Bethany Krajelis Sep. 5, 2013, 11:51am

A panel of the Fifth District Appellate Court has affirmed a St. Clair County ruling that dismissed a Cahokia convenience store’s lawsuit over the confiscation of its liquor license.

In an unpublished order issued late last month, the appeals panel affirmed St. Clair County Circuit Judge Stephen McGlynn’s dismissal of Quick Stop Food Shop Inc.’s complaint against the village of Cahokia and its mayor, Gary Cornwell.

Dismissal was proper, the panel held, because Quick Stop failed to exhaust the available administrative remedies before it sought judicial review and as such, the trial court lacked subject matter jurisdiction to hear the case in the first place.

Justice Melissa Chapman delivered the court’s order and Justices Stephen Spomer and Bruce Stewart concurred.

In May 2012, Quick Stop filed a two-count complaint in St. Clair County Circuit Court that sought a writ of mandamus to order the village and Cornwell to reinstate its liquor license.

The suit was removed to federal court, but remanded back to the circuit court after the shop filed an amended complaint that didn’t include a federal claim.

In its suit, Quick Stop alleged that the village and Cornwell took its liquor license in violation of local ordinances and state laws that require a three-day written notice and a public hearing before a license can be suspended or revoked.

The shop’s complaint claimed that Cornwell, who serves as the village’s liquor commissioner in his capacity as mayor, went to Quick Stop on March 1, 2012 with armed police officers and confiscated its liquor license from manager Omar Hamdan.

Cornwell, according to the complaint, gave Hamdan a letter stating that “upon my recent review of all liquor licenses, it has come to my attention that the lot line of your store at 955 Range Lane is within 100 feet of the Cahokia High School premises. This is a violation of state law and the village of Cahokia ordinances.”

The letter directed Hamdan “to stop selling alcohol immediately” and to contact village attorney Carmen Durso if he had any questions.

On behalf of Hamdan, Belleville attorney Jack Kloess sent a letter to Durso in April 2012 that dubbed Cornwell’s actions as not only “heavy handed,” but also “contrary to law.”

Kloess wrote that the shop has been selling liquor since it first opened in 2004 and its most recent license was valid through June 30, 2012.

Because proper written notice and a public hearing were not provided, Kloess argued  that the village illegally revoked the shop’s valid license. He further argued that state law and local ordinances provide an exception to the reason Cornwell stated for revocation.

“They both state that the restriction on the sale of alcoholic liquor within 100 feet of a school does not apply to a food shop where said sale is not the principal business carried on,” Kloess wrote, explaining that no more than 20 to 30 percent of the shop’s sales are alcohol-related.

The letter adds that “Mr. Hamdan has been very patient but he has lost significant revenue since the mayor’s illegal actions. He would prefer to avoid litigation but will have no other option unless his license is returned immediately.”

When the shop’s liquor license wasn’t returned, Hamdan sued the village and Cornwell.

After the suit was remanded, the defendants filed a motion to dismiss the complaint on the claim that the shop failed to exhaust the available administrative remedies laid out in the state's Liquor Control Act before seeking review from the courts.

McGlynn in September 2012 granted the defendants’ motion.

On appeal, Quick Stop acknowledged that parties generally must exhaust administrative remedies before seeking judicial relief if an administrative agency is involved, but asserted that there is an exception to this rule if the “agency rule or order is being challenged on its face as not being authorized by statute.”

The shop argued that “any order entered by an entity without the power to enter the order is considered to be void ab initio.”

The shop also pointed to a pair of cases, neither of which had to do with liquor licenses, in which courts allowed judicial review before administrative remedies had been exhausted.

The appeals panel, however, was not convinced by Quick Stop’s arguments or case citations and instead side with the defendants’ contention that the case of Cypress Lounge v. Town of Cicero is controlling.

“In that case,” Chapman wrote, “a local liquor control commission decided not to renew the liquor license previously issued to Cypress Lounge.”

She noted that the lounge sued the town in an attempt to get a license that allowed liquor sales until 6 a.m. The town, Chapman noted in the court order, previously invited the lounge to apply for a license that allowed liquor sales until to 2 a.m.

Chapman explained that the appellate court in that case “concluded that there was no authority allowing it to supersede the rule that Cypress Lounge was required to exhaust administrative remedies prior to seeking review in the court system.”

Following the reasoning of that case, the appeals panel in this case determined that “appeal to the state commission was the proper procedure for review of Quick Stop’s license revocation.”

“By not appealing the liquor license revocation, Quick Stop failed to exhaust all applicable administrative remedies under the Liquor Control Act prior to seeking judicial review,” Chapman wrote.

“Consequently,” she added, “the trial court lacked subject matter jurisdiction to hear the case and correctly dismissed Quick Stop's amended complaint.”

Northbrook attorneys Jane M. Hay and Brian Funk entered their appearances as the defendants’ counsel when the case was in federal court.

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