Doxsie v. Illinois Gaming Board ( 2021 )

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Appellate Court Date: 2022.07.05
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Doxsie v. Illinois Gaming Board, 2021 IL App (1st) 191875Appellate Court BRENDA DOXSIE, d/b/a BONEYARD BAR, Plaintiff-Respondent,
Caption v. THE ILLINOIS GAMING BOARD, an Illinois Administrative
Agency, and, in Their Official Capacities, DONALD R. TRACY,
Chairman of the Board, HECTOR ALEJANDRE, Board Member,
THOMAS A. DUNN, Board Member, DEE ROBINSON, Board
Member, STEVEN C. DOLINS, Board Member, and MARK
OSTROWSKI, Board Administrator, Defendants-Petitioners.
District & No. First District, Fifth Division
No. 1-19-1875
Filed February 19, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 2018-CH-00173;
Review the Hon. Michael T. Mullen, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Kwame Raoul, Attorney General, of Chicago (Nadine J. Wichern,
Appeal Assistant Attorney General, of counsel), for petitioners.
Brenda Doxsie, respondent pro se.
Panel JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Presiding Justice Delort and Justice Rochford concurred in the
judgment and opinion.
OPINION
¶1 In this interlocutory appeal, the defendants—the Illinois Gaming Board (the Board); the
individual members of the Board, Donald R. Tracy, Hector Alejandre, Thomas A. Dunn, Dee
Robinson, and Steven C. Dolins; and Mark Ostrowski, the Board’s administrator—appeal the
decision of the circuit court of Cook County, granting the petition for administrative review
brought by plaintiff—Brenda Doxsie, d/b/a Boneyard Bar—and remanding the matter to the
Board for an administrative hearing on the plaintiff’s application for renewal of her video
gaming license. For the reasons that follow, we reverse the order of the circuit court and remand
the cause for further proceedings.
¶2 The plaintiff filed an application for renewal of a video gaming license as a licensed retail
establishment. The minutes of the Board’s August 2017 meeting reflect that it received a
recommendation from its staff that the plaintiff’s application for renewal be denied. Under the
heading “Failure to Cooperate/Active Tax Liability/failure to meet/maintain qualifications for
Licensure,” the minutes state, in reference to the plaintiff’s application for renewal: “This
location has an Active Tax Liability and does not currently have a valid liquor license. Staff
recommends non-renewal.” (Emphasis in original.)
¶3 On September 18, 2017, the plaintiff sent a facsimile message to defendants that read “All
my taxes have been paid by cash. On 9-18-2017 State Income Taxes + Sales Tax. Copy of pd.
receipts enclosed in this fax.” (Emphases in original.) The facsimile transmission included
copies of two tax receipts issued by the Illinois Department of Revenue.
¶4 On September 21, 2017, at its monthly open session meeting, the Board denied the
plaintiff’s application for renewal of her video gaming license. On September 22, 2017, the
Board’s administrator sent a letter to the plaintiff, titled “Re: Denial of Renewal of
Establishment License.” The letter stated that the plaintiff’s renewal application was denied on
two grounds: lack of a valid liquor license and outstanding tax obligations to the State of
Illinois. Regarding the outstanding tax obligations, the letter stated that the plaintiff had “an
active tax liability since April 28, 2017,” and that an investigation revealed 18 prior instances
where she had an outstanding tax obligation to the State of Illinois. The letter informed the
plaintiff that she could request a hearing; that her request must be submitted within 10 days of
delivery of the letter; and that, if a hearing is granted, it would be de novo.
¶5 On October 2, 2017, the plaintiff sent a letter to the Board, requesting a hearing on her
application for renewal. In that letter, the plaintiff requested reconsideration of the license
renewal denial, stating that she discharged her outstanding tax obligation, that she was “not
aware” that failure to pay income taxes “affected [her] gaming license,” and that she promised
that “in the future, filing and paying [her taxes] promptly will be a priority.” She concluded
her letter by requesting “leniency in the matter.”
