APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
516 N.E.2d 346, 162 Ill. App. 3d 959, 114 Ill. Dec. 191 1987.IL.1534
Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.
JUSTICE BUCKLEY delivered the opinion of the court. QUINLAN, P.J., and O'CONNOR, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY
Jim M'Lady Olds, Inc. (petitioner), brought this suit for judicial review to reverse the 30-day suspension of its automobile dealership license by respondent, the Secretary of State of Illinois. At the administrative hearing, the record shows that Quinton Brown testified that he traded in a 1979 Buick on October 5, 1983, when he purchased a 1983 Oldsmobile from petitioner. Mr. Brown signed the odometer statement even though his wife Elimina was listed as transferor. The odometer statement indicated "96 [ sic ]" miles. Furthermore, Mr. Brown signed a title assignment leaving the mileage figure blank. He testified that the figure which was inserted on the assignment was not in his or his wife's handwriting. However, on cross-examination, he testified that he was not sure whether his wife inserted a mileage figure.
Charles Barney, the general manager of Norm Buick, testified that the Browns visited him on September 30, 1983, inquiring as to the trade-in allowance for their car. At this time, he observed that the odometer read in excess of 90,000 miles. He next observed the Browns' Buick on October 5, 1983, at 8:20 p.m. parked adjacent to Jim M'Lady's car lot. Mr. Barney observed that the odometer now read 42,052.
An investigator for the Secretary of State, Lyle Pratt, testified to the chain of custody of the 1979 Buick. He testified that Jim M'Lady Olds transferred title to Boban Brothers, a used car dealership in Joliet, Illinois.
Based on this evidence, the hearing officer for the Secretary of State determined that sufficient evidence existed that the odometer had been rolled back by Jim M'Lady Olds in violation of sections 3-112.1 and 5-501(a)(2), (a)(3) and (a)(13) of the Illinois Motor Vehicle Code. (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 3-112.1, 5-501(a)(2), (a)(3), (a)(13).) The hearing officer recommended that petitioner's dealership license be revoked. On October 3, 1985, the Secretary of State determined that the above sections of the Code had been violated, and entered an order revoking the dealership license for 30 days.
The circuit court affirmed the decision of the Secretary of State. Petitioner appeals this affirmance. I
Petitioner initially argues that the Secretary of State's finding that it violated section 5-501(a)(2) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 5-501(a)(2)) constitutes a denial of due process because it never received adequate notice of this charge and accordingly did not have an opportunity to prepare a defense. The first amended notice of hearing charged petitioner with violating sections 5-501(a)(3), (a)(13), and 3-112.1 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 5-501(a)(3), (a)(13), 3-112.1.) Petitioner was never charged with violating section 5-501(a)(2), but the Secretary of State, relying on the recommendations of the hearing officer, found that the petitioner violated this section in addition to those sections that were charged.
It is well-established law that although charges filed before an administrative agency need not be drawn with the same refinements and subtleties as pleadings in a court proceeding, "the charges must be specific enough to apprise the respondent of the charges brought against him so as to enable him to intelligently prepare his defense." (Batley v. Kendall County Sheriff's Department Merit Com. (1981), 99 Ill. App. 3d 622, 626, 425 N.E.2d 1201, 1205; see Wierenga v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 270, 274, 352 N.E.2d 322, 326.) In the instant case, petitioner was not charged with violating section 5 -- 501(a)(2). Petitioner obviously could not prepare an intelligent defense to meet this charge. It was error for the Secretary of State to base its decision on a provision that had not been charged.
This error, however, was harmless because it would not affect the outcome of the case. (See Forberg v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 410, 412, 352 N.E.2d 338, 340.) The record amply supports violations of the other provisions which were charged. Any one of these violations standing alone would be enough to sustain a suspension of petitioner's dealership license for 30 days. II
Petitioner next contends that the Secretary of State failed to show that it violated section 5-501(a)(3) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 5-501(a)(3).) Section 5-501(a)(3) states that a licensee's license can be suspended if it has "[been] guilty of a fraudulent act in connection with selling, bartering, exchanging, offering for sale or otherwise dealing in vehicles, bodies and component parts." Petitioner argues that the phrase "[been] guilty of a fraudulent act," implies that a prior criminal conviction is necessary to satisfy the terms of this provision, relying on Lindsey v. Edgar (1984), 129 Ill. App. 3d 718, 473 N.E.2d 92, and Do-Right Auto Sales v. Howlett (N.D. Ill. 1975), 401 F. Supp. 1035, in support of its argument. In both Lindsey and Do-Right, the terms of section 5-501(a)(3) were ...