinstein could not introduce his prescription records into evidence nor could Gumer testify as to those portions of the transaction to which they purportedly related.

Gumer continued by describing the prescription on file as calling for ampules to be injected intravenously. The witness claimed to have thereafter substituted the same drug in tablet form, but only after he had made an unsuccessful attempt to reach the prescribing doctor by telephone. Gumer contended that the reddish colored capsules he had sold to Gato were Nytime, a nonprescriptive sleep inducing product. Gumer admitted to having sold to Gato, three hypodermic needles without a prescription upon the purchaser's representation that he might have some ampules remaining from a previous prescription for which the needles would be needed. The witness claimed that an oral prescription for those needles had been tendered by a Doctor Esposito in behalf of Gato several years prior when the latter had first become a customer.

On cross-examination, Gumer acknowledged that he had recognized all of the merchandise which the arresting officers displayed to him as the same drugs he had sold to Gato some thirty minutes earlier. Neither Sergeant Gill, Detective Dura, nor William Gato testified before the Hearing Officer. This was the extent of the testimony adduced at the Commission hearing.

It is the defendants' theory of the case (1) that the Commissioner acted within his statutory powers; (2) that the evidence overwhelmingly supported his conclusion that an unlawful sale had, in fact, been made; and (3) that the Circuit Court erred in reweighing the evidence and in considering matters not of record.

It is the plaintiffs' theory of the case (1) that the Commissioner acted outside the scope of the powers available to him; (2) that the evidence offered fails to sustain his finding that an unlawful sale had been made, hence the lower court properly reversed the order of revocation; and (3) that the Hearing Officer erred in barring the introduction of the prescription records and those portions of Gumer's testimony which related thereto.

Under the Administrative Review Act, a Circuit Court's consideration of an appeal of a license revocation brought before it from the License Appeal Commission is limited to matters of record. The court, in that capacity, can consider but two questions; to wit, (1) whether the local commission had acted arbitrarily or in clear abuse of its discretion, and (2) whether the order entered by that commission was contrary to the manifest weight of the evidence. Nechi v. Daley, 40 Ill.App.2d 326, 188 N.E.2d 243 (1963). Moreover, in this conjunction, the licensee's conviction of the crime to which his alleged misconduct related is neither necessary to sustain the order of revocation nor material. Nechi v. Daley, supra; Hornstein v. Liquor Control Com., 412 Ill. 365, 106 N.E.2d 354 (1952); Paoli v. Mason, 325 Ill.App. 197, 59 N.E.2d 499 (1945).

Under that statute, the findings and conclusions of the administrative agency on questions of fact are deemed prima facie true and correct until the contrary is shown. (Ill.Rev.Stat. (1963) Chap. 110, par. 274). Furthermore, public officials are presumed to have properly performed the duties of their office. El Patio, Inc. v. Illinois Liquor Control Com., 20 Ill.App.2d 259, 156 N.E.2d 9 (1959).

The language of the Uniform Drug, Device and Cosmetic Act (Ill.Rev.Stat. (1963) Chap. 111 1/2, par. 402--15) is very clear in placing both barbitural and amphetamine compounds, maxtures, or derivatives thereof in the category of a 'dangerous drug.' That same statute further provides:

'A dangerous drug shall be dispensed or sold at retail only (1) upon a written prescription of a practitioner, or (2) upon an oral prescription of such practitioner which is promptly reduced to writing and filed by the pharmacist, or (3) by refilling any such written or oral prescription, if such refilling is authorized by the practitioner either in the original prescription or by an oral order which is reduced promptly to writing and filed by the pharmacist. * * *

'A drug dispensed or sold at retail on a prescription of a practitioner * * * (2) such drug bears a label containing the name and address of the dispenser, the serial number and date of such prescription, or of its filling, name of the person for whom prescribed, such directions for use as required by the practitioner, and the name of the practioner, * * *.' (Ill.Rev.Stat.1963) Chap. 111 1/2, par. 417) The Hypodermic Syringes and Needles Act (Ill.Rev.Stat. (1963) Chap. 38, par. 22--54) states, in part:

'A licensed physician may direct a patient under his immediate charge to have in possession any of the instruments specified * * * which may be dispensed by a...