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Laristos, Inc. v. City of Chicago License Appeal Commission

November 30, 1999

LARISTOS, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO LICENSE APPEAL COMMISSION; GEORGE VELCICH, CHAIR; ALBERT D. MCCOY, COMMISSIONER; IRVING KOPPEL, COMMISSIONER; RICHARD M. DALEY, LOCAL LIQUOR CONTROL COMMISSIONER OF THE CITY OF CHICAGO; WINSTON L. MARDIS, DIRECTOR, MAYOR'S LICENSE COMMISSION, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice McNULTY

Appeal from the Circuit Court of Cook County

Honorable Thomas P. Durkin, Judge Presiding.

In this case we must decide whether the Administrative Procedure Act (Procedure Act) (5 ILCS 100/1-1 et seq. (West 1996)) governs appeals from decisions of the City of Chicago License Appeal Commission (the LAC). That issue, in turn, hinges on whether the LAC is an administrative unit of state government or a unit of local government. We find that the LAC is a unit of local government, and therefore the Procedure Act does not apply.

On May 8, 1996, Laristos, Inc., submitted an application for a tavern liquor license. The Mayor's License Commission denied the application. Laristos appealed to the LAC. The LAC issued its written order denying the appeal on March 11, 1997. On April 4, 1997, the LAC denied Laristos' petition for rehearing. The order stated:

"Notice is hereby given that any party has THIRTY-FIVE (35) DAYS after service of this order upon said party, to commence an action for administrative review in the circuit court of Cook County, Illinois, [citation]. The date of the mailing of this order to a party is deemed to be the date of service."

With the order the LAC sent a certification of a staff assistant that she sent the order, using first-class mail, on April 4, 1997.

Laristos filed its complaint for administrative review on May 12, 1997, 38 days after the LAC issued its final order. The LAC moved to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)), for want of jurisdiction. In response Laristos' attorney filed an affidavit in which he swore he received the order on April 8 or 9, 1997. Laristos argued that the Procedure Act required the LAC to notify Laristos of the final order by registered or certified mail. See 5 ILCS 100/10-50(a) (West 1996). Because the LAC failed to send the order by registered mail, the date Laristos' attorney received the notice started the 35-day period for filing an action for judicial review. See Board of Education of North Boone Community Unit School District No. 200 v. Regional Board of School Trustees, 156 Ill. App. 3d 504, 507, 509 N.E.2d 132 (1987). He received the notice no earlier than April 8, 1997, and he filed the complaint 34 days later, on May 12, 1997.

The LAC pointed out that both the Liquor Control Act of 1934 (235 ILCS 5/7-10 (West 1996)) and the Administrative Review Law (Review Law) (735 ILCS 5/3-103 (West 1996)) permitted service by first-class mail, and those statutes established the date of mailing as the date of service. The trial court faced the question of whether the Procedure Act's notice provisions superseded the notice provisions in the earlier statutes. The court held that the issue did not qualify as an easily proven matter and therefore Disposition on a section 2-619 motion was inappropriate. The court denied the motion to dismiss and reviewed the LAC's decision on the merits. Following a hearing the court denied the complaint for review, thereby upholding the LAC's decision. Laristos now appeals.

The LAC contends that the trial court lacked jurisdiction to review the decision because Laristos failed to file the complaint for judicial review within 35 days of the LAC's final order. The parties agree that Laristos filed its complaint within the allotted time if the Procedure Act controls.

The Liquor Control Act gives local liquor control commissioners the power to issue licenses to sell liquor. 235 ILCS 5/4-4 (West 1996). When the local commissioner refuses to grant a license, most applicants have the right to appeal to the Illinois Liquor Control Commission (State Commission). 235 ILCS 5/7-9 (West 1996). But when the applicant seeks to appeal from the order of a local commissioner of a city of 500,000 or more inhabitants, he must appeal to the license appeal commission for that city. 235 ILCS 5/7-9 (West 1996). An aggrieved party then may seek judicial review of a final order of either the State Commission or the local license appeal commission. People ex rel. Crazy Horse, Inc. v. Daley, 40 Ill. App. 3d 341, 343, 352 N.E.2d 377 (1976).

The Liquor Control Act expressly makes the Procedure Act apply to proceedings before the State Commission. 235 ILCS 5/3-13 (West 1996). No similar provision applies the Procedure Act to LAC proceedings. When the General Assembly has intended the same procedures to apply to both the State Commission and the LAC, it has expressly so stated. See 235 ILCS 5/7-9 (West 1996). From the omission of the LAC from section 3-13 of the Liquor Control Act, we infer that the General Assembly intended that the Procedure Act should not apply to appeals from LAC decisions. See Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 82, 630 N.E.2d 820 (1994).

Laristos argues that the Procedure Act applies to the LAC by its own terms, despite the omission from the Liquor Control Act. The Procedure Act "applies to every agency as defined [therein]" (5 ILCS 100/1-5(a) (West 1996)), and the Procedure Act defines "agency" to include:

"each administrative unit or corporate outgrowth of the State government that is created by or pursuant to statute, other than units of local government and their officers, school districts, and boards of election commissioners." 5 ILCS 100/1-20 (West 1996).

The LAC is an administrative unit or corporate outgrowth of State government created pursuant to statute. Therefore, it qualifies as an agency subject to the Procedure Act unless it ...


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