author: JUSTICE CAMPBELL

text:
    OLE, OLE, INC., d/b/a the Ultimate Sports Bar & Grill, et al., Plaintiffs-Appellants and Cross-Appellees, v. WALTER S. KOZUBOWSKI, as City Clerk, City of Chicago, et al., Defendants-Appellees and Cross-Appellants (Judith M. James, Intervenor-Appellee and Cross-Appellant).
    First District (1st Division)
    No. 1—87—1694
    Opinion filed August 7, 1989.

      Anthony B. Bruno, of Melrose Park (Sidney Z. Karasik, of counsel), for appellants.
    Dennis A. Berkson & Associates, Ltd., of Chicago, for appellee Judith M. James.
    Michael Levinson, of Chicago Board of Election Commissioners, of Chicago, for other appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Ole, Ole, Inc., d/b/a The Ultimate Sports Bar & Grill; and Frank R. Diaz, Lisa Seltzer and John F Hartray, Jr., registered voters of the 14th precinct of the 43rd ward in the City of Chicago, appeal from the dismissal of their amended complaint and supplement thereto which challenged the validity of local option referendum petitions filed pursuant to section 9 — 4 of the Liquor Control Act of 1934 (Liquor Control Act) (Ill. Rev. Stat. 1987, ch. 43, par. 169) and which also challenged the validity of the redistricting of the 14th precinct of the 43rd ward pursuant to section 11 — 3 of the Election Code (Election Code) (Ill. Rev. Stat. 1987, ch. 46, par. 11 — 3). Defendants were Walter Kozubowski, City Clerk of the City of Chicago; and Michael LaVelle, James Nolan and Nikki Zollar, as members of the Board of Election Commissioners of the City of Chicago (the Board). Judith M. James, registered voter of the 14th precinct of the 43rd ward, intervened on behalf of defendants. On appeal, plaintiffs contend that: (1) the redistricting of the 14th precinct of the 43rd ward, which resulted in Ole remaining as the sole liquor licensee in the precinct, followed by the filing of local option referendum petitions by voters of the 14th precinct, denied Ole, as a liquor licensee, its constitutional rights to due process; (2) the boundaries of the 14th precinct of the 43rd ward were altered in violation of section 11 — 3 of the Election Code; and (3) plaintiff-voters were not barred by the doctrine of laches from challenging the redistricting. On cross-appeal, defendants and intervenor contend that the plaintiff-voters lacked standing to challenge the validity of the local option referendum petitions pursuant to the Liquor Control Act and lacked standing to challenge the validity of the redistricting pursuant to the Election Code. For the following reasons, we affirm that part of the trial court’s order which dismissed the amended complaint and supplement thereto; vacate that part of the order which enjoined the Board from issuing a proclamation and certifying the results of April 7, 1987, election as to the local option referendum; and remand the cause to the trial court for issuance of an order directing the Board to issue a proclamation and certify the election results regarding the local option referendum.

The record sets forth the following facts relevant to this appeal. Pursuant to section 9 — 2 of the Liquor Control Act (Ill. Rev. Stat. 1987, ch. 43, par. 167), in June 1986, residents of the 14th precinct of the 43rd ward in Chicago began preparing and circulating local option referendum petitions requesting that the proposition as to whether the sale at retail of alcoholic liquor shall be prohibited in the 14th precinct of the 43rd ward be placed on the November 1986 general election ballot. In late July 1986, the Board redistricted the 14th precinct of the 43rd ward. As a result of the redistricting, Ole was the only remaining liquor licensee in that precinct. Prior to the redistricting, there had been four liquor licensees in the precinct. Because the Liquor Control Act requires that local option referendum petitions contain an accurate legal description of the relevant precinct, the legal description on the original petitions had to be revised to reflect the new boundaries and the petitions then had to be recirculated. Because of this delay, the petitions could not be timely filed for the November 1986 general election. Instead, the revised referendum petitions were filed with the city clerk on January 5, 1987, for the April 7, 1987, municipal election.

On March 5, 1987, Ole filed its verified petition challenging the validity of the referendum petitions and the redistricting, and seeking injunctive relief. Rather than divide its complaint into counts, as is the customary practice, Ole set forth its allegations and prayer for relief in four sections, entitled: (1) “Introductory Material”; (2) “Grounds alleging challenges to validity and sufficiency of signatures on petition”; (3) Grounds challenging validity of petition for unreasonable revision of precinct immediately prior to filing of petition of January 5, 1987”; and (4) “Relief Requested.” In the “Introductory Material” section, Ole alleged, inter alia, that it was the only liquor licensee affected by the petitions and, thus, had standing to challenge the validity of the petitions under section 9 — 4 of the Liquor Control Act, and that the duty and power of the Board to revise and to regulate precincts is governed by section 11 — 3 of the Election Code. The second section of Ole’s complaint challenged the validity of the signatures on the petitions, alleging that the petitions contained signatures of persons who were not registered voters, forged signatures and duplicate signatures. The third section of the complaint alleged that the change in precinct boundaries was not done in accordance with section 11 — 3 of the Election Code; that the change in precinct boundaries was for “the sole purpose of attempting to curtail the business of [Ole] without affecting other liquor licensees”; that the rearrangement of precinct boundaries was a “thinly disguised attempt to use the provisions of [section 9 — 4 of the Liquor Control Act] to revoke the license of [Ole] without any cause whatsoever”; that the rearrangement was arbitrary and capricious; and that the redistricting was done solely to put Ole out of business in violation of its due process rights. In its prayer for relief, Ole requested, inter alia, that the court: (1) invalidate the improper petition signatures and determine that the petitions did not contain the requisite number of signatures; (2) determine that the redistricting of the 14th precinct was unconstitutional “and/or” in violation of section 11 — 3 of the Election Code; (3) enjoin the submission to the voters of the proposition banning the sale of alcoholic beverages; (4) enjoin defendants from allowing the proposition until the court has had an opportunity to make a full determination; (5) direct defendant Board to return the 14th precinct boundaries to their previous position or to some reasonable arrangement in accord with section 11 — 3 of the Election Code.

Thereafter, Judith M. James, a registered voter in the 14th precinct of the 43rd ward, was granted leave to intervene and filed a motion to strike and dismiss Ole’s complaint. At the hearing on the motion, Ole dismissed by stipulation that portion of its complaint which alleged irregularities in the referendum petition signatures. Thus, the only issue remaining was the challenge to the redistricting. The court then granted intervenor’s motion to dismiss the complaint on the grounds that neither the Election Code nor the Liquor Control Act conferred standing upon Ole to contest the redistricting. Thereafter, on March 24, 1987, Ole filed its amended complaint which added two registered voters of the 14th precinct of the 43rd ward as party plaintiffs. Although Ole had previously dismissed by stipulation the challenge to the petition signatures, the amended complaint reiterated the same allegations. In fact, with minor changes, the amended complaint was identical to the original complaint. In response, the intervenor moved to strike and dismiss the amended complaint on the grounds, inter alia, that: (1) Ole had previously dismissed count I by stipulation; (2) the court had previously held that Ole did not have standing to challenge the redistricting; (3) the additional plaintiffs have no standing to contest the redistricting because they have suffered no injury or threat of injury as a result of the redistricting; and (4) the doctrine of laches bars the claims of the additional plaintiffs. The trial court again struck that portion of the complaint alleging irregularities in the petition signatures and dismissed Ole as a party plaintiff for lack of standing, but otherwise denied the intervenor’s motion to dismiss the amended complaint.

The intervenor then filed her answer and affirmative defenses. As defenses, intervenor reasserted her contentions that: (1) the additional plaintiffs lacked standing because they had suffered no injury as a result of the redistricting and (2) the doctrine of laches and waiver barred plaintiff-voters from challenging the redistricting. In addition, the intervenor argued that: (1) a challenge to redistricting “is not a proper vehicle” to contest the liquor option referendum petitions; (2) plaintiffs failed to follow the procedure for contesting precinct boundarles set forth in section 11 — 5 of Election Code; and (3) the redistricting was properly effectuated pursuant to section 24A — 3.1 of the Election Code. Thereafter, plaintiffs were granted leave to add another 14th precinct registered voter as a party plaintiff.

On April 29, 1987, the trial court entered its order, finding that: (1) section 11 — 3, not section 24A — 3.1 of the Election Code, governed redistricting of the 14th precinct of the 43rd ward; (2) section 9 — 4 of the Liquor Control Act does not confer standing on Ole to contest the redistricting; (3) Ole did not set out with specificity the defects in the petitions; (4) section 11 — 5 of the Election Code is not applicable to this case; (5) Ole has no standing to contest redistricting under the Election Code; (6) plaintiff-voters have standing to challenge the redistricting; (7) due to untimely filing, plaintiff-voters are barred by the doctrine of laches from maintaining this action; and (8) the Board has “canvassed” the results of the local liquor option election in the 14th precinct of the 43rd ward. Accordingly, the trial court dismissed plaintiffs’ amended complaint with prejudice and enjoined the Board from issuing a proclamation or certifying the results of the April 7, 1987, election on the local option referendum in the 14th precinct of the 43rd ward until all issues have been resolved on appeal. The timely appeal and cross-appeal followed.

Initially, Ole contends that the redistricting of the 14th precinct of the 43rd ward so that it was the only liquor licensee in the precinct deprived it of its constitutional rights of due process. It is well established under Illinois statutory and common law that a license to sell alcoholic beverages is a privilege, not a property right (Ill. Rev. Stat. 1987, ch. 43, par. 119) and, as such, is not subject to due process protections. (The Great Atlantic & Pacific Tea Co. v. Mayor & Commissioners (1937), 367 Ill. 310, 11 N.E.2d 388; People v. McBride (1908), 234 Ill. 146, 84 N.E. 865; Black Knight Restaurant, Inc. v. City of Oak Forest (1987), 159 Ill. App. 3d 1016, 513 N.E .2d 109; Huguley v. Marcin (1976), 39 Ill. App. 3d 230, 349 N.E.2d 564; Malito v. Marcin (1973), 14 Ill. App. 3d 658, 303 N.E.2d 262.) This legal proposition is not a narrow one, dependent upon the factual circumstances, as Ole would have this court believe. Rather, it is fundamental statutory law promulgated pursuant to the broad regulatory authority granted to individual States to regulate the liquor industry within their borders. See Craig v. Boren (1976), 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451.

