Bailey v. Illinois Liquor Control Commission
938 N.E.2d 629
Ill. App. Ct.2010Background
- NDLC operates a day care center and preschool adjacent to Greenwood Liquors in Dolton;
- Greenwood received a liquor license on Dec 17, 2007;
- NDLC appealed the license to the Illinois Liquor Control Commission on Jan 4, 2008 alleging a 100-foot proximity violation under 235 ILCS 5/6-11(a);
- NDLC and Greenwood buildings abut with about an 80-foot distance claimed between structures;
- NDLC participates in the Preschool for All program and follows ISBE guidelines, including a state-certified teacher and ISBE-approved curriculum;
- ISBE initially stated in Apr 2008 that NDLC was not funded directly by ISBE and not recognized/accredited as a school by ISBE; NDLC later registered with ISBE in Apr 2008; NDLC operates 6 a.m. to 6 p.m., serving ages six weeks to six years;
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NDLC is a 'school' under 6-11(a) | NDLC's Preschool for All program constitutes instruction and falls within 'school' | NDLC is a day care center, not a school; not funded or recognized as a school by ISBE | NDLC not a 'school' under 6-11(a) |
| Whether NDLC qualifies as a school despite DCFS Day Care Act status | Preschool instruction component equates to schooling | Day care centers are governed by the Child Care Act, not the School Code | NDLC not a school for purposes of 6-11(a) |
| How 100-foot distance is measured for proximity to a school | Buildings abut; distance measured lot-line to lot-line | Evidence insufficient; distance may be less than 100 feet | Distance measured from lot lines shows under 100 feet; violation not proven |
| Whether new evidence (ISBE registration) should have been considered on rehearing | New ISBE registration evidence material to status as school | Evidence not available at hearing; discretionary denial proper | Rehearing denial not abused; evidence not conclusively changing status |
| Whether remand for findings of fact was required | Need explicit findings of fact/conclusions of law | Record preserves testimony; findings unnecessary for review | Findings sufficient for judicial review; no remand required |
Key Cases Cited
- Possekel v. O'Donnell, 51 Ill.App.3d 313 (1977) (definition of 'school' in School Code context; not dispositive for Liquor Act)
- Hilgendorf v. First Baptist Church of Danville, 157 Ill.App.3d 428 (1987) (day care tied to parochial school system; distinction from private day care)
- Easter Enterprises, Inc. v. Illinois Liquor Control Comm'n, 114 Ill.App.3d 855 (1983) (100-foot proximity measurement to a school)
- Kaminski v. Illinois Liquor Control Comm'n, 20 Ill.App.3d 416 (1974) (distance/lot-line considerations in proximity cases)
- Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (constitutional/private interest in insulation of churches/schools from liquor sales)