Doxsie v. Ill. Gaming Bd.

• Decision Date: 19 February 2021
• Docket Number: 1-19-1875
• Citation: 2021 IL App (1st) 191875,190 N.E.3d 853,454 Ill.Dec. 871
• Parties: Brenda DOXSIE d/b/a Boneyard Bar, Plaintiff-Respondent, v. The ILLINOIS GAMING BOARD, an Illinois administrative agency, and, in their official capacities, Donald R. Tracy, Chairman of the Board, Hector Alejandre, Board Member, Thomas A. Dunn, Board Member, Dee Robinson, Board Member, Steven C. Dolins, Board Member, and Mark Ostrowski, Board Administrator, Defendants-Petitioners.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 191875

190 N.E.3d 853

454 Ill.Dec. 871

Brenda DOXSIE d/b/a Boneyard Bar, Plaintiff-Respondent,

v.The ILLINOIS GAMING BOARD, an Illinois administrative agency, and, in their official capacities, Donald R. Tracy, Chairman of the Board, Hector Alejandre, Board Member, Thomas A. Dunn, Board Member, Dee Robinson, Board Member, Steven C. Dolins, Board Member, and Mark Ostrowski, Board Administrator, Defendants-Petitioners.

No. 1-19-1875

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed: February 19, 2021

Kwame Raoul, Attorney General, of Chicago (Nadine J. Wichern, Assistant Attorney General, of counsel), for petitioners.

Brenda Doxsie, respondent pro se.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 In this interlocutory appeal, the defendants—the Illinois Gaming Board (the Board); the individual members of the Board, Donald R. Tracy, Hector Alejandre, Thomas A. Dunn, Dee Robinson, and Steven C. Dolins; and Mark Ostrowski, the Board's administrator—appeal the decision of the circuit court of Cook County granting the petition for administrative review brought by plaintiff—Brenda Doxsie, d/b/a Boneyard Bar—and remanding the matter to the Board for an administrative hearing on the plaintiff's application for renewal of her video gaming license. For the reasons that follow, we reverse the order of the circuit court and remand the cause for further proceedings.

¶ 2 The plaintiff filed an application for renewal of a video gaming license as a licensed retail establishment. The minutes of the Board's August 2017 meeting reflect that it received a recommendation from its staff that the plaintiff's application for renewal be denied. Under the heading "Failure to Cooperate/Active Tax Liability/failure to meet/maintain qualifications for Licensure," the minutes state, in reference to the plaintiff's application for renewal: "This location has an Active Tax Liability and does not currently have a valid liquor license. Staff recommends non-renewal. " (Emphasis in original.)

¶ 3 On September 18, 2017, the plaintiff sent a facsimile message to defendants that read "All my taxes have been paid by cash. On 9-18-2017 State Income Taxes + Sales Tax. Copy of pd. receipts enclosed in this fax." (Emphases in original.) The facsimile transmission included copies of two tax receipts issued by the Illinois Department of Revenue.

¶ 4 On September 21, 2017, at its monthly open session meeting, the Board denied the plaintiff's application for renewal of her video gaming license. On September 22, 2017, the Board's administrator sent a letter to the plaintiff, titled "Re: Denial of Renewal of Establishment License." The letter stated that the plaintiff's renewal application was denied on two grounds:

lack of a valid liquor license and outstanding tax obligations to the State of Illinois. Regarding the outstanding tax obligations, the letter stated that the plaintiff had "an active tax liability since April 28, 2017," and that an investigation revealed 18 prior instances where she had an outstanding tax obligation to the State of Illinois. The letter informed the plaintiff that she could request a hearing; that her request must be submitted within 10 days of delivery of the letter; and that, if a hearing is granted, it would be de novo.

¶ 5 On October 2, 2017, the plaintiff sent a letter to the Board requesting a hearing on her application for renewal. In that letter, the plaintiff requested reconsideration of the license renewal denial, stating that she discharged her outstanding tax obligation, that she was "not aware" that failure to pay income taxes "affected [her] gaming license," and that she promised that "in the future, filing and paying [her taxes] promptly will be a priority." She concluded her letter by requesting "leniency in the matter."

¶ 6 The minutes of the Board's November 2017 meeting, under the heading "Requests for Hearing," state:

"At the September 2017 meeting, the Board denied the [plaintiff's] license renewal application because it was delinquent in its debts and obligations to the State of Illinois, had a history of seventeen active tax liabilities and no valid liquor license. The Request for Hearing complied with the technical requirements of Rule 615 and maintains it satisfied its outstanding tax liability. Currently, the Board's records reflect this location has satisfied its outstanding tax liability and that its liquor license is valid. However, due to its record of incurring eighteen instances of active tax liabilities, Staff recommends denial of the Request for failure to state a prima facie case for hearing." (Emphasis in original.)

