Simmons v. Illinois Liquor Control Commission

• Decision Date: 30 December 1980
• Docket Number: No. 79-1578,79-1578
• Citation: 47 Ill.Dec. 855,415 N.E.2d 1168,92 Ill.App.3d 387
• Parties: , 47 Ill.Dec. 855 Richard SIMMONS d/b/a Aurora Tap, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION and John T. Hill, Mayor of the City of Aurora, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1168

415 N.E.2d 1168

92 Ill.App.3d 387, 47 Ill.Dec. 855

Richard SIMMONS d/b/a Aurora Tap, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION and John T. Hill, Mayor of the City of Aurora, Defendants-Appellants.

No. 79-1578.

Appellate Court of Illinois, First District, Second Division.

Dec. 30, 1980.

Thomas J. Murphy, Chicago, for plaintiff-appellant. William J. Scott, Atty. Gen. of the State of Illinois, for appellee; Imelda R. Terrazino, Asst. Atty. Gen., Chicago, of counsel.

Fred Kawalski, Aurora, for John J. Hill, defendant-appellant.

STAMOS, Justice:

This action arises from the order of the Illinois Liquor Control Commission (Commission) modifying a local liquor control commissioner's revocation of plaintiff's liquor license to a 10 day suspension. The circuit court of Cook County affirmed the suspension order and both plaintiff, Richard Simmons d/b/a Aurora Tap, and defendant, John Hill, Mayor of Aurora and local liquor control commissioner, have taken this appeal. Plaintiff contends that the Commission should have issued sanctions against the Mayor on plaintiff's motion, that the Commission had lost jurisdiction over the matter at the time it ruled on rehearing thereby voiding its order, and that the evidence did not support a finding of violations under the Dramshop Act. Under plaintiff's theory, the orders of revocation and of suspension were improper and should be vacated. On his cross-appeal, the Mayor contends that the Commission erred in modifying his revocation of plaintiff's license.

Defendant Simmons operates a tavern, the Aurora Tap, in Aurora, Illinois. This tavern operates under a liquor license issued by the City of Aurora and the State of Illinois. The Mayor, acting in his capacity as local liquor control commissioner, held a hearing in September 1978, on whether the license issued to the Aurora Tap should be revoked. Several charges of impropriety had been made: that in February 1978, two six-packs of beer were sold after closing time; that in February 1978, two minors were served alcoholic beverages; that the premises had faulty wiring and were unsanitary; that the licensee did not exercise sufficient control over his patrons; and that in April 1978, two minors were playing billiards in the tavern. The Mayor issued a revocation order which was appealed to the Commission. At the same time, a stay order was sought, and was granted by the Illinois Appellate Court. In November 1978, the Commission affirmed the revocation order. Plaintiff then petitioned for a rehearing on November 22, which was granted by the Commission.

On rehearing, the Commission entered an order on January 24, 1979, modifying the Mayor's revocation to a 10 day suspension. The Commission also denied plaintiff's motion for sanctions to issue against the Mayor. Plaintiff sought judicial review of the suspension order in the circuit court of Cook County. On September 29, 1979, the court affirmed the modifying order of the Commission. This appeal followed.

Plaintiff first contends that the Commission should have granted his motion for sanctions against the local liquor control commissioner. Grants of power to administrative agencies are delegations of authority by the legislature, grounded in the statute and not in common law, and, as such, must be strictly construed. (See also Diederich v. Rose (1907), 228 Ill. 610, 615, 81 N.E. 1140.) The statute delegating the power must explicitly provide for the specific grant of power. (McKenzie v. McIntosh (1964), 50 Ill.App.2d 370, 377, 200 N.E.2d 138.) Plaintiff has cited no section of the Dramshop Act (Ill.Rev.Stat.1979, ch. 43, par. 94 et seq.), nor any case law to authorize the Commission to issue sanctions against the local commissioner. (Cf. Paoli v. Mason (1945), 325 Ill.App. 197, 209, 59 N.E.2d 499 (holding local commissioner not liable to licensee for official act in revoking license).) Accordingly, in the absence of statutory authority, we can find no warrant for the requested imposition of sanctions. Furthermore, even if a specific grant of such authority did exist, this record does not demonstrate the type of egregious, bad faith actions by a local commissioner which might justify sanctions. Instead, the remedy for an alleged arbitrary or unwarranted revocation, as provided under the Dramshop Act, is review of local orders by the Commission and the courts. See Ill.Rev.Stat.1979, ch. 43, par. 149.

