Cochrane's of Champaign, Inc. v. Illinois Liquor Control Comm'n

NO. 4-95-0472

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

COCHRANE'S OF CHAMPAIGN, INC., d/b/a ) Appeal from
COCHRANE'S, COCHRANE'S ON DANIEL, INC., ) Circuit Court of
d/b/a COCHRANE'S ON DANIEL, AND TWO ) Champaign County
NEW, INC., d/b/a CENTRAL TAP, ) No. 94L1356
Plaintiffs-Appellees, )
v. )
STATE OF ILLINOIS LIQUOR CONTROL )
COMMISSION and DANIEL McCOLLUM, Liquor )
Control Commissioner for the City of ) Honorable
Champaign, Illinois, ) George S. Miller,
Defendants-Appellants. ) Judge Presiding.
_________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:
Three bars in Champaign, Cochrane's, Cochrane's on
Daniels, and Central Tap ("licensees" collectively), were charged
by the local liquor commissioner for the City of Champaign (local
commissioner) with violating the Champaign Municipal Code (Cham-
paign Municipal Code 5-44(a), 5-44.1(a) (amended April 5,
1988)) by selling alcohol to persons under the age of 21. Cen-
tral Tap was charged for violations on two separate occasions,
making a total of four cases consolidated for purposes of this
appeal. Each bar was found guilty and fined. A $100 fine was
imposed on Central Tap for the violation of section 5-44 of the
Champaign Municipal Code for sale of alcohol to a person between
the ages of 18 and 21 on October 7, and $600 fines were levied on
Cochrane's, Cochrane's on Daniels, and Central Tap for violating
section 5-44.1(a) by selling alcohol to a person below the age of
18, on November 5, 6, and 10, respectively. The State Liquor
Commission (Commission) affirmed the fines on appeal, but on
administrative review the circuit court reversed all of the
fines, holding the result in each case was based on inadmissible
hearsay. The Commission and local commissioner appeal.
The circumstances of each case are essentially the
same. As part of a covert operation in 1993-94, persons under 21
were paid to enter the licensees' premises and attempt to pur-
chase alcohol, accompanied by an undercover police officer. They
were allowed to do so in each case. The undercover buyers did
not testify at any of the hearings, however. Rather, each time
the undercover officer who accompanied the buyer testified as to
the events which took place in the establishment. Deputy Chief
of Police John Gnagey and/or the accompanying officer then testi-
fied as to the buyer's age, which in every case but one was known
only from reviewing the confidential source file, examining the
minor's driver's license, speaking with the minor's parents, or
some combination thereof. In the case against Central Tap for
the events of November 10, Gnagey testified that he had personal-
ly known the buyer "since she was a baby," and knew her to be 17
at the time of the purchase, although he did verify her age by
speaking with her parents and examining her driver's license.
The age testimony was introduced over a hearsay objection in each
case.
 I. ANALYSIS
There is no dispute that the age of the purchaser is an
essential element of the ordinance violations with which the
licensees were charged. See Champaign Municipal Code 5-44(a),
5-44.1(a) (amended April 5, 1988). Accordingly, in any case in
which the purchaser's age was not proved by competent evidence,
the fine was improper. The licensees argue in support of the
circuit court's decision that only inadmissible hearsay evidence
was introduced to establish the ages in each case. Additionally,
they argue their rights to due process and confrontation were
violated in each case by the failure to produce the buyer. We
will consider each of these contentions in turn.