¶6 The minutes of the Board’s November 2017 meeting, under the heading “Requests for
Hearing,” state:
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“At the September 2017 meeting, the Board denied the [plaintiff’s] license renewal
application because it was delinquent in its debts and obligations to the State of Illinois,
had a history of seventeen active tax liabilities and no valid liquor license. The Request
for Hearing complied with the technical requirements of Rule 615 and maintains it
satisfied its outstanding tax liability. Currently, the Board’s records reflect this location
has satisfied its outstanding tax liability and that its liquor license is valid. However,
due to its record of incurring eighteen instances of active tax liabilities, Staff
recommends denial of the Request for failure to state a prima facie case for hearing.”
(Emphasis in original.)
In her verified complaint seeking administrative review, the plaintiff asserts that: “On
November 16, 2017, at the last open session Board meeting (there was no December 2017
Board meeting) the Board issued its Final Decision Denying Hearing.” (the Final Decision
Denying Hearing or Denial).
¶7 On December 1, 2017, the Board’s administrator sent a letter to the plaintiff, titled “Denial
of Request for Hearing Brenda Doxsie d/b/a Boneyard Bar.” The letter states that, at its
November 16, 2017, meeting, the Board denied the plaintiff’s request for hearing, “finding that
it did not establish a prima facie case for an administrative hearing.” The letter also states that:
“Boneyard Bar was denied renewal of its establishment license because the Board was
not provided sufficient facts or evidence in the Request that provided that the
outstanding debts and obligations to the State of Illinois had been addressed in full. The
denial of your Request for Hearing constitutes a Final Order by the Board.”
¶8 On January 5, 2018, the plaintiff filed a five-count complaint against the defendants. Count
I was an action for administrative review, seeking, inter alia, an order reversing and vacating
the Board’s denial of the plaintiff’s video gaming location license renewal application and an
order remanding the matter to the Board with instructions to issue the plaintiff’s video the
requested renewal license. That count also sought an order reversing and vacating the Board’s
decision denying the plaintiff a hearing on her license renewal application. Counts II, III, and
IV sought injunctive relief, mandamus, and injunctive relief respectively. Count V sought
recovery under section 1983 of Title 42 of the United States Code (42 U.S.C. § 1983 (2018)).
The circuit court dismissed counts II, III, and IV, pending determination of count I, and
dismissed count V as directed at the Board, but denied the motion to dismiss count V as to the
individual defendants.
¶9 Following a hearing on count I, the plaintiff’s administrative review claim, the circuit court
entered an order on August 20, 2019, finding that the plaintiff made a prima facie case that she
is entitled to an administrative hearing and that she is statutorily entitled to an administrative
hearing “pursuant to Section 10-65(d) (5 ILCS 100/10-65(d)) of the Administrative Procedure
Act.” The order provides that the “Court grants Plaintiff’s Count I and remands back to the
Illinois Gaming Board to conduct an administrative hearing.” The circuit court also continued
the matter for status on the plaintiff’s section 1983 claim.
¶ 10 The defendants petitioned this court for leave to file an interlocutory appeal pursuant to
Illinois Supreme Court Rule 306(a)(6) (eff. Nov. 1, 2017). We granted the defendant’s petition,
and this appeal followed.
¶ 11 Initially, we note that the plaintiff has not filed an appellee’s brief in this matter. However,
the record is short and the claimed error is such that we can easily decide the issues without
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the aid of an appellee’s brief. Accordingly, we will reach the merits of this appeal. See First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 12 In an interlocutory appeal brought pursuant to Rule 306(a)(6), we will reverse the order of
the circuit court remanding a matter for a hearing before an administrative agency only if the
circuit court has abused its discretion. Demesa v. Adams, 2013 IL App (1st) 122608, ¶ 39. A
decision is deemed an abuse of discretion only if it is “ ‘ “unreasonable and arbitrary or where
no reasonable person would take the view adopted by the circuit court.” ’ ” See Sentry
Insurance v. Continental Casualty Co., 2017 IL App (1st) 161785, ¶ 32 (quoting Pekin
Insurance Co. v. St. Paul Lutheran Church, 2016 IL App (4th) 150966, ¶ 69, quoting Gulino
v. Zurawski, 2015 IL App (1st) 131587, ¶ 64).