Furthermore, we find Ole’s reliance on Philly’s v. Byrne (7th Cir. 1984), 732 F.2d 87, for its due process contention, misplaced. In Philly’s, a consolidated appeal, plaintiff-restaurants appealed the dismissal of their suits brought under section 1 of the Civil Rights Act of 1871 (42 U.S.C. §1983 (1982)) which alleged that the operation of the local option liquor law deprived them of property without due process of law. Contrary to Ole’s contention that the Philly’s court reaffirmed the established rule that “an Illinois liquor license is property in a functional sense within the meaning of the Fourteenth Amendment,” the Philly’s court declined to reach the question as to whether a liquor license was a property right. Instead, the court recognized only that plaintiffs had been deprived of something and regardless of what that something was, there was no denial of due process because the local option provision is legislative in character and due process safeguards are not required of legislative action. 732 F.2d at 92.

Ole further relies on Philly’s for the proposition that the Liquor Control Act does not permit the precinct’s voters to single out a particular liquor seller to shut down. Although the Philly’s court made this statement, in doing so, the court was clearly referring to the fact that when the voters pass a local option referendum banning the sale of alcoholic beverages in a precinct, that ban must apply to all the retail liquor outlets in that precinct. In the case at bar, it is undisputed that the ban applies to all retail liquor outlets in the 14th precinct of the 43rd ward. The fact that Ole is the only retail liquor outlet in that precinct does not alter the precinct-wide applicability of the ban. The Philly’s court recognized just such a situation when it noted that a precinct may contain only one liquor store or bar and that the voters may decide to shut down that store or bar simply because they do not like the owner. However, the court reasoned that that “opportunity for abuse *** is not so great as to make the local-option feature of Illinois’ law unconstitutional.” (732 F.2d at 93.) Accordingly, we conclude that Ole’s status as a liquor licensee is not afforded due process protections.

Next, plaintiffs contend that because the boundary lines of the 14th precinct were not redrawn pursuant to section 11 — 3 of the Election Code, the local option referendum petitions are invalid. Before addressing the challenge to the petitions which is predicated on the redistricting challenge, it is necessary to review the trial court’s determination as to plaintiffs’ standing under the Liquor Control Act and the Election Code and to review the applicability of the doctrine of laches to plaintiff-voters.

With respect to the question of Ole’s standing, Ole contends that section 9 — 4 of the Liquor Control Act confers standing upon it to bring a cause of action under the Election Code challenging the redistricting of the 14th precinct because the validity of the petitions is directly dependent upon the legality of the redistricting. We agree with Ole that section 9 — 4 of the Liquor Control Act confers standing upon a liquor licensee to contest the validity of local option referendum petitions. However, we are not persuaded that standing conferred by section 9 — 4 of the Liquor Control Act extends beyond allegations of invalidity predicated on violation of that Act. In our view, Ole’s attempt to bootstrap section 9 — 4 standing onto the Election Code is contrary to well-established Illinois law that where a cause of action alleges injury due to violation of a statute, the doctrine of standing requires that the plaintiff be one of the class designed to be protected by that statute, or for whose benefit the statute was enacted, and to whom a duty of compliance is owed. (Lynch v. Devine (1977), 45 Ill. App. 3d 743, 359 N.E.2d 1137.) Ole, a corporate entity, clearly is not within the zone of interest sought to be protected by the Election Code.

The basic intent of the Election Code is to give all persons an opportunity to vote and to prevent fraud. (People ex rel. Schwartz v. Fagerholm (1959), 17 Ill. 2d 131, 161 N.E.2d 20.) Provisions of the Election Code which govern challenges brought under the Code specifically limit the right to bring such challenges to “any person” (Ill. Rev. Stat. 1987, ch. 46, par. 9 — 20), “any legal voter” (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8) and “any 5 electors” (Ill. Rev. Stat. 1987, ch. 46, par. 23 — 24). Section 3 — 1.2 of the Election Code defines both “voter” and “elector” as “a person who is registered to vote at the address shown opposite his signature on the petition or was registered to vote at such address when he signed this petition.” (Ill. Rev. Stat. 1987, ch. 46, par. 3 — 1.2.) The legislature clearly has imposed no protections nor conferred any special benefits under the Election Code for corporate entities such as Ole. Instead, the object of the Election Code, the nature of the duties imposed by it, and the benefits resulting from its protections are directed to the registered voters of Illinois. Because Ole has no protected statutory interest under the Election Code, it cannot fulfill the fundamental requirements of standing. (See Board of Library Trustees of the Frankfort Public Library District v. Board of Library Trustees of the Mokena Public Library District (1987), 158 Ill. App. 3d 830, 511 N.E.2d 997.) Accordingly, we conclude that the trial court properly held that Ole had no standing to challenge the redistricting of the 14th precinct under either the Liquor Control Act or the Election Code.

Regarding plaintiff-voters’ standing under the Liquor Control Act and under the Election Code and application of the doctrine of laches to plaintiff-voters’ lawsuit, we initially note that plaintiff-voters have improperly intermingled their challenges to the redistricting under the Election Code with their challenges to the local option referendum petitions under the Liquor Control Act. These are two distinct causes of action, governed by their respective statutory requirements for challenge. "By intermingling the causes of actions, plaintiff-voters are, in effect, improperly circumventing these statutory requirements. As previously stated, the benefits and protections under the Liquor Control Act and the benefits and protections under the Election Code are separate and distinct. Therefore, plaintiff-voters’ standing to bring their cause of action under each statute must be addressed separately.

First, plaintiff-voters’ right to file a challenge to the local option referendum petitions under the Liquor Control Act is governed by section 9 — 4 of that Act which provides, in pertinent part:

“Any 5 legal voters or any affected licensee of any political subdivision, district or precinct in which a proposed election is about to be held as provided for in this Act, within any time up to 30 days immediately prior to the date of such proposed election and upon filing a bond for costs, may contest the validity of the petitions for such election by filing verified petition in the Circuit Court for the county in which the political subdivision, district or precinct is situated, setting forth the grounds for contesting the validity of such petitions.” Ill. Rev. Stat. 1987, ch. 43, par. 169.

In the present case, there are only three plaintiff-voters, not the required five. Accordingly, plaintiff-voters have failed to satisfy the statutory requirements of section 9 — 4 and, thus, have no standing to file a challenge to the local option referendum petitions pursuant to the Liquor Control Act.

Second, regarding plaintiff-voters’ standing under the Election Code to challenge the redistricting of the 14th precinct of the 43rd ward, defendants and intervenor contend that plaintiff-voters lacked the requisite standing because they suffered no direct injury as a result of the redistricting. However, defendants and intervenor have failed to provide this court with persuasive authority which supports this contention. Accordingly, we find that the trial court properly determined that plaintiff-voters had standing to bring their challenge under the Election Code.

Next, plaintiff-voters argue that the trial court erred in applying the doctrine of laches to their redistricting challenge because defendants failed to demonstrate how they were prejudiced by the alleged delay in filing. The equitable doctrine of laches is founded on the maxim that equity aids the vigilant and not those who have slept on their rights (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341), and can be invoked or rejected at the trial court’s discretion. The trial court’s determination will not be disturbed absent a clear showing of abuse of that discretion. (Beckham v. Tate (1978), 61 Ill. App. 3d 765, 378 N.E.2d 588.) While there are no fixed rules to determine what constitutes laches (Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032), mere delay in asserting a right generally does not constitute laches. Defendant must also have relied on the circumstances complained of to the degree that granting relief to plaintiff would be inequitable and unjust. Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341; Miller v. Siwicki (1956), 8 Ill. 2d 362, 134 N.E.2d 321; Harper v. City Mutual Insurance Co. (1978), 67 Ill. App. 3d 694, 385 N.E.2d 75.

In the present case, the record indicates that the redistricting of the 14th precinct of the 43rd ward was accomplished in July 1986 and plaintiff-voters did not join as plaintiffs until March 24, 1987, after Ole had been dismissed out of the proceeding for lack of standing. Plaintiff-voters argue that their “right to a fairly ‘across-the-board’ conducted referendum, had not ripened *** until the referendum petitions were filed six months after the redistricting had been completed.” We disagree. If the redistricting violated section 11 — 3 of the Election Code in March 1987, it violated the Code in July 1986 when it was completed. The filing of the petitions did not change the manner in which the redistricting had been accomplished. Thus, we find the delay aspect of laches is satisfied. With respect to defendants’ prejudice or injury should plaintiff-voters’ claim not be barred, this court takes judicial notice that during the period between completion of the redistricting and the filing of plaintiff-voters’ complaint, two elections were held: a general election on November 4, 1986, and a municipal primary election on February 24, 1987. It can be presumed that these elections were held in accordance with the redistricting. In our view, sound judgment and practicalities dictate that the method of redistricting cannot act to invalidate the elections in part, or as a whole. (See Town of Naples v. County of Scott (1982), 111 Ill. App. 3d 186, 443 N.E.2d 779.) Defendants would be clearly prejudiced by such a result. Furthermore, sound public policy demands that those who claim a right against a governmental body should press their claims with diligence. (Neal v. Board of Education, School District No. 189 (1981), 93 Ill. App. 3d 386, 417 N.E.2d 217.) Accordingly, we conclude that the trial court did not abuse its discretion in holding that plaintiff-voters’ claim challenging the redistricting of the 14th precinct of the 43rd ward was barred by the doctrine of laches.

For the aforementioned reasons, we affirm that part of the trial court’s order that dismissed plaintiffs’ amended complaint and the supplement thereto; vacate that part of the order that enjoined the Board from issuing a proclamation or certifying the results of the April 7, 1987, election on the local option referendum in the 14th precinct of the 43rd ward; and remand the cause to the trial court of issuance of an appropriate order directing the Board to issue a proclamation and to certify the results as to the local option referendum.

Affirmed in part; vacated in part; and remanded with instructions.

