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National Talent Assoc. v. Holland

OPINION FILED SEPTEMBER 18, 1979.

NATIONAL TALENT ASSOCIATES, INC., PLAINTIFF-APPELLEE,

v.

KENNETH W. HOLLAND, DIRECTOR OF LABOR, ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff National Talent Associates, Inc., in a complaint filed in the circuit court of Cook County, sought a declaration that it was not required to be licensed under the statute regulating private employment agencies (Ill. Rev. Stat. 1977, ch. 111, pars. 901 through 918) (hereinafter referred to as the Act). *fn1 Named as defendants were those State officials charged with enforcement of the Act. *fn2 After defendants' motion to dismiss the complaint was denied, they filed an answer. Plaintiff then filed a motion for summary judgment. The trial court granted plaintiff's motion for summary judgment and entered a declaratory judgment finding that plaintiff was neither an employment agency nor a theatrical employment agency as defined by the Act, and therefore was not subject to the Act's licensing requirements.

On appeal, defendants contend that plaintiff conducts the type of business which falls within the Act's definition of a theatrical employment agency. Plaintiff contends on appeal (i) that as defendants concede plaintiff is not a private employment agency as defined by the Act, this appeal is moot, and (ii) in the alternative, that the trial court's judgment should be upheld.

In October 1973, plaintiff was informed by the Department of Labor that it was operating a business without a license in violation of the Act regulating private employment agencies, and that the Department intended to take legal action to insure plaintiff's compliance. Before such legal action was taken, plaintiff filed its complaint for declaratory relief.

The essential facts as to plaintiff's business activities are not in dispute. The record indicates that plaintiff solicits prospective customers by mailing a letter to the parents of a child in which plaintiff states that the child may have the necessary qualifications for entering the field of commercial advertising. If the recipient of the letter responds by contacting plaintiff, a screening process begins. In the event plaintiff finds the child acceptable, it offers the child's parents a contract in which plaintiff agrees to have the child professionally photographed and to submit the photographs to a booking agency for its consideration in placing the child in the field of print advertising and television commercials. Plaintiff promises to provide this service yearly for a seven-year period or until the child is accepted by the booking agency, whichever occurs first. Plaintiff charged its customers $135 plus an additional $35 each year the photographing and submission process was repeated. The record indicates that the $135 charge was later increased to $185. In Illinois, plaintiff submits all of its customers, pursuant to an agreement, to one licensed booking agency, the Talent Registry.

After examining the statutory language of the Act, the trial court found that regulation of a business such as plaintiff's was not contemplated, that to find the Act covered plaintiff's business would be to give it a strained interpretation, and that this was a regulatory and penal statute which could not be expanded by court interpretation beyond the scope originally intended by the General Assembly.

I.

We first consider plaintiff's contention that this appeal is moot.

Plaintiff argues that the Act separately defines an employment agency and a theatrical employment agency; that section 1 of the Act requires all private employment agencies to be licensed; that section 8 of the Act, dealing with theatrical employment agencies, applies only to those licensed under section 1; that defendants on appeal argue only that plaintiff is a theatrical employment agency and thus concede plaintiff is not a private employment agency; that plaintiff, not being a private employment agency, is not required to be licensed under section 1 and thus is not a "licensee" subject to the provisions of section 8; and therefore no justiciable controversy exists and the appeal should be dismissed as moot.

An employment agency is defined under section 11 of the Act as "any person engaged for gain or profit in the business of securing or attempting to secure employment for persons seeking employment or employees for employers." (Ill. Rev. Stat. 1977, ch. 111, par. 914.) Under that same section, the term theatrical employment agency is defined as "the business of conducting an agency, bureau, office or any other place for the purpose of procuring or offering, promising or attempting to provide engagements" in what might be described as the entertainment field. Common to both definitions is the "attempt" to secure employment. Defendants have argued that plaintiff attempts to secure employment for its customers in the theatrical field. Nowhere in defendants' brief do they say plaintiff is or is not an employment agency; rather, defendants have narrowed their argument to the meaning of a theatrical employment agency. By its very terms, a theatrical employment agency is an employment agency which limits its employment efforts to the theatrical or entertainment field.

• 1 Without citation of authority, plaintiff asserts that the Act does not require all theatrical employment agencies to be licensed. If the legislature had intended that some theatrical employment agencies need not be licensed, it would have so provided. However, we find no such intent in the Act. In fact, section 1 of the Act specifically states, "No person shall open, keep or carry on any employment agency in the State of Illinois, unless such person shall procure a license therefor from the Department of Labor." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 111, par. 901.) As defendants point out, the Act defines particular types of employment agencies such as a theatrical employment agency and a nurses' registry, which definitions would be meaningless if these agencies were not to be governed by the Act's provisions. For these reasons, we find plaintiff's contention to be without merit.

II.

A.

The question which must be resolved is whether the business conducted by plaintiff falls within the statutory definition of a theatrical employment agency under section 11 of the ...


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