Ranquist v. Stackler

• Decision Date: 07 December 1977
• Docket Number: No. 76-1175,76-1175
• Citation: 13 Ill.Dec. 171,370 N.E.2d 1198,55 Ill.App.3d 545
• Parties: , 13 Ill.Dec. 171 William E. RANQUIST, Plaintiff-Appellee, v. Ronald E. STACKLER, as Director of the Department of Registration and Education of the State of Illinois, and the Department of Registration and Education of the State of Illinois, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1198

370 N.E.2d 1198

55 Ill.App.3d 545, 13 Ill.Dec. 171

William E. RANQUIST, Plaintiff-Appellee, v. Ronald E. STACKLER, as Director of the Department of Registration and Education of the State of Illinois, and the Department of Registration and Education of the State of Illinois, Defendants-Appellants.

No. 76-1175.

Appellate Court of Illinois, First District, Third Division.

Dec. 7, 1977.

William J. Scott, Atty. Gen. of the State of Illinois, fordefendants-appellants; Gregory G. Lawton, Asst. Atty. Gen., of counsel.

Coffield, Ungaretti, Harris & Slavin, Chicago, for plaintiff-appellee; Philip C. Stahl, Chicago, of counsel.

JIGANTI, Justice.

By this appeal, the Department of Registration and Education (the Department) and its Director, Ronald E. Stackler, the defendants below, seek to reinstate the Director's order which suspended the real estate salesman license of the plaintiff, William E. Ranquist. The order, issued after a full administrative hearing, concludes that Ranquist violated the conduct required of him by the Real Estate Brokers and Salesmen License Act, Ill.Rev.Stat.1973, ch. 114 1/2, par. 115(e), on September 4, 1974, by inducing persons to purchase property through statements which misrepresented and distorted the racial composition and the quality of certain neighborhoods in Chicago. In this action by Ranquist, pursuant to the Illinois Administrative Review Act, (Ill.Rev.Stat.1973, ch. 110, par. 264 et seq.), the circuit court reversed the suspension order. The court found that this conduct was not prohibited by the Act in effect at the time the statements and misrepresentations were made.

The Department filed a complaint with the Real Estate Examining Committee (the Examining Committee) requesting the revocation or suspension of Ranquist's real estate salesman's license. Ranquist is an employee of the real estate brokerage of McKey and Poague. ¹ The complaint, after describing certain of Ranquist's actions on September 4, 1974, set forth six subsections of section 115(e) of the Real Estate Brokers and Salesmen License Act as causes to suspend or revoke his license:

"11. Having demonstrated unworthiness or incompetency to act as a real estate broker or salesman in such manner as to safeguard the interest of the public;

15. Any other conduct, whether of the same or a different character from that specified in this Section which constitutes dishonest dealing;

21. Disregarding or violating any provision of this Act, or the published rules or regulations promulgated by the Department to enforce this Act;

26. Making any misrepresentations concerning the race, color, religion or national origin of persons in a locality or any part thereof for the purpose of inducing or discouraging a listing for sale or rental or the sale or rental of any real estate.

28. Refusing to show listings or real estate because of the race, color, religion or national origin of any prospective purchaser, lessee or tenant, or because of the race, color, religion or national origin of the residents in the area in which the property is located.

31. Volunteering of information on the race, color, religion or national origin of the residents of a community or part thereof."

Subsequently, subsections 26, 28 and 31 were stricken upon Ranquist's motion. Those subsections were amendments to section 115(e) of the Act which became effective September 5, 1974, the day after the conduct alleged in the complaint occurred. The Department's complaint remained based on subsections 11, 15 and 21.

At the hearing before the Examining Committee, the Department presented Ronald Pudel as its sole witness. Pudel, a caucasian resident of the Morgan Park community of Chicago, testified it was his observation that McKey and Poague showed homes for sale in his neighborhood exclusively to one race. He thought that their salesmen might be unfairly influencing prospective purchasers by discouraging buyers from considering homes in certain areas on a racial basis. This practice is commonly called racial steering. (See Zuch v. Hussey (E.D.Mich.1973), 366 F.Supp. 553.) He felt that such sales tactics damaged his neighborhood. In an effort to confirm his suspicions Pudel and his wife went to the offices of McKey and Poague on September 4, 1974. Representing themselves as a couple from Cleveland, Ohio, interested in purchasing property, they asked Ranquist to help them locate a suitable residence in Morgan Park or Beverly, an adjoining community. During this meeting the Pudels and Ranquist examined a listing of homes for sale. From this listing a number of homes were selected and their addresses written down. Ranquist reviewed these addresses and scratched out several, remarking to Pudel that homes in that particular neighborhood were "low priced," and "going FHA to blacks." He advised the Pudels, "to stay north of 115th Street and west of Longwood Drive." Pudel requested to see a specific home; Ranquist replied that the home was one block from Morgan Park High School, which "is 90 percent black;" Ranquist said, "if you want to live that way it's all right with me."