BUCKLEY and O’CONNOR, JJ., concur.

      The parties have stipulated on appeal that the unofficial result of the local option referendum was to vote dry the 14th precinct of the 43rd ward.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    ROGER W. EDWARDS, Petitioner-Appellant, v. THE ILLINOIS RACING BOARD, Respondent-Appellee.
    First District (1st Division)
    No. 1—88—2198
    Opinion filed August 7, 1989.

      Edward R. Vrdolyak, Ltd., of Chicago (Elizabeth A. Karkula, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Diane Curry Grapsas, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal by plaintiff, Roger W. Edwards, from the suspension of his occupational license by the Illinois Racing Board. We affirm.

Plaintiff has been licensed since 1981 by the Illinois Racing Board as a driver, trainer and owner of harness horses. On May 17, 1984, the stewards at Balmoral Park Race Track issued a ruling summarily excluding him from any race meeting held within the jurisdiction of the Illinois Racing Board (the Board) subject to a subsequent hearing by the stewards. This ruling was predicated upon results from six separate laboratory tests which indicated the presence of illegal drugs in four horses trained by Edwards.

After plaintiff was excluded, he was advised that a hearing would be held once the Board’s lab completed testing on other urine samples from horses trained by plaintiff. Following the completion of the testing, plaintiff was advised that eight additional instances of illegal drugs had been found in horses he trained.

A hearing on the 14 laboratory reports was held on July 17, 1984. Edwards and his attorney were present at the hearing, but plaintiff offered no evidence in rebuttal. On July 18, 1984, the stewards issued a ruling finding that plaintiff had violated Illinois Racing Board Rules C9.6, C9.7 and C9.20 and suspending his license and track privileges for life.

On July 23, 1984, plaintiff timely filed an appeal of the stewards’ ruling. Although plaintiff had a right to a hearing within seven days, he sought a continuance for the purpose of having independent tests performed on the blood and urine samples. In May, June and December of 1985, Edwards’ counsel advised counsel for the Board that Edwards was considering withdrawing his request for a hearing. On March 13, 1986, the Board’s counsel filed a motion to dismiss based on Edwards’ failure to actively pursue his case. On April 8, 1986, plaintiff responded that he wished to proceed and a hearing was set for April 23,1986.

The April 23 hearing was cancelled by the Board due to the resignation of the Board’s attorney and reset by agreement of the parties for June 26, 1986. Pursuant to Illinois Racing Board Rule A4.ll, a stipulation of facts was agreed to. At the hearing on June 26 a dispute arose over the Board’s attempt to supplement the record with scientific data regarding the drugs found in the course of testing. The matter was taken under advisement by the hearing officer, who set a new hearing date of September 11, 1986. At the September 11 hearing, Edwards withdrew his agreement on the stipulation.

Between November 1986 and September 1987, the parties continued negotiations in an attempt to reach an agreement on the stipulation of facts. An agreement was reached and a hearing was held on September 2, 1987. The stipulation of facts was entered into evidence. In the stipulation, the parties agreed that the samples taken from the horses in question and the Board’s laboratory tests were accurate and that the urine samples of the horses contained one of three drugs, either Sulindac, Isopyrin or Etorphine. Edwards failed to provide any evidence that he had guarded .the horses in question as required by Board Rule C9.20.

On October 27, 1987, the Board entered an order finding that plaintiff had violated Rule C9.20 on 14 occasions and suspending his license for nine months for each of the 14 violations, to run consecutively with credit for time served. The Board set February 21, 1995, as the termination date for plaintiff’s suspension.

On December 1, 1987, plaintiff filed a complaint for administrative review in the circuit court of Cook County. On June 22, 1988, a hearing was held and the trial court entered an order affirming the decision of the Illinois Racing Board. This appeal followed.

Plaintiff’s first contention is that the hearing on the original six laboratory findings was held more than 60 days after the exclusion and the violation of his right to a prompt hearing denied his right to procedural due process.

While a license to pursue one’s occupation as a trainer of harness racers is a property interest protected by the due process clause (Barry v. Barchi (1979), 443 U.S. 55, 64, 61 L. Ed. 2d 365, 375, 99 S. Ct. 2642, 2649), this argument was never made before the Board and therefore need not be considered here (E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 38-39, 481 N.E.2d 664; Rackow v. Human Rights Comm’n (1987), 152 Ill. App. 3d 1046, 1064, 504 N.E.2d 1344). We have reviewed plaintiff’s claim, however, and find that it lacks merit.

First, we note that following his summary exclusion, plaintiff stipulated to the following facts:

“When the Stewards excluded Edwards in May of 1984, they were aware, and so advised Edwards, that a Stewards’ inquiry would be conducted once the Board laboratory had completed testing more urine samples of the horses trained by Edwards. Edwards did not and does not challenge the propriety of his summary exclusion by the stewards.”

The Illinois Horse Racing Act of 1975 (the Act) (Ill. Rev. Stat. 1987, ch. 8, par. 37 — 1 et seq.) permits stewards to summarily exclude persons for just cause subject to a subsequent hearing by the Board as to the propriety of the exclusion. Summary suspension under section 9(e) of the Act has been upheld against a due process challenge based on the State’s interest in preserving the integrity of horse racing and because Rules A4.02A and C give the affected party a right to a prompt hearing. (See Phillips v. Graham (1981), 86 Ill. 2d 274, 282, 427 N.E.2d 550; Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564, 589, 415 N.E.2d 1290.) Our supreme court held in Phillips that summary exclusion of a license prior to an evidentiary hearing does not constitute a violation of a trainer’s due process rights provided that the licensee is ultimately given an adequate opportunity for judicial determination of the matter. Phillips, 86 Ill. 2d at 286.

Rule A4.02 of the Board’s hearing rules provides:

“(C) Appeals from orders of the stewards or judges suspending an occupation license or from orders of the organization licensee (race track) ejecting or excluding an occupation licensee shall be instituted by filing a written request for a hearing no later than five days after receipt of notice of the suspension, ejection or exclusion has been communicated to the licensee. The Board will conduct its hearing within seven days after such request has been received by the Board unless the licensee requests a postponement for good cause.”

There is no evidence that plaintiff exercised his right to a prompt hearing on the summary exclusion pursuant to Rule A4.02. Moreover, as the trial court pointed out, at the July 18, 1984, stewards’ hearing, plaintiff had the opportunity to present evidence to rebut the inference of a rule violation and, on the advice of counsel, he declined to do so. Thus we conclude plaintiff was not denied his right to procedural due process with respect to the first six violations.

Plaintiff also claims that a due process violation arose out of the Board’s failure to reset a hearing date within seven days of the cancellation of the initial hearing, which had been scheduled for April 23, 1986. Plaintiff refers to the period between April 23, 1986, and September 11, 1986, during which period no hearing was held and argues that the continuance between September 11, 1986, and September 2, 1987, constituted a vexatious delay. This argument also has no merit.

While plaintiff’s appeal of the July 18, 1984, suspension was timely filed on July 23, 1984, the record supports the Board’s contention that he waived his right to a hearing within seven days by requesting a continuance for the purpose of conducting independent tests on the 14 urine samples. Moreover, there is no absolute right to a hearing within the statutory time frame. Where a delay is attributable to the party seeking the hearing, there is no violation of the timely hearing requirement. (See, e.g., Perez v. Civil Service Comm’n (1987), 153 Ill. App. 3d 176, 180-81, 505 N.E.2d 1067; Holliday v. Civil Service Comm’n (1984), 121 Ill. App. 3d 763, 768-69, 460 N.E.2d 358.) The Board has the authority to grant a continuance provided there is good cause for the delay and the time period is reasonable. (Ragano v. Illinois Civil Service Comm’n (1980), 80 Ill. App. 3d 523, 528, 400 N.E.2d 97.) Here the majority of the continuances or delays were attributable to the plaintiff and the one delay caused by the Board was for good cause.

According to the record, after the plaintiff requested the initial delay for purposes of independently testing the urine samples, his counsel and the Board engaged in lengthy negotiations regarding the stipulation, after which a hearing was scheduled for April 23, 1986. On April 22, 1986, the Board attorney who was handling the case resigned and the hearing was cancelled. The Board sought a continuance in. order to give its new general counsel an opportunity to prepare for the hearing. The parties, in fact, agreed to a new hearing date of June 26, 1986.

At the June 26, 1986, hearing, the hearing officer took certain matters under advisement and set a new hearing for September 11, 1986. At that hearing, plaintiff’s counsel withdrew his agreement to the stipulation, requiring another period of negotiation between the parties. Insofar as plaintiff or his counsel never requested that the matter be set for hearing, much of the delay was attributable to plaintiff and plaintiff was given an adequate opportunity for “ultimate judicial determination” of the matter (Mitchell v. W. T. Grant Co. (1974), 416 U.S. 600, 611, 40 L. Ed. 2d 406, 416, 94 S. Ct. 1895, 1902, quoting Phillips v. Commissioner (1931), 283 U.S. 589, 596-97, 75 L. Ed. 2d 1289, 1297, 51 S. Ct. 608, 611), we find that plaintiff’s right to procedural due process was not violated by the proceedings here.

Plaintiff next contends that the findings and conclusions of the Illinois Racing Board were against the manifest weight of the evidence and therefore the judgment of the trial court, affirming the Board’s decision to suspend his license, should be reversed or in the alternative, remanded for a lesser sentence.

The Administrative Review Law provides that findings and conclusions of an administrative agency on questions of fact are to be considered prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085.) On appeal, a court will not interfere with the decision of an administrative agency unless its decision is contrary to the manifest weight of the evidence or unless its authority is exercised in an arbitrary and capricious manner. Coleman v. Illinois Racing Board (1988), 124 Ill. 2d 218, 221, 529 N.E.2d 520.

The Illinois Board suspended plaintiff’s license for failing to guard his horses in violation of Board Rule C9.20 (11 Ill. Adm. Code §509.200 (1985)), after laboratory reports on urine samples from horses trained by plaintiff revealed 14 incidents involving illegal drugs. The guarding rule is designed to protect the public from fraud in the horse racing industry and merely describes the action that a party who is responsible for guarding a race horse must take. See Ray v. Illinois Racing Board (1983), 113 Ill. App. 3d 510, 516, 447 N.E.2d 886.

