delivered the opinion of the court:
In this appeal we consider whether delivery drivers for AFM Messenger Service, Inc. (AFM), were “independent contractors” within the meaning of section 212 of the Unemployment Insurance Act (820 ILCS 405/212 (West 2000)). In two separate administrative proceedings, the Department of Employment Security (Department) determined that the drivers were employees and not independent contractors. AFM was, therefore, liable for unemployment insurance contributions. On administrative review, the circuit court confirmed. The appellate court, in a consolidated appeal, held that the agency decisions were not clearly erroneous and affirmed.
BACKGROUND
1993 Agency Decision
In June 1990, a former clerical worker for AFM filed a claim for unemployment benefits, which triggered an audit of AFM by the Department. Among the individuals included in the audit were AFM’s delivery drivers. The audit resulted in a determination and assessment against AFM for over $12,000 in unpaid unemployment insurance contributions for 1988 and 1989. AFM filed a protest and petition for hearing. AFM contended, in relevant part, that it was exempt from making unemployment contributions in connection with the drivers’ services and compensation because the drivers were independent contractors under section 212. On January 26, 1993, a hearing was held before a representative of the Director of Employment Security (Director).
At the hearing, Susan Vitula, a co-owner of AFM, testified that AFM is a small-package same-day delivery service, which has been operating in the Chicago area since 1986. According to Vitula, all drivers must sign a contract, which AFM supplies. The brief, 10-line contract used by AFM during 1988 and 1989 provided that AFM and the named driver “agree to contract for the rendition of personal services as an independent broker/ operator” and that “[i]t is understood [the driver] is acting as an independent contractor subject to all the necessary laws, procedures, etc., related to an independent contractor, including, but not limited to, Federal and State Income taxes on his net income and any Self Employment, Unemployment, Minimum or any other taxes normally paid by an independent contractor.”
Vitula also testified that, in accordance with the rules and regulations of the Illinois Commerce Commission (ICC), all drivers were required to enter into an equipment lease with AFM. The form of the equipment lease was provided by the ICC, and the required $25 ICC filing fee was paid by AFM. Pursuant to the lease, the named driver agreed to lease his or her vehicle to AFM for a period not to exceed three years. The lease also provided that AFM would compensate the driver on a weekly basis. The compensation would be computed as a percentage of the total revenue derived from operation of the leased vehicle. Vitula explained that the drivers were paid a “commission” based on the price of each delivery they completed. Most drivers were paid a 50% commission when they started. In order to receive their commissions, which were paid on Friday, drivers were required to drop off or mail their delivery tickets to AFM. Finally, Vitula testified that the drivers did not wear uniforms, and that when AFM offered the drivers a company baseball cap, many of the drivers declined.
Two drivers also testified on behalf of AFM. According to AFM’s counsel, their testimony was representative of all AFM drivers during the years 1988 and 1989. Brian Lhotka testified that he learned about AFM through a friend, and in 1989 began making deliveries for AFM’s customers. Typically, Lhotka would call AFM by 8 a.m. to let the dispatcher know that he was available for work. AFM could also reach him at home. According to Lhotka, he was not required to report to AFM every day, nor was he required to work a specific number of days or a specific number of hours per day. Lhotka, however, usually made himself available for work Monday through Friday; he also made himself available for night deliveries, when the rates were higher. AFM did not assign a territory to Lhotka or limit the area in which he could work. AFM imposed no time constraints in connection with the deliveries, but Lhotka worked within the time constraints imposed by AFM’s customers. AFM did not specify what route Lhotka should take to make the deliveries, and he was free to decline any delivery. Lhotka further testified that AFM issued no rules or regulations, conducted no training courses or meetings, and required no uniform. When AFM offered him a baseball cap with the AFM insignia, Lhotka declined.
Lhotka signed the form contract that AFM supplied, under which he was paid a 60% commission on deliveries. In order to get paid, Lhotka would turn in his delivery tickets to the AFM office. He usually did this when he was in the area and it was convenient to do so. Lhotka would sometimes pick up his check from the AFM office on Friday, or from the business next door to AFM where the checks were left. Lhotka testified that he considered himself an independent contractor and could terminate his services for AFM at any time without reason. He received no paid vacation time, no paid sick days, and no pension benefits from AFM. He was not eligible for any compensation other than his commission, and AFM did not deduct taxes from his commissions. Each year he worked as a delivery driver, he received an Internal Revenue Service Form 1099 (miscellaneous income) from AFM. As part of his 1989 federal tax return, Lhotka filed a Schedule C (profit or loss from business), showing approximately $20,000 of income from his messenger service business. Lhotka testified that although he had the right to work for other messenger service companies, in 1989 he performed delivery work solely for AFM. Lhotka further testified that his investment in his business consisted of the vehicle he owned; the upkeep and maintenance on his vehicle, no part of which AFM paid; and the maps he purchased. AFM supplied Lhotka with a beeper and radio, for which he paid AFM a use fee. Although he had the right to hire, at his own expense, an assistant to help with deliveries, Lhotka never hired an assistant.
