text:
    MICHAEL H. CHRISTIANSEN, Plaintiff-Appellee and Cross-Appellant, v. JIM EDGAR, Secretary of State, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4-90-0372
    Opinion filed February 21, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Brassfield, Cowan & Howard, of Rockford (David J. Brassfield, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff, Michael H. Christiansen, petitioned the Secretary of State (Secretary) seeking full reinstatement of his driving privileges, or in the alternative, a restricted driving permit (RDP). The Secretary, upon the recommendation of the hearing officer, denied both the full reinstatement and the RDP. Upon administrative review, the circuit court of Sangamon County affirmed the Secretary’s denial of full reinstatement, but reversed the denial of an RDP and ordered that such a permit be issued. Plaintiff appeals the denial of full reinstatement, while the Secretary appeals the issuance of the RDP. We affirm in part and reverse in part.

A review of plaintiff’s driving record reveals the following convictions: (1) May 22, 1981, speeding too fast for conditions; (2) November 16, 1981, improper left turn with oncoming traffic (Wisconsin); (3) March 26, 1982, disregarding a stop or yield sign at an intersection; (4) March 22, 1982, reckless driving (Wisconsin); and (5) May 16, 1986, driving under the influence of alcohol (DUI). The reckless driving conviction was the result of a DUI arrest. As a result of the 1981 and 1982 convictions, pursuant to section 6 — 206(a)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1981, ch. 95½, par. 6 — 206(a)(2)), plaintiff’s driver’s license was suspended for a period of 12 months by order entered March 23, 1982, and terminated June 28, 1983. Plaintiff was issued an RDP on July 8, 1982, which expired on June 28, 1983. Plaintiff was then arrested for DUI in 1986.

A statutory summary suspension was entered effective May 3, 1986, and an order revoking plaintiff’s driver’s license and driving privileges was entered effective June 10, 1986, pursuant to section 6 — 205(a)(2) of the Code (Ill. Rev. Stat. 1985, ch. 95½, par. 6— 205(a)(2)). The driving privileges of plaintiff have not yet been restored, and plaintiff has not driven a motor vehicle since the entry of this order.

Plaintiff has undergone three separate alcohol-drug evaluations (evaluations) with three different classifications resulting. The first evaluation was conducted in April 1986 by Carol Ann Poshka, a certified addictions counselor at Treatment Alternatives to Street Crimes (TASC), which was required after his March 1986 DUI. Poshka classified plaintiff at Level III — alcoholism-chemical dependency. (See 92 Ill. Adm. Code §1001.410, at 3256 (Supp. 1987) (eff. March 18, 1986).) Poshka reported plaintiff was arrested in 1970 in Rock County, Wisconsin, for DUI and his license was suspended for 11 months thereafter. Poshka reported this information concerning an arrest in 1970 came from plaintiff. Plaintiff’s possible arrest for DUI in 1970 is a disputed fact between the parties. A review of the certified copy of plaintiff’s driving record dated June 21, 1988, reveals no arrest for DUI in 1970.

Poshka’s recommendation was for residential treatment followed by aftercare, but plaintiff did not follow this recommendation. In April 1987, plaintiff voluntarily returned to TASC and was referred to AL-TECH, Inc., which recommended an alcohol intervention program (AIP). This program was designed for persons classified as Level II— problematic alcohol users. (See 92 Ill. Adm. Code §1001.410, at 3256 (Supp. 1987) (eff. March 18, 1986).) Plaintiff attended this out-patient program from April 7, 1987, through June 2, 1987. According to the discharge summary of the counselor at AIP, plaintiff’s participation in the program was satisfactory. The counselor characterized the prognosis of plaintiff as “guarded” but supported his intentions to continue the abstinence from alcohol. At that time, plaintiff had been abstinent for approximately three months.