Board Rule C9.21, entitled “Prima Facie Evidence,” states that if a horse is determined to be carrying a foreign substance, it is prima facie evidence that the trainer has violated either the rule prohibiting unlawful administration of a foreign substance or the guarding rule and the trainer then “has the burden of going forward with evidence.” (11 Ill. Adm. Code §509.210 (1985); Kline v. Illinois Racing Board (1984), 127 Ill. App. 3d 702, 469 N.E.2d 667.) The prima facie evidence standard for guarding rules was upheld in Barry v. Barchi (1979), 443 U.S. 55, 63-66, 61 L. Ed. 2d 365, 374-76, 99 S. Ct. 2642, 2648-50.

Here, plaintiff entered into a stipulation stating that the samples tested were taken from the horses in question, that the reports were accurate and that the 14 samples contained illegal substances. Plaintiff has never disputed these facts and he failed to present any evidence that he guarded the horses in question. Under these circumstances plaintiff’s contention that the Board’s findings were against the manifest weight of the evidence and that the trial court erred in affirming the Board’s ruling is not persuasive.

Plaintiff also argues that the sanction imposed was arbitrary and capricious and should be reversed. He claims that the penalty of nine months’ suspension for each of the 14 violations, to run consecutively, violates established standards for violation of the guarding rule as set forth in Graham v. Illinois Racing Board (1986), 145 Ill. App. 3d 383, 495 N.E.2d 1013. Plaintiff points out that in Graham, this court vacated a lifetime license suspension as unduly harsh and arbitrary where the Board had imposed the suspension based on a finding that five of the plaintiff’s horses had been drugged in 10 races.

Plaintiff correctly states that a reviewing court may overturn sanctions imposed by an agency which are overly harsh in view of mitigating circumstances. (Feliciano v. Illinois Racing Board (1982), 110 Ill. App. 3d 997, 1005, 443 N.E.2d 261.) The test, however, is not whether this court would impose a lesser penalty if it were making a decision in the first instance (Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411, 438 N.E.2d 147); rather, the test is whether, in view of the circumstances, the agency acted unreasonably or arbitrarily (Sutton, 91 Ill. 2d at 411; Graham v. Illinois Racing Board (1986), 145 Ill. App. 3d 383, 389-90, 495 N.E.2d 1013).

The Board’s rules regarding appropriate penalties for violations of Rule C9.20 (the guarding rule) require the Board to consider several factors when imposing penalties, among them: (1) what action, if any, was taken by the trainer to guard the horse during the 24 hours prior to the race; (2) what action, if any, was taken to guard the horse during the 48 hours prior to the race; (3) the nature of the foreign substance found in the horse; (4) the accessibility of the drug; and (5) the trainer’s age and experience. 11 Ill. Adm. Code §509.250 (1985).

Plaintiff presented no evidence that he guarded or attempted to guard any of the horses that tested positive for foreign substances. The substances found in plaintiff’s horses were not approved for therapeutic use on horses or were not readily available in this country. The drugs found in the post-race samples were Isopyrin, Sulindac and Etorphine. Isopyrin is an analgesic, anti-pyretic and anti-inflammatory drug not approved by the U-S. Food and Drug Administration (FDA) and not commercially available in this country. Sulindac is a non-steroidal, anti-inflammatory drug which is an active ingredient in the drug Clinoril, a drug approved by the FDA for use on humans but not on horses. Etorphine is a morphine-like agent that is a central nervous system stimulant. It is a controlled substance and Class 2 narcotic which may only be purchased and possessed by a licensed physician or veterinarian. It is used primarily as a tranquilizer for large animals and has no accepted therapeutic use for race horses.

The Board also considered that plaintiff had a great deal of experience and had been the subject of a medication ruling in Canada in 1981 and Kentucky in 1982. Additionally, in the period between 1974 and 1984, plaintiff had been fined 14 times and suspended 12 times for various infractions and his membership in horse racing associations had been denied five times.

The cases relied on by plaintiff in arguing that the sanction imposed by the Board is too severe are distinguishable from the instant case. In Graham v. Illinois Racing Board (1986), 145 Ill. App. 3d 383, 495 N.E.2d 1013, the court held that a lifetime suspension, return of the purses and a $7,500 fine was an unduly harsh penalty in a failure to guard case where only five horses were involved and the plaintiff had a 27-year unblemished record in racing. The plaintiff in Kline v. Illinois Racing Board (1984), 127 Ill. App. 3d 702, 469 N.E.2d 667, was found to have violated the guarding rule and the rule prohibiting a horse from carrying a foreign substance in its body during a race on two occasions. As a consequence, his occupation license was suspended for two concurrent 90-day periods and he forfeited the purse money. In Ray v. Illinois Racing Board (1983), 113 Ill. App. 3d 510, 449 N.E.2d 886, the plaintiff was given a 270-day suspension, 90 days each for three violations of the guarding rule in addition to which he was fined $6,000 and required to forfeit the purse money.

In contrast to the above-cited cases, plaintiff here was not fined, the purses were not forfeited, 14 horses were in issue, plaintiff was not given a lifetime suspension and plaintiff had previously violated numerous racing rules.

While nine months per violation to run consecutively is undoubtedly an onerous penalty, in light of plaintiff’s previous record, the number of violations in a six-month period, plaintiff’s failure to present any evidence that the horses in issue were guarded and the complete lack of any mitigating circumstances, we conclude that the sanctions imposed were not unreasonable or arbitrary. Feliciano v. Illinois Racing Board (1982), 110 Ill. App. 3d 997, 1005, 443 N.E.2d 261; cf. Graham v. Illinois Racing Board (1986), 145 Ill. App. 3d 383, 390, 495 N.E.2d 1013.

For the foregoing reasons the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE R1ZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD ELLIS et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—85—3225, 1—86—1633 cons.
    Opinion filed August 9, 1989.
    Rehearing denied September 6, 1989.

      Debra R. Salinger, of Chicago, for appellant Trellis Bailey.
    Frederick F. Cohn, of Chicago, for appellant Reginald Ellis.
    Cecil A. Partee, State’s Attorney, of Chicago (Kenneth T. McCurry, Kim A. Novi, and Caroline Koplin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE R1ZZI

delivered the opinion of the court:

Defendants, Reginald Ellis and Trellis Bailey, were found guilty of murder in a joint bench trial. Each defendant was sentenced to serve 30 years in the Illinois Department of Corrections. On appeal, Ellis argues that the trial court erred in denying his motion to quash arrest and suppress statements and in excluding evidence of the victim’s prior arrest and convictions. Bailey argues that (1) the trial court erred in excluding evidence of the victim’s prior arrest and convictions; (2) the State failed to prove beyond a reasonable doubt that his theory of self-defense was unreasonable; and (3) the trial court abused its discretion in sentencing defendant to serve 30 years in prison. We affirm.

Martin Hunter, brother of victim Larry Hunter, testified on behalf of the State. Martin stated that on May 30, 1984, at approximately 10:30 p.m., he was driving his automobile with his brother Larry in the front passenger seat. They were traveling eastbound on 91st Street in the direction of St. Lawrence Avenue when an automobile pulled out in front of them and began to drive slowly down the street. When the car reached the middle of the block it stopped and Martin blew his horn. The car again began to move slowly down the block. When the car reached the corner of 91st Street and St. Lawrence, it stopped at the stop sign and the occupants of the car held a conversation with someone in a nearby park. Martin waited for a few seconds, then got out of his car and approached the driver of the car in front of him. Martin asked the driver, “Why are you doing this? Why don’t you let me by?” The driver of the automobile, later identified as Aaron “Tuffy” Williams, exited his car, stood face to face with Martin and asked him what he was going to do. Martin then began to back away and told Tuffy to get in his car and let him pass. Tuffy advanced in Martin’s direction and Martin struck him, knocking him to the ground.

Tuffy got up from the ground, and Trellis Bailey, who was a passenger in Tuffy’s car, got out and began to walk toward the driver’s side of the auto. The victim, Larry Hunter, then exited his car and confronted Bailey. Bailey and Larry began to fight and scuffle with each other. Martin saw Tuffy make a motion in the direction of the park and about five to eight men came over to the car. One of the men grabbed a portion of a car jack from his car and several others grabbed sticks. The men attacked, but Martin and Larry ran away, leaving their automobile in the street with the keys in the ignition. As Martin and Larry left, they observed that the rear window of their car was broken. One of the men jumped in Martin’s car and drove it away.

Martin and Larry returned home, called the police and waited outside their house. While they waited for the police to arrive, a car drove westbound on eastbound 91st Street. As Martin walked toward his house, Ellis and Bailey exited the car and began chasing him and Larry. Martin went through the alley between 91st Street and 91st Place, while Larry ran in the opposite direction. Reginald Ellis and Bailey followed Larry. Meanwhile, Martin picked up a board from the alley and ran back toward 91st Place. As Martin reached 91st and Eberhart, he observed Ellis and Bailey beating his brother Larry as he lay on the ground. Martin yelled and told the men to leave his brother alone. Both men were holding long sticks, later identified as baseball bats. Bailey struck the victim again. Martin approached the defendants. As Ellis ran by, he swung a baseball bat at Martin and Martin struck him with the board he was holding. The defendants left the area.

During the cross-examination of Martin Hunter, counsel for defendant Ellis attempted to introduce evidence of Larry Hunter’s prior arrests. The trial court sustained the State’s objection and ruled that the evidence was immaterial.

Dr. Eupil Choi, a forensic pathologist, testified that his autopsy of the victim revealed four external blunt trauma lacerations to the head area, a laceration below the left elbow, and one on the right hand. An internal examination of the victim’s head revealed a fractured skull and jawbone with multiple brain contusions and a massive brain hemorrhage. The victim’s death was caused by multiple blunt trauma to the head.