Lhotka also signed the required ICC lease with AFM. Pursuant to ICC regulations, Lhotka displayed two signs in his vehicle windows indicating that the vehicle was leased to AFM. When picking up packages and making deliveries, Lhotka indicated to the customer that he was with AFM.
Angelo Cisneros testified that he was a driver for AFM beginning in 1988. He learned about AFM through his brother, who also drove for AFM. Cisneros’ testimony was generally consistent with Lhotka’s testimony. Cisneros signed a contract with AFM, under which he was paid a 60% commission, and an ICC equipment lease. He considered himself an independent contractor. Cisneros testified that he was not required to report to AFM at any particular day or time, and that he was free to make his services available to AFM whenever he chose. Typically, services with AFM were initiated when AFM paged him, but Cisneros was free to refuse the pickup or delivery. According to Cisneros, AFM did not assign him a territory or limit the area in which he could work. AFM did not provide any rules or regulations. AFM did not require a uniform, and although AFM gave him a company baseball cap, he was not required to wear it. Cisneros displayed the required signs in his vehicle, indicating that it was leased to AFM, and he sometimes identified himself with AFM when making a pickup. AFM did not have the right to appoint or approve a helper for Cisneros.
On his income tax return, Cisneros reported that he was self-employed. Cisneros testified that his investment in his business was his automobile, on which he paid the insurance, gas, repairs and maintenance, without reimbursement from AFM. Cisneros had his own beeper, but rented a radio from AFM. During 1988 and 1989, Cisneros testified that he also worked for his father, although the income was probably too small to report. In 1990, Cisneros’ entire income was from AFM. Although Cisneros worked for other messenger companies, he only worked for one company at a time.
Following the hearing, the Director’s representative determined that AFM had failed to sustain its burden of proof that the drivers were independent contractors under section 212. According to the representative, AFM had not established that the drivers were free from AFM’s control and direction, as required under section 212(A); that the drivers’ services were performed outside of the usual course or places of AFM’s business, as required under section 212(B); and that the drivers were engaged in independently established businesses, as required under section 212(C). See 820 ILCS 405/212 (West 2000). The representative concluded that AFM was liable for unpaid unemployment insurance contributions. Significantly, the representative accepted AFM’s argument that any payments to the drivers should be allocated two-thirds to rental of the drivers’ vehicles, and one-third to wages. This allocation reduced AFM’s liability from approximately $12,800 to approximately $6,400.
Over AFM’s objection, the Director adopted the decision of the representative. On administrative review, the circuit court of Cook County confirmed the Director’s decision as neither against the manifest weight of the evidence nor contrary to law.
1996 Agency Decision
In August and September 1994, Mark Przybylinski delivered packages for AFM’s customers. In early 1996, in connection with a prior claim for unemployment benefits made by Przybylinski, a claims adjudicator for the Department found that the wages paid to him by AFM could not be used to establish benefit credit. Przybylinski appealed this finding and a hearing before a referee was held on February 21, 1996.
At the hearing, Przybylinski testified that he learned about driving opportunities with AFM through a newspaper advertisement in the employment section. Prior to performing deliveries for AFM, the company asked him to spend four hours with another driver to learn the operation. During his brief association with AFM, he was required to call in daily to the AFM dispatcher, even when he was sick. AFM also gave Przybylinski a pager, so that AFM could contact him with changes in delivery instructions or advise him of additional items for pickup.
Przybylinski admitted that he signed a contract with AFM under which he would be considered an independent contractor. The contract that Przybylinski signed in 1994 was not the same contract used by AFM during 1988 and 1989. The 1994 contract stated in relevant part:
“AFM *** is engaged in the general messenger service in the City of Chicago *** and desires to contract with Mark Przybylinski, hereinafter referred to as ‘Contractor,’ to deliver various items placed with AFM by its customers.