Ranquist, testifying in his own behalf, denied making any of these statements. He claimed that he did not attempt to limit the area of the Pudels' consideration, comment on the population of Morgan Park High School or express any opinion about the quality of the community surrounding it. He admitted he crossed out the addresses, but he said he did not eliminate any of them for reasons related to race and location. Some of the homes were unlike the style of house in which the Pudels had represented interest; another was the subject of a signed sales contract and it violated office policy to show such a home to another buyer. Ranquist declared he was without authority to show the Pudels yet another listed home because the sales agreement between the brokerage and the owner of that home had expired.

The Examining Committee, after the hearing, made the following factual findings:

"13) THAT on or about September 4, 1974, Mr. & Mrs. Roland Pudil (the correct spelling is "Pudel") went to Respondent Broker's office located at 10540 South Western Avenue, Chicago, Illinois and represented to Mr. Ranquist that they were prospective purchasers and were interested in purchasing a home in the Beverly or Morgan Park area of Chicago.

14) THAT Mr. Ranquist advised Mr. & Mrs. Pudil (sic) while they were reviewing various real estate listings in these areas, "not to look East of Longwood Drive . . . because these are low priced homes going FHA to Blacks."

15) THAT upon finding a home on Prospect Avenue, Mr. Ranquist stated to the Pudils (sic) that "that house is one block from Morgan Park High School, which is 90% Black."

By this conduct, they concluded, Ranquist violated subsections 11, 15 and 21 of section 115(e), for which they recommended the Director of the Department suspend Ranquist's real estate license for sixty days.

Ranquist requested a rehearing from the Director. At oral argument on this motion, Ranquist claimed that the recommendation of the Examining Committee was against the manifest weight of the evidence. He argued that the Department failed to show any evidence which would support a finding of unworthy or incompetent conduct (subsection 11), dishonest dealing (subsection 15) or conduct in violation or disregard of the licensing Act or rules and regulations promulgated by the Director (subsection 21). The Director denied the motion and adopted the findings of fact and the conclusions of law of the Examining Committee; he ordered Ranquist's license suspended for 60 days. Ranquist initiated this action to review the Director's determination in the circuit court. In his complaint he alleged:

"(a) The conduct complained of is not cause for suspension under the applicable statute, and the Department therefore exceed its authority;

(b) The decision was against the manifest weight of the evidence;

(c) The decision is contrary to law and based upon incorrect legal standards."

The circuit court reviewed the record and reversed the order of suspension, holding as a matter of law that the conduct in the Department's complaint was outside the scope of the License Act, section 115(e), subsections 11, 15 and 21.

The defendants argue that the question of whether subsections 11, 15 and 21 of section 115(e) of the Act can be construed to include racially discriminatory conduct was not properly before the circuit court. They contend that the circuit court, as a reviewing body, erred in considering that issue because the plaintiff failed to first present the theory of statutory construction as a specific claim at the administrative level. To first advance such an argument on review, the defendants contend, deprives the body charged with administering the License Act opportunity to initially construe the law it has the duty to enforce; therefore, Ranquist waived this argument.

As a general rule, when a party presents his case or defense to an administrative body upon a certain theory, he will not be permitted to prevail upon another theory before the reviewing court. (Abbott Publishing Co. v. Annunzio (1953), 414 Ill. 559, 112 N.E.2d 101.) The reason for this rule, in addition to the purpose suggested by the defendant, is to avoid unfair surprise to an opponent thereby denying him the chance to contest the issue. Abbott Publishing Co.; Gordon v. Department of Registration and Education (1970), 130 Ill.App.2d 435, 264 N.E.2d 792.

The rule is not applicable here. Examination of Ranquist's position during the administrative proceedings demonstrates that he did in fact challenge the Department's construction of the Act in relation to the charges placed against him. In his motion for rehearing, for example, his proposal that the Examining Committee's decision was against the manifest weight of the evidence is a twofold argument. First, Ranquist characterizes Pudel's testimony, the...