A. Hearsay
The Commission does not dispute that the officers'
testimony as to the informants' ages was hearsay. Rather, it
argues section 10-40 of the Illinois Administrative Procedure Act
(Procedure Act) (5 ILCS 100/10-40 (West 1992)) applies to these
proceedings through section 3-13 of the Liquor Control Act of
1934 (Liquor Act) (235 ILCS 5/3-13 (West 1992)), and the former
allows admission of the hearsay evidence. Section 3-13 of the
Liquor Act provides "[t]he provisions of [the Procedure Act], as
now or hereafter amended, are hereby expressly adopted and
incorporated herein as though a part of this Act, and shall apply
to all administrative rules and procedures of the State commis-
sion under this Act." 235 ILCS 5/3-13 (West 1992). Section 10-
40(a) of the Procedure Act provides:
"The rules of evidence and privilege as ap-
plied in civil cases in the circuit courts of
this State shall be followed. Evidence not
admissible under those rules of evidence may
be admitted, however, (except where precluded
by statute) if it is of a type commonly re-
lied upon by reasonably prudent men in the
conduct of their affairs." 5 ILCS 100/10-
40(a) (West 1992).
The Commission also argues the minors were "unavailable" because
they were protected by the informer's privilege.
The licensees argue Rule 11(c) of the Rules of the
Local Liquor Commissioner (Local Rule 11(c)) overrides the excep-
tion contained in the Procedure Act, making the hearsay testimony
inadmissible. Local Rule 11(c) provides the "rules of evidence
of the State of Illinois shall apply to the hearings held under
Chapter 5 of The Municipal Code of Champaign." The State dis-
putes that Local Rule 11(c) is more restrictive. It argues that
while the rule does apply "the rules of evidence of the State of
Illinois" to the instant proceeding, that term is intended to
include the exception set forth in the Procedure Act.
State and local governments have concurrent jurisdic-
tion of liquor control. Town of Normal v. Seven Kegs, 234 Ill.
App. 3d 715, 718, 599 N.E.2d 1384, 1387 (1992). It is acceptable
for a local rule to differ from a statute, so long as it is more
restrictive than the statute or places additional requirements on
licensees. Sip & Save Liquors, Inc. v. Daley, 275 Ill. App. 3d
1009, 1015-16, 657 N.E.2d 1, 5 (1995); Easter Enterprises, Inc.
v. Illinois Liquor Control Comm'n, 114 Ill. App. 3d 855, 858-59,
449 N.E.2d 1013, 1016-17 (1983). We find Local Rule 11(c) is
more restrictive than the Procedure Act and must be given effect.

The State's argument to the contrary is unconvincing.
Section 10-40(a) of the Procedure Act merely states that the
rules of evidence generally apply in administrative proceedings,
then provides an exception, allowing in certain evidence "not
admissible under those rules of evidence." (Emphasis added.) 5
ILCS 100/10-40(a) (West 1992). It does not alter the rules of
evidence, it creates an exception to them in certain contexts.
It specifically recognizes that the evidence which it admits is
not admissible under the rules of evidence. Local Rule 11(c),
however, applies "[t]he rules of evidence." If the drafters of
the local rule had wanted the exceptions contained in the Proce-
dure Act to apply in their local proceedings they certainly could
have so provided, but this rule did not do so. Accordingly, the
hearsay testimony of the police officers was barred.
Erroneous admission of hearsay is not grounds for
reversal if there is sufficient competent evidence to support the
decision. Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 94, 606 N.E.2d 1111, 1120 (1992),
citing Goranson v. Department of Registration & Education, 92
Ill. App. 3d 496, 501, 415 N.E.2d 1249, 1253 (1980). In three of
the four cases this rule does not affect the propriety of the
circuit court's result, as there was no competent evidence of the
purchasers' ages. However, in the proceeding involving the
events of November 10, Gnagey testified he had personally known
the purchaser since her birth and had merely spoken with her
parents and examined her driver's license to verify her age. To
the extent that his testimony was based on his personal knowl-
edge, it was not hearsay. His testimony, based on his personal
knowledge, constituted competent evidence, sufficient to support
the local commission's result. Accordingly, the error in the
introduction of the additional hearsay basis for his testimony
was harmless in that case, and the circuit court's vacation of
the $600 fine against Central Tap must be reversed.