¶ 13 When, as in this case, an appeal is taken from an order of the circuit court entered on
administrative review, we review the administrative agency’s decision and not the factual
determinations of the circuit court. Doe Three v. Department of Public Health, 2017 IL App
(1st) 162548, ¶ 25. We apply a “clearly erroneous” standard in our review of an administrative
agency’s decision when the issue presented is a mixed question of law and fact. City of
Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). The decision of
an administrative agency is clearly erroneous only if the reviewing court is left with a
“ ‘definite and firm conviction that a mistake has been committed.’ ” See AFM Messenger
Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 393 (2001) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
¶ 14 The Video Gaming Act (Gaming Act) (230 ILCS 40/1 et seq. (West 2018)) provides that
the provisions of the Riverboat Gambling Act (230 ILCS 10/1 et seq. (West 2018)) shall apply
to the Gaming Act. 230 ILCS 40/80 (West 2018). The Riverboat Gambling Act states that
judicial review of final orders shall be conducted in accordance with the Administrative
Review Law. 230 ILCS 10/17.1(b) (West 2018). Section 3-110 of the Administrative Review
Law provides that “[t]he findings and conclusions of the administrative agency on questions
of fact shall be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2018).
¶ 15 In Illinois, there is no common law right to engage in gambling. See Dotty’s Cafe v. Illinois
Gaming Board, 2019 IL App (1st) 173207, ¶ 21. In this case, there is no dispute that the
renewal license the plaintiff sought was required to allow the use of video gaming terminals as
defined in the Gaming Act (230 ILCS 40/1 et seq. (West 2018)). Section 45 of the Gaming Act
provides, in relevant part, that “[t]he burden is upon each applicant to demonstrate his
suitability for licensure.” 230 ILCS 40/45(a) (West 2018). Relevant here, the Gaming Act
requires each licensed location to have a valid liquor license “in effect at the time of application
and at all times thereafter.” 230 ILCS 40/55 (West 2018). The rules adopted by the Board also
require all licensees to “[k]eep current in all payments and obligations to the State of Illinois
and to other licensees with whom video gaming business is conducted.” 11 Ill. Adm. Code
1800.210(g) (2020). In this case, the Board denied the plaintiff’s license renewal application
based on her failure to comply with two requirements: possession of a valid liquor license at
the time of application and currency in all payments and obligations to the State of Illinois.
The factual findings supporting the Board’s September 21, 2017, decision denying the
plaintiff’s application for renewal of her video gaming license are prima facie true and correct.
See 735 ILCS 5/3-110 (West 2018). The plaintiff did not dispute that, at the time she filed her
video gaming license renewal application, she did not have a valid liquor license or that she
was not current in all payments and obligations to the State of Illinois. In her letter to the Board
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requesting a hearing, the plaintiff asserted that she paid her sales and income tax liabilities to
the State of Illinois in cash on September 18, 2017. She also admitted that she paid her taxes
that were due in April, May, and June in the month of July. The plaintiff never claimed to have
been current in all payments and obligations to the State of Illinois at the time that she applied
for a renewal license. Nor did she assert in her letter requesting a hearing that she had a valid
liquor license in effect at the time of the application.
¶ 16 The question of whether the Board erred in its September 21, 2017, decision denying the
plaintiff’s application for renewal of her video gaming license is a mixed question of law and
fact, as it involves the legal effect of a given set of facts. See City of Belvidere, 181 Ill. 2d at
205. The Board based its denial of the plaintiff’s renewal application on two grounds: the lack
of a valid liquor license and outstanding tax obligations to the State of Illinois. Those factual
determinations must be taken as prima facie true and correct. 735 ILCS 5/3-110 (West 2018).
