Benchwarmers, Inc. v. Daley

FIFTH DIVISION
December 31, 1997

No. 1-96-0445

BENCHWARMERS, INC., d/b/a HI-TOPS CAFE, an )
Illinois Corporation, and EDWARD M. WARM, )
President, )
)
Plaintiffs/Counterdefendants-Appellees/ ) Appeal from
Cross-Appellants, ) the Circuit Court
) of Cook County.
v. )
)
RICHARD M. DALEY, Mayor and Local Liquor )
Control Commissioner of the City of Chicago, )
)
Defendant/Counterplaintiff-Appellant/ )
Cross-Appellee, ) Nos. 95-CH-0918)
) 95-CH-1344)
and )
)
LOCAL LIQUOR CONTROL COMMISSION OF THE CITY )
OF CHICAGO; WINSTON L. MARDIS, as DIRECTOR, )
MAYOR'S LICENSE COMMISSION OF THE CITY OF )
CHICAGO; THE CITY OF CHICAGO, a Municipal ) Honorable
Corporation; WILLIAM J. O'DONAGHUE, as ) Edwin M. Berman,
Chairman, IRVING KOPPEL and ALBERT McCOY, as ) Judge Presiding.
Commissioners of the LICENSE APPEAL )
COMMISSION; and THE LICENSE APPEAL COMMISSION )
CITY OF THE CITY OF CHICAGO, )
)
Defendants. )

JUSTICE THEIS delivered the opinion of the court:

This case involves cross-appeals from an order of the circuit
court determining the propriety of a liquor license suspension for
plaintiff, Benchwarmers, Inc., d/b/a Hi-Tops Cafe (Benchwarmers). The
Local Liquor Control Commission of the City of Chicago suspended
Benchwarmers' liquor license for selling alcoholic liquor to a minor
in violation of section 4-60-140 of the Municipal Code of Chicago (the
Code). Chicago Municipal Code 4-60-140 (1990). The License Appeal
Commission of the City of Chicago affirmed the decision but reduced
the penalty to a one-day suspension. On consolidated cross-complaints
for administrative review filed with the circuit court, the circuit
court reversed the suspension order in its entirety, finding that
Benchwarmers had been entrapped and held that the License Appeal
Commission does not have authority to modify a decision of the Liquor
License Control Commission.
On appeal, defendant, Richard M. Daley, mayor of the City of
Chicago and the local liquor control commissioner of the City of
Chicago, challenges that portion of the circuit court order reversing
suspension of Benchwarmers' liquor license for selling alcoholic
liquor to a minor in violation of section 4-60-140 of the Code.
Plaintiffs and counterdefendants, Benchwarmers and Edward Warm,
president, cross-appeal from the second portion of the circuit court's
order holding that, as a matter of law, the License Appeal Commission
may not modify a decision of the Local Liquor Control Commission of
the City of Chicago. For the following reasons, the order of the
circuit court is reversed in part and affirmed in part.
On June 30, 1993, at approximately 9:30 p.m., Carla Stockton,
then 20 years old, entered into Benchwarmers' establishment, the Hi-
Tops Cafe, and approached the bar. Stockton requested a bottle of
Genuine Miller draft beer from the bartender, Nicole Montgomery.
Montgomery served Stockton the beer and Stockton paid for the beer
with a marked $10 bill. A few minutes later, Chicago police officer,
Detective Edward Walz, who had been stationed at the bar in street
clothes, informed Montgomery that she had served a minor. Montgomery
summoned the manager, Thomas Mulcahy.
On August 17, 1993, Richard M. Daley, in his capacity as both
mayor and the local liquor control commissioner of the City of
Chicago, served a notice of hearing upon Hi-Tops to respond to
allegations:
"That on or about June 30, 1993, the licensee
by and through its agent, Nicole Montgomery, sold,
gave or delivered alcoholic beverages on the
licensed premises to Karla Stockton, a person under
the age of 21 years, in violation of Title 4,
Chapter 172, 140, Municipal Code of Chicago."
Chicago Municipal Code 4-60-140 (1990).
At the hearing before the Local Liquor Control Commission, Detective
Edward Walz testified regarding the set up of the sale of alcohol to
the minor. Walz entered Hi-Tops a few minutes before the minor and
sat at the bar. Walz ordered a draft beer and spoke to the bartender
for a few moments.
The minor, Carla Stockton, testified that on June 30, 1993, she
was 20 years old. Stockton testified that she was wearing black
jeans, a black silk shirt, and make-up. As Stockton entered the bar,
the doorman asked her for identification. When she explained that she
did not have any and asked if she needed identification to enter, the
doorman said she did not need any identification. Stockton approached
the bar, asked Montgomery for a Miller Genuine draft and proceeded to
pay for the beer.