Trellis Bailey testified on his own behalf. Bailey stated that Martin Hunter struck his friend Tuffy for no apparent reason. He further stated that when he got out of the car to come to Tuffy’s aid, Larry Hunter approached him from behind and began to beat him. He testified that he grabbed a baseball bat from a bystander and chased the Hunters. Bailey further testified that he went to Reginald Ellis’ home and told him what happened. Ellis joined him and they went looking for the Hunters. Bailey testified that when they saw the Hunters they got out of their car and chased them. He stated that he followed Larry Hunter and confronted him with a baseball bat. When Larry turned, lunged at him and stated, “I’m going to kill you,” Bailey struck him in the head with the baseball bat several times and fled the area.

At the hearing on Ellis’ motion to quash arrest and suppress evidence, the following facts were revealed. Chicago police detective Anthony Maslanka testified that on June 1, 1984, he received information regarding Ellis’ involvement in Larry Martin’s murder. Maslanka obtained Ellis’ arrest record and photograph and proceeded to Ellis’ mother’s home. When he arrived, he observed Ellis through the front window. Maslanka’s knock on the door was answered by a man and woman. When he asked for Reginald Ellis, they told him that they were not his parents and that they were not sure where Ellis was. When Maslanka informed them that he had seen Ellis from the window and he was wanted for an investigation of a homicide, he was allowed to enter. Ellis was located and arrested at the entrance to a hallway leading from the front to the rear of the house.

Reginald’s father, Richard Ellis, testified that he was visiting his ex-wife’s home when someone knocked at the door. He stated that when he answered the door, he saw two plainclothes police officers. Richard Ellis testified that the officers asked for the person wearing the hat and then pushed their way into the house through the open door. He stated that he did not invite them in and that after they entered they proceeded to the rear of the house and returned with Reginald. Ruby Ellis, Reginald Ellis’ mother, testified that her son was with her in the rear bedroom of their home when a police officer entered with a flashlight and arrested Reginald. Reginald Ellis subsequently gave a court-reported statement in which he admitted his participation in the beating of Larry Hunter. After hearing all the evidence and arguments, the court denied Ellis’ motion to quash arrest and suppress statements. At the conclusion of the trial, the court found both defendants guilty of murder and sentenced each to serve 30 years in prison. This appeal followed.

Defendant Ellis first argues that the trial court erred in denying his motion to quash his warrantless arrest and suppress his subsequent statement. It is defendant’s contention that because the arrest was executed without either consent to enter his mother’s home or the presence of exigent circumstances, it should have been quashed and his statement suppressed. We disagree.

A warrantless arrest executed within a defendant’s residence must be supported by consensual entry given by someone who has control over the premises or the existence of exigent circumstances which justify the arrest. (People v. Bean (1981), 84 Ill. 2d 64, 69, 417 N.E.2d 608, 611; People v. Calhoun (1984), 126 Ill. App. 3d 727, 735, 467 N.E.2d 1037, 1042.) The function of a court in an evidentiary hearing is to determine the credibility of witnesses and the weight that should be given their testimony. (People v. Manion (1977), 67 Ill. 2d 564, 577-78, 367 N.E.2d 1313, 1320.) Voluntariness of consent is a factual determination and a reviewing court should not substitute its judgment for that of the trier of fact unless the finding is manifestly erroneous. People v. Koniecki (1985), 135 Ill. App. 3d 394, 402, 481 N.E.2d 973, 980.

In the present case, the trial court found that there was conflicting testimony on the issue of whether or not the police had consent to enter the Ellis home. The court specifically found that Richard and Ruby Ellis’ testimony conflicted regarding the circumstances surrounding their son’s arrest, and noted that those discrepancies affected their credibility and the weight which the court would give their testimony. The court also considered the seriousness of the charge and the police officers’ observation of defendant through the front window of the house prior to the arrest when evaluating the presence of exigent circumstances. In sum, it is apparent that after weighing the evidence, the trial court found that the totality of the circumstances indicated that there was both consensual entry and exigent circumstances which justified defendant’s warrantless arrest. We find no manifest error in the trial court’s finding. Accordingly, we conclude that the trial court did not err in denying the defendant’s motion to quash arrest and suppress his statement.

Both defendants argue that the trial court erred in excluding evidence of the victim’s 1971 arrest for murder, 1972 conviction for possession of a gun and 1978 conviction for possession of narcotics. We disagree.

The latitude to be allowed in cross-examination of a witness rests largely in the discretion of the trial court, and its determination will not be disturbed absent an abuse of discretion which results in manifest prejudice to the defendant. (People v. Kline (1982), 92 Ill. 2d 490, 504, 442 N.E.2d 154, 160.) When the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor and the defendant may show it by appropriate evidence, regardless of when he learned it. (People v. Lynch (1984), 104 Ill. 2d 194, 200, 470 N.E.2d 1018, 1020.) However, evidence of a victim’s mere arrest is inadmissible since it does not indicate whether the victim actually performed any of the acts charged. (People v. Baer (1976), 35 Ill. App. 3d 391, 396, 342 N.E.2d 177, 182.) In addition, the trial court has discretion to exclude the admission of evidence of convictions which are 10 or more years old or irrelevant to the issues raised at trial. People v. Montgomery (1971), 47 Ill. 2d 510, 516-19, 268 N.E.2d 695, 697-98.

In the present case, the trial court properly excluded evidence regarding the victim’s 1971 arrest for murder since the victim was never convicted. The court also properly excluded the admission of evidence of the victim’s convictions for firearm and narcotics possession because the convictions do not necessarily indicate a violent character. In addition, the court could have also excluded the admission of the victim’s 1972 conviction because it occurred more than 10 years before the trial in this matter. We therefore conclude that the trial court did not abuse its discretion in excluding evidence of the victim’s prior arrest and convictions.

Defendant Bailey argues that the State failed to prove beyond a reasonable doubt that his theory of self-defense was unreasonable. We disagree.

The determination of whether a homicide is murder or justified as self-defense is for the trier of fact, and the decision will not be disturbed on review unless it is so improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Greene (1987), 160 Ill. App. 3d at 1096, 513 N.E.2d at 1096.) The use of force in defense of the person is justified where. (1) force is threatened against the person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; and (5) the person threatened actually believes that a danger exists, that the use of force is necessary and such beliefs are reasonable. (People v. Balfour (1986), 148 Ill. App. 3d 215, 221, 498 N.E.2d 547, 552-53; Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.) Self-defense is an affirmative defense based on satisfaction of the above elements. Once the issue is raised, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. (People v. Greene, 160 Ill. App. 3d 1089, 1096, 513 N.E.2d 1092, 1096.) However, the right of self-defense does not permit the pursuit and killing in retaliation or revenge of an initial aggressor after he retreats. People v. Tirrell (1980), 87 Ill. App. 3d 511, 517, 408 N.E.2d 1202, 1206; Ill. Rev. Stat. 1985, ch. 38, par. 7 — 4(c)(2).

In the present case, defendant testified that the victim initially struck him and that the two engaged in a fight. Defendant stated that after the victim and his brother retreated home, he and defendant Ellis followed them with baseball bats. He further testified that after he chased the victim, the victim turned around, threatened to kill him, and lunged in his direction. It is defendant’s contention that he reasonably believed that he was acting in self-defense when he struck the victim in the head with a baseball bat several times after the victim lunged at him. However, the trial court found the defendant’s contention unbelievable. The court specifically found that the fact that defendant chased the victim, who was unarmed, for two blocks before beating him in the head with a baseball bat contradicted the argument that he was acting in self-defense. Clearly, the evidence supports the trial court’s decision to reject defendant’s claim of self-defense. We therefore conclude that the trial court’s decision finding defendant guilty of murder was proper.

Defendant next argues that the trial court abused its discretion in sentencing him to serve 30 years in prison. We disagree.

Although a reviewing court has the power to reduce an excessive sentence (107 Ill. 2d R. 615(b)(4)), a sentence will not be disturbed absent an abuse of discretion. (People v. LaPointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348.) The trial court is normally in the best position to determine an appropriate sentence and its decision regarding sentencing is entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Further, a reviewing court may not change or reduce a sentence on the ground that it is too severe unless it can be affirmatively demonstrated that the trial court relied on erroneous or improper evidence in imposing sentence. People v. Leckrone (1985), 134 Ill. App. 3d 978, 983, 481 N.E.2d 343, 347.

In the instant case, defendant was sentenced after the court heard evidence in aggravation and mitigation. In aggravation, the State argued that defendants should receive extended-term sentences due to the exceptional brutality of the crime. In mitigation, defense counsel argued that defendant was 27 years of age, with a wife, three children and no prior criminal record. After consideration of defendant’s age, criminal background and the nature of the crime, the court felt that a sentence in excess of the minimum was justified. In sentencing the defendant to 30 years in prison, the court stated that it had not imposed an extended-term sentence due to defendant’s rehabilitative potential, but on the other hand, it could not sentence the defendant to the minimum term either, due to the brutal nature of the crime. The court’s findings indicate that the court properly considered defendant’s rehabilitative potential when imposing sentence. In addition, the 30-year sentence is within the statutory range of 20 to 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(a).) Based on our reading of the record, we do not find that the trial court abused its discretion in sentencing defendant.

Accordingly, we affirm the judgment and sentence of the circuit court.

Affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: JUSTICE RIZZI

text:
    THE DEPARTMENT OF CORRECTIONS, Plaintiff-Appellee, v. THE ILLINOIS CIVIL SERVICE COMMISSION, Defendant-Appellee (Glenda Hunter, Defendant-Appellant). — GLENDA HUNTER, Plaintiff-Appellant, v. THE DEPARTMENT OF CORRECTIONS et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—86—3599
    Opinion filed August 9, 1989.

      Steinberg, Polacek & Goodman, of Chicago (Bradley D. Steinberg, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Karen S. Rosenwinkel, Assistant Attorney General, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Glenda Hunter, appeals from an order of the circuit court of Cook County remanding her case to the Illinois Civil Service Commission (Commission) for consideration of previously excluded testimony and from a separate order, affirming the decision of the Civil Service Commission, discharging her from service. On appeal, Hunter argues that (1) the circuit court erred when it remanded the case for consideration of previously excluded testimony because the meaning of a regulation is not a proper subject for expert testimony and the interpretation provided by the testimony was not in accordance with the plain meaning of the regulation’s terms; (2) the circuit court erred in affirming the Commission’s discharge decision since the plain meaning of Regulation 208 did not prohibit Hunter’s conduct; and (3) the penalty of discharge is unreasonable, unjustly harsh, and unrelated to the needs of the Department of Corrections. We reverse and remand.

