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Aliperto v. Dept. of Regis. & Education

OPINION FILED NOVEMBER 25, 1980.

FILIPPO ALIPERTO, PLAINTIFF-APPELLEE,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding.

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

Joan G. Anderson, the Director of the Department of Registration and Education (hereinafter referred to as the Director), and the Department of Registration and Education (hereinafter referred to as the Department), appeal from an order of the circuit court of Cook County permanently enjoining them from taking any further action to suspend or revoke Filippo Aliperto's certificate of registration to practice barbering in this State. The following issues are presented for review: (1) whether equitable relief was improperly granted while administrative proceedings were pending; (2) whether the trial court properly interpreted and construed sections 51 and 52 of the Illinois Barbers Law (Ill. Rev. Stat. 1979, ch. 111, pars. 1658 and 1659) *fn1 and; (3) whether the trial court in rendering its decision improperly encroached upon the Director's statutory authority.

For reasons hereinafter set forth we affirm in part, reverse in part and remand with directions.

On August 26, 1977, the Department initiated proceedings to suspend or revoke Aliperto's license. Following a hearing held on October 17, 1977, before the Barber Examining Committee (hereinafter referred to as the Committee), the Committee submitted its findings of fact and conclusions of law to the Director on December 19, 1977. These findings of fact and conclusions of law were signed by only two members of the five-member Committee. The Committee recommended that Aliperto's license be suspended for 30 days. This recommendation (unlike the findings of fact and conclusions of law) was signed by three members of the five-member Committee.

On May 1, 1978, the Director, acting pursuant to section 52 of the Illinois Barbers Law, issued an order adopting the Committee's findings of fact and conclusions of law. However, the Director, "satisfied that the Findings of Facts and Conclusions of Law warrant the most drastic disciplinary action" and that "substantial justice has not been done," ordered the Committee to reconsider its recommendation and return a recommendation consistent with her order. On June 19, 1978, the Committee, upon reconsideration, and without further hearing, "readopt[ed]" and "reaffirm[ed]" its findings of fact and conclusions of law but "withdr[e]w" its previous recommendation and in its stead recommended that Aliperto's license be revoked. Notice of the Committee's reconsidered recommendation was sent to Aliperto on August 30, 1978, and subsequently on September 11, 1978, he filed a petition for rehearing.

On December 14, 1978, Aliperto withdrew his petition for rehearing and in its stead filed a "Petition To Declare Certain Actions Of The Committee And Director Of The Department Of Registration and Education Null And Void And To Dismiss The Proceedings Herein." In the petition Aliperto requested that the Department declare the prior administrative proceedings null and void because the Committee's December 19, 1977, findings of fact and conclusions of law were not signed by a majority of the Committee members. On December 29, 1978, the Director denied Aliperto's petition, but finding that "substantial justice had not been done," voided both the Committee's December 19, 1977, findings of fact, conclusions of law, and recommendation to suspend Aliperto's license for 30 days, and the Committee's August 7, 1978, reconsidered recommendation to revoke Aliperto's license. The Director, again acting pursuant to section 52 of the Illinois Barbers Law, ordered that Aliperto be given a rehearing before the Committee. Aliperto was subsequently notified that his rehearing would be held on June 18, 1979.

On June 6, 1979, Aliperto filed the instant action seeking to permanently enjoin both the Director and the Department from taking any further action to suspend or revoke Aliperto's license. *fn2 On June 15, 1979, Aliperto filed a petition for temporary injunction which was granted that same day.

The trial court issued its final order on September 18, 1979, finding that section 52 of the Illinois Barbers Law read in conjunction with section 51 of the Illinois Barbers Law "clearly and unambiguously states that the DIRECTOR * * * may [order] a rehearing only within 20 days after the accused received service of the COMMITTEE'S Findings of Fact and Recommendations to the DIRECTOR," and that "[a]fter that twenty-day period has expired, the COMMITTEE's Findings and Recommendations are final." The trial court concluded therefrom that the Committee's December 19, 1977, findings of fact and recommendation "became a final and administrative decision [on January 9, 1978,] twenty days after [Aliperto] received service" of the findings and recommendations; and that such a final administrative decision is subject only to judicial review pursuant to the provisions of the Administrative Review Act. The trial court further concluded that the actions of the Director and the Committee subsequent to January 9, 1978, are null and void, and enjoined the Director and the Department from taking any further action to suspend or revoke Aliperto's license.

I.

The Director and the Department first contend that the trial court improperly granted equitable relief while administrative proceedings were pending, relying on the long-standing principle that a party involved in an administrative action must ordinarily exhaust all available administrative remedies before seeking relief from the courts>. (Myers v. Bethlehem Shipbuilding Corp. (1938), 303 U.S. 41, 82 L.Ed. 638, 58 S.Ct. 459; Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 326 N.E.2d 737.) The rule is not without its exceptions, however, and Aliperto maintains that he has established sufficient cause to warrant an exception to the exhaustion doctrine.

Exceptions to the exhaustion rule have been allowed where a statute, ordinance or rule is challenged as unconstitutional on its face (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 370 N.E.2d 223; Bright v. City of Evanston (1956), 10 Ill.2d 178, 139 N.E.2d 270); where multiple remedies exist before the same zoning board and at least one has been exhausted (Herman v. Village of Hillside (1958), 15 Ill.2d 396, 155 N.E.2d 47); where irreparable harm will result from further pursuit of administrative remedies (Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 25 N.E.2d 482); and where an administrative body's jurisdiction is attacked on its face on the ground that it is not authorized by statute (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 387 N.E.2d 258).

• 1 The Director and the Department contend that Aliperto has challenged neither the facial validity of section 52 of the Illinois Barbers Law nor the jurisdiction of the Department. They also maintain that Aliperto failed to establish irreparable injury or an inadequate remedy at law. We conclude that equitable relief was appropriate here in spite of the pending administrative proceedings, for Aliperto has shown the inadequacy of available legal remedies, the futility of pursuing relief through administrative channels and the likelihood of irreparable injury if the courts> do not intervene.

Aliperto has no adequate remedy at law. As the court stated in Bio-Medical Laboratories, Inc. v. Trainor:

"For there to be an adequate remedy at law which will deprive equity of its power to grant injunctive relief, the remedy `must be clear, complete and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy.' (K.F.K. Corp. v. American Continental ...


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