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El Sauz, Inc. v. Daley

February 20, 2002

EL SAUZ, INC., DOING BUSINESS AS EL GATO NEGRO, PLAINTIFF-APPELLANT
v.
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; WINSTON L. MARDIS, AS DIRECTOR OF THE MAYOR'S LICENSE COMMISSION OF THE CITY OF CHICAGO; THE CITY OF CHICAGO, A MUNICIPAL CORPORATION; THE LICENSE APPEAL COMMISSION OF THE CITY OF CHICAGO; ANTHONY JOHN CALABRESE, CHAIRMAN; IRVING KOPPEL, AS COMMISSIONER OF THE LICENSE APPEAL COMMISSION, DEFENDANTS-APPELLEES



Appeal from the Circuit Court of Cook County. No. 00 CH 5214 Honorable Julia Nowicki Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hall

UNPUBLISHED

The plaintiff, El Sauz, Inc., doing business as El Gato Negro, filed a complaint for administrative review seeking review of an order of suspension issued by the Local Liquor Control Commission of the City of Chicago. The defendants filed a motion to dismiss the complaint for lack of jurisdiction. The circuit court granted the motion. The plaintiff appeals from the order of dismissal.

On appeal, the plaintiff raises the following issues: (1) whether the defendants waived their jurisdictional challenge to the plaintiff's complaint; (2) whether the License Appeal Commission had jurisdiction to rule on the plaintiff's petition for rehearing; (3) whether the plaintiff was statutorily entitled to service of the License Appeal Commission's order by certified mail; (4) whether section 3-13 of the Liquor Control Act denies the plaintiff its constitutional rights to due process and equal protection.

Procedural History

On September 1, 1998, following a hearing, the Local Liquor Control Commission (LLCC) ordered a 30-day suspension of the plaintiff's liquor license based on its finding that the purchase of a controlled substance had been permitted on the plaintiff's premises. The plaintiff timely filed its notice of appeal to the License Appeal Commission (LAC). On March 15, 1999, the LAC issued its order affirming the findings of the LLCC and the imposition of the 30-day suspension penalty. Accompanying the order was the certification by a staff assistant that the order was mailed on March 15, 1999, addressed to the attorney of record.

On April 15, 1999, the plaintiff filed a petition for rehearing with the LAC. Anticipating a jurisdictional challenge because the petition was not filed within 20 days of the LAC's order (see 235 ILCS 5/7-10 (West 1998), the plaintiff alleged that it never received a copy of the order and that its attorney did not receive a copy of the March 15, 1999, order within the 20-day period. The plaintiff further alleged that the order, which was served by regular mail, was required to be served by certified or registered mail as provided for in the Illinois Administrative Procedure Act (the Procedure Act) (5 ILCS 10-50 (West 1998)). The petition was supported by the affidavit of the plaintiff's president, Geraldine Lambert. After the filing of the petition, the plaintiff submitted the affidavit of its attorney. In his affidavit, the attorney stated that oral arguments in this case were held on March 8, 1999. Thereafter, he was out of town from March 17, through March 21, 1999, and from March 23, through April 9, 1999. When he returned to his office on April 9, 1999, the LAC's order was included in the mail that had been delivered while he was out of town.

On April 16, 1999, the LLCC filed a motion to dismiss the plaintiff's petition for rehearing. The LLCC alleged that the 20-day period for filing the petition for rehearing was jurisdictional. The LLCC further alleged that notice of the March 15, 1999, order was properly served by regular mail, since the Procedure Act did not apply to the procedures followed by the LAC.

On January 26, 2000, the LAC issued a corrected order denying the LLCC's motion to dismiss the petition for rehearing. The LAC determined that the Procedure Act was applicable to the LAC procedures and therefore, service of the March 15, 1999, order by regular mail did not comply with the Procedure Act. As a result, the LAC concluded that the plaintiff's petition for rehearing had been timely filed. On January 28, 2000, the LLCC filed a petition for rehearing, which was denied by the LAC on January 31, 2000. After a hearing on the merits of the plaintiff's petition for rehearing, on March 17, 2000, the LAC issued a corrected order denying the plaintiff's petition for rehearing.

On April 4, 2000, the plaintiff filed its complaint for administrative review seeking reversal of the LAC's order affirming the LLCC's findings and the imposition of the 30-day suspension of its liquor license.

On May 9, 2000, the defendants filed a motion to dismiss the complaint for lack of jurisdiction. The motion alleged the same jurisdictional arguments that the LLCC had raised in its motion to dismiss and its petition for rehearing before the LAC. The motion to dismiss asserted that since the plaintiff was required to file a petition for rehearing before it could seek review of the LAC's order, (see 235 ILCS 5/7-10 (West 1998)), its untimely filing of its petition for rehearing deprived the LAC of jurisdiction to act on the petition for rehearing, and therefore, the circuit court was without jurisdiction to hear the complaint.

