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Paramount Consulting Agency v. Johnson

OPINION FILED AUGUST 24, 1979.

PARAMOUNT CONSULTING AGENCY, INC., PLAINTIFF-APPELLANT,

v.

DONALD JOHNSON, DIRECTOR, THE DEPARTMENT OF LABOR, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Paramount Consulting Agency, Inc. (Paramount), appeals from an order of the circuit court of Cook County which affirmed the Department of Labor's decision revoking Paramount's license to operate a private employment agency. The action was brought against defendants Donald Johnson, Director of the Department of Labor, and John Riorden, Superintendent of the Division of Private Employment Agencies (hereinafter referred to collectively as "Department"), pursuant to the Administrative Review Act. (Ill. Rev. Stat. 1975, ch. 110, pars. 264 through 279.) The Department has cross-appealed from an order denying its motion to dismiss Paramount's action for failure to pay the cost of reproducing the hearing transcript, as provided in section 12 of the private employment agencies act. (Ill. Rev. Stat. 1973, ch. 48, par. 1971.) *fn1 We affirm in part, reverse in part, and remand for further proceedings.

Paramount is a licensed employment agency which is incorporated in Illinois and lists its officers as James G. Ivan, president, Forest Park, Illinois, and Helen Ivan, secretary. James G. Ivan is licensed as an employment counselor by the State of Illinois. On the application for his employment counselor's license, Ivan designated his trade name as Mark Thomas Stein. The Department filed a seven-count complaint against Paramount on January 3, 1975, alleging numerous violations of the private employment agencies act (Act), all of which occurred between March 1974 and December 1974. Following an extensive hearing, the Department issued its findings of fact and conclusions of law on August 6, 1975.

The hearing officer found that Paramount, through the actions of Ivan, followed two basic methods in advertising and filling job vacancies. The first method involved the placing of an ad in the Chicago Tribune with only a phone number being provided for an applicant's response. The phone number would be either an unlisted number assigned and billed to Ivan, the number of an answering service or the number of a company with which a person placed by Ivan was connected. An applicant who responded to such an ad would be asked to leave a name and phone number and would later be contacted by a person identifying himself as Mark Thomas Stein. Following a telephone interview with Stein, the applicant would be sent to a specific job interview, which in turn could be followed by the placement of the applicant. Paramount would then bill the employer, in many instances showing on the invoice that the placement had been made by Mark Stein. The second method differed from the first in that it involved the receiving of information about an applicant from a third party rather than in response to an advertisement.

After making other detailed findings of fact pertaining to the individual counts charged against Paramount, the hearing officer concluded that all seven counts of the complaint were sustained and that Ivan was guilty of immoral and illegal conduct in operating his business, and ordered Paramount's license revoked. The Department's decision was affirmed in the administrative review action and Paramount appealed. The Department has cross-appealed from the trial court's denial of its motion to dismiss Paramount's administrative review action for failure to pay for the hearing transcript. The order revoking Paramount's license was stayed pending this appeal.

OPINION

I.

On appeal, Paramount contends that the hearing officer's decision was against the manifest weight of the competent evidence, maintaining that none of the allegations in the seven counts of the complaint is supported by any competent evidence.

In an administrative review action, the findings of the administrative agency are considered prima facie correct, and review is limited to whether or not the agency's decision is against the manifest weight of the evidence. (Kerr v. Police Board (1974), 59 Ill.2d 140, 319 N.E.2d 478; Fenyes v. State Employees' Retirement System (1959), 17 Ill.2d 106, 160 N.E.2d 810.) This review does not include the reweighing of evidence (West End Savings & Loan Association v. Smith (1959), 16 Ill.2d 523, 158 N.E.2d 608; Flynn v. Board of Fire & Police Commissioners (1975), 33 Ill. App.3d 394, 342 N.E.2d 298) or the determination of the credibility of the witnesses. Hruby v. Board of Fire & Police Commissioners (1974), 22 Ill. App.3d 445, 318 N.E.2d 132; Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App.3d 864, 868, 278 N.E.2d 212.

A.

Count I of the complaint alleges that Paramount violated various sections of the private employment agencies act (Ill. Rev. Stat. 1973, ch. 48, pars. 197a through 197o) in numerous ways: (1) section 10 (Ill. Rev. Stat. 1973, ch. 48, par. 197j) and Department Rule 3 in that newspaper ads placed by Paramount did not include information that the ad was placed by a private employment agency and the ads did not include the name and address of the licensee as it appears on the license; (2) section 10 invoices sent to employers did not disclose the licensee's name or that the licensee was a private employment agency; (3) section 5 (Ill. Rev. Stat. 1973, ch. 48, par. 197e) in that applicants were not personally interviewed by the agency before they were sent for an interview with the prospective employer; (4) section 5 in that Paramount did not send referral slips to the prospective employer or to the applicant; and (5) section 12 (Ill. Rev. Stat. 1973, ch. 48, par. 197l), in that Paramount violated the prohibition against fraudulent or misleading advertising. Paramount contends that the Department relies only upon a telephone number to connect the ads with Paramount and that the Department has given an unreasonable and unauthorized interpretation to the requirements for personal interviews and referral slips.

The ads in question contain no reference to Paramount, Ivan or Mark Stein and carry no indication that they were placed by an employment agency. The ads do contain, however, phone numbers that were traceable to Ivan. Raymond C. McParthin, a security representative for Illinois Bell Telephone, testified that Illinois Bell records showed that 366-3711 was listed and billed under the name of James G. Ivan, 366-0105 belonged to Paramount, and 771-9060 was listed and billed to Helen Ivan, who was secretary of Paramount and Ivan's wife. Testimony of Benjamin Nix and Theresa Koehler, both of whom operated answering services, identified phone numbers 236-1122, 332-0356 and 332-3456 as answering service numbers leased by a "Mr. Brooks," who gave his home phone number as 366-3711, then as 369-3711. Both of those numbers belonged to Ivan at the time under a system in which the 366-3711 number could be reached by dialing either 366-3711 or 369-3711.

Sally Elwell testified that she responded to an ad by calling a "Mr. Brooks" at 236-1122. The women who answered told her Mr. Brooks was not in and that he would return her call. Ms. Elwell later received a message that "Mark Stein" had called and that she should call him at 366-0105. Ms. Elwell contacted Stein, who arranged an interview for Ms. Elwell. Stein had referred to Paramount when he answered the phone. Testimony was also made by Andrea Mohr, who responded to an ad by calling 236-1122. A man identifying himself as "Mr. Nieman" returned her call and arranged two interviews for her. Mr. Nieman said he was an employee of Paramount.

• 1 Paramount maintains, nonetheless, that its method of operation was approved by the Department's own director. In support of its position, Paramount offered into evidence notices it sent to the Department in which it outlined the procedure it intended to follow. However, the record also contains a letter from the director, addressed to Ivan and bearing a date contemporaneous with the correspondence sent by Ivan. That letter states that the Department would seek an opinion from the Attorney General regarding Paramount's proposed practices. It continues:

"In the meantime, this department expects you to comply fully with all the provisions of the Act in the areas that are applicable in respect to the correct operation of your licensed agency."

Thus, a factual issue arose as to whether or not there was actual permission and that issue was resolved in favor of the Department. There being evidence to support that ...


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