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AFM agrees that it will advise Contractor of various items for delivery and said delivery shall be evidenced in the form of a ticket specifying the place to which, and the person or party to whom, such items are to be delivered. Contractor shall be free to accept or reject the item or items. In the event contractor elects to accept for delivery any item or items, then it is mutually agreed by and between the parties that the delivery of such items or items as [sz'c] shall be accepted in accordance with the following terms and provisions.
1. Contractor agrees to furnish a vehicle *** and *** a driver and all gasoline, oil, lubricants, tires and other accessories to such vehicle, and to perform all repairs and maintenance thereto. *** AFM shall not be responsible or liable to Contractor for any of the expense or cost of operation, maintenance, or repairs of such vehicle.
2. AFM will furnish to its customers delivery tickets with respect to each item to be accepted and delivered by Contractor. *** Contractor will be supplied with a statement by AFM each week which will identify each delivery completed by the Contractor, and the commission earned by the Contractor computed and based on the information contained in each delivery ticket.
3. It is hereby declared to be the express intention of each of the parties that the relationship created between them by this contract is that of employer-independent contractor. *** Contractor shall have the right to hire a person to assist Contractor in the delivery of any item or items. Contractor shall have all control, direction, and supervision with respect to the physical details of the work to be performed and the manner in which the work is performed. AFM shall not have the right to exercise any control, direction or supervision over Contractor except to prescribe the destination for the delivery of the item or items to be transported by Contractor, and Contractor shall be bound by delivery instructions from the customer. Contractor shall receive as compensation an agreed percentage of the fees paid by the customer to AFM.
4. *** Contractor further agrees to secure *** public liability and property damage insurance *** and to furnish AFM a copy of the policy ***.
5. *** The acceptance by Contractor of a delivery ticket will constitute conclusive evidence that deliveries by contractor shall be performed *** pursuant to the terms, conditions and provisions of this agreement.
6. This agreement may be terminated at any time by AFM or Contractor. ***”
Consistent with the provisions of the contract, Przybylinski testified that he paid his own automobile expenses and was required to maintain liability and property damage insurance. He also testified that he could choose his own route when making deliveries and could hire a helper at his own expense. He did not know whether he could have rejected a delivery and did not know whether he could have worked for another company at the same time. Przybylinski did not remember signing an equipment lease, but recalls placing a sign in the window of his vehicle to gain access to loading docks. After two months, Przybylinski voluntarily stopped making deliveries for AFM. He gave AFM a week’s notice and turned in his pager.
Susan Vitula of AFM testified that prospective drivers would initially spend time with an experienced driver to see if they really wanted to do this type of work. Drivers were not required to telephone AFM daily. Rather, those who wished to work on a given day would call and advise the AFM dispatcher. If there was a pickup in the driver’s area, the dispatcher would give the driver the details. Drivers were free to refuse a delivery with no penalty, and were free to work for other companies. Drivers periodically turned in their delivery tickets, either in person or by mail. Payment to the drivers was based on an agreed percentage of the delivery charges. Pursuant to ICC regulations, drivers were required to sign equipment leases with AFM. AFM paid the ICC filing fee. As to Przybylinski’s affiliation with AFM, Vitula testified that he never expressed dissatisfaction with the contract or the job, and that he left without notice, advising the company by telephone the same day that he took another job.
On March 15, 1996, the referee issued his decision. The referee concluded that AFM had failed to establish that Przybylinski was an independent contractor under the three criteria set forth in section 212. Accordingly, the wages paid to Przybylinski by AFM could be used to establish benefit credit. AFM appealed the referee’s decision to the Board of Review (Board). The Board affirmed the referee’s decision. On administrative review, the circuit court of Cook County confirmed the Board’s decision as neither against the manifest weight of the evidence nor contrary to law.
Appellate Review
The two cases were consolidated for appellate review. With one justice dissenting, the appellate court affirmed the judgment of the circuit court, which had confirmed the decisions of the Director and Board, agreeing that AFM had failed to establish that its drivers were independent contractors under section 212.
