Customer wins video-poker credits, Saloon loses liquor license

Although this opinion was issued in July, it was only recently published. (Which is how I found it.)

Here are the CliffsNotes: The Boom Town Saloon has a video poker machine. A Chicago vice officer, while enjoying a beverage at the saloon, noticed a patron using the video machine. He ”watched the patron insert money into the machine and manipulate its buttons.” The officer also could see that the patron was racking up “credits” on the machine. About a half-hour later, the patron goes to the bartender, who then goes to the storage area behind the bar, who then returns with money for the patron. That was enough for the officer.

The officer gets a search warrant and returns to Boom Town on the next day. But he did not recover any money, paraphernalia, documents, or evidence of gambling from the back storage area. The bar’s liquor license is revoked anyway, after the Local Liquor Control Commission determines that Boom Town operated a “gambling device,” among other violations. The LLCC’s decision is affirmed by the License Appeal Commission. And the LAC’s decision is affirmed by the circuit court.

Enter the Appellate Court of Illinois to reverse the liquor-license revocation. Writing for the majority, Justice Gordon held:

If we disregard any matters allegedly asserted by the calling out or by the gesture, then the record shows merely: (1) a patron playing a video machine; (2) the patron approaching the bar; and (3) the bartender nodding, going into a back area and then handing the patron a bill or bills of an unknown amount. As discussed below, these acts show no evidence of gambling and are completely distinguishable from the facts in Connor, where our supreme court found sufficient evidence of gambling. Connor, 354 Ill. App. 3d at 384.

It’s an interesting decision and generates a persuasive dissent from Justice Garcia. One passage:

While admittedly more than one reasonable inference may be drawn from the observed conduct, the Commissioner appears to have drawn the inference that the patron signaled the bartender he had finished his poker play and he was entitled to his winnings based on the credits Officer Sobczyk observed on the poker machine. There was no testimony from the bartender that she and the patron returned to the poker machine as one might expect to verify a problem did occur.

I can see where both sides of the decision are coming from. The opinions focus on hearsay (exceptions) and burdens of proof, all against that ever-deferential “standard of review” that shrouds administrative hearings. Maybe the justices reached different conclusions because they place different values on the property right in question (i.e., a liquor license), and therefore the amount of procedural due process (e.g., rules of evidence) that should attach to such property-deprivation proceedings. Who knows. Boom Town really pulled one off here.

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