City of Wyoming v. Liquor Control Commission of Illinois

• Decision Date: 28 April 1977
• Docket Number: No. 76--378,76--378
• Citation: 362 N.E.2d 1080,6 Ill.Dec. 258,48 Ill.App.3d 404
• Parties: , 6 Ill.Dec. 258 CITY OF WYOMING, a Municipal Corporation, Lucille Polk, Mayor and Local Liquor Control Commissioner, City of Wyoming, Plaintiffs-Appellees, v. LIQUOR CONTROL COMMISSION OF ILLINOIS, Defendant, Wyoming Super Valu, Inc., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1080

362 N.E.2d 1080

48 Ill.App.3d 404, 6 Ill.Dec. 258

CITY OF WYOMING, a Municipal Corporation, Lucille Polk,

Mayor and Local Liquor Control Commissioner, City

of Wyoming, Plaintiffs-Appellees, v. LIQUOR CONTROL COMMISSION OF ILLINOIS, Defendant, Wyoming Super Valu, Inc., Defendant-Appellant.

No. 76--378.

Appellate Court of Illinois, Third District.

April 28, 1977.

Rehearing Denied June 3, 1977.

Nelson O. Howarth, Springfield, for defendant-appellant.

Glen L. Borden, Liggett, Borden & Borden, Wyoming, for plaintiffs-appellees.

BARRY, Justice.

This case involves an appeal by the defendant, Wyoming Super Valu, Inc. (hereinafter referred to as Super Valu), from an order of the Circuit Court of Stark County. The circuit court, on administrative review, reversed an order of the Illinois Liquor Control Commission (hereinafter referred to as the Commission), also a defendant in this case. The Commission's order had directed the plaintiffs, City of Wyoming and Lucille Polk, the Mayor of the City of Wyoming and local liquor control commissioner (hereinafter referred to as City and Mayor, respectively), to renew Super Valu's local liquor license.

Super Valu is an Illinois corporation, primarily engaged in the grocery business and having a place of business within the corporate limits of the City. The City is not a home rule unit. As a result of a city council meeting in June of 1973, the then Mayor and local liquor control commissioner issued a license to Super Valu to permit the sale of beer and wine in its place of business from May 1, 1973 to April 30, 1974.

The basis for the issuance of the license was a purported amendment to the City's liquor ordinance. Only a notation in the minutes of the council meeting and a handwritten addition to the printed ordinance which purported to add a license classification allowing for the sale of beer and wine to be consumed off the premises gave evidence that an amendment was considered by the city council. Nevertheless, a renewal license was issued to Super Valu, the license to operate from May 1, 1974 to April 30, 1975.

Subsequent to the issuance of the renewal license, the city attorney advised the city council that the license was invalid because there was no ordinance providing for the issuance of such a license. As a result, Mayor Polk refused to issue a second renewal license to Super Valu. The Mayor's action was taken without issuing a notice of a hearing to Super Valu, without any formal hearing, without presenting any written charges to Super Valu, and without issuing an order of revocation, suspension or refusal to renew Super Valu's license.

This cause was then heard by the Illinois Liquor Control Commission. The City and the Mayor admit in their brief that the only issue before the Commission was whether the City was estopped from denying the existence of a valid ordinance. The Commission found that the evidence presented by the City did not support the refusal to renew the license and directed the issuance of the license.

Thereafter, administrative review was sought in the Circuit Court of Stark County. That court reversed the order of the Commission and entered judgment in favor of the City and the Mayor. The specific finding upon which this decision was based was that, under the ordinance, there was never any power in the local liquor control commissioner to issue a license. Form the judgment of the circuit court, Super Valu appeals.

The only question before this court is whether the local liquor control commissioner improperly refused to renew Super Valu's license because of noncompliance with the notice and hearing requirements of Ill.Rev.Stat.1975, ch. 43, par. 149. We are not now deciding the propriety or impropriety of the Mayor's refusal to renew Super Valu's license on grounds other than the invalidity of the ordinance upon which the issuance of the license was based. Nor is it necessary for this opinion that we decide whether the City's liquor ordinance was, or was not, validly amended to provide for the issuance of a local retail license to Super Valu.

This court has held that a party who fails to assert the invalidity of an ordinance within a reasonable time after its passage, is estopped from so asserting if the failure resulted from that party's lack of due diligence and the opponent has substantially changed his position in reliance on the ordinance. (Smith v. City of Macomb (3rd Dist. 1976), 40 Ill.App.3d 658, 352 N.E.2d 697). Furthermore, although as a general rule a person takes the risk that the government officer to whom he speaks has the authority which he purports to have, the doctrine of estoppel may be invoked where a party is induced to take an action by the conduct of municipal officers and where, in the absence of relief, that party would suffer substantial loss. (City of Marseilles v. Hustis (3rd Dist., 1975), 27 Ill.App.3d 454, 325 N.E.2d 767). The Illinois Supreme Court has also recognized the application of the doctrine of estoppel under the same circumstances. (Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill.2d 157, 171 N.E.2d 605).

In the case at bar, Super Valu instituted the sale of beer and wine in reliance on the issuance of the license by the local liquor control commissioner and mayor of the City of Wyoming. As a result, Super Valu built up its business and its inventory such that it stands to incur a substantial loss if the mayor-local commissioner is now allowed to nullify the act of her predecessor in office. Therefore, the City and the Mayor are estopped from denying the validity or the existence of an amendment to the City's liquor ordinance which created the authority to issue a local license to Super Valu.

The City and the Myor argue that the issue of estoppel was not raised in this court or in the circuit court. Nevertheless, they admit, in the appellee brief, that it was the only issue before the Commission. In addition, Super Value specifically raises the issue of equitable estoppel in the reply brief.

Although Supreme Court Rule 341 indicates that points not argued in the appellant's brief are deemed waived...