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Rasky v. Dept. of Registration & Education

OPINION FILED JUNE 27, 1980.

BENJAMIN A. RASKY, PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 12, 1980.

This is an appeal pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) from an order of the circuit court affirming the revocation of plaintiff's real estate broker's license by the Department of Registration and Education (Department).

The Department issued a complaint against plaintiff setting forth a number of conditions existing in certain apartment buildings owned and operated by him which allegedly were in violation of the Municipal Code of Chicago and endangered the health and safety of the inhabitants. The complaint asked that plaintiff's real estate broker's license be suspended or revoked, pursuant to section 15(e)(11), (12) of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1975, ch. 114 1/2, par. 115(e)(11), (21)) and Rule XI of the Department Rules and Regulations.

The real estate examining committee of the Department (Committee) held a hearing on the complaint at which plaintiff, an attorney, did not appear. The first of two city of Chicago code inspectors testified to inspections of three buildings. One was an occupied 63-unit apartment building located at 5621-25 North Winthrop, concerning which he stated that in November 1973 he found approximately 25 building code violations — including peeling paint, broken windows, leaking faucets, rat debris, garbage, and general neglect to locks and doors; that on January 3, 1975, he noted that 11 of the violations had not been corrected; that on November 18, 1975, he found the premises to be in worse condition than they were in November 1973; that an inspection in June 1976 revealed numerous code violations — including the fracture of an exterior wall, peeling paint, broken plaster, leaking faucets, defective plumbing, rats, roaches, garbage, broken windows, and broken tiles; that during the period of November 1973 through June 1976, he had observed persons living in this building as tenants and, although some of the building code violations were readily correctable, they had not been remedied on June 21, 1976; and that plaintiff had acknowledged ownership of the building in question. This witness then gave testimony concerning an occupied apartment building at 1064-68 Berwyn, also known as 5301-09 North Winthrop. He stated that his inspection revealed code violations of broken plaster, peeling paint, rats, roaches, a defective boiler, and a rusted out steel fire escape; that during the course of inspections from 1973 to approximately 1976, the building was never brought into compliance with the building code although the violations were readily correctable; and that plaintiff acknowledged ownership of the building. The third inspection of the witness was on June 9, 1976, of an occupied six-story apartment building located at 832 West Gunnison, concerning which he testified that he found 21 code violations which included broken plaster, peeling paint, garbage, mice and roaches, and defective plumbing; that these violations could easily have been corrected, but later inspections disclosed they had not been; and that plaintiff acknowledged owning the building.

The other code enforcement inspector testifying to an inspection of a 61-unit partially occupied apartment building located at 5726-28 North Winthrop stated that he found 39 building code violations; that plaintiff acknowledged ownership of this building since 1959; that the violations included general exterior neglect, a chimney in a dangerous condition, improper doors, no boiler room door, holes in the boiler room wall, peeling paint, rusted fire escape floors, broken concrete walk, the lack of lights on the fire escape, holes in the clay tile in the basement, holes in the plaster throughout the building, evidence of mice in the building, broken windows, and rotting window sashes; that these violations were not corrected until a receiver was appointed in 1975 and plaintiff was directed by the court to deposit $16,000 for repairs of that building; that the violations at the building could have been repaired rather quickly; and that the receiver achieved 90% compliance with the building code, but the building has since reverted to a state of disrepair.

The Department offered into evidence the pleadings of the city of Chicago and plaintiff in prior proceedings involving alleged building code violations of similar nature in the buildings in question, for the stated purpose of establishing ownership of the buildings and demonstrating notice of alleged violations.

Acting on the Committee's recommendation, the Department revoked plaintiff's real estate broker's license. The circuit court affirmed this decision, and this appeal followed, in which plaintiff contends that section 15 of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1975, ch. 114 1/2, par. 115(e)(11), (21)), and Rule XI of the Department Rules and Regulations are unconstitutional; that the complaint did not state a cause of action; that he was erroneously refused a continuance of the hearing; that Department bias denied him a fair hearing; that the Department failed to comply with plaintiff's discovery motion; that Department witnesses gave false testimony; that the hearing was conducted in an unfair manner; that the agency's findings were not supported by substantial evidence; that revocation of his broker's license was arbitrary, erroneous, and constituted cruel and unusual punishment as well as a denial of due process and equal protection; and that he was prejudiced by the Committee's failure to procure a transcript.

OPINION

• 1 Plaintiff first contends that section 15(e)(11), (21) of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1975, ch. 114 1/2, par. 115(e)(11), (21)) (the Act) *fn1 and Department Rule XI — the authority under which his license was revoked — "are unconstitutional and void, being on its face [sic] and in violation of Art. 1, Sec. 2 of the Ill[inois] Constitution and the 14th Amendment, Sec. 1 of the U.S. Constitution, referring to due process and equal protection of the laws." Section 15 provides, in part:

"The Department may refuse to issue or renew, may suspend or may revoke any certificate of registration, or may censure or reprimand any registrant hereunder for any one or any combination of the following causes:

(e) Where the registrant in performing or attempting to perform or pretending to perform any act as a real estate broker or salesman, or where such registrant, in handling his own property, whether held in deed, option, or otherwise, is found guilty of:

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;

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

Rule XI of the Department Rules and Regulations states:

"Unworthiness or incompetence on the part of a registrant as set forth in [section 15(e)(11)] of the Act may consist of both acts and omissions to act. Omissions to act and a failure to safeguard the interests of the public in the buying or selling, the negotiation of sales or exchange of real estate, the leasing or renting of real estate wherein the premises are known by the registrant to be in violation of ordinances made for the protection of the public in regard to fire, health, sanitation and other hazards shall be deemed `unworthiness or incompetence.'"

In support of this contention, plaintiff argues that the Department's complaint does not specify in detail the municipal code violations; that it fails to allege that he had notice of them; and that, in any event, the violations preceded the effective date of the statute under which this action was brought. Because these arguments do not concern constitutionality and were ...


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