Zito v. Illinois Liquor Control Commission

• Decision Date: 09 July 1969
• Docket Number: Gen. No. 52432
• Citation: 251 N.E.2d 727,113 Ill.App.2d 103
• Parties: John P. ZITO d/b/a Mary Ann's Tavern, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 727

251 N.E.2d 727

113 Ill.App.2d 103

John P. ZITO d/b/a Mary Ann's Tavern, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellee.

Gen. No. 52432.

Appellate Court of Illinois, First District, Fourth Division.

July 9, 1969.

Stewart D. Spitzer, Jesse H. Brown, Chicago, for appellant

William G. Clark, Chicago, John J. O'Toole, A. Zola Groves, Asst. Attys. Gen., of counsel, for appellee.

STAMOS, Justice.

Plaintiff, John P. Zito, doing business as Mary Ann's Tavern, filed a statutory action in the Circuit Court under the Administrative Review Act, Ill. Rev. Stat. ch. 110, §§ 264--279 (1967), to review the administrative order of the defendant, Illinois Liquor Control Commission, which revoked plaintiff's previously issued license. The court affirmed the order of the Commission and this appeal followed.

A citation to show cause why his license should not be suspended or revoked was served on plaintiff on November 4, 1966. It alleged the following violations of Revised Rule 3 of the Rules and Regulations of the Commission:

(1) That the licensee, or his agents, did violate the ordinance of the Village of Melrose Park in that they served alcoholic spirits on the licensed premises after 6:00 A.M. on October 15, 1966;

(2) That the licensee, or his agents, did permit a shooting to occur on the licensed premises as a result of which one patron was charged with murder;

(3) That the licensee is of such reputation that he should show cause why the Commission should not suspend or revoke his retail state liquor license.

Plaintiff contends that there was no substantial evidence to support any of the charges contained in the Commission's citation to show cause and that the court erred in not striking from the answer certain documents not in evidence which were included in the certified record furnished by the Commission.

The record discloses that the following testimony was given at the hearing before the Commission:

ROBERT NARDELLA, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a detective in the Melrose Park Police Department and on October 15, 1966 he had the occasion to participate in an investigation at the plaintiff's tavern. At 6:32 A.M. he was off duty and at his home when he received a call from the police station that a shooting had occurred at JAMES V. SAMMAURO, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

plaintiff's tavern. Upon arrival at the tavern at 6:50 A.M. he and his partner were met by police officers DiSantis and Stellotto who turned over to them a .45 calibre automatic taken from Matias Montemayor who had been apprehended fleeing the scene and arrested for the fatal shooting of Mrs. Daphne Studt. Plaintiff had an all night license which required his tavern to be closed from 6 to 7 A.M.

He is a part-time bartender at the tavern and was on duty October 15, 1966 and was present when the shooting took place, but did not see what occurred. The shooting occurred at about 5:50 A.M. and the witness called the police. He could not say at what time the police arrived, but testified it was quite a while after he called for them, although the police station is only three blocks from the tavern. He was paid for his services in cash by the tavern owner and works only on the week-ends. In July of 1964 the witness was arrested for violation of probation. He further testified nothing was served after 6:00 A.M. and about 19 or 20 patrons were in the tavern at the time the shooting took place. He heard the shot and had no knowledge before the shooting that anyone in the tavern was in possession of a firearm. The plaintiff advised him to call the police and directed the patrons not to leave and they remained waiting for the police.

JAMES DIAFERIA, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a police sergeant with the Melrose Park Police Department and accompanied Detective Nardella to the tavern in response to a call that a shooting had occurred and they arrived at approximately 6:55 or 6:50 A.M. He was off duty and at his home when he responded to the call. The witness participated in the interview of five persons regarding the shooting.

JOHN P. ZITO, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He was the licensee of the tavern and was present when Mrs. Studt was shot and killed in the tavern. He had been arrested on February 2, 1963, March 9, 1963, December 17, 1961 and January 24, 1955.