Further, there is no evidence in the record that, at the time that the plaintiff filed her application
for renewal of her video gaming license, either finding was inaccurate. We conclude, therefore,
that the initial denial of the plaintiff’s renewal application was not clearly erroneous.
¶ 17 Section 10-65(d) of the Illinois Administrative Procedure Act provides:
“Except as provided in subsection (c), no agency shall revoke, suspend, annul,
withdraw, amend materially, or refuse to renew any valid license without first giving
written notice to the licensee of the facts or conduct upon which the agency will rely to
support its proposed action and an opportunity for a hearing in accordance with the
provisions of this Act concerning contested cases. At the hearing, the licensee shall
have the right to show compliance with all lawful requirements for the retention,
continuation, or renewal of the license.” 5 ILCS 100/10-65(d) (West 2018).
The Administrative Procedure Act also provides that each agency shall adopt rules of practice
for formal hearings. 5 ILCS 100/5-10(a) (West 2018). The rules that the Board adopted relating
to hearings are set forth in section 1800.615 of Title 11 of the Illinois Administrative Code
(Code). See 11 Ill. Adm. Code 1800.615 (2020). That section of Title 11 of the Code provides
that all requests for a hearing must be in writing and include, inter alia, “[d]etailed reasons
why and the facts upon which the petitioner will rely to show that the petitioner is suitable for
licensure, including specific responses to any facts enumerated in the Board’s notice of denial.”
11 Ill. Adm. Code 1800.615(d)(2) (2020). Section 1800.615 of Title 11 of the Code also
provides that: “The Board may deny a request for hearing if the statement of the reasons and
facts that it contains does not establish a prima facie case or fails to comply with any of the
other requirements of this Section.” 11 Ill. Adm. Code 1800.615(g) (2020). The defendants
argue that neither section 10-65(d) of the Administrative Procedure Act nor section 1800.615
of Title 11 of the Code required the Board to give the plaintiff an in-person hearing on her
application for renewal of her video gaming license. We agree.
¶ 18 “When interpreting a statute, the primary objective is to give effect to the legislature’s
intent, which is best indicated by the plain and ordinary language of the statute itself.” Hartney
Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 25. Here, the language of the Administrative
Procedure Act is clear; the plaintiff was entitled only to an “opportunity for a hearing.” See 5
ILCS 100/10-65(d) (West 2018). However, in order for that opportunity to progress to an in-
person hearing, the plaintiff was required to first demonstrate a prima facie case that she was
suitable for licensure.
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¶ 19 The question of whether the Board erred in its November 16, 2017, order denying the
plaintiff’s request for a hearing on her renewal application also presents a mixed question of
law and fact. There can be no doubt that the plaintiff was given an opportunity for a hearing as
evidenced by the letter from the Board’s administrator dated September 22, 2017. The Board
concluded, however, that, although the plaintiff had resolved her past due tax obligations, the
failure to keep her taxes current rendered her unsuitable for license renewal. The plaintiff’s
request for a hearing did not allege that the defendants’ factual findings were erroneous in any
way. To the contrary, the plaintiff admitted that she failed to pay her tax obligations promptly
and did not mention the liquor license issue. There was no allegation that the Board had
misapplied or misinterpreted the statute or regulations related to licensure. Based on those
facts, we cannot say that the Board’s determination that the plaintiff failed to meet the
requirement of establishing a prima facie case entitling her to a hearing was clearly erroneous.
¶ 20 Having concluded that neither the Board’s September 21, 2017, decision denying the
plaintiff’s application for renewal of her video gaming license nor its November 16, 2017,
order denying the plaintiff’s request for a hearing is clearly erroneous, we find that the circuit
court’s order remanding this matter to the Board to conduct an administrative hearing on the
plaintiff’s renewal application was an abuse of discretion. Accordingly, we reverse the circuit
court’s order of August 20, 2019, and remand this matter for further proceedings not
inconsistent with this opinion.
¶ 21 Reversed and remanded.
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