After successfully completing the AIP, plaintiff returned to TASC for an updated evaluation to use when seeking reinstatement of his driving privileges. The second evaluation was conducted by Raymond Johnson on July 2,'1987. Johnson classified plaintiff at Level I — non-problematic use (see 92 Ill. Adm. Code §1001.410, at 3256 (Supp. 1987)) with no recommendation for further treatment, but he suggested a countermeasure of remedial alcohol and drug education (see 92 Ill. Adm. Code § 1001.440(b)(1), at 3259 (Supp. 1987)). Johnson based his Level I classification on plaintiff’s completing the AIP, plaintiff’s reported and verified abstinence, plaintiff’s positive attitude towards his abstinence and plaintiff’s statement that he no longer had a need or desire for the use of alcohol. (See 92 Ill. Adm. Code §1001.440(d)(12), at 3260 (Supp. 1987).) Johnson also noted in his report that plaintiff had his driver’s license suspended for an 11-month period in 1970 for three moving violations or excessive points in one year which “may have been in part alcohol related.”

In July 1987, approximately six days after the second evaluation, plaintiff applied for reinstatement of his driving privileges. An informal hearing was held, and on July 27, 1987, plaintiff’s application was denied.

A little less than a year later, plaintiff returned to AL-TECH for yet a third alcohol-drug evaluation to utilize in another application for reinstatement of his driving privileges. Sandra Dorr conducted the evaluation and issued a report on February 26, 1988, which classified plaintiff at Level II — problematic use (abstinent) with no further recommendation for treatment. (See 92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988).) She did suggest a countermeasure of continued abstinence, outside support such as church or, at the very least, an outlet other than work. Dorr’s evaluation was based on plaintiff’s continued sobriety, successful completion of the AIP and a driver remedial course in Wisconsin, and his change in life-style. Dorr relied on the previous TASC evaluations in reaching her classification. Dorr noted that plaintiff had his license suspended in 1970 for moving violations.

On March 24, 1988, Dorr attached an addendum to her previous evaluation of plaintiff. In this addendum, Dorr explained her rationale for classifying plaintiff as a Level II (abstinent). She further explained that she classified plaintiff at Level II because he did not have more than one alcohol-related incident in the last five years, there were alcohol-related problems in only one significant life area, and he did not have a blood-alcohol content of .20 in any of the DUI arrests. She noted that although plaintiff was first classified at Level III (by Poshka), he was not ordered back to TASC for treatment. Subsequently, plaintiff was referred to a Level II program (AIP), which he completed and was thereafter classified as Level I (by Johnson). Dorr wrote that TASC was unable to explain why plaintiff was placed in a Level II out-patient program although he had previously been classified as Level III with a recommendation for residential treatment. Despite the confusion, Dorr did not change her classification of plaintiff as Level II (abstinent) and her recommendation remained the same. She also noted that the suggestion of an outside outlet was only meant for helpful advice and not as a formal recommendation.

In April 1988, plaintiff again applied for reinstatement of his driving privileges. On July 15, 1988, a formal hearing was held on plaintiff’s application. At the time of the hearing, plaintiff was 38 years old, married, and had two dependent children. Plaintiff had been married to Judy Christiansen, his current wife, for only two weeks. Plaintiff’s current wife is a born-again Christian, does not consume alcohol, and does not allow alcohol to be brought into her home.

At the time of the hearing, plaintiff was employed by State Line Foundries in Roscoe, Illinois, and had been so employed for 18 years. He was an assistant to the president and supervised approximately 100 employees. Plaintiff’s regular hours of employment were 5:30 a.m. to 3 p.m., Monday through Friday. However, plaintiff was on call 24 hours a day and testified that on many occasions he worked on Saturday and Sunday.

Plaintiff stated that he lived 10 miles from his place of employment but on occasion is required to travel a distance of up to 25 miles from his place of employment for employment-related business. Plaintiff received rides to and from work with his former brother-in-law, a fellow employee. Another co-worker provided plaintiff with transportation for any other employment-related driving. Plaintiff’s former brother-in-law is paid by State Line Foundries for any overtime caused by having to drive plaintiff, and he is also paid weekly by plaintiff.