ANALYSIS
Standard of Review
Before reaching the merits of this appeal, we must first determine the applicable standard of review. Judicial review of a decision of the Department is governed by the Administrative Review Law (735 ILCS 5/3—101 et seq. (West 2000)). 820 ILCS 405/1100, 2205 (West 2000). Under the Administrative Review Law, the scope of judicial review extends to all questions of law and fact presented by the record before the court. 735 ILCS 5/3—110 (West 2000). The applicable standard of review, which determines the degree of deference given to the agency’s Jecision, depends upon whether the question presented is one of fact, one of law, or a mixed question of law and fact. City of Belvidere v. Illinois State Labor Relations Board,
AFM maintains that the Department’s decision presents a question of law and is subject to de novo review. See Richard’s Tire Co. v. Zehnder,
A mixed question of law and fact is one “involv[ing] an examination of the legal effect of a given set of facts.” City of Belvidere,
In City of Belvidere, this court reviewed an agency decision which presented a mixed question of law and fact. There, the labor relations board determined that the city had committed an unfair labor practice when it refused to bargain with the firefighters union over the city’s decision to contract out paramedic services to a private company. Under the Illinois Public Labor Relations Act, to bargain collectively meant “to negotiate in good faith with respect to wages, hours, and other conditions of employment.” 5 ILCS 315/7 (West 1994). Thus, whether the city was obligated to bargain over this matter turned on whether the city’s decision to contract out for paramedic services affected the “wages, hours and other conditions” of the firefighters’ employment. We determined that the decision of the labor relations board was best considered a mixed question of law and fact. We explained:
“The Board’s finding is, in part, factual because it involves considering whether the facts in this case support a finding that the City’s decision affected wages, hours and other conditions of employment. Nevertheless, the Board’s finding also concerns a question of law because the phrase ‘wages, hours and other conditions of employment’ is a legal term that requires interpretation.” City of Belvidere,181 Ill. 2d at 205 .
In the present case, the Department’s decision also presents a mixed question of law and fact. Its decision is, in part, factual because it involves considering whether the facts support the agency’s finding that the AFM drivers are employees and not independent contractors under section 212. Nevertheless, the Department’s decision also concerns a question of law because the three statutory requirements for independent contractor status set forth in section 212 (freedom from control and direction, performance of services outside the usual course or places of business, and establishment of an independent business) are comprised of legal terms and concepts requiring interpretation.
In City of Belvidere, we held that the standard of review applicable to agency decisions that present a mixed question of law and fact is the “clearly erroneous” standard. City of Belvidere,
Rule 52(a) provides in relevant part: “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed. R. Civ. P. 52(a). In construing this rule, the Supreme Court has held that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co.,
Review under the clearly erroneous standard of Rule 52(a) is “significantly deferential.” Concrete Pipe,
We note that the deference accorded a trial judge’s experience and expertise under the federal rule is not unlike the deference accorded decisions of our administrative agencies. Indeed, this court has frequently acknowledged the wisdom of judicial deference to an agency’s experience and expertise. See Abrahamson v. Illinois Department of Professional Regulation,
Based on the foregoing, we conclude that the clearly erroneous standard of review, adopted in City of Belvidere, parallels in significant respects the clearly erroneous standard under the federal rules, and that the Supreme Court’s definition of “clearly erroneous” provides a practical guide for the application of this standard. Accordingly, we hold that when the decision of an administrative agency presents a mixed question of law and fact, the agency decision will be deemed “clearly erroneous” only where the reviewing court, on the entire record, is “left with the definite and firm conviction that a mistake has been committed.” United States Gypsum Co.,
As a final matter, we note that this court has reviewed other decisions of the Department which raised issues similar to those present here under a manifest weight of the evidence standard. See Jack Bradley, Inc. v. Department of Employment Security,
Unemployment Insurance Act
The Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2000)), adopted in 1937, provides economic relief to those who are involuntarily unemployed, through the collection of compulsory contributions from employers and the payment of benefits to eligible unemployed persons. 820 ILCS 405/100 (West 2000); Carson Pirie Scott & Co. v. State of Illinois Department of Employment Security,
Under the Act, “employment” is defined in relevant part as “any service *** performed by an individual for an employing unit.” 820 ILCS 405/206 (West 2000). “Employing unit” includes a “corporation,” such as AFM, “which has or *** had in its employ one or more individuals performing services for it within this State.” 820 ILCS 405/204 (West 2000). The expansive definition of “employment” is circumscribed by section 212 of the Act, which carves out an exemption for services performed by “independent contractors.” Section 212 provides:
“Service performed by an individual for an employing unit, whether or not such individual employs others in connection with the performance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved that—
A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
C. Such individual is engaged in an independently established trade, occupation, profession, or business.” 820 ILCS 405/212 (West 2000).
