Aurora Pizza Hut, Inc. v. Hayter

• Decision Date: 28 December 1979
• Docket Number: No. 79-415,79-415
• Citation: 79 Ill.App.3d 1102,398 N.E.2d 1150,35 Ill.Dec. 200
• Parties: , 35 Ill.Dec. 200 AURORA PIZZA HUT, INC. d/b/a Pizza Hut, Plaintiff-Appellant, v. Virginia M. HAYTER, local liquor commissioner of Hoffman Estates, Illinois, State of Illinois Liquor Control Commission, Jack Wallenda, Executive Director, Albert D. McCoy, Chairman, John Kneasfsky, Chairman, and Sam J. Gutilla, Commissioner, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1150

398 N.E.2d 1150

79 Ill.App.3d 1102, 35 Ill.Dec. 200

AURORA PIZZA HUT, INC. d/b/a Pizza Hut, Plaintiff-Appellant, v. Virginia M. HAYTER, local liquor commissioner of Hoffman Estates, Illinois, State of Illinois Liquor Control Commission, Jack Wallenda, Executive Director, Albert D McCoy, Chairman, John Kneasfsky, Chairman, and Sam J Gutilla, Commissioner, Defendants-Appellees.

No. 79-415.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 28, 1979.

Rudd & Dickler, Schaumburg, for plaintiff-appellant, Aurora Pizza Hut, Inc.; Marshall N. Dickler, Schaumburg, of counsel.

Richard N. Williams, Hoffman Estates, for appellee, Village of Hoffman Estates.

William J. Scott, Atty. Gen., Chicago, for defendants-appellees; Patricia Rosen, Asst. Atty. Gen., Chicago, of counsel.

LORENZ, Justice:

Plaintiff brought this action under the Administrative Review Act (Ill.Rev.Stat.1977, ch. 110, par. 264, Et seq.) to review the rulings of defendants Virginia Hayter, liquor commissioner of Hoffman Estates, and the State Liquor Control Commission denying plaintiff a renewal of its liquor license. The circuit court affirmed the rulings of Hayter (Hoffman Estates) and the State Liquor Control Commission (Commission). Plaintiff appeals from that judgment. On appeal, plaintiff contends that the licensing ordinances of Hoffman Estates violate due process because of an internal inconsistency; that the licensing ordinances of Hoffman Estates violate due process because they are inconsistent with the Illinois Liquor Control Act (Ill.Rev.Stat.1977, ch. 43, par. 94, Et seq.); that denial of a liquor license can only be made for the reasons found in the Illinois Liquor Control Act, and not for a reason found only in the licensing ordinances of Hoffman Estates; and that the licensing ordinances of Hoffman Estates violate the Commerce Clause of the United States Constitution.

Plaintiff received a liquor license from Hoffman Estates on May 1, 1977. On March 3, 1978, plaintiff applied to Hoffman

[35 Ill.Dec. 203] Estates for a renewal of its liquor license. The application was denied because plaintiff failed to name a resident of Hoffman Estates as manager of the premises as required by Hoffman Estates Municipal Code (municipal code), Article III, section 8-3-5(23). In its appeal to the Commission, plaintiff argued that sections 8-3-5(9) and 8-3-5(11) of the municipal code state that the manager of the license applicant need not be a resident of Hoffman Estates. Plaintiff further argued that sections 120(10) and 110 of the Illinois Liquor Control Act (Ill.Rev.Stat.1977,[79 Ill.App.3d 1105] ch. 43, sections 120(10), 110) also state that the manager of the license applicant need not be a resident of the licensing political subdivision. These arguments were rejected by both the Commission and the circuit court.

OPINION

Plaintiff's initial argument raises the question of whether the licensing ordinances of Hoffman Estates require a manager of the premises to be a resident of Hoffman Estates. The relevant portions of Article III, section 8-3-5 of the municipal code follow:

"No license shall be issued to:

(9) A corporation, if any officer, manager or director thereof, or any stockholder or stockholders owning directly or beneficially in the aggregate more than five per cent (5%) of the stock in such corporation, would not be eligible to receive a license hereunder for any reason other than citizenship and residence within the village.

(11) A person whose place of business is conducted by a manager or agent said manager or agent possesses the same qualifications required of the licensee:

(23) A corporation, unless the designated person operating as manager of the premises as required by Section 8-3-4 is a resident of the village. " Hoffman Estates Municipal Code, article III, section 8-3-5.

Plaintiff maintains that paragraphs (9) and (11), indicating that the manager need not be a resident of the village, are in conflict with paragraph (23) requiring that the manager of the premises be a resident of the village. Defendants, on the other hand, argue that the "manager" referred to in paragraphs (9) and (11) is not the same person as the "manager of the premises" referred to in paragraph (23). Thus, according to the defendants, no conflict exists.

