Vintage 76, Inc. v. Illinois Liquor Control Commission

397 N.E.2d 166, 78 Ill. App. 3d 463, 33 Ill. Dec. 833, 1979 Ill. App. LEXIS 3568
CourtAppellate Court of Illinois
DecidedNovember 13, 1979
DocketNo. 78-1899
StatusPublished

This text of 397 N.E.2d 166 (Vintage 76, Inc. v. Illinois Liquor Control Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vintage 76, Inc. v. Illinois Liquor Control Commission, 397 N.E.2d 166, 78 Ill. App. 3d 463, 33 Ill. Dec. 833, 1979 Ill. App. LEXIS 3568 (Ill. Ct. App. 1979).

Opinion

Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

In May of 1978, the local liquor commissioner of the village of Schiller Park revoked the 1977 liquor license issued to Vintage ’76 d/b/a Second Chance and denied a 1978 renewal application. In accordance with section 8 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, par. 153), the matter was tried de novo by the Illinois Liquor Control Commission and affirmed. The circuit court of Cook County also affirmed. The basic issue raised on this appeal is whether the local commissioner had the authority to revoke a liquor license for dramshop’s failure to comply with a statutory provision (Ill. Rev. Stat. 1977, ch. 43, par. 126a) imposing a duty to furnish records upon Commission request.

Plaintiff dramshop, Vintage ’76, was issued a liquor license to operate a tavern in Schiller Park, Illinois. In December of 1977, the local liquor control commissioner, who was also the mayor of Schiller Park, initiated an investigation into the corporate structure of Vintage ’76. Sometime prior to January 13, 1978, the mayor issued a notice of hearing and a records production order pursuant to the Liquor Control Act. This act delineates the powers and duties of the local liquor commissioner (Ill. Rev. Stat. 1977, ch. 43, par. 108) and imposes an affirmative duty on all licensees to supply these records upon request (Ill. Rev. Stat. 1977, ch. 43, par. 126a (“It shall be the duty of every retail licensee to make books and records available upon request at all times for the purpose of investigation and control by the Illinois Liquor Control Commission or any local liquor control commission having jurisdiction over the licensee”)). The mayor requested production of the corporate charter, record books, minutes, annual corporate reports, Federal income tax returns for 1976 and 1977, copies of all payroll records, W-2 forms, and checks issued in 1976 and 1977, a copy of the lease, and any documents bearing on the dissolution of Vintage ’76.

An order of January 13 continued the hearing for seven days and reiterated the section 126a request. On March 2, plaintiff’s attorney turned over two of the requested items and listed the remaining documents as “no such record kept,” “unavailable,” or “unable to locate.” On May 19, the seventh scheduled hearing, after six prior hearings had been set and then continued, the mayor denied plaintiff yet another continuance, and revoked plaintiff’s license. He also denied plaintiff’s renewal application on the ground that the license had been revoked “for cause” and under Village ordinance and State law, he was prohibited from renewing it.

Plaintiff appealed the local order and the State Liquor Commission held a de novo hearing to review the decision. At the Commission hearing in August of 1978, the officers of Vintage ’76 appeared and presented evidence. However, the attorney prosecuting the appeal for plaintiff was not present for the call and still another continuance was requested. It was denied, but the call was delayed until later in the morning. When the attorney, Thomas Murphy, had still not arrived, the other lawyer, John Biestek, who had represented plaintiff at the local level and who was present to give testimony concerning those proceedings, decided to present the case until Murphy arrived.

One of plaintiff’s owners, Conrad Hillesheim, claimed that he had been present at four of the scheduled hearing dates but, when pressed, could remember only one date, April 14. This April date happened to be the same one that was continued at the mayor’s behest. The Village attorney testified in rebuttal that he did not see Hillesheim or the others who had been subpoenaed for the April 14 date. The mayor also stated that although his secretary had seen plaintiff’s attorney on that date, she had not seen any of the other parties.