Because the three conditions of section 212 are phrased in the conjunctive, all three conditions must be satisfied for the independent-contractor exemption to apply. Jack Bradley,
The Department determined that AFM had failed to meet its burden as to all three conditions of section 212. Because the inability to satisfy any one condition will defeat an employer’s claim for an independent-contractor exemption, we find it unnecessary to consider whether AFM satisfied all three conditions. Instead, we focus on the third condition, which requires that the drivers for AFM be “engaged in an independently established trade, occupation, profession, or business.” 820 ILCS 405/ 212(C) (West 2000). As discussed below, we conclude that the Department’s determination that AFM failed to satisfy this condition is not clearly erroneous.
In Murphy v. Daumit,
On this record we concluded that the salesmen acted only as the representative of the distributor, taking orders in the distributor’s name, subject to the distributor’s approval and not for themselves as independent contractors. Daumit,
We applied our holding in Daumit most recently in Jack Bradley, Inc. v. Department of Employment Security,
Typically, a food vendor or retailer would contact Jack Bradley regarding a food demonstration that the vendor or retailer wished to schedule. Jack Bradley took the details and contacted demonstrators on its list to try to fill the job. A demonstrator could refuse the job for whatever reason, without penalty. If a demonstrator accepted the job, Jack Bradley forwarded a confirmation slip and time sheet to the demonstrator. On the scheduled date, the demonstrator would report to the designated location, usually a supermarket. Supplies were provided by the food vendor, the retailer, or the demonstrator. Jack Bradley provided no training, but provided the demonstrators with any food preparation and demonstration guides received from the vendors. If the demonstrator’s job was unsatisfactory, Jack Bradley simply ceased calling that demonstrator. The store manager signed the demonstrator’s time sheet, which the demonstrator submitted to Jack Bradley for payment. Demonstrators were paid twice per month. Jack Bradley did not deduct payroll taxes.
We acknowledged our long-held view that the test for an independently established business under section 212(C) is that the employee’s “business” be capable of operation without hindrance from any other individual. Jack Bradley,
Similarly, in the present case, the evidence did not demonstrate that the drivers were able to operate their “delivery businesses” without the benefit of a relationship with AFM, or another messenger service company like AFM. AFM procured the customers; AFM set the delivery prices; AFM provided the delivery tickets to the customers; AFM made the delivery assignments; AFM billed the customers; AFM set the commission rate; AFM paid the drivers. AFM also retained the right, under the parties’ written agreement which AFM supplied, to terminate their relationship at any time. Thus, a driver’s “business” was not established “independently” of AFM. Rather, a driver’s business existed only by reason of the driver’s employment with AFM, which was subject to termination, at which time the driver would be unemployed.
The Missouri court of appeals applied essentially the same analysis when it determined that certain baggage delivery drivers were not independent contractors for purposes of the Missouri Employment Security Act. See Koontz Aviation, Inc. v. Labor & Industrial Relations Comm’n,
The Missouri unemployment statute, like ours, provided a three-part test for the independent-contractor exemption. The third part of the test required that the individual be “ ‘customarily engaged in an independently established trade, occupation, profession or business.’ ” Koontz Aviation,
Further support "for our conclusion in the instant case is found in this court’s earlier decisions in Rozran v. Durkin,
“The very fact that Kuehl, upon being dismissed from the company, was out of employment, indicates that he was dependent upon his work for economic subsistence. Although he was allowed to serve for others, it is a fact that he never did so, nor did he have time to do so. His sole employment was in the service of the Cannonball company. His conduct was governed by the suggestion, direction and will of that company. The prices he received were those which Cannonball allowed to him, he having no part in the determination of the rates for the services rendered.” Rozran,381 Ill. at 105 .
Here, too, the drivers’ sole employment was in the service of AFM. The drivers’ conduct was controlled by the suggestion and direction of AFM. The commissions the drivers received were those AFM allowed, the drivers playing no part in the determination of delivery rates.
AFM notes, however, that the driver in Rozran, unlike the AFM drivers, reported every day to the messenger service company, was obligated to accept delivery assignments from the dispatcher, and was expectéd to return to the office after making a delivery. These factual differences do not impact our analysis under section 212(C). Rather, such differences speak more directly to the issues of whether AFM satisfied the requirements of section 212(A) (freedom from control), and section 212(B) (performance of services outside the usual course or places of business). As noted earlier, we find it unnecessary to decide these issues.