B. Informer's privilege
The licensees argue the failure to disclose the names
of the undercover underage buyers violated their rights to due
process and to confront witnesses against them. Due process must
be given in administrative as well as judicial proceedings.
Abrahamson, 153 Ill. 2d at 92, 606 N.E.2d at 1119. However, it
is a flexible concept, and the extent of process due varies
according to the particular situation. Abrahamson, 153 Ill. 2d
at 92, 606 N.E.2d at 1119. Due process in the context of a
hearing before an administrative agency includes the right to
cross-examine adverse witnesses. Abrahamson, 153 Ill. 2d at 95,
606 N.E.2d at 1120; Balmoral Racing Club, Inc. v. Illinois Racing
Board, 151 Ill. 2d 367, 408, 603 N.E.2d 489, 506 (1992). Howev-
er, administrative proceedings are not criminal prosecutions and
are not subject to the same safeguards and protections afforded
in the latter. Sharma v. Zollar, 265 Ill. App. 3d 1022, 1030,
638 N.E.2d 736, 742 (1994). The informer's privilege is "argu-
ably greater" in civil cases than in criminal. Dole v. Local
1942, International Brotherhood of Electrical Workers, 870 F.2d 368, 372 (7th Cir. 1989).
The licensees argue first that the privilege should not
apply in this case because the "informants" were paid. This
theory was implicitly rejected in People v. Ofoma, 242 Ill. App.
3d 697, 610 N.E.2d 738 (1993). Ofoma involved a paid informant
(see Ofoma, 242 Ill. App. 3d at 703, 610 N.E.2d at 743), but this
court upheld a criminal conviction despite nondisclosure of an
informant's identity. Ofoma, 242 Ill. App. 3d at 704, 610 N.E.2d
at 743. Nor must the government show likelihood of reprisal to
be entitled to the privilege. Dole, 870 F.2d at 372; United
States v. South Side Finance, Inc., 755 F. Supp 791, 796 (N.D.
Ill. 1991). The privilege is granted to the government as a
matter of right, although it is qualified in that the party
opposing it may overcome it by showing a genuine need for the
information. Dole, 870 F.2d at 372-73, South Side Finance, 755
F. Supp at 796.
It is up to the party opposing the privilege to demon-
strate its need for disclosure, and the need must amount to more
than a "mere desire to cross-examine." People v. Sutton, 260
Ill. App. 3d 949, 958, 631 N.E.2d 1326, 1333 (1994). The privi-
lege will not yield for purposes of a mere "fishing expedition
[citation], nor upon bare speculation that the information may
possibly prove useful." Dole, 870 F.2d at 373. Here, the
licensees do not indicate any way in which disclosure of the
informants' identities might help them in preparing a defense.
Cf. People v. Vauzanges, 158 Ill. 2d 509, 521, 634 N.E.2d 1085,
1090-91 (1994) (in which an officer's affidavit in support of a
search warrant that a confidential informant told him he had
purchased cocaine from the defendant on a certain date was
contradicted by (1) affidavits of defendant and two other persons
who stated they were the only people who visited him on the day
in question and had not purchased cocaine, and (2) affidavits of
defendant and another person which stated that another government
informant told them that the officer had admitted to him that no
informant existed, so the defendant would probably "weasel out"
of his case). The licensees could perhaps have attacked the
officers' testimony by testimony that there was always a bouncer
checking identification (ID) at the door, or that ID's were
always checked at the tables, which might have given the circuit
court some reason to doubt the officers. They did not do so,
however.
Whether to order disclosure is decided on a case-by-
case basis, balancing the public interest in protecting infor-
mants against the right of the accused to prepare a defense.
Ofoma, 242 Ill. App. 3d at 704, 610 N.E.2d at 743, citing People
v. Woods, 139 Ill. 2d 369, 378, 565 N.E.2d 643, 648 (1990). The
licensees were not entitled to disclosure of the informants'
identities, as they did not show how that information could help
them prepare a defense or give the circuit court any reason to
doubt the officers. All they have alleged is that they will have
difficulty mounting an effective defense without disclosure of
the informants' identities. They allege no facts or even theo-
ries of how they could mount an effective defense if this infor-
mation were disclosed.