Plaintiff next contends that the Commission lost power to rule on the cause, making its subsequent order void, because the time limits set out in section 8a of the Liquor Control Act for ruling on a rehearing had expired prior to the Commission's issuing of the suspension order. Plaintiff premises his claim on section 8a of Article VII:

"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." (Ill.Rev.Stat.1979, ch. 43, par. 154.)

This section formerly provided:

"Said commission shall receive and consider such application for a rehearing within twenty (20) days from the filing thereof with the secretary of the commission. In case such application for rehearing is granted the commission shall proceed as promptly as possible to consider the matters presented by such application." Ill.Rev.Stat.1961, ch. 43, par. 154 (emphasis added).

A reading of the two statutes reveals the substantive change to be the substitution of a specific time period (20 days, with extensions of up to 30 days) for the more general "as promptly as possible." Plaintiff argues that this change was effected to limit the power of the Commission. Plaintiff interprets the statute to allow at most a total of 30 days from the filing of the petition for rehearing. A decision on whether the extension provided for adds to the original 20 day period or runs concurrently with the 20 day period is not mandated by the present case because, in any event, both periods had expired in the 63 day span between the filing of plaintiff's application for rehearing and the Commission's ensuing decision. This appeal turns on whether the expiration of the time periods provided for in the statute terminates the power of the Commission over the cause thus constituting "mandatory" language, or whether the time periods are merely definitional of "as promptly as possible" and thus directory in nature.

Case law provides a basis for analysis of the attributes of directory as distinguished from mandatory language. In Latin Social Club, Inc. v. Liquor Control Comm'n (1977), 54 Ill.App.3d 798, 804, 12 Ill.Dec. 486, 370 N.E.2d 109, the court discussed the determinative factors:

"A statute which specifies the time of performance for an official duty will ordinarily be considered directory where the statute does not contain negative words denying the exercise of the power after the time named, and a violation of its provisions will not ordinarily cause any injury to public interests or property rights, or the rights of the parties."

(See also Carrigan v. Liquor Control Comm'n (1960), 19 Ill.2d 230, 233, 166 N.E.2d 574.) The two factors, therefore, as they relate to the case at bar are negative words and private injury. It is manifest that the delay herein occasioned plaintiff no private injury since Rule 23 of the State of Illinois Liquor Control Commission Rules and Regulations provides:

"If an application for rehearing is filed, the licensee may continue the operation of his business until the denial of the application or if the rehearing is granted, until the decision on rehearing." (Liquor Control L.Rep. (CCH) P 4090.)

As long as Rule 23 is operative, the delay in rendering a decision on the rehearing, although not to be condoned, accrues to plaintiff's benefit. See Carrigan, supra, at 235, 166 N.E.2d 574.

Plaintiff claims that where the matter is jurisdictional, a deleterious effect on a plaintiff cannot be a requisite for finding lack of jurisdiction. This circular argument, however, misapprehends the application on the above rules of construction. The rules are employed to determine, in the first instance, whether language is directory, and accordingly non-jurisdictional, or whether it is mandatory, and thereby jurisdictional. The injurious effect on plaintiff is reviewed to allow a determination of the mandatory or directory nature of the time limitations. At that point, if the language is found to be mandatory, the provision is considered jurisdictional. Plaintiff's argument subsumes the jurisdictional nature of the provision. He incorrectly asserts that defendant's position would lead to the erroneous use of the requirement of private injury to invoke a "jurisdictional" bar. The illogic of this interpretation is clear.

Plaintiff also maintains that the statute contains "negative words" which would deny the exercise of the Commission's powers after the expiration of the statutory time limitations. To buttress this contention, he selectively cites from section 8a, excising the words which...