Zelney, which involved drivers for Triangle Motorcycle Package Service (Triangle), parallels Rozran. The two drivers named in the appeal, Robert Robey and George Katana, worked under an oral agreement, pursuant to which they provided their own motorcycles and paid their own expenses. Other drivers were engaged under written agreements. Triangle paid the drivers 75% of the delivery receipts. Although there were no set hours, the drivers reported for work at Triangle’s office between eight and nine in the morning. Triangle furnished the rate cards fixing the fees to be charged by the drivers and, upon receiving a telephone order from a customer, directed the drivers to go to certain designated places to pick up the packages. To expedite delivery and avoid duplication of efforts, the drivers sometimes brought the packages back to Triangle’s office. Later, when a call came in for a pickup, the driver whose turn it was to answer the call would take the packages that needed to be delivered to the same general area. The owner’s wife would also sort the delivery tickets corresponding to the held packages and would assign to the driver making the next pickup those deliveries going to the same area. The drivers frequently delivered C.O.D. packages, turning in all of the money to the company. Triangle billed the customer and assumed the risk of noncollection. Although the drivers were at liberty to work for other persons, they never did. Based on these facts, which we found similar to the facts in Rozran, we held that it was evident that the Triangle drivers were employees under the Act and not independent contractors. Zelney,
AFM maintains that the messenger service industry has changed in the almost 60 years since Rozran and Zelney were decided, noting the industry’s present day use of vehicle leases, as required by the ICC, as well as the industry’s use of independent contractor agreements. We agree that the industry is subject to increased regulation, and that the drivers and messenger service companies are perhaps more sophisticated in their dealings. We fail to see, however, in what way these developments have so changed the messenger service business that Rozran and Zelney should no longer be considered good law. Cannonball and Triangle provided small-package, same-day delivery service to their customers through the use of a centralized dispatch and a fleet of drivers. This is the same business in which AFM is engaged, notwithstanding its use of ICC leases and independent contractor agreements. Moreover, as the Jack Bradley case demonstrates, the nature of the analysis under section 212(C) has not changed in the intervening years. Accordingly, we reject AFM’s argument that Rozran and Zelney are irrelevant to the issues before this court.
AFM also maintains that, under United Delivery Service, Ltd. v. Didrickson,
Although appellate court opinions may provide some guidance, they are not binding on this court. People v. Anderson,
In any event, the UDS opinion does not persuade us that the Department’s decision in the present case is clearly erroneous. The UDS opinion failed to consider Rozran and Zelney, the only published cases from this court involving the status of messenger service drivers under section 212 of the Act, as well as the principles set forth in Jack Bradley. In determining that the requirement of section 212(C) had been met, the UDS opinion states, “There is no reason why they [the drivers] could not have performed the same services for other delivery agencies.” UDS,
Finally, AFM contends that it is exempt from the provisions of the Act because the commission paid to its drivers constitutes “rental income” under the ICC equipment leases, rather than wages to employees. See
With respect to the Department’s 1993 decision, the record indicates that the Director’s representative accepted AFM’s argument that payments to the drivers should be allocated two-thirds to rental of the drivers’ vehicles and one-third to wages. This allocation, and other adjustments, reduced AFM’s liability from approximately $12,800 to approximately $6,400. The Director adopted the representative’s decision, including the modified allocation and assessment. AFM objected to the modified assessment, maintaining that the assessment for 1989 was still overstated by approximately $480. In addressing this issue in its initial circuit court brief, AFM expressed a “desire to avoid a protracted controversy not involving a large sum of money.” Nonetheless, in its reply brief, AFM argued that the drivers’ compensation was merely rental income. During oral argument in the circuit court, AFM stated that it was “willing to accept” the assessment as revised by the Director’s representative and declined to make any argument on this matter, despite inquiry by the circuit court. With regard to the Department’s 1996 decision concerning Mark Przybylinski’s claim for benefits, the record indicates that AFM never argued before the Department or the circuit court that the $726 paid to Przybylinski in 1994 should be allocated to rental income, as opposed to wages. Based on this record, we decline to address this issue on appeal. See McMath v. Katholi,
CONCLUSION
For the reasons discussed above, we conclude that the Department’s decision is not clearly erroneous and, therefore, affirm the judgment of the appellate court.
Affirmed.
JUSTICE FREEMAN took no part in the consideration or decision of this case.
Notes
For ease of discussion we will refer to the 1993 decision of the Director and the 1996 decision of the Board collectively as the Department’s decision. 56-57 (1998). The Department maintains, however, that this case presents a mixed question of law and fact and that, pursuant to this court’s decision in City of Belvidere, the more deferential “clearly erroneous” standard of review applies. We agree with the Department.