The following facts were revealed during the administrative hearing. On May 4, 1982, Hunter’s employment with the Department of Corrections was terminated and she was charged with violation of the Department’s Administrative Regulations 213, 208 and 107. The charges also alleged that Hunter’s conduct was unbecoming a State employee and in violation of Department of Corrections policies. It was alleged that Hunter violated these provisions when she accepted $3,000 from Willie Spears, a Cook County jail inmate.

Hunter met Spears in 1969 when she worked at St. Leonard House, a facility for ex-offenders. From 1971 to 1974, Hunter worked for the Department of Corrections as a counselor at the Duncan Halfway Community Center. While at Duncan, Hunter counselled Spears on employment and financial matters. At the Duncan Center, the counsel or position entailed, among other things, parolee interviews, job placement, the provision of transportation fees and referrals to resources for clothing. It was an accepted practice for Duncan counselors to visit former parolees who had returned to incarceration as well as to loan money or post bond for them.

After Hunter left the Duncan Center, Spears was never placed directly under her supervision. She was never his parole officer. However, Spears continued to call upon Hunter for assistance. Hunter provided bond fees on Spears’ behalf in 1971, twice in 1972 and once in 1973. Hunter gave Spears clothing, and paid his rent and hotel expenses on a few occasions in 1974 and 1975. Hunter provided similar assistance to other parolees. No one ever advised her that this type of assistance was prohibited.

From 1974 to 1975, Hunter worked with the Adult Work Release Program. From 1975 until the time of her discharge, Hunter was employed as a parole counselor. In 1978, Hunter was assigned to the position of Parole Counselor III and assisted parolees in their transition from the institution to the community by counselling the parolees and their families and helping them obtain employment. As a parole officer, Hunter was required to come to the jail several times a week. Once or twice a month Hunter would see Spears when she was visiting her assigned parolees. Generally, Hunter would speak to Spears for 5 to 10 minutes in the same fashion that she spoke to him as his counselor at the Duncan Center. In May 1980, Spears was released from Cook County jail. His parolee status was terminated in July 1980.

In 1972, Hunter assisted Spears in obtaining an attorney for a matter which resulted in criminal and civil litigation. The civil rights action resulted in a substantial recovery to Spears. When Spears received his judgment, he authorized his attorney to tender $1,000 to Hunter as repayment for the total amount of money that she had advanced him over the years. The check was dated January 30, 1980, and stated that acceptance of the check constituted full settlement of all loans and monies advanced for bond on behalf of Willie Spears.

During one of Hunter’s routine visits to Cook County jail, Hunter and Spears discussed automotive difficulties that she was experiencing. Spears offered to loan her $2,000 for the automobile repair costs. After Hunter reviewed the regulations, she agreed to accept the loan. Spears instructed his attorney to lend Hunter $2,000. On March 19, 1980, Hunter received a $2,000 check from Spears’ attorney and signed a receipt indicating that the transaction was a loan to be repaid without interest beginning in August 1980 at the rate of $25 per month.

The hearing officer determined that the $1,000 payment to Hunter constituted reimbursement and that the second payment of $2,000 constituted a loan. The hearing officer also determined that of the alleged charges, the $2,000 loan exceeded the boundaries of the professional relationship between the parties and as such was a violation of Regulation 213, the socializing provision. According to the hearing officer, neither the $1,000 reimbursement nor the $2,000 loan constituted a bribe, gift or gratuity in violation of Regulation 208. The hearing officer dismissed the Regulation 107 charge. Regulation 107 prohibited an employee from receiving any form of payment from any person or corporation doing business with the institution or with any resident. The hearing officer did not find that Hunter’s conduct was unbecoming a State employee or that the money was lent with the expectation that Hunter would take certain action with respect to her official duties. The hearing officer found that Hunter was a 13-year employee of the Department of Corrections, who was highly valued by her superiors and had never received an oral warning or any type of discipline.

On October 19, 1983, the Illinois Civil Service Commission adopted the hearing officer’s decision which determined that the amended charges against Glenda Hunter warranted a 90-day suspension. The Department of Corrections sought judicial review of that decision, alleging that the decision was contrary to the manifest weight of the evidence and the law as well as arbitrary, capricious and unrelated to the needs of State service.

The circuit court remanded the case to the Illinois Civil Service Commission for consideration of the previously excluded testimony of Harold Thomas, Superintendent of Adult parole. In an offer of proof, Thomas had testified that Regulation 208 and its terms, gift, bribe or gratuity should be interpreted as prohibiting the acceptance by employees of anything of value, including a loan. On remand, the hearing officer considered Thomas’ testimony and again recommended to the Commission that Hunter receive a 90-day suspension. The Commission adopted the hearing officer’s findings of fact, but reversed its prior 90-day suspension decision and ordered Hunter discharged from her employment. The Commission found specifically that there was a reasonable and necessary basis for the regulation that prohibits parole officers from engaging in financial transactions with parolees.

Following administrative review, the circuit court affirmed the order of discharge, holding that whether or not the money advanced was a gift or a loan, the prohibition of accepting something of value applied and that Hunter’s acts, “even if her characterization of them is accepted, show an intentional, calculated series of events amounting to financial entanglement and fraternization with the prisoner/parolee.” This appeal followed.

Hunter argues that the trial court erred when it remanded the case for consideration of the previously excluded testimony because the receipt of expert testimony interpreting a regulation is improper as a matter of law. Moreover, Hunter argues that the interpretation given in the offer of proof and adopted by the Commission was not in accordance with the plain meaning of the regulation’s terms. We agree.

Rules adopted by an administrative agency pursuant to statutory authority have the force of law and the administrative agency is bound by the rules. (Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045, 1047, 365 N.E.2d 261, 263; Heifner v. Board of Education of Morris Community High School District No. 101 (1975), 32 Ill. App. 3d 83, 87, 335 N.E.2d 600, 603.) Statutory interpretation, however, is not a matter to which an expert witness is competent to testify. (Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 261, 432 N.E.2d 920, 924.) Nonetheless, the interpretation given by an administrative agency to its rules and regulations is entitled to deference and will not be overruled unless plainly erroneous. However, an agency’s interpretation is not binding or conclusive on the courts. (Chicago Transit Authority v. Industrial Comm’n (1986), 141 Ill. App. 3d 930, 933, 491 N.E.2d 58, 60; Chemetco, Inc. v. Pollution Control Board (1986), 140 Ill. App. 3d 283, 286, 488 N.E.2d 639, 641; Lipman v. Board of Review of the Department of Labor (1984), 123 Ill. App. 3d 176, 180, 462 N.E.2d 798, 800; Inwang v. Community College District No. 508 (1983), 117 Ill. App. 3d 608, 611, 453 N.E.2d 896, 899; Heifner, 32 Ill. App. 3d at 87, 335 N.E.2d at 604.) Rather, an agency’s interpretation of a rule is considered persuasive. (Inwang, 117 Ill. App. 3d at 611, 453 N.E.2d at 899.) However, an agency has no power to misapply or extend an unambiguous rule through strained interpretation. {Inwang, 117 Ill. App. 3d at 612, 453 N.E.2d at 900.) Where the language of a statute is unambignous and conveys a clear and definite meaning, a court has no right to look for or impose another meaning. Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 460, 440 N.E.2d 910, 913.

With respect to the case at bar, we find that Thomas’ testimony interpreting the clear and unambiguous language of Regulation 208 and adopted by the Commission must be rejected as a matter of law as impermissible testimony and, as an erroneous interpretation of the regulation, not in accordance with the plain meaning of its terms. The terms of the regulation encompass only bribes, gifts and gratuities.

Secondly, Hunter argues that the circuit court erred in affirming the discharge decision of the Commission since the plain meaning of Regulation 208 did not prohibit Hunter’s conduct. We agree.

Regulation 208 prohibits “the acceptance by employees of the Department of Corrections of bribes, gifts or gratuities from residents, their relatives or friends, or from anyone who has or expects to have business dealings with the Department.” Regulation 208 further provides that the acceptance “of a bribe, gift or gratuity will result in discharge from employment and possible prosecution.”

The hearing officer concluded that the transaction constituted a loan. Those findings and conclusions of fact must be considered prima facie true and correct and cannot be reversed unless against the manifest weight of the evidence or lacking substantial foundation in the record. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372, 498 N.E.2d 1148, 1153; Heifner, 32 Ill. App. 3d at 87, 335 N.E.2d at 603.) The hearing officer’s findings of fact were well reasoned, not against the manifest weight of the evidence and, therefore, are adopted. Reviewing courts are not authorized to reweigh evidence or to make an independent determination of facts. (Menning v. Department of Registration & Education (1958), 14 Ill. 2d 553, 558, 153 N.E.2d 52, 55.) The hearing officer also found that the clear and unambiguous terms of the regulation did not include loans. Bribes, gifts, gratuities and loans are terms whose boundaries are understood by common parlance such that a person of ordinary intelligence would not consider the language bribe, gift or gratuity to encompass loan transactions. United States v. Professional Air Traffic Controllers (1st Cir. 1982), 678 F.2d 1, 3.

It is a cardinal rule of statutory construction that the expression of specific conduct in an enactment excludes conduct not expressly mentioned. (Heifner v. Board of Education of Morris Community High School District No. 101 (1975), 32 Ill. App. 3d 83, 88, 335 N.E.2d 600, 604; Shanahan v. Policemen’s Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543, 547, 357 N.E.2d 582, 585; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 99, 199 N.E.2d 769, 786.) Stated differently, when a statute enumerates certain things, that enumeration implies the exclusion of all other things although there are no negative words of prohibition. Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 460, 440 N.E.2d 910, 913.

