Dock Club, Inc. v. Illinois Liquor Control Commission

• Decision Date: 07 May 1980
• Docket Number: No. 16117,16117
• Citation: 404 N.E.2d 1050,39 Ill.Dec. 459,83 Ill.App.3d 1034
• Parties: , 39 Ill.Dec. 459 DOCK CLUB, INC., an Illinois Corporation, d/b/a The N'Ferno, Plaintiff- Appellee, v. ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1050

404 N.E.2d 1050

83 Ill.App.3d 1034, 39 Ill.Dec. 459

DOCK CLUB, INC., an Illinois Corporation, d/b/a The N'Ferno Plaintiff- Appellee, v. ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellant.

No. 16117.

Appellate Court of Illinois, Fourth District.

May 7, 1980.

William J. Scott, Atty. Gen., Patricia Rosen, Asst. Atty. Gen., Chicago, for defendant-appellant.

Burditt, Calkins & Immel, Thomas J. Immel, Springfield, for plaintiff-appellee.

WEBBER, Justice:

This is an interlocutory appeal pursuant to Supreme Court Rule 307 (73 Ill.2d R. 307) from the issuance of a temporary injunction by the circuit court of Sangamon County. Since no hearing was held on the matter, the factual background, which does not appear to be in dispute, must be gleaned from the common law record and the briefs of the parties.

Plaintiff operates a dramshop in Springfield and from time to time holds what are called "ladies' nights." These are special occasions during which female patrons are allowed to purchase alcoholic beverages at reduced prices. Plaintiff holds a license from the Illinois Liquor Control Commission.

Apparently there had been some correspondence between counsel for plaintiff and the executive director of defendant concerning the legality of ladies' nights. This correspondence arose out of the respective interpretations of the parties of section 12b of the Dramshop Act which provides:

"No licensee licensed under the provisions of this Act shall deny or permit his agents and employees to deny any person the full and equal enjoyment of the accommodations, advantages, facilities and privileges of any premises in which alcoholic liquors are authorized to be sold subject only to the conditions and limitations established by law and applicable alike to all citizens." Ill.Rev.Stat.1977, ch. 43, par. 133.

Plaintiff had requested defendant's executive director to seek an opinion of the Attorney General of the legality of ladies' nights and on November 19, 1979, received a reply stating that such an opinion would not be sought and further stating:

"Licensees who persist in featuring 'ladies nights' or other such functions where certain patrons are allowed to purchase drinks at a reduced price (sic) are subject to citation action to fine them or suspend or revoke their licenses."

On December 5, 1979, plaintiff filed an action for declaratory judgment (Ill.Rev.Stat.1977, ch. 110, par. 57.1) in the circuit court of Sangamon County. The prayer for relief in that action asked three things: (1) That the court declare that ladies' nights do not violate section 12b of the Dramshop Act; (2) that a temporary restraining order issue restraining the defendant from any enforcement proceedings on account of ladies' nights during the pendency of the declaratory judgment action; and (3) a permanent injunction enjoining the defendant from initiating any enforcement proceedings against plaintiff on account of ladies' nights.

On January 18, 1980, defendant issued a citation and notice of hearing on plaintiff. The citation set forth various dates on which ladies' nights were held by plaintiff and alleged that these were in violation of section 12b of the Dramshop Act. The notice set January 30, 1980, as the date for hearing on the citation before the Illinois Liquor Control Commission.

On January 21, 1980, plaintiff parried by filing a motion in the circuit court of Sangamon County for a temporary injunction restraining defendant from pursuing the citation proceedings. On the same date the circuit court allowed the motion. As stated above, no evidence was taken but the court made a lengthy docket entry which recited in substance that there was a declaratory judgment proceeding pending in the court which was filed prior to the citation and that both of them involved the same issues. The court reasoned that there should not be two suits proceeding at the same time and concluded the docket entry by saying:

" * * * The Court is therefore of the opinion that it would be futile to proceed before the Liquor Control Commission."

The latter remark was apparently prompted by the letter from the executive director of the defendant, a copy of which was attached as an exhibit to the complaint for declaratory judgment, and an excerpt from which is recited above.

Defendant has appealed the issuance of the temporary injunction on two grounds: (1) Plaintiff has failed to exhaust its administrative remedies, and (2) plaintiff has failed to make the requisite showings for an injunction. We agree with defendant and reverse.

Plaintiff's argument in substance is that it had no remedy except declaratory judgment; that there was no way for it to test out the interpretation of section 12b of the Dramshop Act except to wait to be cited for violation; and that the hearing on the citation would be meaningless since the Illinois Liquor Control Commission had already made up its mind on the matter, as evidenced by the letter from its executive director.

We do not view the letter so broadly. It states, albeit very affirmatively, that licensees will be subject to citation but it does not state that all citation proceedings will be resolved in favor of the Commission and against the licensees. While the tone is peremptory, it is no more so than that of any other administrative tribunal which sits as both prosecutor and trier of fact. At the citation proceeding, plaintiff can present all the same arguments which could have been presented to the circuit court and in the event of an unfavorable ruling by the Commission can present them again under the Administrative Review Act (Ill.Rev.Stat.1977, ch. 110, par. 264 et seq.) to the circuit court which is empowered to stay the administrative decision (Ill.Rev.Stat.1977, ch. 110, par. 275(1)(a)).

It is well-settled law in this State that where administrative remedies are available, they must be exhausted before one can seek judicial review. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 326 N.E.2d 737). The exhaustion doctrine allows full development of the facts before the administrative tribunal and allows the administrative agency to bring its expertise to bear. (Illinois Bell.) All of this is of great assistance to a court, if called upon to review the record.

It is also well-settled law that even though there are clear indications that the administrative agency will rule adversely, this fact alone can be, but generally will not be, sufficient to abort the administrative process. This is sometimes called the futility doctrine and is most commonly found when there is a facial attack upon the validity of an administrative order or regulation. It stands as an exception to the exhaustion doctrine but is limited to the factual situation presented on a case-by-case basis.

The general rule is found in Bank of Lyons v. County of Cook (1958), 13 Ill.2d 493, 150 N.E.2d 97. In that case the plaintiff sought to void a zoning ordinance as it applied to its land. However, it never filed a petition, apparently because it had received information that the zoning board had established a policy of refusing any further rezonings for the purpose sought by the plaintiff. The supreme court said:

"The necessity for making application before the board is not dispensed with because the application...