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One Way Liquors, Inc. v. Byrne

OPINION FILED APRIL 1, 1982.

ONE WAY LIQUORS, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

JANE M. BYRNE, LOCAL LIQUOR CONTROL COMMISSIONER OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The local liquor commissioner revoked plaintiffs' license after their president was convicted of grand theft. The circuit court reversed because the order contained no findings regarding plaintiffs' rehabilitation or lack of it. It also refused to dismiss plaintiffs' appeal although plaintiffs had failed to file a petition for rehearing before the license appeal commission as required by law. We find that the circuit court erred in refusing to dismiss the appeal. Accordingly, we reverse the judgment of the circuit court.

Ahmad H. Yusuf, the president of One Way Liquors, Inc., and Yale Food & Liquor Inc. was convicted of grand theft on March 29, 1978, and sentenced to 30 months' probation. This fact is conceded by the plaintiffs. Informed of the conviction, the commissioner commenced proceedings on the charge that "on 31 March 1978, the president of the licensed corporation, Ahmad H. Yusuf, was convicted of grand theft before the Honorable Judge Cawley, and is therefore ineligible to hold a license, pursuant to chapter 43, § 120(4), Ill. Rev. Stat. 1977." *fn1 Section 2(4) of article VI of the Liquor Control Act provides:

"No license of any kind issued by the State Commission or any local commission shall be issued to:

(4) A person who has been convicted of a felony under any Federal or State law, if the Commission determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust; * * *." Ill. Rev. Stat. 1977, ch. 43, par. 120(4).

Proceedings on the charge were repeatedly continued, at the request of plaintiffs, while Yusuf's conviction was being unsuccessfully appealed. The matter was finally heard on May 12, 1980. The city, as it had done at several previous hearings, introduced evidence of the conviction. For the first time, plaintiffs raised the issue that the city had failed to show there was an investigation and that Yusuf was not sufficiently rehabilitated to warrant the public trust. The hearing examiner indicated a belief that it was conclusively presumed the person was not rehabilitated until the sentence or period of probation was completed. In his order, he simply found Yusuf had been convicted of grand theft and therefore was ineligible to hold a license pursuant to section 2(4) of article VI of the Act (Ill. Rev. Stat. 1977, ch. 43, par. 120(4)).

Appeal was taken to the license appeal commission of the city of Chicago, and a hearing was held. At that hearing the chairman also indicated the belief that, as a matter of law, a person is not rehabilitated until he finishes serving his sentence. In its order issued September 9, 1980, the commission affirmed the order, expressly finding that when it has been proven that the licensee is under the sentence of supervision of a court for violations of law, the city has sustained its burden regarding the issue of nonrehabilitation.

Although required to file a petition for rehearing by sections 8 and 8a of article VII of the Act, which provide in part:

"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. 1977, ch. 43, par. 154),

plaintiffs did not file a motion for rehearing. Instead, on October 14, 1980, plaintiffs filed a complaint in the circuit court for judicial review. Defendants moved to dismiss the complaint because of plaintiffs' failure to file a petition for rehearing. At the hearing the circuit court stated that the commission had no jurisdiction to revoke the license unless it first determined Yusuf was not rehabilitated. It further stated that the order was so patently illegal that the commission's jurisdiction never came into play and the order could be attacked at any time despite time or other limitations in the statute. Accordingly, it was not necessary that plaintiffs exhaust their administrative remedies. The circuit court further held that it was reversing only because of the failure to make the proper finding and that because this was a matter of substance, it did not have the jurisdiction to remand the case to the commission. In its written order the circuit court found:

1. the orders of revocation contained no findings of fact regarding the lack of rehabilitation of plaintiff as required by statute.

2. the filing of a petition for rehearing before the license appeal commission would have been a useless act in that the orders of revocation were legally insufficient on their face.

The circuit court denied defendants' motion to dismiss and reversed the orders of revocation and ordered the commissioner to fully reinstate the plaintiffs' retail liquor licenses.

Since this court holds that the circuit court erred in denying defendants' motion to dismiss, it is unnecessary for us to determine either (1) the effect of defendants having proceeded under the wrong statute, the evidence being clearly sufficient to sustain revocation under the correct one and plaintiffs having ample notice that the commissioner was seeking to revoke the license because of the conviction or (2) whether the hearing examiner and the license appeal ...


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