With respect to the case at bar, the Commission found that there was both a reasonable and necessary basis for “the regulation which prohibits parole officers from engaging in financial transactions with parolees.” The unambiguous terms of the regulation prohibit bribes, gifts and gratuities and do not include loan activity. The trial court in its affirmance of the discharge stated that “whether or not the money advanced was a gift or a loan, the prohibition of accepting something of value still applied.” Regulation 208 does not prohibit the acceptance of something of value. It specifically forbids bribes, gifts, and gratuities. Regulation 107 which Hunter was found not to have violated contains the broader language prohibiting an employee from accepting any fees or any form of payment from anyone having business with the institution. The words employed are to be given their plain meaning. A Board does not have the right to misapply an unambiguous rule. Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045,1048, 365 N.E.2d 261, 264.

Subsequent to the original decision of the Civil Service Commission of October 19, 1983, the Illinois Department of Corrections repealed Regulations 107, 213 and 208 effective August 1, 1984. The new regulation entitled “Socializing with Committed Persons” states in part that employees shall not socialize with or engage in business transactions with any committed person or a relative or known close associate. Since neither an agency nor a court has authority to misapply or extend an unambiguous rule through strained interpretation, we find the Commission’s application, affirmed by the circuit court, of the unambiguous rule strained, erroneous, arbitrary and not in conformity with the regulation’s plain terms.

Hunter also argues that the need for testimonial interpretation of Regulation 208 in an effort to apply the regulation to Hunter indicates that the rule is impermissibly vague and its application was in violation of due process. As previously stated, we find that the terms of Regulation 208 have plain and clear meaning, excluding from its scope loan activity. Accordingly, its terms are not vague. However, we agree with Hunter that a rule or regulation must provide fair notice of the prohibited conduct and find that Regulation 208 did not provide notice that loan activity was included within its purview. Thomas v. Police Board (1980), 90 Ill. App. 3d 1101, 1104, 414 N.E.2d 11,14.

At the time of Hunter’s violation, the sanction for violation of the socializing provision was suspension and/or discharge. Subsequent amendments of that provision, as well as the bribes, gifts, and gratuities provision, provide that noncompliance may result in discipline.

Hunter asserts that the penalty provisions and her exemplary and otherwise unblemished record require a finding that her continuance in employment is not so detrimental to the discipline and efficiency of the service. We agree. The courts have construed cause to be some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for the employee no longer holding the position. See Thomas v. Police Board (1980), 90 Ill. App. 3d 1101, 1105, 414 N.E.2d 11, 15.

Without condoning Hunter’s conduct, we find, as did the hearing officer, that the totality of her conduct is insufficient cause for her discharge. Having found that the agency’s findings of fact as to a violation of the bribes, gifts and gratuities provision were against the manifest weight of the evidence and arbitrary, we further find in light of all the circumstances an insufficient basis for a finding of cause for discharge. See Department of Mental Health & Developmental Disbilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.

Accordingly, we reverse the circuit court’s December 1986 order affirming the commission’s discharge of Hunter and reverse the circuit court’s January 1985 order remanding the cause for consideration of the previously excluded testimony. We remand with directions to reinstate the Commission’s October 19, 1983, order suspending Hunter for 90 days.

Reversed and remanded with directions.

FREEMAN, P.J., and WHITE, J., concur.


text:
    BERNARD M. SUSMAN et al., Plaintiffs-Appellees and Cross-Appellants, v. CYPRESS VENTURE et al., Defendants-Appellants and Cross-Appellees (Norman Asher, Defendant and Cross Appellee).
    First District (3rd Division)
    No. 1—87—1532
    Opinion filed August 9, 1989.
    Rehearing denied September 15, 1989.

      Sperling, Slater & Spitz, and Kevin M. Forde, Ltd., both of Chicago (Bruce S. Sperling, Eugene J. Frett, Kevin M. Forde, and Katrina Veerhusen, of counsel), for appellants.
    Burke, Griffin, Chomicz & Wienke, P.C., of Chicago (Stephen A. Cohen and Douglass G. Hewitt, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendants, Cypress Venture et al. (the Ashers), appeal from an order of the circuit court of Cook County which approved a court-ordered accounting, judicial sale and distribution of the assets of the dissolved partnership between the Ashers and plaintiffs, Bernard Susman et al. (Susman). Susman cross-appeals from certain provisions of the court order. On appeal, the Ashers contend that (1) the trial court erred in its interest accrual ruling which terminated post-dissolution interest on their capital contributions as of April 3, 1981, and divided the net proceeds of the judicial sale equally between the Ashers and Susman and (2) the trial court erred in failing to vacate the confirmation of the judicial sale. On cross-appeal, Susman contends that (1) the trial court erred in granting the Ashers payment of interest on capital contributions after their September 27, 1974, expulsion of Susman from the partnership; (2) the trial court erred in permitting the Ashers to charge the partnership with $90,175 in legal fees paid to the Ashers’ attorneys; and (3) the trial court erred in permitting the Ashers to pay Hilltown Associates (a corporation wholly owned by the Ashers) $56,642.35 in management fees from partnership funds. We affirm in part; reverse in part and remand with directions.

This litigation stems from a 1968 partnership agreement between Susman and the Ashers. The parties entered into a partnership to purchase and develop approximately 945 acres of property in Lake County, Illinois. According to the terms of the agreement, Susman was responsible for the management and development of the property. The Ashers contributed the cash assets and were given the right to make all decisions for the partnership until such time as their capital was returned or Susman contributed an equal amount of capital. Any profits generated were first to be distributed to the Ashers until their capital contribution plus imputed interest was returned and, thereafter, the profits were to be divided equally between the Ashers and Susman.

In 1976, the partners began the long course of litigation which culminated in this appeal. In 1981, the circuit court ordered the dissolution and winding up of the partnership, an accounting and judicial sale of partnership property. In addition, the circuit court found that Susman was entitled to $645,000 in damages (an amount he would have realized from a partnership deal which the Ashers rejected) or his share of the proceeds of the judicial sale, whichever sum was larger. The Ashers appealed from that decision. This court affirmed the circuit court’s finding that the Ashers breached the parties’ agreement and expelled Susman from the partnership, thereby justifying the court-ordered dissolution. However, this court reversed that portion of the circuit court decision which awarded Susman money damages. (Susman v. Cypress Venture (1982), 114 Ill. App. 3d 668, 449 N.E.2d 143.) The case was then remanded to the circuit court for an accounting and judicial sale.

In June 1986, following the accounting, the circuit court entered an order finding that (1) the Ashers are entitled to payment of management and legal fees from partnership funds; (2) the interest accrued on the Ashers’ total capital contribution shall cease as of April 3, 1981 (the date the partnership was legally dissolved); and (3) all partnership real property and noncash assets are to be sold at the judicial sale. In October 1986, the partnership property was sold at judicial sale to Amli Realty Company for $3,350,000. Susman was a joint venturer in the purchase. When the Ashers discovered that Susman was a party to the purchase, they moved to vacate the confirmation of the judicial sale. In April 1987, the circuit court entered an order which (1) denied the Ashers’ motion to vacate the confirmation of judicial sale; (2) ordered the distribution of the cash assets of the partnership in accordance with the previous accounting; and (3) ordered that Susman and the Ashers each receive 50% of the net income from the investment proceeds of the judicial sale. This appeal followed.

The Ashers first argue that the circuit court erred in ordering the termination of their interest earned on capital contributions as of April 3, 1981, and in distributing the net proceeds of the judicial sale equally between the partners in accordance with the circuit court’s interest accrual ruling. In support of this view, they assert that the partnership agreement clearly provides that the Ashers were to continue to accrue interest on their capital contributions after dissolution and until the partnership was wound up. The Ashers also contend that the circuit court should have distributed the proceeds of the judicial sale according to the parties’ respective partnership shares. We disagree.

Section 2.5 of the Asher/Susman Agreement (Agreement), entitled “Interest on Total Capital Contributions,” provides:

“(a) In the event that the Total Capital Contribution of the Asher Partners exceeds the Total Capital Contribution of the Susman Partners at the end of any calendar month during the Period of Existence of this Partnership, the Partnership will credit monthly the Asher Partner’s Capital Accounts with guaranteed payment of interest with an amount equal to one percent (1%) above the prime rate of interest obtaining from time to time on short term commercial loans at the First National Bank of Chicago (or its successors) times the amount of such excess.”

Section 1.5, paragraph (ee), of the Agreement defines “period of existence” as “the period from the date of the execution of this Agreement until the Partnership affairs are wound up by the General Partners, their assigns or legal representatives after the dissolution of the Partnership.” The term “dissolution” is not specifically defined, but it is referred to in article VI of the Agreement. Section 6.1 provides:

“(a) The Partnership shall be dissolved upon the first to occur of the following:
(i) The death, insanity, involuntary dissolution, bankruptcy or assignment for the benefit of creditors of any Partner; or
(ii) The mutual consent of the Partners to dissolve and terminate the Partnership; or
(iii) The Sale of Property
(iv) December 31, 2067.”

A party to a contract is discharged from his duty to perform where there is a material breach of the contract by the other party. (Eager v. Berke (1957), 11 Ill. 2d 50, 54, 142 N.E.2d 36, 38.) The issue of whether or not a breach of contract is “material,” thereby discharging the other’s duty to perform, is a question to be decided on the inherent justice of the matter, and a reviewing court will not disturb the findings of the trier of fact unless clearly against the weight of the evidence. Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 462-63, 502 N.E.2d 806, 814.

Section 2.5 of the Agreement which governs the distribution of interest on total capital contributions, by its terms, is only applicable during the “period of existence of [the] partnership.” The Ashers’ expulsion of Susman from the partnership as of September 27, 1974, resulted in a dissolution of the partnership. Although the Agreement defines period of existence as inclusive of the period after dissolution, the Agreement as indicated in section 6.1 did not contemplate dissolution caused by expulsion. The trial court found that the Ashers’ breach of contract was material enough to discharge Susman from any obligation to pay post-dissolution interest under the terms of the partnership agreement. The contract provision which entitled the Ashers to receive interest on their capital contributions became inapplicable when the partnership was terminated by their breach. The trial court’s findings of fact which are clearly supported by the evidence have previously been affirmed by this court. (Susman v. Cypress Venture (1982), 114 Ill. App. 3d 668, 449 N.E.2d 143.) We therefore conclude that the trial court did not err in denying the Ashers post-dissolution interest on capital contributions where their material breach of contract resulted in the termination of the partnership, the repudiation of its agreement and a court-ordered dissolution.

