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Gounaris v. City of Chicago

March 30, 2001

HARRY GOUNARIS AND D & R MANAGEMENT, INC., D/B/A SHADOWS NIGHT CLUB, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION; RICHARD M. DALEY, AS MAYOR OF THE CITY OF CHICAGO AND LOCAL LIQUOR CONTROL COMMISSIONER; THE LOCAL LIQUOR CONTROL COMMISSION OF THE CITY OF CHICAGO; THE MAYOR'S LICENSE COMMISSION OF THE CITY OF CHICAGO, WINSTON L. MARDIS, AS DIRECTOR, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS
(THE LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO; ANTHONY JOHN CALABRESE, CHAIRMAN, IRVING KOPPEL, COMMISSIONER; LEONARD BRANSON, COMMISSIONER; AND TERRY G. HILLIARD, SUPERINTENDENT, CHICAGO POLICE DEPARTMENT, DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County. No. 99 CH 01473 The Honorable Robert V. Boharic, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

Following a hearing in license revocation proceedings, the defendant Local Liquor Control Commission of the City of Chicago (LLCC) found that the plaintiffs, licensee Harry Gounaris and D & R Management, Inc. (collectively D & R), d/b/a Shadows Night Club (Shadows), had allowed two minors, Erik Penaz and Rhonda Bolden, to enter and remain on its licensed premises on separate occasions. The LLCC also found that alcoholic beverages were sold to Bolden. As a finding of fact, the LLCC determined that the circumstances warranted a 21-day license suspension. The LLCC issued an order of suspension on July 23, 1998 (the original order) suspending D & R's license for a period of 15 days. A copy of the LLCC's findings of fact was attached to the copy of the original order served on D & R. The office of the mayor issued a concurring order of disposition also reflecting a 15-day period of suspension.

In an amended order of suspension issued November 23, 1998 (the amended order), the LLCC changed the 15-day period of suspension stated in the original order to reflect the 21-day license suspension set forth in its findings of fact. No additional copy of the findings of fact was attached to the copy of the amended order served on D & R. The office of the mayor issued an amended order of disposition also reflecting a 21-day period of suspension.

D & R appealed to the defendant License Appeal Commission of the City of Chicago (LAC), which affirmed the 21-day suspension set forth in the amended order. D & R subsequently filed a complaint in administrative review in the circuit court of Cook County. The circuit court affirmed the LLCC's findings of fact and the 15-day suspension as stated in the original order, but reversed the 21-day suspension in the amended order. D & R appeals the decision of the circuit court affirming the 15-day order of suspension. The LLCC cross-appeals that portion of the circuit court's order reversing the LLCC's 21-day order of suspension. We affirm in part, reverse in part and reinstate the amended order as affirmed by the LAC.

I. Analysis.

"Upon administrative review, the function of both the trial court and the appellate court is limited to determining whether the findings and conclusions of the administrative agency are against the manifest weight of the evidence." Hamwi v. Zollar, 299 Ill. App. 3d 1088, 1092 (1998). "In order to make a determination that an agency's decision was against the manifest weight of the evidence, a court must conclude that all reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that the finding is erroneous and that the opposite conclusion is clearly evident." Haynes v. Police Board, 293 Ill. App. 3d 508, 511 (1997). " 'Because the weight of the evidence and the credibility of witnesses are uniquely within the province of the administrative agency, there need only be some competent evidence in the record to support its findings.' " Haynes, 293 Ill. App. 3d at 512, quoting Jagielnik v. Board of Trustees of the Police Pension Fund, 271 Ill. App. 3d 869, 875 (1995). "[I]t is not a court's function to reweigh the evidence or make an independent determination of the facts." Board of Education v. Van Kast, 253 Ill. App. 3d 295, 304 (1993).

A. Procedural Issues

D & R's first argument is jurisdictional. The assistant corporation counsel for the City of Chicago argued before the LAC that the amended order imposing a 21-day license suspension was issued solely on a nunc pro tunc basis - to correct a clerical error in the original order indicating a period of suspension of 15 rather than 21 days. Refusing to acknowledge the presence of a clerical error in the original order, counsel for D & R responded that the amended order was not a valid nunc pro tunc order, was issued outside the limits of the LLCC's jurisdiction and was therefore void. D & R now argues that the LAC ruled solely on this allegedly invalid order without ruling on the original order. Therefore, argues D & R, the LAC lost jurisdiction with respect to the original order by failing to rule on it within 30 days as required under section 7-9 of the Liquor Control Act of 1934 (235 ILCS 5/7-9 (West 1998)). D & R concludes that because the LAC lost jurisdiction with respect to the original order and because the amended order was invalid, the LAC was therefore without jurisdiction to render any decision against it in this case.

In affirming the 21-day suspension set forth in the amended order, the LAC ruled that the amended order was a proper nunc pro tunc order. Despite the trial court's reversal of the LAC's ruling:

"Under the Administrative review Law (735 ILSC 5/3-101 et seq. (West 1998)), we review the final decision of the administrative agency and not the decision of the circuit court. [Citation.] While the reviewing court defers to the agency's findings of fact [citation], it conducts an independent review of its conclusions of law. [Citation.] When the agency decides a mixed question of law and fact, we review its decision under a clearly erroneous standard. [Citation.] When the issue on appeal is one of law only and involves no question of fact, we review the agency's decision de novo." Home Interiors and Gifts, Inc. v. Department of Revenue, 318 Ill. App. 3d 205, 209 (2000).

In this case, the LAC was required to determine both whether, as a matter of fact, there was a clerical error in the original order and whether, as a matter of law, the amended order satisfied the requirements of a nunc pro tunc order.

We first consider whether the LAC's determination that there was indeed a clerical error in the original order was against the manifest weight of the evidence. Hamwi, 299 Ill. App. 3d at 1092. The trial court stated:

"There just is nothing in the record showing how the 15 days is the mistake, rather than the 21- day period. * * * So, under these circumstances, I do not find that this is a proper nunc pro tunc order. Because it's not based upon definite and precise evidence in the record."

We disagree. The record contains a single page, listing in 11 numbered paragraphs the findings of the hearing officer, Deputy Liquor Control Commissioner Robert Nolan. That page is captioned as "FINDINGS OF FACT: 97 LR 30" (the Findings of Fact). In numbered paragraph 11, Commissioner Nolan states: "I find that based upon the totality of the circumstances, ...


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