Momney v. Edgar

565 N.E.2d 246, 207 Ill. App. 3d 26, 152 Ill. Dec. 4, 1990 Ill. App. LEXIS 1859
CourtAppellate Court of Illinois
DecidedDecember 10, 1990
Docket1-89-0875
StatusPublished
Cited by5 cases

This text of 565 N.E.2d 246 (Momney v. Edgar) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Momney v. Edgar, 565 N.E.2d 246, 207 Ill. App. 3d 26, 152 Ill. Dec. 4, 1990 Ill. App. LEXIS 1859 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The Secretary of State (the Secretary) brings this appeal on the circuit court’s decision reversing the Secretary’s order which revoked the 1988 used vehicle dealer license of Alan J. Momney, doing business as Asher Auto Sales (plaintiff). The circuit court affirmed the Secretary’s finding that plaintiff violated section 5 — 501(a) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 5 — 501(a)) by failing to maintain records at his place of business, but vacated the revocation sanction and imposed a six-month license suspension. No cross-appeal having been filed by plaintiff, the only issues before this court on the Secretary’s appeal are whether the circuit court erred in vacating the administrative sanction and whether the circuit court had authority to reduce the administrative sanction.

Since 1974, plaintiff has operated the Asher automobile dealership at 2855 North Cicero in Chicago, Illinois. He was issued a 1988 Illinois “Dealer Certificate of Authority DL977” in 1988, authorizing him to deal in used vehicles. On July 30, 1988, the Secretary revoked plaintiff’s license, finding that, on January 26, 1988, plaintiff failed to maintain an established place of business, failed to maintain required records of the acquisition and disposition of vehicles, and failed to produce evidence of his right to possess 23 vehicles on the premises in violation of sections 5 — 102(d) and 5 — 401.2 of the Code (HI. Rev. Stat. 1987, ch. 95i/2, pars. 5 — 102(d), 5-401.2(a)(A)(4), (a)(A)(7), (a)(A)(8), (d)).

Prior to January 26, 1988, the Secretary’s Sergeant Serafini visited plaintiff’s place of business and examined plaintiff’s police book — a ledger recording the acquisition and disposition of vehicles. He directed plaintiff to update the book’s entries for disposition of automobiles. Plaintiff also was questioned, on approximately six occasions prior to January 26, 1988, regarding suspicions that he was giving favors to certain of the Secretary’s investigators. On January 26, 1988, Serafini and another sergeant again questioned. plaintiff regarding these suspicions and Serafini inspected plaintiff’s police book. Following the interview and inspection, Ross Finnelly, an investigator for the Secretary, conducted a “routine” dealer inspection.

From plaintiff’s police book, Finnelly noted 30 vehicles which were listed as having been purchased and indicated no disposition. The 30 vehicles were not present on the lot. Plaintiff informed Finnelly that the vehicles had been sold and that the entries were not completed due to his sister’s absence from work. Finnelly also discovered 33 vehicles on the lot for which plaintiff produced only 10 certificates of title. Plaintiff explained to Finnelly that some of the titles were at his mother’s home and that others were at Insurers and Lenders Auto Auction, where they were being held until checks cleared on purchased vehicles. The investigators declined plaintiff’s requests that they verify these facts.

At the administrative hearing, plaintiff explained that he did not keep his records at his place of business overnight because of frequent burglaries at his business. Before this incident, no complaint had been lodged against plaintiff in the 14 years he had operated Asher Auto Sales.

The Secretary first contends that the circuit court erred in vacating its order revoking plaintiff’s license. Under section 5 — 501 of the Code, the license of a used vehicle dealer “may be denied, revoked or suspended” if the Secretary finds that the dealer has failed “to file or produce for [the Secretary] any application, report, document or other pertinent books, records, documents, letters, contracts, required to be filed or produced under [the] Code.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 5 — 501(a)(6).) A reviewing court has authority to review a sanction imposed under this section pursuant to its authority to review questions of law presented by the record as provided in section 3 — 110 of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110; Walter Spector Co. v. Illinois Liquor Control Comm’n (1985), 133 Ill. App. 3d 95, 478 N.E.2d 635.) This authority, however, is limited to determining whether the agency acted unreasonably or arbitrarily or chose a sanction which is unrelated to the purpose of the statute. Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 519 N.E.2d 1151.

In reaching its ruling, the circuit court noted that the “technical violation” related to “nothing more than sloppy bookkeeping” and that plaintiff’s conduct did not adversely affect the public. The court also stated that no person could reasonably conclude that the record-keeping deficiencies were a “cover” for a stolen car operation, where 20 of the 30 vehicles listed on the “Notice of Hearing” were more than seven years old and only four were less than five years old. Plaintiff also points out on appeal that no consumers were defrauded and no evidence exists that plaintiff engaged in an illicit auto sales scheme.

The purpose of section 5 — 501 is to protect the consumer, as well as to prevent crime. (Lindsey v. Edgar (1984), 129 Ill. App. 3d 718, 473 N.E.2d 92.) This section’s record-keeping requirements for automobile dealers protect consumers, not only from acts of fraud upon the public, but also from the perils of the inability to ascertain the prior ownership history of a purchased vehicle as a result of improper documentation of transactions by careless dealers. We do not agree, therefore, with the circuit court’s characterization of the violation here as a “technical violation.” Nonetheless, under the circumstances present here, we cannot conclude that the court erred in finding the revocation sanction to be unrelated to the purposes of the Code.

In allowing the Secretary to choose between the sanction of revocation and suspension, the legislature recognized that sanctions less severe than the ultimate revocation sanction would further the purposes of the Code in certain instances. The record here discloses no indication of an illicit auto sales scheme. Plaintiff’s offered explanations for his failure to have the certificates of title and books at his place of business, albeit not excusing his failures, were potential mitigating circumstances which the State investigators made no efforts to verify. The record further indicates that plaintiff operated his auto sales business for 14 years before this incident without having been charged with any activity sanctionable under the Code. We agree that, under these circumstances, the sanction of revocation is not related to the purposes of the statute.

The Secretary next contends that the circuit court lacked authority to impose its own sanction on plaintiff’s violation. It is established that the scope of a circuit court’s statutorily granted authority to review an administrative decision is limited to those powers expressly delegated by the legislature. (Admek v. Civil Service Comm’n (1958), 17 Ill. App. 2d 11, 149 N.E.2d 466

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Bluebook (online)
565 N.E.2d 246, 207 Ill. App. 3d 26, 152 Ill. Dec. 4, 1990 Ill. App. LEXIS 1859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/momney-v-edgar-illappct-1990.