In further testimony, plaintiff’s witnesses maintained that the records requested were still unavailable as they were being held by the corporation’s accountant or, in the case of other records, by the former attorney. When Murphy finally arrived, he examined Biestek about the prior hearings. Biestek stated that a representative from his office had appeared at the May 19 hearing requesting a continuance from the mayor. He did admit, however, that he had called the village attorney only the evening before to say that he would be unavailable the following day. The cause of his unavailability was challenged in cross-examination:

“VILLAGE ATTORNEY: Do you recall at that time saying that you feel that the Liquor Commissioner was abusing his discretion; that you did not intend to appear; that your client would not appear and that you were not of mind to deliver any of the requested documents?

BIESTEK: 0 ° * No, I did not. I indicated to you that I was on trial the next day and could not be there.”

Following this de novo hearing, the Commission affirmed the mayor’s decision. On petition for rehearing, plaintiff’s lease was produced as well as some of the other documents. The dramshop was closed on August 31, 1978, and the petition for rehearing denied on September 1. After the order was affirmed by the circuit court, this appeal was taken.

Plaintiff contends that the mayor’s sole remedy for noncompliance with a production order is set out in section 12 of article III of the Liquor Control Act, which provides in part:

“Any Circuit Court, or any judge thereof may by order duly entered, require the attendance of witnesses and the production of relevant books subpoenaed by the State commission and the court or judge may compel obedience to its or his order by proceedings for contempt.” (Ill. Rev. Stat. 1977, ch. 43, par. 108(9).) In support of this contention, plaintiff cites two cases, Boettcher v. Howard Engraving Co. (1945), 389 Ill. 75, 58 N.E.2d 866, and Walter Cabinet Co. v. Russell (1911), 250 Ill. 416, 95 N.E. 462, which state that a contempt citation and not judgment on the case is the proper remedy for noncompliance with a production or interrogatory demand. However, both cases clearly state that contempt is the only remedy in the absence of statute. Although plaintiff denies such an authorizing provision exists under the Liquor Control Act, the State correctly points to both sections 7b of article VI and 5 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, pars. 126a, 149). Section 7b of article VI, set out above, imposes a statutory duty on liquor licensees to produce documents. Section 5 of article VII provides a remedy for noncompliance with or violation of any section: “The local liquor control commissioner may revoke or suspend any license issued by him if he determines that the licensee has violated any of the provisions of this Act 0 0

Under these two statutes it is manifest that the local commissioner, upon determining that Vintage ’76 had not produced the documents, and after giving a fair amount of time to comply, had the authority to revoke the dramshop license. That a substantial burden has been placed on the dramshop licensee is without question. (See Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill. 2d 127, 131, 295 N.E.2d 718

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wessel v. Carmi Elks Home, Inc.
295 N.E.2d 718 (Illinois Supreme Court, 1973)
Askew v. Daley
379 N.E.2d 75 (Appellate Court of Illinois, 1978)
Maywood-Proviso State Bank v. City of Oakbrook Terrace
214 N.E.2d 582 (Appellate Court of Illinois, 1966)
Weinstein v. Daley
229 N.E.2d 357 (Appellate Court of Illinois, 1967)
Kenessey Enterprises, Inc. v. Illinois Liquor Control Commission
380 N.E.2d 996 (Appellate Court of Illinois, 1978)
Daley v. License Appeal Commission
138 N.E.2d 73 (Appellate Court of Illinois, 1956)
Stevens v. County of Lake
320 N.E.2d 263 (Appellate Court of Illinois, 1974)
Daley v. Berzanskis
269 N.E.2d 716 (Illinois Supreme Court, 1971)
Day v. Illinois Liquor Commission
188 N.E.2d 883 (Appellate Court of Illinois, 1963)
Boettcher v. Howard Engraving Co.
58 N.E.2d 866 (Illinois Supreme Court, 1945)
Malkan v. City of Chicago
75 N.E. 548 (Illinois Supreme Court, 1905)
Walter Cabinet Co. v. Russell
95 N.E. 462 (Illinois Supreme Court, 1911)

Cite This Page — Counsel Stack

Bluebook (online)
397 N.E.2d 166, 78 Ill. App. 3d 463, 33 Ill. Dec. 833, 1979 Ill. App. LEXIS 3568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vintage-76-inc-v-illinois-liquor-control-commission-illappct-1979.