Bailey v. Ill. Liquor Control Com'n

• Decision Date: 10 November 2010
• Docket Number: No. 1-09-3375.,1-09-3375.
• Citation: 345 Ill.Dec. 190,405 Ill.App.3d 550,938 N.E.2d 629
• Parties: Medina BAILEY, Executive Director of Nurturing Development and Learning Center, Inc., Petitioner-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION, an Illinois State Agency; William Shaw, Local Liquor Control Commissioner of Village of Dolton; and Greenwood Liquors and Food, Inc., an Illinois Corporation, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

938 N.E.2d 629 405 Ill.App.3d 550 345 Ill.Dec. 190 Medina BAILEY, Executive Director of Nurturing Development and Learning Center, Inc., Petitioner-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION, an Illinois State Agency; William Shaw, Local Liquor Control Commissioner of Village of Dolton; and Greenwood Liquors and Food, Inc., an Illinois Corporation, Respondents-Appellees. No. 1-09-3375. Appellate Court of Illinois, First District, Third Division. Nov. 10, 2010.

Lloyd Brooks, The Brooks Law Firm, Homewood, IL, for Petitioner-Appellant.

Irene F. Bahr, Law Office of Irene F. Bahr, Wheaton, IL, for Respondents-Appellees, Greenwood Liquors & Food, Inc.

Lisa Madigan, Attorney General State of Illinois, Michael S. Scodro, Solicitor General, Laura Wunder, Asst. Attorney General, Chicago, IL, for Respondent-Appellee, Illinois Liquor Control Commission.

Larry S. Kowalczyk, Christopher P. Keleher, Querrey & Harrow, Ltd., Chicago, IL, for Respondent-Appellee, Local Liquor Control Commissioner of Village of Dolton.

Justice MURPHY delivered the opinion of the court:

[345 Ill.Dec. 192, 405 Ill.App.3d 551]

Petitioner, Medina Bailey, executive director of Nurturing Development & Learning Center, Inc. (NDLC), appeals the decision of the Illinois Liquor Control Commission (Commission) that the NDLC, a day care center that also operates a preschool, is not a "school" under section 6-11(a) of the Liquor Control Act of 1934, which prohibits the retail sale of alcohol within 100 feet of "any * * * school." 235 ILCS 5/6-11(a) (West 2006).

[345 Ill.Dec. 193, 405 Ill.App.3d 552, 938 N.E.2d 632]

I. BACKGROUND

On December 17, 2007, William Shaw, the local liquor commissioner for the Village of Dolton, issued a liquor license to Greenwood Liquor & Food, Inc., located at 825 East Sibley in Dolton, Illinois. NDLC is located at 835 East Sibley in South Holland, Illinois, next door to the liquor store. On January 4, 2008, petitioner, the executive director of NDLC, appealed Shaw's decision to the Commission, arguing that the issuance of the license violates section 6-11 of the Liquor Control Act of 1934 (235 ILCS 5/6-11 (West 2006)), which prohibits the retail sale of alcohol within 100 feet of "any * * * school." 235 ILCS 5/6-11(a) (West 2006).

The Commission conducted a de novo evidentiary hearing. At the hearing, petitioner testified that NDLC is a not-for-profit organization that participates in the Preschool for All program, a voluntary preschool program for three- to five-year-olds. She described the Preschool for All program as an equivalent to earlier Headstart or "Pre-K" programs, which helped prepare children for kindergarten. Similarly, Preschool for All is an early intervention program that helps transition children to public or private school. The program is conducted five hours a day, and she requires children to arrive at the facility by 9 a.m.

As a participant in the Preschool for All program, NDLC is required to follow guidelines established by the Illinois State Board of Education (ISBE), including the requirement to have a state-certified teacher with a certification in early childhood education and to use an ISBE-approved curriculum. However, the Preschool for All program implementation manual provides that the "Illinois State Board of Education does not endorse specific curricula for use in the Preschool for All." A nonprofit organization, Illinois Action for Children, monitors the program and visits the facility monthly, while the ISBE visits annually. Although the ISBE funds the program, Illinois Action for Children pays NDLC. Shaw presented a letter from the ISBE, dated April 16, 2008, which states that NDLC is not "funded directly by ISBE, and is not recognized or accredited as a school by the ISBE."

Petitioner operates her business from 6 a.m. to 6 p.m., five days a week. Children are dropped off at the building and picked up by their parents. NDLC accepts children from the ages of six weeks to six years of age. Forty children ages three to five years old are students in the program, which she characterized as a preschool.

On her business license application, petitioner indicated that NDLC's primary purpose is child care. Her 2007 corporate annual report states that the business NDLC conducts is child care. NDLC is listed as a day care center in the Yellow Pages. Included in the recordare documents showing that the Department of Children and Family Services (DCFS) monitors, visits, and evaluates the center.