Plaintiff testified that he had been abstinent since March 1987 and had no desire to return to drinking. He stated he no longer socializes with his “drinking buddies,” and he expressed a desire to begin attending church as an outside support group. Plaintiff stated he had attended three Alcohol Anonymous meetings while in the AIP, but was not sure if he would attend any more if his driving privileges were reinstated.

The hearing officer found the most recent alcohol-drug evaluation classified plaintiff as Level II (abstinent). (See 92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988).) The hearing officer noted plaintiff has a history of problematic use of alcohol and was previously classified as Level III — problematic-use, dependent. Finally, the hearing officer found that plaintiff had successfully completed an alcohol-intervention program, had not consumed alcohol since March 1987, and did not plan to drink alcohol in the future.

The hearing officer concluded plaintiff failed to meet his burden of proof that his alcohol-drug problem had been resolved. The hearing officer concluded the present alcohol evaluation is questionable because the evaluator did not have knowledge of plaintiff’s “three DUI arrests.” The hearing officer also concluded there were reasonable alternative means of transportation available to plaintiff other than driving himself to work. Finally, the hearing officer concluded plaintiff did not establish that he would be a safe and responsible driver and that he would not endanger the public safety and welfare. The hearing officer recommended that full reinstatement of driving privileges and the RDP should be denied.

On September 16, 1988, the Secretary adopted the recommendations, findings of fact, and conclusions of law of the hearing officer. On October 3, 1988, plaintiff filed a complaint seeking administrative review. On May 14, 1990, a written order was entered affirming the denial of full reinstatement but reversing the denial of the RDP.

The Administrative Review Law provides that the findings and conclusions of an administrative agency on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) A court may not overturn the decision of an administrative body unless the authority of the administrative body was exercised in an arbitrary or capricious manner or the decision is against the manifest weight of the evidence. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) A reviewing court is not to reweigh the evidence or make an independent review of the facts; rather, its sole function is to ascertain whether the final decision of the administrative agency is just and reasonable in light of the evidence presented. (Berry v. Edgar (1989), 192 Ill. App. 3d 455, 548 N.E.2d 575.) If there is anything in the record which fairly supports the agency’s decision, such decision is not against the manifest weight of the evidence and must be sustained upon review. (Berry, 192 (Ill. App. 3d at 459, 548 N.E.2d at 578.) Thus, in order for the circuit court to find the Secretary’s decision was against the manifest weight of the evidence, it must have determined, after viewing the evidence in the light most favorable to the Secretary, that no rational trier of fact could have agreed with the Secretary’s decision. Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 492 N.E.2d 929.

I. DENIAL OF FULL REINSTATEMENT

Plaintiff contends the Secretary’s decision to deny him full reinstatement of his driving privileges is against the manifest weight of the evidence. Section 6 — 208(b) of the Code provides for application for full reinstatement of driving privileges after these privileges have been revoked. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 208(b).) In addition, the Secretary has promulgated regulations which set forth the requirements for full reinstatement as well as for issuance of an RDP. (See 92 Ill. Adm. Code §1001.400 et seq. (Supp. 1988).) In order to be granted any driving privileges, if the loss of driving privileges was alcohol related, an applicant must prove that he does not have a current problem with alcohol or other drugs, that he is a low or minimal risk to repeat his past abusive behavior and operate a motor vehicle while under the influence of alcohol or other drugs, and that he has complied with aU other standards as specified in the regulations. (See 92 Ill. Adm. Code §1001.440(b), at 3521 (Supp. 1988).) Furthermore, an applicant must prove the reinstatement of his driving privileges will not endanger the public safety and welfare. (See 92 Ill. Adm. Code § 1001.420(e), at 3519 (Supp. 1988) (issuance of RDP); §1001.430(c), at 3520 (Supp. 1988) (reinstatement after revocation).) The total driving record of the applicant, as well as any alcohol-drug evaluations provided by the applicant, may be used in making this determination. (See 92 Ill. Adm. Code §§ 1001.420(d), 1001.430(b) (Supp. 1988).) However, these evaluations are not dispositive of the issue and are not the sole factor to be considered. Berry, 192 Ill. App. 3d at 460, 548 N.E.2d at 578; see, e.g., 12 Ill. Adm. Code § 1001.440(d), at 3522 (Supp. 1988) (lists evidence which shall be considered in determining whether applicant met his burden of proof and, in particular, has overcome presumption of current alcohol-drug problem).