On June 15, 2000, the plaintiff filed a response to the motion to dismiss. In its response, the plaintiff pointed out that the defendants did not file for administrative review of the LAC's order denying their petition for rehearing as required by section 3-103 of the Administrative Review Act (Review Act) (735 ILCS 5/3-103 (West 1998)) and thus waived review of the LAC's denial of its motion to dismiss. Therefore, the plaintiff argued that the defendants' motion to dismiss constituted an impermissible collateral attack on the LAC's order.

On July 28, 2000, the circuit court issued a written opinion granting the defendants' motion to dismiss. The plaintiff filed a motion for reconsideration and rehearing on August 25, 2000. The circuit court denied the motion on October 23, 2000. The plaintiff filed a timely notice of appeal on October 27, 2000.

ANALYSIS

[The following material is nonpublishable under Supreme Court Rule 23.]

I. Whether the defendants waived their right to raise the issue of jurisdiction before the circuit court?

A. Standard of Review

Dismissal based upon a lack of jurisdiction is subject to de novo review where the facts are not in dispute. In re Marriage of Wiseman, 316 Ill. App. 3d 631, 634-35, 737 N.E.2d 325, 329 (2000).

B. Discussion

The plaintiff contends that the trial court erred in granting the defendants' motion to dismiss for lack of jurisdiction because the defendants did not follow the statutory requirements for seeking review before the circuit court.

The Liquor Control Act (the Liquor Act) has expressly adopted the appeals provisions of the Review Act to govern appeals from its commissions. See 235 ILCS 5/7-11 (West 1998).

The January 31, 2000, order denying the LLCC's petition for rehearing provided that the parties had 35 days from the date of service of the order within which to commence an action for administrative review in the circuit court of Cook County. See 735 ILCS 5/3-103 (West 1998).

The plaintiff argues that the defendants waived their challenge to the jurisdiction of the circuit court when they failed to seek administrative review of the LAC's January 31, 2000, order denying their petition for rehearing.

Judicial review can only be undertaken where there is a final agency determination. Buroff v. Board of Fire and Police Commissioners, 248 Ill. App. 3d 626, 629, 618 N.E.2d 930, 932 (1993). Such a determination is made following "'some sort of adversarial process involving the parties affected, where a hearing on controverted facts is held, and ultimately a disposition is rendered by an impartial officer.' [Citation.]" Buroff, 248 Ill. App. 3d at 629, 618 N.E.2d at 932. In the absence of such a final administrative decision, the circuit court lacks jurisdiction to consider the matter. Buroff, 248 Ill. App. 3d at 629, 618 N.E.2d at 932.

Under the Review Act, only complaints to review final administrative decisions may be brought. See 735 ILCS 5/3-103 (West 1998). A final order or judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties to the litigation. Department of Central Management Services v. American Federation of State, County and Municipal Employees, 182 Ill. 2d 234, 238, 695 N.E.2d 444, 446 (1998). In this case, the decision denying the defendants' petition for rehearing was not a final decision since the LAC still had to determine whether to reverse its decision affirming the suspension of the plaintiff's liquor license.

The plaintiff then argues that the defendants still had sufficient time to file for administrative review after the LAC denied the plaintiff's petition for rehearing and upheld the suspension of its liquor license but that they failed to do so.

In general, a party who has obtained by a judgment all that was sought in the trial court cannot appeal that judgment. Piersall v. Sportsvision of Chicago, 230 Ill. App. 3d 503, 512, 595 N.E.2d 103, 108 (1992). Specific findings adverse to the appellee do not require a cross-appeal so long as the judgment was entirely in favor of the appellee. Piersall, 230 Ill. App, 3d at 512, 595 N.E.2d at 108. Under the Review Act, the right to seek judicial review of an administrative decision is limited to the parties of record at the administrative proceeding whose rights, privileges, or duties were adversely affected by the decision. Kemp-Golden v. Department of Children and Family Services, 281 Ill. App. 3d 869, 873, 667 N.E.2d 688, 691 (1996). One who is not "'aggrieved by the agency decision' does not have standing to seek judicial review of the decision. [Citation.]" Kemp-Golden, 281 Ill. App. 3d at 873, 667 N.E.2d at 691.

Since the LAC affirmed the suspension of the plaintiff's liquor license, the defendants received all they sought under the LAC's decision, and their rights were not adversely affected by that decision. Therefore, the defendants were neither obligated to nor were they able to appeal from the LAC's order denying their petition for rehearing.

McGaughy v. Illinois Human Rights Commission, 165 Ill. 2d 1, 649 N.E.2d 404 (1995), relied on by the plaintiff, is distinguishable. In that case, the supreme court reiterated the principle that failure to comply with the rules governing administrative review requires dismissal of the action. In the present case, we have determined that the defendants did comply with the Review Act.

The plaintiff then argues that the defendants' motion to dismiss in the circuit court was an improper collateral attack on the LAC's decision. The doctrine of collateral estoppel precludes a party from re-litigating an issue of ultimate fact that was previously decided in a valid, final judgment. Midland Hotel Corp. v. Director of Employment Security, 282 Ill. App. 3d 312, 315, 668 N.E.2d 82, 86 (1996) (class action dismissed as improper collateral attack on an ...


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