JOHN DALLMAN, called as a witness on bahalf of the Illinois Liquor Commission testified as follows:

He is a special agent with the Federal Bureau of Investigation and on November 17, 1966 he visited plaintiff's tavern and observed a liquor license issued by the Village of Merose Park and recalled it had of Melrose Park and recalled it had

ANTHONY F. IOSCO, called as a witness on bahalf of the Illinois Liquor Commission testified as follows:

He is chief of police of the Village of Melrose Park and the police department records reflect that they received a call at 6:32 A.M. that a woman was shot at plaintiff's tavern. He did not arrive on duty until 9:30 A.M. The records of the department show that within a minute three calls were received at the station advising that a shooting had occurred at the tavern.

ALLIEO DI SANTIS, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

He is a police officer with the Melrose Park Department and on the morning of October 15, 1966 he was on duty and in a police car when he received a radio message that a shooting had occurred at plaintiff's tavern which was one block away. He received the call at 6:32 A.M. At the time he and his partner received the call they were engaged in checking the taverns regarding closing hours. When they arrived at the tavern they observed two men running from the tavern and took them into custody and one of the prisoners, Matias Montemayor, told the witness that he had just shot a woman in plaintiff's tavern CHESTER CARSON, called as a witness on behalf of the Illinois Liquor Commission testified as follows:

a few minutes ago. After the prisoner was apprehended the witness brought him back to the plaintiff's tavern. The witness remained until police[113 Ill.App.2d 108] detectives arrived and removed the tavern patrons to the police station.

He is the president of the Village of Melrose Park and the records of the village show that the plaintiff had been issued a local liquor license and was in possession of it on October 15, 1966.

ALFRED E. PRIGNANO, called as a witness on behalf of plaintiff, testified as follows:

He is a funeral director and has been in business in Melrose Park for twenty years. He had known plaintiff for 30 years and he knows the general reputation of plaintiff in the community in which he resides for honesty, integrity and for being a peaceful and law-abiding citizen and that plaintiff's reputation is good. To the best of the witness's knowledge he did not know if plaintiff had ever been arrested.

PATSY B. MOGNOLO, called as a witness on behalf of plaintiff, testified as follows:

He has lived in Melrose Park for 38 years and has known plaintiff all that time. The witness is a building contractor and knows plaintiff's reputation in the community for honesty, integrity and for being a peaceful and law-abiding citizen and it is very good. He sees plaintiff practically every day and the witness knows that plaintiff had been previously arrested but never convicted.

JOHN P. ZITO, testified on his own behalf, as follows:

He was the licensee of Mary Ann's Tavern and on October 15, 1966 there was a shooting in the tavern, but the witness had no knowledge that the patron, Matias Montemayor, was carrying a gun or any weapon nor did any of plaintiff's employees have such knowledge.

Neither the witness nor any of his employees had any knowledge of the reason for the shooting. He testified that at the time of the shooting he was in the men's room repairing a clogged sink when he heard the shot which sounded like a fire cracker. He ran out of the restroom into the tavern and observed the deceased on the floor. The witness directed that the doors be locked and that no one leave the premises. He then told the bartender to call the police and they arrived in 15 or 20 minutes. Everyone was interrogated by the police. Plaintiff placed letters of commendations into evidence received during his service in the U.S. Army.

The Commission revoked plaintiff's license. On administrative review the Circuit Court affirmed and plaintiff appealed.

OPINION

Under the Administrative Review Act, the findings and conclusion of the Commission on questions of fact are held to be prima facie true and correct. Ill. Rev. Stat. ch. 110, § 274 (1967). The reviewing court is limited to a consideration of the record to determine if the findings and orders of the Commission are against the manifest weight of the evidence. Nechi v. Daley, 40 Ill.App.2d 326, 188 N.E.2d 243 (1963). The findings must be based on substantial evidence. Bruce v. Dept. of Registration and Education, 26 Ill.2d 612, 187 N.E.2d 711 (1963).

The Administrative Review Act, Ill. Rev. Stat. ch....