The informer's privilege protects the undercover pur-
chasers in this case, and there was no error in the refusal to
disclose their identities. This does not change our result,
however, as the Commission has not cited, nor are we aware of,
any authority for the proposition that the privilege will excuse
failure to prove a case by competent evidence.
II. CONCLUSION
We affirm the circuit court's vacation of the fines
imposed by the local commission in all cases except the proceed-
ing against Central Tap for the events of November 10 because the
ages of the buyers, an essential element of the State's case,
rested solely on inadmissible hearsay. In the latter case, we
reverse and remand with directions to reinstate the fine assessed
by the local commission because Gnagey's personal knowledge of
the buyer's age constituted sufficient competent evidence to sup-
port the local commission's result.
Affirmed in part; reversed in part and remanded.
McCULLOUGH, J., concurs.
COOK, J., dissents.
 JUSTICE COOK, dissenting:
I respectfully dissent. I would reverse the decision
of the circuit court and reinstate the decision of the Commis-
sion.
The majority holds that the age of the purchaser is an
essential element of the violation which must be proved by
"competent evidence," i.e., evidence that is not "inadmissible
hearsay evidence." Slip op. at 2-3.
It is difficult to prove a person's age without relying
on hearsay evidence. A birth certificate is hearsay--an out-of-
court statement offered to show the truth of the matter asserted
therein. Only those present at the time of birth have firsthand
knowledge of the event. The child, of course, has no independent
recollection of his birth. The father may not be able to testify
because he may not have been in the delivery room. Doctors and
nurses would not be expected to remember the date after several
weeks had passed. That leaves only the mother, and if she is
unable to testify it may be impossible to prove a person's date
of birth without using hearsay evidence.
The hearsay rule is noted for its flexibility, its
exceptions, and proof of age requires more flexibility than do
most areas of proof. There is an exception to the hearsay rule
which allows age to be proved by a birth certificate. 410 ILCS
535/25(2), (6) (West 1994). There is another exception which
allows a person to testify to his own age. People v. Pennell,
315 Ill. 124, 127, 145 N.E. 606, 607 (1924). There is no reason
flexibility must end with those two exceptions. In cases like
the present, there should be no problem with proving age from a
valid driver's license. A bartender is entitled to rely on the
birth date shown on a driver's license. 235 ILCS 5/6-16a (West
1994) ("adequate written evidence of age and identity of the
person is a document issued by [any branch of government],
including, but not limited to, a motor vehicle operator's li-
cense").
The majority properly concludes that the identity of
the informants does not have to be disclosed. The majority would
apparently allow the informants' ages to be proved by a birth
certificate, or by the informants' own testimony. Secrecy could
be preserved by redacting the informants' identity on the birth
certificate, or by the court reviewing the birth certificate or
questioning the informant in camera, or by the court designating
a third party to review the birth certificate or interview the
informant. The last alternative may be preferable because then
there would be a witness who could testify how the review or
interview was accomplished. None of these alternatives would
have been acceptable to defendants. Defendants insisted on
learning the identity of the informants, an insistence which
would have a chilling effect on future prosecutions using infor-
mants.
Allowing the deputy chief to testify to the birth dates
shown on valid driver's licenses was a reasonable accommodation
between the need to obtain accurate information of the infor-
mants' dates of birth and the need to prevent disclosure of the
informants' identities. Additional steps could have been taken
to verify the ages of the informants if that had been a real
concern in this case. The majority improperly decides this case
by labelling the evidence incompetent and inadmissible (slip op.
at 9) without considering whether the evidence should be incompe-
tent and inadmissible. The majority decision is overly rigid in
an area where flexibility is appropriate.