Plaintiff contends that his second and third alcohol evaluations establish that he has resolved his alcohol problem and, therefore, the full reinstatement of his driving privileges will not endanger the public safety and welfare. The Secretary contends these evaluations are questionable because the evaluators did not have complete knowledge of the plaintiff’s driving record.

Great emphasis is placed in the briefs of the parties on whether the plaintiff was arrested for DUI in 1970 in Wisconsin. Plaintiff contends he was not arrested for DUI in 1970, but rather, had his license suspended for an 11-month period due to three moving violations or excessive points in one year. The Secretary, on the other hand, contends it was entitled to conclude reliable evidence supported a finding that plaintiff was arrested in 1970 for DUI, i.e., based on statements made to the first evaluator, Poshka.

Plaintiff argues, assuming that there was a 1970 arrest for DUI, since it would have occurred 18 years prior to the formal hearing, it would not be relevant. Plaintiff relies on this court’s decision in Britt v. Edgar (1989), 192 Ill. App. 3d 469, 548 N.E.2d 826, for support. In Britt, the plaintiff, in the 10 years prior to his hearing, had been convicted of speeding and DUI. In response to this driving record, this court stated:

“We recognize the Secretary, per his regulations, considers the applicant’s total driving record in deciding whether to issue an RDP. (92 Ill. Adm. Code § 1001.420(d), at 3519 (Supp. 1988).) However, at some point in time the relative weight of the prior offenses decreases and may no longer justify a finding that restoration of an applicant's driving privileges will cause harm to public safety and welfare. At some point, even a felon’s background convictions become inadmissible. (Compare, e.g., People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, as discussed in Fitzpatrick v. Edgar (1987), 158 Ill. App. 3d 966, 512 N.E.2d 56 (McCullough, J., dissenting).)” (Britt, 192 Ill. App. 3d at 474, 548 N.E.2d at 829-30.)

Plaintiff contends, based on the above language, that the 1970 arrest is so remote in time that it was error for the hearing officer to question the second and third evaluations for lack of knowledge of this arrest.

We find Britt distinguishable. In Britt, we held that the offenses occurring 10 years prior to the hearing were not as relevant in determining that the issuance of an RDP would constitute a present danger to public safety and welfare. On the contrary, the hearing officer in this case used the offense occurring 18 years prior to the hearing to question the classification of the plaintiff as determined by the alcohol evaluations. The classifications are important because they determine what an applicant must prove to be qualified for restoration of any form of driving privileges. Different classification levels have different requirements. (See, e.g., 92 Ill. Adm. Code §§1001.440(b), (e), at 3521-22 (Supp. 1988).) Therefore, arrests occurring many years prior to the hearing may be relevant to determine the level of classification of alcohol dependency (see 92 Ill. Adm. Code §1001.440(c), at 3522 (Supp. 1988)) and also in evaluating whether an applicant has met his burden of proof (see 92 Ill. Adm. Code § 1001.440(d), at 3522 (Supp. 1988).

Plaintiff contends that this 1970 arrest was not a DUI, but he offered no evidence in the administrative proceeding to that effect other than his own statement. Indeed, on cross-examination about a 1970 incident, plaintiff testified he had been involved in an accident in Wisconsin in 1970 and had been drinking prior to the accident, but said he was not arrested for DUI. It is quite possible that had plaintiff offered some independent evidence as to the exact nature of this 1970 offense, the hearing officer would not have questioned the validity of the second and third evaluations. However, as no such evidence was presented, the hearing officer was justified in questioning the second and third evaluations and, thus, concluding that plaintiff had not met his burden of proof that he would not endanger the public safety and welfare.

