One Way Liquors, Inc. v. Byrne

• Decision Date: 01 April 1982
• Docket Number: No. 81-571,81-571
• Citation: 105 Ill.App.3d 856,435 N.E.2d 144,61 Ill.Dec. 655
• Parties: , 61 Ill.Dec. 655 ONE WAY LIQUORS, INC., et al., Plaintiffs-Appellees, v. Jane M. BYRNE, Local Liquor Control Commissioner of the City of Chicago, and License Appeal Commission of the City of Chicago, Robert J. Weber, Chairman, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 144

435 N.E.2d 144

105 Ill.App.3d 856, 61 Ill.Dec. 655

ONE WAY LIQUORS, INC., et al., Plaintiffs-Appellees, v. Jane M. BYRNE, Local Liquor Control Commissioner of the City of Chicago, and License Appeal Commission of the City of Chicago, Robert J. Weber Chairman, Defendants-Appellants.

No. 81-571.

Appellate Court of Illinois, First District, Fourth Division.

April 1, 1982.

Stanley Garber, Corp. Counsel of the City of Chicago (Robert R. Retke, Cheryl L. Smalling, Asst. Corp. Counsel, Chicago, of counsel), for defendants-appellants.

Dore & Clark, Ltd., Chicago (Cornelius F. Dore, William G. Clark, Jr., and Ilene M. Davidson, Chicago, of counsel), for plaintiffs-appellees.

ROMITI, Justice:

The local liquor commissioner revoked plaintiffs' license after their president was convicted of grand theft. The circuit court reversed because the order contained no findings regarding plaintiffs' rehabilitation or lack of it. It also refused to dismiss plaintiffs' appeal although plaintiffs had failed to file a petition for rehearing before the license appeal commission as required by law. We find that the circuit court erred in refusing to dismiss the appeal. Accordingly, we reverse the judgment of the circuit court.

Ahmad H. Yusuf, the president of One Way Liquors, Inc. and Yale Food & Liquor Inc. was convicted of grand theft on March 29, 1978 and sentenced to 30 months' probation. This fact is conceded by the plaintiffs. Informed of the conviction, the commissioner commenced proceedings on the charge that "on 31 March 1978, the president of the licensed corporation, Ahman H. Yusuf, was convicted of grand theft before the Honorable Judge Cawley, and is therefore ineligible to hold a license, pursuant to chapter 43, § 120(4), Ill.Rev.Stat.1977." ¹ Section 120(4) of the Act provides:

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

"(4) A person who has been convicted of a felony under any Federal or State law, if the Commission determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust;"

Proceedings on the charge were repeatedly continued, at the request of plaintiffs, while Yusuf's conviction was being unsuccessfully appealed. The matter was finally heard on May 12, 1980. The city, as it had done at several previous hearings, introduced evidence of the conviction. For the first time, plaintiffs raised the issue that the city had failed to show there was an investigation and that Yusuf was not sufficiently rehabilitated to warrant the public trust. The hearing examiner indicated a belief that it was conclusively presumed the person was not rehabilitated until the sentence or period of probation was completed. In his order, he simply found Yusuf had been convicted of grand theft and therefore was ineligible to hold a license pursuant to Ill.Rev.Stat.1977, ch. 43, par. 120(4).

Appeal was taken to the license appeal commission of the city of Chicago, and a hearing was held. At that hearing the chairman also indicated the belief that, as a matter of law, a person is not rehabilitated until he finishes serving his sentence. In its order issued September 9, 1980 the commission affirmed the order, expressly finding that when it has been proven that the licensee is under the sentence of supervision of a court for violations of law, the city has sustained its burden regarding the issue of non-rehabilitation.

Although required to file a petition for rehearing by sections 153 and 154 of the Act, which provides in part:

"Within 20 days after the service of any rule, regulation, order or decision of said commission upon any party to the proceeding, such party may apply for a rehearing in respect to any matters determined by said commission. If a rehearing is granted, the commission shall hold the rehearing and render a decision within 20 days from the filing of the application for rehearing with the secretary of the commission. The time for holding such rehearing and rendering a decision may be extended for a period not to exceed 30 days, for good cause shown, and by notice in writing to all parties of interest. No action for the judicial review of any decision of said commission shall be allowed unless the party commencing such action has first filed an application for a rehearing and the commission has acted upon said application. Only one rehearing may be granted by the commission on application of any one party."