Petitioner testified that NDLC's and Greenwood Liquor & Food's property lines abut each other, and a fence separates the two properties; she measured the distance between the buildings to be 80 feet. She stated that she had a survey, but it was not submitted; instead, petitioner submitted an aerial map.

On May 6, 2008, the Commission entered an order affirming the decision of the Village's local liquor commissioner, finding that petitioner failed to prove by a preponderance of the evidence that the Village violated section 6-11 by issuing a liquor license within 100 feet of a school.

On May 23, 2008, petitioner filed a petition for rehearing with the Commission alleging that she had new evidence that

[345 Ill.Dec. 194, 938 N.E.2d 633]

was not available at the time of the hearing. She attached a letter from the ISBE dated April 30, 2008. It stated that NDLC is registered with the ISBE as of April 29, 2008, and that it was associated with South Holland School District # 150. According to petitioner's counsel's letter of May 5, 2008, petitioner applied for and received registration after the hearing with the Commission. The Commission denied the petition for rehearing on June 11, 2008.

Petitioner filed a complaint for administrative review with the trial court. On July 22, 2009, the trial court found that the Commission's decision was not contrary to the law or clearly erroneous and that its decision to deny the petition for rehearing was not an abuse of discretion. This appeal follows.

II. ANALYSIS

On appeal, this court reviews the administrative agency's decision and not the trial court's determination. Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 362 Ill.App.3d 357, 365, 298 Ill.Dec. 235, 839 N.E.2d 558 (2005). The applicable standard of review depends on whether the question presented on appeal is one of fact, of law, or both. Daley v. Lakeview Billiard Café, Inc., 373 Ill.App.3d 377, 381, 311 Ill.Dec. 497, 869 N.E.2d 171 (2007). The factual findings of an administrative agency are considered prima facie true and correct (735 ILCS 5/3-110 (West 2006)), and a reviewing court will reverse only if the administrative decision is against the manifest weight of the evidence. Carlisle Investments Group, Ltd. v. White, 366 Ill.App.3d 876, 883, 304 Ill.Dec. 143, 852 N.E.2d 393 (2006). However, this court exercises an independent review of an agency's conclusions of law. Barber v. Board of Trustees of Village of South Barrington Police Pension Fund, 256 Ill.App.3d 814, 818, 196 Ill.Dec. 511, 630 N.E.2d 446 (1993). An agency's determination of the legal effect of a given set of facts presents a mixed question of fact andlaw subject to the clearly erroneous standard of review. Lakeview Billiard Café, 373 Ill.App.3d at 381, 311 Ill.Dec. 497, 869 N.E.2d 171. Such a decision is clearly erroneous only where the reviewing court, on the entire record, is left with the definite and firm conviction that a mistake has been committed. Lakeview Billiard Café, 373 Ill.App.3d at 381, 311 Ill.Dec. 497, 869 N.E.2d 171.

Petitioner asserts that the Commission's decision should be reviewed de novo since the Commission did not make any specific findings of fact or provide any explanation of its decision. Respondents, the Commission, Shaw, and Greenwood Liquor & Food, argue that whether the NDLC is a school is a question of fact. However, because we are applying the definition of "any * * * school" to the facts presented before the Commission, this case presents a mixed question of fact and law subject to the clearly erroneous standard of review. Lakeview Billiard Café, 373 Ill.App.3d at 381, 311 Ill.Dec. 497, 869 N.E.2d 171.

A. Section 6-11(a) of the Liquor Control Act

Section 6-11(a) of the Liquor Control Act of 1934 provides, in pertinent part, "No license shall be issued for the sale at retail of any alcoholic liquor within 100 feet of any church, school other than an institution of higher learning, hospital, home for aged or indigent persons or for veterans, their spouses or children or any military or naval station * * *." 235 ILCS 5/6-11(a) (West 2006). The Act "shall be liberally construed, to the end that the health, safety and welfare of the People of the State of

[345 Ill.Dec. 195, 938 N.E.2d 634]

Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors." 235 ILCS 5/1-2 (West 2006). As the United States Supreme Court has found, "schools and churches have a valid interest in being insulated from certain kinds of commercial establishments, including those dispensing liquor." Larkin v. Grendel's Den, Inc., 459 U.S. 116, 121, 103 S.Ct. 505, 509, 74 L.Ed.2d 297, 303 (1982).

The goal of a court when construing a statute is to ascertain the legislature's intent, "and the surest indicator * * * is the language in the statute." Department of Public Aid ex rel. Schmid v. Williams, 336 Ill.App.3d 553, 556, 271 Ill.Dec. 198, 784 N.E.2d 416 (2003). "To this end, the court may consider the reason and necessity for the statute and the evils it was intended to remedy, and will assume that the legislature did not intend an * * * unjust result." In re Marriage of Beyer, 324 Ill.App.3d 305, 309, 257 Ill.Dec. 406, 753 N.E.2d 1032 (2001). A court may not supply omissions, remedy defects, substitute different provisions, add exceptions, limitations, or conditions,...