In her verified complaint seeking administrative review, the plaintiff asserts that: "On November 16, 2017, at the last open session Board meeting (there was no December 2017 Board meeting) the Board issued its Final Decision Denying Hearing." ("The Final Decision Denying Hearing" or "Denial").

¶ 7 On December 1, 2017, the Board's administrator sent a letter to the plaintiff, titled "Denial of Request for Hearing Brenda Doxsie d/b/a Boneyard Bar." The letter states that, at its November 16, 2017 meeting, the Board denied the plaintiff's Request for Hearing, "finding that it did not establish a prima facie case for an administrative hearing." The letter also states that: "Boneyard Bar was denied renewal of its establishment license because the Board was not provided sufficient facts or evidence in the Request that provided that the outstanding debts and obligations to the State of Illinois had been addressed in full. The denial of your Request for Hearing constitutes a Final Order by the Board."

¶ 8 On January 5, 2018, the plaintiff filed a 5-count complaint against the defendants. Count I was an action for administrative review, seeking, inter alia, an order reversing and vacating the Board's denial of the plaintiff's video gaming location license renewal application and an order remanding the matter to the Board with instructions to issue the plaintiff's video the requested renewal license. That count also sought an order reversing and vacating the Board's decision denying the plaintiff a hearing on her license renewal application. Counts II, III, and IV sought injunctive relief, mandamus and injunctive relief respectively. Count V sought recovery under section 1983 of title 42 of the United States Code ( 42 USC § 1983 (2018) ). The circuit court dismissed counts II, III and IV, pending determination of Count I, and dismissed Count V as directed at the Board, but denied the motion to dismiss Count V as to the individual defendants.

¶ 9 Following a hearing on Count I, the plaintiff's administrative review claim, the circuit court entered an order on August 20, 2019, finding that the plaintiff made a prima facie case that she is entitled to an administrative hearing and that she is statutorily entitled to an administrative hearing "pursuant to Section 10-65(d) ( 5 ILCS 100/10-65(d) ) of the Administrative Procedure Act." The order provides that the "Court grants Plaintiff's Count I and remands back to the Illinois Gaming Board to conduct an administrative hearing." The circuit court also continued the matter for status on the plaintiff's section 1983 claim.

¶ 10 The defendants petitioned this court for leave to file an interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(6) (eff. Nov. 1, 2017). We granted the defendant's petition, and this appeal followed.

¶ 11 Initially, we note that the plaintiff has not filed an appellee's brief in this matter. However, the record is short, and the claimed error is such that we can easily decide the issues without the aid of an appellee's brief. Accordingly, we will reach the merits of this appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).

¶ 12 In an interlocutory appeal brought pursuant to Illinois Supreme Court Rule 306(a)(6), we will reverse the order of the circuit court remanding a matter for a hearing before an administrative agency only if the circuit court has abused its discretion. Demesa v. Adams , 2013 IL App (1st) 122608, ¶ 39, 374 Ill.Dec. 70, 994 N.E.2d 1007. A decision is deemed an abuse of discretion, only if it is " ‘unreasonable and arbitrary or where no reasonable person would take the view adopted by the circuit court.’ " See Sentry Insurance v. Continental Casualty Co. , 2017 IL App (1st) 161785, ¶ 32, 412 Ill.Dec. 187, 74 N.E.3d 1110 (quoting Pekin Insurance Co. v. St. Paul Lutheran Church , 2016 IL App (4th) 150966, ¶ 69, 413 Ill.Dec. 665, 78 N.E.3d 941, quoting Gulino v. Zurawski, 2015 IL App (1st) 131587, ¶ 64, 398 Ill.Dec. 192, 43 N.E.3d 1102 ).

¶ 13 When, as in this case, an appeal is taken from an order of the circuit court entered on administrative review, we review the administrative agency's decision and not the factual determinations of the circuit court. Doe Three v. Department of Public Health, 2017 IL App (1st) 162548, ¶ 25, 415 Ill.Dec. 1, 81 N.E.3d 523. We apply a "clearly erroneous" standard in our review of an administrative agency's decision when the issue presented is a mixed question of law and fact. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 229 Ill.Dec. 522, 692 N.E.2d 295 (1998). The decision of an administrative agency is clearly erroneous only if the reviewing court is left with a " ‘definite and firm conviction that a mistake has been committed.’ " AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 393, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

¶ 14 The Video Gaming Act (Gaming Act) ( 230 ILCS 40/1 et seq. (West 2018)) provides that the provisions of the Riverboat Gambling Act ( 230 ILCS 10/1 et seq. (West 2018)) shall apply to the Video Gaming Act. 230 ILCS 40/80 (West 2018). The Riverboat...