plaintiffs did not file a motion for rehearing. Instead on October 14, 1980 plaintiffs filed a complaint in the circuit court for judicial review. Defendants moved to dismiss the complaint because of plaintiffs' failure to file a petition for rehearing. At the hearing the circuit court stated that the commission had no jurisdiction to revoke the license unless it first determined Yusuf was not rehabilitated. It further stated that the order was so patently illegal that the commission's jurisdiction never came into play and the order could be attacked at any time despite time or other limitations in the statute. Accordingly it was not necessary that plaintiffs exhaust their administrative remedies. The circuit court further held that it was reversing only because of the failure to make the proper finding and that because this was a matter of substance, it did not have the jurisdiction to remand the case to the commission. In its written order the circuit court found:

1. the orders of revocation contained no findings of fact regarding the lack of rehabilitation of plaintiff as required by statute.

2. the filing of a petition for rehearing before the license appeal commission would have been an useless act in that the orders of revocation were legally insufficient on their face.

The circuit court denied defendants' motion to dismiss and reversed the orders of revocation and ordered the commissioner to fully reinstate the plaintiffs' retail liquor licenses.

Since this court holds that the circuit court erred in denying defendants' motion to dismiss, it is unnecessary for us to determine either (1) the effect of defendants having proceeded under the wrong statute, the evidence being clearly sufficient to sustain revocation under the correct one and plaintiffs having ample notice that the commissioner was seeking to revoke the license because of the conviction or (2) whether the hearing examiner and the license appeal commission chairman were justified in stating there was a conclusive presumption plaintiffs' president was not rehabilitated.

Appeals from orders of the commission are purely statutory and to be legally effective they must be prosecuted in accordance with the requirements of the statute. (Scherer Freight Lines v. Illinois Commerce Comm. (1962), 24 Ill.2d 359, 181 N.E.2d 134; City of Edwardsville v. Illinois Commerce Comm. (1952), 412 Ill. 34, 104 N.E.2d 283; Alton R. Co. v. Illinois Commerce Comm. (1950), 407 Ill. 202, 95 N.E.2d 76.) It is well established that where, as here, the statute provides that no appeal shall be allowed unless the party has first filed an application for rehearing and the commission has acted on the application, the circuit court cannot consider a petition for review unless an application for rehearing has both been filed and acted upon. (Scherer Freight Lines v. Illinois Commerce Comm. (1962), 24 Ill.2d 359, 181 N.E.2d 134; City of Edwardsville v. Illinois Commerce Commission (1952), 412 Ill. 34, 104 N.E.2d 283; Alton R. Co. v. Illinois Commerce Comm. (1950), 407 Ill. 202, 95 N.E.2d 76; Private Tele-Communications, Inc. v. Illinois Bell Telephone Co. (1975), 31 Ill.App.3d 887, 335 N.E.2d 110; also Central Illinois Light Co. v. Commerce Commission (1970), 47 Ill.2d 257, 265 N.E.2d 154.) As the Illinois Supreme Court stated in City of Edwardsville, 412 Ill. 36, 37, 104 N.E.2d 284:

"This court had occasion to pass upon a similar situation in the case of Alton Railroad Co. v. Commerce Com., 407 Ill. 202, 95 N.E.2d 76. In that case we were called upon for an interpretation of section 67 of the Public Utilities Act, (par. 71,) and held that 'the statutory requirement that a petition for rehearing be filed to an order of the commission precludes an appeal from the order until a rehearing is sought and acted upon, such rehearing being a step in the proceedings for review of the commission's rulings.'

On application for rehearing from its final order, the commission has an opportunity to reconsider, change, modify, correct and to enter a different order if it deems such action necessary. We are of the opinion that the plain requirement of the statute that a petition for rehearing from a final order of the commission must be filed and passed upon by the commission before appeal cannot be by-passed or avoided."

Plaintiffs contend, and the trial court found, that they were not required, despite the clear statutory requirement, to exhaust their administrative remedies. Ordinarily a party involved in an administrative action must exhaust all available administrative remedies before seeking relief from the courts. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 326 N.E.2d 737.) Exceptions to the exhaustion rule have been allowed where a statute, ordinance or rule is challenged as unconstitutional on its face, where multiple remedies exist before the same zoning board and at least one has been exhausted, where irreparable harm will result from further pursuit of administrative remedies, and where an administrative body's jurisdiction is attacked on its face on the ground it is not authorized by statute. (Aliperto v. Department of Registration and Education (1980), 90 Ill.App.3d 985, 46 Ill.Dec. 395, 414 N.E.2d 117; National Account Systems, Inc. v. Anderson (1980), 82 Ill.App.3d 233, 37...