Daley v. El Flanboyan Corp.

• Decision Date: 28 March 2001
• Docket Number: No. 1-99-4117.,1-99-4117.
• Citation: 321 Ill. App.3d 68,746 N.E.2d 854,254 Ill.Dec. 97
• Parties: Richard M. DALEY, Mayor of the City of Chicago and Local Liquor Control Commissioner, and Winston L. Mardis, Director, Local Liquor Control Commission of the City of Chicago, Plaintiffs-Appellees, v. EL FLANBOYAN CORPORATION, d/b/a El Rio Platense, Defendant-Appellant (License Appeal Commission of the City of Chicago, Anthony Calabrese, Chairman of the License Appeal Commission of the City of Chicago; Irving Coppel and Leonard L. Branson, Members of the License Appeal Commission of the City of Chicago, Defendants).
• Court: United States Appellate Court of Illinois

746 N.E.2d 854

321 Ill. App.3d 68

254 Ill.Dec. 97

Richard M. DALEY, Mayor of the City of Chicago and Local Liquor Control Commissioner, and Winston L. Mardis, Director, Local Liquor Control Commission of the City of Chicago, Plaintiffs-Appellees, v. EL FLANBOYAN CORPORATION, d/b/a El Rio Platense, Defendant-Appellant (License Appeal Commission of the City of Chicago, Anthony Calabrese, Chairman of the License Appeal Commission of the City of Chicago; Irving Coppel and Leonard L. Branson, Members of the License Appeal Commission of the City of Chicago, Defendants).

No. 1-99-4117.

Appellate Court of Illinois, First District, Third Division.

March 28, 2001.

Ralph Sammarco & Associates, Chicago, for Appellant.

Corporation Counsel of Chicago, Chicago, for Appellees.

Presiding Justice HALL delivered the opinion of the court:

This is an action for judicial review of an administrative decision revoking the liquor license issued to defendant-appellant El Flanboyan Corporation, d/b/a El Rio Platense Lounge (Defendant), for the premises located at 1400 N. Hamlin Avenue in Chicago, (the premises). On September 2, 1998, the mayor of the City of Chicago (the City), acting through the Local Liquor Control Commission (LLCC), revoked the liquor license, after finding that Defendant, through its agent, Mr. Jose Oyola, knowingly possessed a controlled substance, 0.6 grams of cocaine, while on the licensed premises in violation of section 402 of the Illinois Controlled Substances Act. (720 ILCS 570/402 (West 1998)), and section 4-60-141(a) of the Chicago Municipal Code (Chicago Municipal Code § 4-60-141(a) (1990)).

On September 18, 1998, Defendant filed a notice of appeal with the License Appeal Commission (LAC), appealing the LLCC's revocation order. On March 18, 1999, the LAC reversed the LLCC's revocation order, finding that the LLCC's ruling was against the manifest weight of the evidence and was not supported by the findings. On the same date, the LLCC filed a petition for rehearing before the LAC. On April 21, 1999, the LAC held a hearing regarding the LLCC's petition. On May 13, 1999, the LAC affirmed its original ruling.

On May 27, 1999, the LLCC filed a complaint in the circuit court seeking administrative review of the LAC's order of reversal. On September 1, 1999, the LAC entered a "Supplemental Order of Reversal," again finding that the LLCC's decision was against the manifest weight of the evidence and that the revocation order was not supported by the findings. On November 15, 1999, the circuit court reversed the LAC's decision and reinstated the LLCC's revocation order. Defendant filed a timely notice of appeal on November 24, 1999.

BACKGROUND

Mr. Juan Cruz owns and operates a tavern called El Rio Platense (tavern), located at 1400 N. Hamilton Avenue in Chicago. Mr. Cruz owns and lives in the building in which the tavern is located. He testified that his brother, Mr. Jose Oyola, tends the bar for him when he leaves to purchase supplies or run errands.

Chicago police officer Robert Dubiel testified for the City that on September 12, 1997, while dressed in plain clothes, he and approximately six other officers visited the tavern to conduct a narcotics investigation. Upon entering the tavern, Officer Dubiel approached Mr. Oyola, who was tending the bar, and informed him that the tavern was being investigated for narcotics. Officer Dubiel testified that Mr. Oyola stated that he was the tavern's manager and then agreed to sign a consent to search form.

Officer Dubiel described the layout of the tavern as follows: upon entering the tavern, there is a large area for patrons. The bar is directly opposite the entrance, running perpendicular. Directly behind the bar is a small storage area, and to the right of the bar is a doorway that leads back into two storage rooms and to a stairway that descends into the basement. Officer Dubiel, with Mr. Oyola accompanying him, searched the storage rooms behind the bar. They first entered a large storage area that contained mostly cases of beer. They walked through this area and through another door that opened up into a second storage area in which there was a large German shepherd dog, which Mr. Oyola was required to restrain. Officer Dubiel testified that in the second storage room he observed on top of a table, in plain view, an open box which there were three clear plastic bags containing white powder, which he suspected was cocaine. Officer Dubiel testified that Mr. Oyola told him that the bags contained weightlifting powder, which belonged to his brother, Mr. Cruz. Mr. Oyola denied making such a statement.

