dissenting:
I cannot agree with the conclusion of the majority of the court that there is sufficient evidence to support the revocation of plaintiff’s retail liquor license.
Plaintiff had been a tavern licensee at 30th Place in Cicero for thirteen years before becoming a licensee of the 3500 South Laramie premises on July 1st of 1967. It is undisputed that during those years he had never been charged with any violations by the Commission.
On October 27, 1967, the Commission charged him with fraud in obtaining the 1967 license in that he stated in his application that his residence was at 3500 South Laramie Avenue, Cicero, Illinois, the address of his tavern, whereas information came to the Commission that he resides at 5837 Maple, Berkeley, Illinois.
The sole question is whether the plaintiff, licensee, resided on the licensed premises during the months of July to November, 1967. Plaintiff testified that he resides in the 3500 South Laramie premises, but also maintains a home for his family in Berkeley, Illinois. A neighbor who has been a patron in the tavern during the months in question, testified that there is a kitchen on the premises and he had eaten there. He said there is a bedroom downstairs which plaintiff occupied. A realtor who had been a frequent patron of the tavern, testified that there is a kitchen in the premises and a bedroom downstairs in which there is a bed, a dresser, a clothes closet cabinet and a nightstand.
Emily Carlisi, plaintiff’s wife, testified that her three children, two daughters and a son, reside with her at the Berkeley address, and that they have resided there for the past five years, and that her husband came home only on Sundays during those years. She stated that there were kitchen facilities in the tavern and that her daughter worked there as a cook. She testified further, that her husband occupies a bedroom in the tavern premises, has a bed, a nightstand, a lamp and a rug which she characterized as not very good, but enough for a man to get by on.
Alfonso Carlisi testified that he was fifty-four years of age and had been in the tavern business for twenty-five years. He said that he had resided in the Tornabene residence at 3641 53rd Street in Cicero during the years 1964, 1965, 1966 and the beginning of 1967, which was corroborated by Mrs. Mary Tornabene, and that he went home on Sundays. He testified that he resided six nights a week in the tavern premises at 3500 South Laramie. Photographs of a stairway going downstairs, a bed, a clothes wardrobe, a dresser in a room downstairs, were produced as exhibits.
The only person who directly testified that plaintiff did not live in the tavern premises, was an FBI agent. He testified that he examined the tavern premises on one occasion and based on that examination he was of the opinion that there were no living quarters on the premises. On cross-examination he testified that he couldn’t recall whether there were any kitchen facilities on the premises and when asked whether he made a detailed examination of what the premises actually consisted of, he replied, “no sir, I just went through.”
Q. “The answer is ‘no’ is that right?”
A. “That’s right.”
In my opinion, the evidence before the Commission does not support its order and is clearly against the manifest weight of the evidence. As stated in Hughes v. Illinois Public Aid Commission, 2 Ill2d 374, 380, 118 NE2d 14. “Residence has no fixed, exact meaning in the law, but may have a variety of meanings dependent upon the context in connection with which it is employed, as well as the subject matter involved and the purposes of such subject matter. Two elements are necessary to create a residence, (1) bodily presence in that place and (2) the intention of remaining in that place; neither alone is sufficient to create a legal residence.”
In evaluating the intent of the Dram Shop Act in relation to residence, the obvious and controlling consideration must be personal responsibility. To insure that responsibility, the licensee must not only be physically available, but he must be available to the local police. There was no evidence whatsoever that any police authorities or any other municipal departments had occasion to go to the tavern premises at nighttime and found that the plaintiff was not residing there. The evidence overwhelmingly shows that the plaintiff intended to personally reside in Cicero, Illinois, as his permanent residence, but he also maintained a separate home for his family in Berkeley, Illinois. See Garrison v. Garrison, 107 Ill App2d 311, 246 NE2d 9.
For the reasons indicated I am of the opinion that the judgment of the Circuit Court should be reversed.