According to the bartender, Nicole Montgomery, Stockton entered
the bar with two men who appeared to be close to 50 years old.
Montgomery testified that Stockton was dressed in "a sweater and a
dowdy skirt *** cut very matronly" and was wearing loafers.
Montgomery testified that Detective Walz sat at the bar and talked
about sports. Walz did not pay for his beer right away and Montgomery
testified that she felt Walz was wasting her time. Montgomery served
Stockton the beer and took the money. Montgomery stated that she did
not ask for identification because Stockton had entered with the two
older men and Stockton looked as if she was over 25 years old.
According to Montgomery, Stockton was not nervous but instead was
"very aggressive and very secure" in her demeanor. The manager of Hi-
Tops, Thomas Mulcahy, also testified that Stockton appeared to be at
least 24 years old.
The president of Benchwarmers, Edward Warm, testified that the
Hi-Tops doorman is instructed to ask for identification from anyone
who appears to be younger than 25 years old. The bartenders also are
required to ask for identification if the person looks to be under 25
years of age.
Based on the foregoing evidence, the hearing officer of the
Mayor's License Commission first determined that the defense of
entrapment was "inapplicable to these administrative proceedings."
Even if the defense were appropriate, the hearing officer determined
that the licensee failed to comply with the legal prerequisites for an
entrapment defense. Regardless, the hearing officer found that, under
the facts of the case, Benchwarmers had not shown the inducement or
incitement necessary to establish an entrapment defense. On May 13,
1994, the Local Liquor Control Commission (LLCC) entered an order
finding Benchwarmers guilty of serving alcohol to a minor, in
violation of section 4-60-140 of the Code and imposed as a penalty a
five-day license suspension on Benchwarmers. Benchwarmers appealed to
the License Appeal Commission (LAC). On December 19, 1994, the LAC
entered an order affirming the decision of the LLCC but reduced the
penalty imposed from a five-day suspension to a one-day suspension.
The LAC denied both parties' petitions for rehearing.
Benchwarmers filed a complaint for administrative review with the
circuit court to review the LLCC's decision that Benchwarmers was not
entrapped. Mayor Daley and the LLCC also filed a complaint seeking
judicial review of the administrative decision of the LAC in modifying
the sanction imposed by the LLCC. That action named Benchwarmers and
the License Appeal Commission of the City of Chicago as defendants.
735 ILCS 5/3-101 et seq. (West 1996). The actions were consolidated
before the circuit court.
The circuit court first determined that the LAC does not have
authority to modify a decision of the Commission. The court also
determined that the entrapment defense was available and Benchwarmers
was "blatantly entrapped." The court found that the LLCC's findings
were contrary to the manifest weight of the evidence and reversed the
suspension of Benchwarmers' liquor license.
On appeal, Mayor Daley (Daley) challenges the circuit court's
order applying the defense of entrapment to Benchwarmers' license
suspension. Daley argues that the defense of entrapment is not
applicable to such administrative proceedings. Regardless, under the
facts, Daley urges that the LLCC correctly determined that
Benchwarmers was not entrapped. Benchwarmers cross-appeals from the
circuit court's determination that the License Appeal Commission does
not have authority to modify a decision of the Local Liquor Control
Commission.
We begin with the statutory construction issue raised by
Benchwarmers' cross-appeal. The circuit court determined that the
License Appeal Commission does not have authority to modify a decision
of the Local Liquor Control Commission. Statutory construction
presents a question of law which we review de novo. Lucas v. Lakin,
175 Ill. 2d 166, 171, 676 N.E.2d 637, 640 (1997).
The Illinois Liquor Control Act (Act) sets forth the procedures a
licensee follows for appealing a decision of a local liquor control
commission. 235 ILCS 5/7-5, 7-9 (West 1996). The Act distinguishes
between license appeals for premises located outside of a city,
village or incorporated town having a population of 500,000 or more
inhabitants, and for premises located within a city, village or
incorporated town having a population of 500,000 or more inhabitants.
Appeals regarding licenses for premises in municipalities under
500,000 are directed to the Illinois Liquor Control Commission, the
State commission authorized to hear and determine appeals from local
commissions. 235 ILCS 5/1-3.19, 3-1, 3-12 (West 1996). Appeals
regarding licenses for premises in municipalities over 500,000 are
directed to the local license appeal commission for that particular
municipality. 235 ILCS 5/7-8 (West 1996). This court previously has
taken judicial notice that Chicago is the only town in Illinois with a
population greater than 500,000 inhabitants. Rincon v. License Appeal
Commission of Chicago, 62 Ill. App. 3d 600, 606, 378 N.E.2d 1281, 1286
(1978). Thus, appeals regarding licenses for premises in the City of
Chicago are directed to the License Appeal Commission of the City of
Chicago.