The Ashers further contend that the trial court erred when it divided the net proceeds from the judicial sale on a 50/50 basis. They allege that the division was erroneous because the proceeds should have been divided on the basis of their partnership interest which exceeded 50%.

Section 4.7 of the Agreement provides for the division of the net profits and losses of the partnership. Paragraph (a) of section 4.7 specifically provides that both Susman and the Ashers are to equally share the partnership’s net profits and losses. Moreover, under common-law breach of contract principles and the Uniform Partnership Act, an aggrieved party is entitled to a damage award which equals the profit that would have been realized if the contract had been fully performed. (Restatement of Contracts §329 (1932); Ill. Rev. Stat. 1985, ch. 106½, par. 38(2)(a)(II).) Since the trial court distributed the net proceeds or profits from the judicial sale in accordance with the terms of the Agreement and common-law breach of contract principles, we conclude that the trial court did not err when it divided the net proceeds of the judicial sale equally between the partners.

The Ashers next argue that the trial court erred in failing to vacate the confirmation of the judicial sale. It is their position that Bus-man’s failure to disclose his agreement to purchase the partnership property through a joint venture with Amli Realty constituted a breach of his fiduciary duty to the Ashers. We disagree.

It is the policy of the law to give permanence and stability to judicial sales. (Checkley & Co. v. Citizens National Bank (1969), 43 Ill. 2d 347, 350, 253 N.E.2d 441, 443.) Trial courts have broad discretion in approving or disapproving sales made at their direction, and their decision will not be disturbed absent an abuse of discretion. (Maywood-Proviso State Bank v. Cokinis (1973), 11 Ill. App. 3d 659, 662, 297 N.E.2d 325, 327.) In every dissolution of partnership where judicial sale follows, it is permissible for one or more of the partners to purchase the partnership property. The purchase by a partner is not improper and will not be set aside where (1) grounds exist for dissolution; (2) the judicial sale is properly conducted; and (3) the partner who purchases is not guilty of any breach of fiduciary duty owed to his co-partners. (Mandell v. Centrum Frontier Corp. (1980), 86 Ill. App. 3d 437, 451, 407 N.E.2d 821, 832.) Further, when a partnership is dissolved, the fiduciary relationship between the partners is terminated and they are free to initiate new business ventures. Bluestein v. Davis (1967), 86 Ill. App. 2d 61, 67, 230 N.E.2d 61, 64.

In the present case, after a hearing on the Ashers’ motion to vacate the confirmation of judicial sale, the trial court concluded that (1) the public sale was properly conducted and open to all parties and (2) the agreement between Amli Realty and Susman to purchase the Asher/Susman partnership property was a legitimate business venture in which Susman was legally entitled to participate. Accordingly, the trial court denied the Ashers’ motion. Here, it is clear that (1) the Ashers’ expulsion of Susman from the partnership established grounds for the dissolution; (2) there were no improprieties in the operation of the judicial sale; and (3) although the partners’ fiduciary relationship was terminated when the partnership was dissolved, assuming arguendo that it still existed, Susman was not guilty of breach of his fiduciary duty. We therefore conclude that the trial court did not err in denying the Ashers’ motion to vacate confirmation of the judicial sale.

On cross-appeal, Susman first argues that the trial court erred in granting the Ashers payment of interest on their capital contributions after the September 27, 1974, expulsion of Susman from the partnership. We agree.

As previously discussed, section 2.5 of the Agreement governs the calculation and distribution of interest on the Ashers’ capital contributions. The Agreement provides for the distribution of interest payments to the Ashers during “the period of existence of the partnership.” The partnership’s existence ceased when the Ashers expelled Susman on September 27, 1974. However, the circuit court ordered that the interest earned on capital contributions be allowed to accumulate until April 3, 1981, the date of the court-ordered dissolution. The trial court erred when it determined that the partnership remained in existence until it was dissolved by court order.

A dissolution of a partnership is a change in the relationship of partners caused by any partner ceasing to be associated in the carrying on, as distinguished from the winding up, of the business. (Trecker v. Trecker (1948), 334 Ill. App. 263, 78 N.E.2d 843 (abstract of opinion).) When the Ashers expelled Susman from the partnership on September 27, 1974, he ceased involvement in the carrying on of the partnership business. Therefore, the partnership was dissolved on the date of expulsion; the subsequent court-ordered dissolution only formalized the demise of the partnership.

We therefore conclude that the trial court erred in granting the Ashers payment of interest on capital contributions after their September 27, 1974, expulsion of Susman from the partnership. Accordingly, we reverse page 3, paragraph 2, of the circuit court’s June 24, 1986, order which provided that the Ashers receive interest on their capital contribution until April 3, 1981, and order that the Ashers’ interest payments terminate as of September 27, 1974. We remand this matter to the trial court for recalculation of the Ashers’ interest payment in a manner consistent with this opinion.

Susman next argues that the trial court erred in permitting the Ashers to charge the partnership with $90,175 in legal fees paid to the Ashers’ attorneys. We agree.

The schedule of legal fees for Hilltown Partnership/Susmcm v. Cypress Venture prepared by the Ashers indicates that $51,028 in legal fees paid to two law firms for representation of the Ashers in the Susman v. Cypress litigation were paid from partnership assets. In addition, the Hilltown financial statements prepared by Weber & Bratt, Ltd., accountants for the Ashers, indicate that the partnership was charged $13,000 for a real estate appraisal prepared for use by the Ashers’ attorneys in the Susman v. Cypress Venture case, as well as $6,000 and $10,344.92 for legal representation of the Ashers in the Susman v. Cypress Venture matter. Also, the Hilltown Partnership’s schedule of receipts and disbursements for the period of January through December of 1986 indicates that another law firm was paid $9,802 from partnership funds for legal services performed on behalf of the Ashers in conjunction with the judicial sale of partnership property. In total, the Ashers’ attorneys were paid $90,174.92 from partnership funds.

As a general rule, attorney fees and expenses of litigation are not allowable to a successful party in the absence of a statute or agreement which specifically authorizes payment. (Ritter v. Ritter (1943), 381 Ill. 549, 552, 42 N.E.2d 41, 43.) The Ashers cite the case of People ex rel. Schacht v. Main Insurance Co. (1983), 114 Ill. App. 3d 334, 448 N.E.2d 950, 953, to support the proposition that they were entitled to use partnership assets to pay legal fees because in doing so they were defending the partnership and its interests. However, unlike the Main Insurance Co. case, the Ashers/Susman dispute involved a partnership, not a corporation that had been placed.in receivership. Further, the Cypress v. Schaumburg State Bank and Susman v. Cypress Venture lawsuits both concerned access to and con-

trol over partnership property. The Ashers were not seeking to preserve the partnership entity, but rather to solidify their dominance and control while excluding Susman from any participation .in partnership affairs.

Because we find that the legal expenses incurred by the Ashers were not related to their representation of the partnership as an entity, but rather to their individual interests, we hold that the trial court erred in permitting the Ashers to charge the partnership with $90,174.92 in legal fees paid to the Ashers’ attorneys.

Accordingly, we reverse paragraph 1, page 3, of the circuit court’s June 24, 1986, order denying Susman’s objection to the partnership’s payments of legal fees to the Ashers’ attorneys and that portion of paragraph 1 of the circuit court’s January 16, 1987, order which denied Susman’s objections to the partnership’s payment of legal fees to the Ashers’ attorneys. We remand this matter for a recalculation of the allowable partnership disbursements in a manner consistent with this opinion.

Finally, Susman argues that the trial court erred in permitting the Ashers to pay Hilltown Associates (a corporation owned by the Ashers) $56,642.35 in management fees from partnership funds. We agree.

Section 3.5 of the Agreement provides:

“(a) Except as otherwise provided for in this Article III no partner shall receive any Salaries and Fees, directly or indirectly, from the Partnership for any services rendered to the Partnership in connection with the management of the business of the Partnership, Sale of Property, the refinancing of the property or otherwise.”

Section 3.2 of article III provides that “[ajfter completion of all or substantially all of the development and construction of all or a portion of the Real Property (herein the Completed Projects), the management of the affairs and activities of the Completed Projects shall be in the General Partner and, except as otherwise expressly provided herein, all decisions affecting Completed Projects shall be made by the General Partner. The General Partner may engage independent management companies to act as the agents for all or any of the projects. The General Partner or the designated independent management agents shall be entitled to reimbursement by the Partnership for all out-of-pocket direct management expenses related to the Completed Projects ***.”

The Agreement prohibits payment of management fees to a general partner except as provided within article III. Section 3.2 of artiele III provides that the general partners may be reimbursed for costs associated with the management of completed projects. It is clear from the Agreement that the parties intended this provision to govern the management of developed and improved portions of real property. The management fees in question where paid to Hilltown Associates for the management of undeveloped real estate. The management agreement between Hilltown Associates and the partnership is entitled “Land Management Agreement” and provides that Hilltown Associates arrange for crop and livestock programs and collect rents from lessees of the partnership’s land. The agreement further provides that Hilltown Associates be paid 10% of the partnership’s gross receipts annually for “such farm operations as may be on a crop-share basis” or 10% if the farm is operated on a cash lease basis.

In light of the provisions of the Agreement, and the terms of the land management agreement between Hilltown Associates and the partnership, we find that the Ashers (as the sole owners of Hilltown Associates) improperly received partnership funds in derogation of the express terms of the Agreement. We therefore find that the trial court erred in permitting the Ashers to pay Hilltown Associates $56,642.35 in management fees from partnership funds. Accordingly, we reverse that portion of paragraph 1 on page 3 of the trial court’s June 24, 1986, order which denied Susman’s objections to the partnership’s payment of management fees to the Ashers, and remand this matter for recalculation of permissible partnership disbursements in a manner consistent with this opinion.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part; reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

FREEMAN, P.J., and WHITE, J., concur.