Wilde-Hammar, Inc. v. Connor

576 N.E.2d 444, 216 Ill. App. 3d 660, 159 Ill. Dec. 775, 1991 Ill. App. LEXIS 1244
CourtAppellate Court of Illinois
DecidedJuly 19, 1991
DocketNo. 3—90—0573
StatusPublished
Cited by5 cases

This text of 576 N.E.2d 444 (Wilde-Hammar, Inc. v. Connor) 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
Wilde-Hammar, Inc. v. Connor, 576 N.E.2d 444, 216 Ill. App. 3d 660, 159 Ill. Dec. 775, 1991 Ill. App. LEXIS 1244 (Ill. Ct. App. 1991).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

Plaintiff Wilde-Hammar, Inc., a Delaware corporation, operates a business known as the Wilde-Hammar Lounge (the lounge) in Joliet, Illinois. Barry Kraker, president and principal stockholder of WildeHammar, Inc., was charged with committing aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)8)) and criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 15(a)(1)) in connection with an incident involving a patron of the lounge, Lori Bazzarone. The liquor commissioner of the City of Joliet subsequently revoked plaintiff’s liquor license for violating a local liquor control regulation which prohibits the licensee from violating or allowing a violation of any city ordinance, State statute, or Federal law upon the premises. The order revoking plaintiff’s license was upheld by the Illinois Liquor Control Commission, which found that the commissioner’s findings were supported by substantial evidence. A petition for rehearing was denied. Plaintiff filed a complaint for administrative review in the circuit court of Will County and the court affirmed the decision of the Liquor Control Commission. Plaintiff now appeals, contending: (1) that the liquor commissioner did not proceed in the manner provided by law; (2) that the findings of the commissioner are not supported by substantial evidence; and (3) that merely being arrested is an insufficient basis for finding a violation of State law. We affirm.

Before discussing the issues presented by plaintiff, we first address two motions which were ordered taken with the case. Defendants filed a motion to strike plaintiff’s brief because it contains information which does not appear in the record. This information, which concerns the disposition of the criminal charges and a civil lawsuit brought against Barry Kraker, is the basis of a large part of one of plaintiff’s arguments on appeal. Plaintiff has filed a motion to supplement the record with the additional information.

Section 3 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110) provides that no new or additional evidence shall be heard by the court on review of an administrative decision. Plaintiff’s motion to supplement the record is therefore denied. Defendants’ motion to strike plaintiff’s brief is also denied. We will, however, disregard any reference to, or arguments based upon, information not contained in the record.

Plaintiff first contends that it was improper for the liquor commissioner to revoke plaintiff’s license when it was the deputy liquor commissioner who conducted the hearing and heard the evidence and testimony. Plaintiff argues that the deputy commissioner had the opportunity to assess the credibility of the witnesses and that therefore only he, and not the commissioner, could properly render a decision.

Section 4 — 2 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1989, ch. 43, par. 111) authorizes the liquor commissioner to appoint others to assist him in the performance of his duties. It is well settled that “in the absence of statutory provisions to the contrary, it is not necessary that testimony in administrative proceedings be taken before the same officers who have the ultimate decision-making authority.” (Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 128, 357 N.E.2d 785, 791; see also Starkey v. Civil Service Comm’n (1983), 97 Ill. 2d 91, 454 N.E.2d 265; Stojanoff v. Department of Registration & Education (1980), 79 Ill. 2d 394, 403 N.E.2d 255; Starnawski v. License Appeal Comm’n (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102.) Such a procedure is proper so long as the decision maker “considers the evidence contained in the report of proceedings before the hearing officer and bases [his] determinations thereon.” (Homefinders, 65 Ill. 2d at 128, 357 N.E.2d at 791.) The order revoking plaintiff’s license specifically states that the liquor commissioner “reviewed the evidence in the record and *** conferred with the hearing officer.” We find no error.

Plaintiff next maintains that the findings and order of the liquor commissioner are not supported by substantial evidence in light of the whole record. The commissioner found that plaintiff violated section 4 — 35 of the Joliet Liquor Code, which prohibits the licensee from violating, or permitting or allowing a violation of, any city ordinance, State statute, or Federal law on the licensed premises. The bases of the violations were the commissioner’s determinations that Barry Kraker: (1) “intentionally and knowingly without legal justification made physical contact of an insulting and provoking nature with Lori Bazzarone on July 16, 1989, at the Wilde-Hammar Lounge” in violation of section 12 — 4(b)(8) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8)); and (2) “intentionally and knowingly touched and fondled Lori Bazzarone’s sex organs and breasts through her clothing for the purpose of his sexual gratification and arousal” in violation of section 12 — 15(a)(1) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 12-15(a)(1)).

The testimony presented at the five-day hearing indicated that Bazzarone went to the lounge with two friends at approximately 10 p.m. on July 15, 1989, after attending a festival in Plainfield, Illinois. Bazzarone had never been to the lounge and did not know Barry Kraker. According to Bazzarone and one of her friends, Cynthia Frieders, she drank one “Long Island iced tea,” a drink containing four shots of liquor, and she had a few sips out of a second drink before going to the washroom sometime after midnight. According to other witnesses, Bazzarone had three “iced teas” and several additional shots of liquor and she appeared to be highly intoxicated. Bazzarone and Frieders entered the women’s washroom and found that a man was in the stall. According to Bazzarone and Frieders, the man left within a few minutes; according to others, Bazzarone, Frieders, and the man remained in the washroom for 15 to 20 minutes and would not allow anyone to enter.

Bazzarone testified that after the man left, another girl, Giselle Batozech, entered the washroom and entered the stall ahead of Bazzarone and Frieders. As Batozech was leaving, a man whom Bazzarone later identified as Kraker entered the washroom. Frieders was “pushed out” of the small washroom when Kraker entered. Bazzarone testified that Kraker began touching Batozech’s breasts and she told him “no, no, no, no” in a “laughing type of voice” and ran out of the bathroom. According to Bazaronne, Kraker then grabbed her (Bazzarone’s) breasts, buttocks, and groin before she was able to leave the washroom. She stated that she was “hollering no” while this occurred. Frieders testified that as she reentered the washroom she heard Bazzarone say “no” and saw her bent over with her arms up and “she had gone under [Kraker’s] arms.” Frieders stated that Kraker’s hands were “near [Bazzarone’s] back or on her back.”

Bazzarone testified on direct and cross-examination that Kraker was dressed in grey tuxedo trousers, a pleated white shirt, and a pink bow tie.

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Bluebook (online)
576 N.E.2d 444, 216 Ill. App. 3d 660, 159 Ill. Dec. 775, 1991 Ill. App. LEXIS 1244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilde-hammar-inc-v-connor-illappct-1991.