The Act explains that, for licenses revoked or suspended for
premises in municipalities less than 500,000, the licensee may appeal
to the Illinois Liquor Control Commission which may render a decision
"sustaining, reversing or modifying the order of the local liquor
control commissioner." (Emphasis added.) 235 ILCS 5/7-5 (West 1992).
In contrast, for licenses revoked or suspended for premises in
municipalities over 500,000, the licensee may appeal to the License
Appeal Commission of the City of Chicago, which "[w]ithin 20 days
after the filing of such appeal the license appeal commission shall
render a decision sustaining or reversing the order of the local
liquor control commissioner." (Emphasis added.) 235 ILCS 5/7-5 (West
1992).
Benchwarmers argues that the disparity between the two provisions
enumerating the powers of the Chicago License Appeal Commission and
the State commission is not conclusive. Benchwarmers cites section 7-
9 of the Act which contains a "parity provision" stating that the
appeal provisions of sections 7-9 (explaining the procedure for
appeals from an order of a local commission) and 7-10 (explaining
service of copies of decisions and rehearing procedures) relate to
both the License Appeal Commission and the State commission. 235 ILCS
5/7-9, 7-10 (West 1996). Benchwarmers also argues that, if the powers
of the two appeals commissions are not similarly construed, an
otherwise unconstitutional distinction is made in the appeal process
for municipalities with populations under 500,000 and over 500,000.
Benchwarmers does not challenge the LAC's inability to review such
proceedings de novo. Instead, Benchwarmers argues that allowing the
State commission to modify decisions, based on the record, but not
allowing the LAC to do the same, is an unconstitutional distinction
violative of due process.
Both arguments are unavailing. First, the review powers of both
the License Appeal Commission and the State commission are enumerated
in section 7-5 of the Act. Thus, we question the relevance of the
"parity provision" of section 7-9. The plain language of section 7-5
draws a clear distinction in the appellate powers bestowed on the
License Appeal Commission and the State commission. The License
Appeal Commission may sustain or reverse a decision whereas the State
commission may sustain, reverse or modify a decision.
Second, the legislature's decision to divide such powers along
population lines is valid when rationally related to a legitimate
governmental purpose. Johnkol, Inc. v. License Appeal Commission of
Chicago, 42 Ill. 2d 377, 247 N.E.2d 901 (1969); Maldonado v. License
Appeal Commission of Chicago, 100 Ill. App. 3d 639, 643, 427 N.E.2d 225, 228 (1981). On appeal, Daley explained the difference in
appellate powers in terms of sheer numbers. Accord Rincon, 62 Ill.
App. 3d at 605-06, 378 N.E.2d at 1286. The City of Chicago provides
and regulates many more licenses than the rest of the State.
Accordingly, the Local Liquor Control Commission of the City of
Chicago has developed an expertise that many other local commissions
may not have. Given the LLCC's greater expertise, the legislature may
have seen fit to defer to the local decisions made in Chicago more so
than in other areas. Thus, the plain language of the statute
indicates that the License Appeal Commission may only affirm or
reverse a decision of the Local Liquor Control Commission. We find
this to be a rational reason for the valid distinction in appellate
powers of the License Appeal Commission and the State commission.
The second issue is whether the defense of entrapment may be
asserted during a liquor license revocation or suspension proceeding.
The Liquor Control Act grants broad authority to the local liquor
commission to revoke or suspend a liquor license:
"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 or of any valid
ordinance or resolution enacted by the particular
city council, president, or board of trustees or
county board (as the case may be) or any applicable
rule or regulations established by the local liquor
control commissioner of the State commission which
is not inconsistent with law." 235 ILCS 5/7-5
(West 1996).
The sale of alcohol to a minor violates sections 6-16 and 7-5 of the
Liquor Control Act and section 4-60-140 of the Chicago Municipal Code.