Officer Dubiel took possession of the three plastic bags, he placed Mr. Oyola under arrest, and he continued to search the tavern for additional contraband. Mr. Oyola was eventually transported to the 25th District police station for processing along with the three confiscated bags of white powder. A lab test revealed that one of the three plastic bags contained 0.6 grams of cocaine.

ANALYSIS

Standard of Review

In reviewing a final decision under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1998)), this court reviews the administrative agency's decision and not the circuit court's determination. XL Disposal Corporation, Inc. v. Zehnder, 304 Ill.App.3d 202, 207, 237 Ill.Dec. 307, 709 N.E.2d 293, 297 (1999). Judicial review of an administrative agency's decision to revoke a license is limited to whether the agency's factual findings are against the manifest weight of the evidence, and whether these findings support the imposed sanctions. Roach Enterprises, Inc. v. License Appeal Comm'n, 277 Ill.App.3d 523, 528, 214 Ill.Dec. 85, 660 N.E.2d 276, 280 (1996). Upon review, an agency's findings of fact are held to be prima facie true and correct, and they must be affirmed unless the court concludes that they are against the manifest weight of the evidence. Launius v. Board of Fire & Police Commissioners, 151 Ill.2d 419, 427, 177 Ill.Dec. 407, 603 N.E.2d 477, 481 (1992).

An administrative agency's decision is not against the manifest weight of the evidence and must be sustained on judicial review if there is any evidence in the record that fairly supports the agency's decision. Leong v. Village of Schaumburg, 194 Ill.App.3d 60, 65, 141 Ill.Dec. 27, 550 N.E.2d 1073, 1077 (1990). A reviewing court must not reweigh the evidence or make an independent determination of the facts. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 88, 180 Ill.Dec. 34, 606 N.E.2d 1111, 1117 (1992).

The fact that the reviewing court might have ruled differently or that an opposite conclusion is reasonable will not justify reversal of the administrative findings. Discovery South Group, Ltd. v. Pollution Control Board, 275 Ill.App.3d 547, 553, 211 Ill.Dec. 859, 656 N.E.2d 51, 56 (1995). If the record contains evidence to support the administrative agency's decision, it should be affirmed. Abrahamson, 153 Ill.2d at 88, 180 Ill.Dec. 34, 606 N.E.2d at 1117. However, an agency's conclusions of law are reviewed de novo. Envirite Corp. v. Illinois Environmental Protection Agency, 158 Ill.2d 210, 214, 198 Ill.Dec. 424, 632 N.E.2d 1035, 1037 (1994).

I. Waiver Issue

Defendant argues that the storage room in which the cocaine was found was not a part of the tavern's premises, but was instead a separate private garage. The City responds that Defendant waived this "premises" argument when Defendant failed to raise and develop this issue before the administrative agency. The City argues that Defendant's statement during closing argument before the LLCC, where it admitted that drugs were found on the premises, and Defendant's failure to raise the "premises" issue before the LLCC caused the City to believe that the nature of the room was not in dispute or at issue. The City contends that Defendant's failure to timely raise the "premises" issue deprived the City of the opportunity to rebut Defendant's "premises" argument with evidence such as a legal description of the licensed premises, photographs of the building and room, and further testimony by Officer Dubiel regarding the contents of the room.

In general, issues not placed before the administrative agency will not be considered for the first time on administrative review. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill.2d 262, 278, 230 Ill.Dec. 991, 695 N.E.2d 481 (1998). In Texaco, the Illinois Supreme Court found that this applied as well to constitutional issues. 182 Ill.2d at 279, 230 Ill.Dec. 991, 695 N.E.2d 481. This practice avoids piecemeal litigation and it allows the opposing party a full and fair opportunity to present evidence to refute a claim or challenge. In the present case, the record shows that Defendant failed to raise the "premises" issue during the three opportunities it had to raise the issue. Defendant did not raise the "premises" issue during its hearing before the LLCC on July 10, 1998, or at its two hearings before the LAC on February 17, 1999, and April 21, 1999. Therefore, we find that Defendant waived the "premises" issue by failing to raise it during the evidentiary phase of the administrative hearing.

The "premises" issue was raised for the first time in the LAC's "Supplemental Order of Reversal," where the LAC found that the revocation was against the manifest weight of the evidence based on its determination that the City had failed to provide evidence that the storage room in which the cocaine was found was actually a part of the tavern's "premises." However, the LAC's determination regarding the "premises" issue was improper because the Defendant never raised this issue during its hearing before the LLCC. Daley v. Kilbourn Club, Inc., 64 Ill.App.2d 235, 236, 211 N.E.2d 778, 779 (1965) (the LAC is limited in its review of an LLCC order to the record of testimony presented to the LLCC); Daley v. Richardson, 103 Ill. App.2d 383, 386, 243 N.E.2d 685, 687 (1968) (the...