Plaintiff’s next argument is that the hearing officer failed to consider all of the factors listed in the regulations when making a determination that plaintiff does not have a current drinking problem and that he is at a minimal risk to repeat his past behaviors and the operation of a motor vehicle while under the influence of alcohol. Specifically, plaintiff cites section 1001.440(d) of title 92 of the Elinois Administrative Code (92 Ill. Adm. Code §1001.440(d), at 3522 (Supp. 1988)), which lists the factors that may be presented as evidence that the applicant has met his burden of proof and, in particular, has overcome the presumption of a current alcohol-drug problem. These factors include such items as the age of the applicant, the applicant’s total driving record, similarity of circumstances between DUI arrests, and changes in life-style by the applicant since his latest DUI arrest.

The Secretary responds that it is not required to mechanically apply each and every factor listed in that section but, rather, should use these factors as a guideline when making a determination. We agree.

The hearing officer is required to consider all the evidence presented and the applicant’s entire driving record when making a decision. However, the hearing officer is allowed to, and, as the trier of fact, must make determinations as to the credibility of witnesses, the admissibility of evidence, and the weight to be accorded each piece of evidence. Simply because the hearing officer did not list a specific factor in his findings of fact or conclusions of law does not mean he did not consider that factor. Therefore, we reject plaintiff’s argument that the hearing officer erred because he failed to list every factor enumerated in the regulations in his decision.

The Secretary argues that for restoration of any driving privileges, if an applicant has been classified as Level III — problematic use, dependent, he “must document compliance with all treatment recommendations of his/her evaluator and must prove that he/she has established an ongoing support/recovery program.” 92 Ill. Adm. Code §1001.440(b)(3), at 3259 (Supp. 1987).

The Secretary contends that plaintiff has not complied with all the treatment recommendations of his evaluator according to the first evaluation in 1986 and that plaintiff has not established an ongoing support-recovery program. “Support-recovery program” has been defined to mean:

“[Sjpecific activities which a recovering alcoholic/chemically dependent person has incorporated into his/her lifestyle to help support his/her continued abstinence from alcohol and other drugs. Such a program may include, but is not limited to, self-help program participation, professional counseling, religious involvement, and support provided by engaging in free-time, recreational activities in social organizations or with friends and significant others.” 92 Ill. Adm. Code §1001.410, at 3518-19 (Supp. 1988).

Plaintiff has failed to comply with the necessary requirements set forth in the regulations for an applicant classified as a Level III— alcohol-dependent user. Plaintiff’s completion of the AIP, a Level II program, is insufficient to demonstrate compliance with the treatment recommendations of his first evaluation, which put him at Level III— alcohol dependent. Plaintiff must complete a Level III residential program followed by aftercare in order to demonstrate compliance with the recommendations of his first evaluation. Plaintiff has failed to prove that he has established a support-recovery program. Plaintiff’s statement that he would consider starting to attend church is insufficient to demonstrate that he has established a support-recovery program. Therefore, since plaintiff has not shown compliance with the regulations, the denial of full reinstatement of driving privileges was not against the manifest weight of the evidence.

This does not mean that an applicant who has had more than one evaluation and those evaluations have different conclusions must demonstrate compliance with the regulations for each level at which the applicant was classified. We do not hold that once an applicant has been classified at a certain level, he may never be reclassified at a different level. Indeed, as in this case, events subsequent to the first evaluation may indicate a change in the applicant’s level of alcohol dependency. We note that in this case, since the hearing officer questioned the reliability of the second and third evaluations and thus relied primarily on the first evaluation to conclude plaintiff had not met his burden that he had resolved his alcohol problem, the hearing officer could rely on the fact that plaintiff had not complied with the regulations for an applicant placed at Level III to draw this conclusion.