Procedurally, neither the Liquor Control Act nor the Chicago
Municipal Code enumerates the defenses available in a license
revocation or suspension proceeding. The Rules of Procedure for
Contested Hearings Before the Mayor's License Commission and Local
Liquor Control Commission provide:
"Rulings on the admission and exclusion of evidence
are within the discretion of the Deputy
Commissioner. The rules of evidence and privilege
as applied in civil cases in the circuit courts of
the State of Illinois shall be followed. However,
evidence not admissible under such rules of
evidence may be admitted if it is of a type
commonly relied upon by prudent persons in the
conduct of their affairs. Compare Illinois
Administrative Procedure Act, 5 ILCS para. 100/10-
40(a) (1992). The purpose of rulings on evidence
shall be to promote the finding of truth and to
seek the greatest accuracy in the determination of
facts."
In this case, the hearing officer determined that the defense of
entrapment does not apply to these types of administrative
proceedings.
On appeal, Daley argues persuasively that the statutory
entrapment defense contained in the Illinois Criminal Code (720 ILCS
5/7-12 (West 1996)) applies only to criminal "offenses." Under the
entrapment defense in effect at the time of the sale:
"A person is not guilty of an offense if his
conduct is incited or induced by a public officer
or employee, or agent of either, for the purpose of
obtaining evidence for the prosecution of such
person. However, this Section is inapplicable if a
public officer or employee, or agent of either,
merely affords to such person the opportunity or
facility for committing an offense in furtherance
of a criminal purpose which such person has
originated." 720 ILCS 5/7-12 (West 1992).
An offense is defined as the violation of any "penal statute." 720
ILCS 5/2-12 (West 1992).
Benchwarmers cites no authority that this statutory defense has
been used in the civil context. Instead, Benchwarmers points to
several Illinois cases that discuss the entrapment defense in liquor
license cases, although no court has considered the validity of
applying the defense. For example, in Roberts v. Illinois Liquor
Control Commission, 58 Ill. App. 2d 171, 179, 206 N.E.2d 799, 803
(1965), the court found that there was no entrapment when the minor
asked for, and received, a quart of beer. In finding that the defense
of entrapment did not apply, the court stated:
"It is well settled that where nothing more
than a simple request to make an unlawful sale of
an intoxicant appears, the fact that the
solicitation was by a decoy, does not make the
defense of entrapment available ***, and it is
immaterial that the governmental agency supplied
the money for the purchase." Roberts, 58 Ill. App.
2d at 179, 206 N.E.2d at 803.
Likewise, in Daley v. Jack's Tivoli Liquor Lounge, Inc., 118 Ill. App.
2d 264, 276, 254 N.E.2d 814, 820 (1969), the appellate court
referenced the circuit court's determination regarding entrapment, but
determined that the LLCC had found sufficient evidence of
solicitation.
As a matter of law, the statutory defense of entrapment as
contained in the Illinois Criminal Code is unavailable in liquor
license revocation and suspension proceedings. However, the Rules of
Procedure as promulgated by the Mayor's License Commission and Local
Liquor Control Commission indicate that evidentiary decisions lie
within the discretion of the deputy commissioner. The hearing officer
in this case determined that the entrapment defense was "inapplicable
to these administrative proceedings." We decline to read this
particular statement as a blanket exclusion of the entrapment defense
and find that its applicability is to be determined when the facts
indicate egregious governmental misconduct.
Under the facts of this case, the hearing officer correctly
determined that the facts did not evidence any indicia of entrapment.
Thus, the circuit court erred in finding that Benchwarmers was
"blatantly entrapped." Judicial review of an administrative agency's
factual determinations is limited to whether the agency's factual
findings were against the manifest weight of the evidence. Roach
Enterprises, Inc. v. License Appeal Commission of Chicago, 277 Ill.
App. 3d 523, 528, 660 N.E.2d 276, 280 (1996). If any evidence in the
record supports the agency's determination, that determination must be
affirmed. Roach Enterprises, 277 Ill. App. 3d at 528, 660 N.E.2d at
280.
Here, the hearing officer reasonably could determine that there
was no evidence to demonstrate that Benchwarmers was induced to serve
the minor. Admittedly the minor appeared to be 24 years old. It was
Benchwarmers' policy, however, to ask for identification from anyone
appearing to look under 25 years old. Under these facts, the minor
walked into the bar, requested a beer, and was served a beer. There
was a request and a purchase. The hearing officer's finding that
there was no entrapment was not against the manifest weight of the
evidence.
In conclusion, the circuit court correctly determined that the
License Appeal Commission does not have the authority to modify a
decision rendered by the Local Liquor Control Commission. The circuit
court erred, however, in applying the entrapment defense to liquor
revocation proceedings under the Illinois Liquor Control Act and in
finding that the LLCC's initial determination, that there had been no
entrapment, was against the manifest weight of the evidence.
Affirmed in part and reversed in part.
GREIMAN and ZWICK, JJ., concur.