Stripped of all language not relevant to this issue, paragraph (9) prohibits the issuance of a license to: "A corporation, if any * * * Manager * * * Thereof, * * * would not be eligible to receive a license hereunder for any reason other than citizenship and residence within the village." (Hoffman Estates Municipal Code, Article III, par. 8-3-5(9) (emphasis supplied).) In comparison, paragraph (23) prohibits the issuance of a license to a corporation unless the person "operating as Manager of the premises" is a resident of the village. An elementary canon of statutory construction teaches us that where the legislature uses certain words in one instance, and different words in another, different results were intended. (Illinois State Toll Highway Authority v. Karn (1973), 9 Ill.App.3d 784, 293 N.E.2d 162.) Applying this rule to the present case, we believe the legislators of Hoffman Estates were speaking of two different individuals when they drafted these paragraphs. Paragraph (23) involves the individual managing the premises for which the liquor license is issued; this individual is responsible for the day-to-day operations of these premises. Paragraph (9), however, involves the manager of the corporation, as a whole, which is applying for the liquor license; this individual is responsible for the general conduct and control of the entire corporation. (See, Freeport Journal-Standard Pub. Co. v. Frederick W. Ziv Co. (1952), 345 Ill.App. 337, 103 N.E.2d 153; Dade County Dairies, Inc. v. Projected Planning Co. (Fla. D.Ct.App.1963), 158 So.2d 565; and Gillian v. Consolidated Foods Corp. (1967), 424 Pa. 407, 227 A.2d 858.) Since these ordinances are directed at two different individuals, no conflict exists between them.

Plaintiff also contends that Hoffman Estates' requirement that the manager of the premises be a resident of Hoffman Estates conflicts with sections 120(10) and 110 of the Liquor Control Act. (Ill.Rev.Stat.1977, ch. 43, par. 120(10), 110.) Section 120(10) is almost identical to Article III, section 8-3-5(9) of the municipal code and states in pertinent part:

"No license of any kind issued by the State Commission or any local commission shall be issued to:

(10) A corporation, if any officer, manager or director thereof, * * * would not be eligible to receive a license hereunder for any reason other than citizenship and residence within the political subdivision;" (Ill.Rev.Stat.1977, ch. 43, par. 120(10).)

Once again we feel that the choice of words employed by the legislature indicates that this section is directed at the manager of the entire corporation which is applying for a liquor license. Consequently, this section is not in conflict with article III, section 8-3-5(23) of the municipal code which is limited to the manager of the premises for which the liquor license is issued.

A more difficult question is presented by the apparent conflict between section 110 of the Liquor Control Act and Article III, section 8-5-5(23) of the municipal code. Section 110, authorizing local governmental units to license and regulate the retail sale of alcoholic beverages, provides in pertinent part:

"(I)n the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in sections 2, 8, 8a and 21 of article VI of this Act." (Sections 120, 127, 127a and 142.) (Ill.Rev.Stat.1977, ch. 43, par. 110.)

Since the Liquor Control Act does not require that the manager of the premises be a resident of the licensing political subdivision, plaintiff argues that section 110 prohibits local liquor commissions from refusing to issue liquor licenses on this ground. In reply, defendants contend that Article III, section 8-3-5(23) is a valid exercise of Hoffman Estates' home rule powers under article VII of the Illinois Constitution of 1970 and therefore, section 110 of the Liquor Control Act does not bind Hoffman Estates. Consequently, we turn our attention to the powers and limitations of a home rule unit of government in relation to the state of Illinois.

Initially, we note that the status of Hoffman Estates as a home rule unit of government is not challenged. (See, Ill.Const.1970, art. VII, sec. 6(a).) A home rule unit has the power to regulate matters pertaining to the public health, safety, morals and welfare. (Ill.Const. (1970), Art. VII, sec. 6(a).) In Daley v. Berzanskis (1971), 47 Ill.2d 395, 269 N.E.2d 716, Cert. denied (1971), 402 U.S. 999, 91 S.Ct. 2173, 29 L.Ed.2d 166, our supreme court held that regulation of alcoholic beverages is intimately related to the public health, safety, morals and welfare. Thus, the licensing ordinances at question in this case is a valid exercise of Hoffman Estates' authority as a home rule unit. Illinois Liquor Control Commission v. Calumet City (1975), 28 Ill.App.3d 279, 328 N.E.2d 153.

Plaintiff contends, however, that Hoffman Estates' exercise of its home rule powers in the regulation of alcoholic beverages is effectively limited by Section 110 of the Liquor Control Act. Sections 6(g), 6(h) and 6(i) of Article VII of the Illinois Constitution of 1970 expressly state the conditions under which an act of the general assembly may limit the powers of a home rule unit. Before examining these sections we note that the Illinois Supreme Court has consistently held that a statute enacted prior to the effective date of the Illinois Constitution of 1970 (July 1, 1971) is subordinate to an ordinance enacted by a home rule unit under the grant of powers found in section 6(a). (See E. g., City of Rockford v. Gill (1979), 75 Ill.2d 334, 26 Ill.Dec. 669, 388...