Plaintiff is not precluded from presenting for future evaluations and in proceedings on any future application for restoration of driving privileges additional independent evidence on the exact nature of his arrest in 1970 in Rock County, Wisconsin. The Secretary may deem such evidence, along with evidence of continued abstinence, sufficient to sustain plaintiff’s burden in such proceedings, though the Secretary is not of course required to reach that conclusion.

II. DENIAL OF RDP

The Secretary appeals that portion of the circuit court’s order which reversed the denial of an RDP. The Secretary contends that the decision of the Secretary to deny the RDP was not against the manifest weight of the evidence.

The law in Illinois is clear that once a person’s driving privileges have been revoked, the restoration of these privileges is not automatic. (Agans, 142 Ill. App. 3d 1087, 492 N.E.2d 929.) Section 6— 205(c) of the Code provides:

“[T]he Secretary of State in his discretion, without regard to whether such recommendation is made by the court, may, if application is made therefor, issue to such person a restricted driving permit granting the privilege of driving a motor vehicle between the petitioner’s residence and petitioner’s place of em-. ployment [or within other specified limits], if the petitioner is able to demonstrate that no alternative means of transportation is reasonably available and the petitioner will not endanger the public safety or welfare; provided that the Secretary’s discretion shall be limited to cases where undue hardship would result from a failure to issue such restricted driving permit.” (Ill. Rev. Stat. 1987, ch. 95½, par. 6-205(c).)

Thus, the factors in determining whether to issue an RDP are the degree of hardship which deprivation of driving privileges imposes upon the applicant, whether alternative means of transportation are available, and whether issuance of the permit would prove a danger to public safety and welfare. Britt, 192 Ill. App. 3d 469, 548 N.E.2d 826.

“Undue hardship” is defined in the regulations as: “[A]n extreme difficulty in regard to getting to or from an Applicant’s place of employment or to operate on a route during employment *** because of the suspension, revocation, or cancellation of the Applicant’s driving privileges. It is more than mere inconvenience on the Applicant ***.” (92 Ill. Adm. Code §1001.410, at 3519 (Supp. 1988).) The evidence established that plaintiff lived approximately 10 miles from his place of employment and is required to drive up to 25 miles away from his place of employment on employment-related business. Plaintiff received rides to and from work from a co-worker and plaintiff’s employer provided a driver when plaintiff needed to travel away from the foundry on work-related business. There is no indication whatsoever that, if plaintiff’s driving privileges are not reinstated, he will lose his job. On the contrary, it appears that State Line Foundries has accommodated plaintiff in providing this service.

Therefore, since there are reasonable alternative means of transportation, plaintiff has failed to prove that undue hardship will result if he is denied an RDP. Since plaintiff has not proved undue hardship, the decision of the Secretary in denying his application for an RDP was not against the manifest weight of the evidence.

In conclusion, we find that the decision of the Secretary in denying plaintiff full reinstatement, or in the alternative, an RDP, was not against the manifest weight of the evidence. We affirm that part of the circuit court’s order affirming the Secretary’s denial of full reinstatement and reverse that part of the circuit court’s order reversing the Secretary’s denial of an RDP.

Affirmed in part, and reversed in part; and Secretary’s order reinstated.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE VILLAGE OF GOODFIELD, Plaintiff-Appellee, v. MARGARET KNAPP et al., Defendants-Appellants.
    Fourth District
    No. 4-90-0543
    Opinion filed February 21, 1991.

      Larry M. Leiken, of Eureka, for appellants.
    Frederick G. Hoffman and Craig W. Stensland, both of Hinshaw & Culbertson, of Peoria, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Margaret and Harry Knapp and the Conklin Players, Inc., appeal from an order of the Woodford County circuit court granting a motion for summary judgment filed by the Village of Goodfield (Village). The circuit court concluded the Knapps did not reside in an “annexed area” within the meaning of the Liquor Control Act of 1934 (Act) (Ill. Rev. Stat. 1989, ch. 43, par. 93.9 et seq.) and, thus, the petition they filed to discontinue the liquor prohibition in the Village was invalid. We affirm.

