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08/30/95 PHILLIP GOLDBERG D/B/A MONITOR MARKETING

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION


August 30, 1995

PHILLIP GOLDBERG D/B/A MONITOR MARKETING GROUP, PLAINTIFF-APPELLANT,
v.
DEPARTMENT OF THE LOTTERY AND DESIREE G. ROGERS, DIRECTOR, DEPARTMENT OF LOTTERY, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County. Honorable Lester G. Foreman, Judge Presiding.

Rehearing Denied August 10, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Tully delivered the opinion of the court: Greiman, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiff, Phillip Goldberg d/b/a Monitor Marketing Group, filed a complaint for administrative review against defendants, the Department of the Lottery and Desiree G. Rogers in her official capacity as Director of the Department of the Lottery (collectively hereinafter Department), on May 10, 1993. The trial court entered an order dismissing plaintiff's cause of action for lack of standing on March 4, 1994. It is from this order that plaintiff now appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

For the reasons which follow, we affirm.

Plaintiff, a veteran commercial banker, approached personnel of the Department to discuss with them a business venture he was contemplating. Plaintiff envisaged the development of a business which would receive assignments of future payments of lottery winnings from deferred prize winners in exchange for a lump sum cash payment equal to the net present value of their winnings. The Department advised plaintiff that voluntary assignments of lottery winnings were prohibited by section 13 of the Illinois Lottery Law (section 13) (20 ILCS 1605/13 (West 1992).) *fn1 However, it was plaintiff'scontention that section 13 permitted assignments if they were approved by the circuit court.

Plaintiff never actually entered into an assignment agreement with a winner or sought to have any such contract approved by the circuit court. Instead, plaintiff requested an administrative hearing pursuant to section 7.3 of the Illinois Lottery Law (20 ILCS 1605/7.3 (West 1992)) to "create a public record" and bring this issue along with other allegations against the Lottery Control Board to public attention.

Plaintiff's claims were dismissed by the appointed hearing officer for lack of standing as he had not shown that he had been adversely affected by the Department's interpretation of section 13 or any of the other acts of malfeasance alleged. Plaintiff pursued a review of the hearing officer's findings by the board and ultimately the director of the Department, both of whom sustained the findings of the appointed hearing officer. Plaintiff then filed his complaint for administrative review with the circuit court pursuant to section 25 of the Illinois Lottery Law (20 ILCS 1605/25 (West 1992)) and the Illinois Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1992)). The circuit court dismissed plaintiff's complaint for lack of standing.

Section 25 of the Illinois Lottery Law states: "Any party adversely affected by a final order or determination of the Board may obtain judicial review ***". (Emphasis added.) (20 ILCS 1605/25 (West 1992).) In an administrative review action, a plaintiff must allege and the record must show that he personally was adversely affected by the decision rendered by the administrative agency. The failure of a plaintiff to sustain this burden will cause his complaint to be dismissed for lack of standing. Williams v. Department of Labor (1979), 76 Ill. 2d 72, 79-80, 389 N.E.2d 1177, 27 Ill. Dec. 769; Castleman v. Civil Service Commission (1965), 58 Ill. App. 2d 25, 29, 206 N.E.2d 514.

In the case sub judice, the record is devoid of evidence which indicates injury to any legally cognizable interest suffered as a result of the Department's actions. Plaintiff contends he was economically disadvantaged because he felt restrained from consummating any agreements or contracts with deferred prize winners due to the Department's interpretation of section 13. While this may be true, any damages plaintiff sustained are merely speculative in nature and have not been realized. Had plaintiff executed a contract with a prize winner assigning deferred payments in exchange for a current cash value payment, he would then be in a legal position to challenge the Department's refusal to recognize the assignment, both at the administrative level and then in the circuit court.

Alternatively, plaintiff asserts that he has standing as a taxpayer to maintain his cause of action against the Department. However, this court has previously held that an individual only has standing to appeal from an administrative decision if he possesses a special and peculiar individual interest that is directly and materially affected by the challenged action rather than an interest common to other citizens and taxpayers. ( Castleman v. Civil Service Commission (1965), 58 Ill. App. 2d 25, 29, 206 N.E.2d 514.) Moreover, a taxpayer only has standing to sue if a misappropriation or misuse of public funds is alleged and shown. ( Citizens v. Department of Mines and Minerals (1986), 149 Ill. App. 3d 261, 267, 500 N.E.2d 75, 102 Ill. Dec. 453.) Plaintiff did not include any such allegations in his complaint and, therefore, he lacks standing to pursue his claims under this theory. Consequently, we believe the trial court did not err in dismissing plaintiff's complaint.

In light of the foregoing, the judgment of the circuit court is affirmed.

GREIMAN, P.J., and CERDA, J., concur.


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