The Knapps filed a petition, pursuant to section 9 — 9 of the Act (Ill. Rev. Stat. 1989, ch. 43, par. 173.1), with the Village on July 11, 1989, seeking to discontinue the liquor prohibition in an area described in the petition. The Knapps filed the petition as the only registered voters in the described area.

The Village had annexed the area described in the Knapps’ petition by ordinance dated March 2, 1978. Prior to annexation, the area was part of the Township of Montgomery (Township). At annexation, and continuously since April 1, 1947, the Township maintained a prohibition against the retail sale of alcoholic beverages in the Township. The Village also prohibited the retail sale of alcoholic beverages when the area was annexed in 1978.

Conklin Players operates a regional dinner theater within the annexed area. Conklin Players petitioned the Village to place the liquor prohibition on the ballot in 1981. Village voters voted to continue the prohibition in an election held April 7, 1981, and defeated a similar proposal, also made by Conklin Players, on April 2,1985.

On August 10, 1989, the Village filed a complaint in Woodford County circuit court seeking a declaratory judgment. Specifically, the Village sought a ruling that the Knapps’ petition was invalid and section 9 — 9(b) of the Act (Ill. Rev. Stat. 1989, ch. 43, par. 173.1(b)) inapplicable.

Conklin Players petitioned the circuit court to intervene on September 11, 1989, and the court granted the motion on September 25, 1989.

The Village filed a motion for summary judgment on January 16, 1990. The court granted the motion on July 10, 1990, concluding the Knapps’ petition was invalid, as they did not live within an “annexed area” within the meaning of the Act. The Knapps and Conklin Players filed a timely notice of appeal.

The issue on appeal is whether the circuit court erroneously interpreted the Act. Under the Act, an “[ajnnexed area” is “a territory which has attached to and become a part of a different political subdivision or precinct. The term shall be an appropriate designation only until the area to which it attaches holds a referendum hereunder.” (Ill. Rev. Stat. 1989, ch. 43, par. 166.) Section 9 — 8 of the Act sets forth the procedure for altering the status, as to the sale of liquor, in a political subdivision which annexes new territory:

“The status of all the territory within any political subdivision or precinct, relative to the sale at retail of alcoholic liquor *** shall remain the same, notwithstanding any change which may be made in the limits of any such political subdivision or precinct until the voters thereof have changed such status as to annexed or disconnected areas under the provisions of Section 9 — 9 of this Article, or until the voters have changed such status for areas other than annexed or disconnected areas under the provisions of Section 9 — 2 or Section 9 — 10.” Ill. Rev. Stat. 1989, ch. 43, par. 173.

The First District Appellate Court summarized the statutory scheme of section 8.1 (Ill. Rev. Stat. 1977, ch. 43, par. 173.1) as follows:

“Voters residing in annexed or disconnected areas may change the status of their areas in two ways. Section 8.1(a) of article IX provides for a special election by the voters of the area. (Ill. Rev. Stat. 1977, ch. 43, par. 173.1(b).) Section 8.1(b) of article IX provides that the status of such an area may be changed by filing a petition containing the signatures of not less than two-thirds of all the legal voters residing in the area. (Ill. Rev. Stat. 1977, ch. 43, par. 173.1(b).) Unless the filed petitions are challenged within 30 days, the change in status takes place. A referendum vote is required for areas which are not annexed or disconnected. Ill. Rev. Stat. 1977, ch. 43, pars. 167 and 174.” Bilandic v. 1011 Club, Inc. (1979), 73 Ill. App. 3d 451, 452, 392 N.E.2d 600, 601.

The circuit court granted the Village’s motion for summary judgment, stating:

“The area described in Defendants’ petition to discontinue liquor prohibition was annexed to the Village of Goodfield (Plaintiff herein) by ordinance adopted on March 2, 1978. On April 7, 1981, the Village of Goodfield, the area to which Defendants’ property was attached, held a local referendum relative to the sale of alcoholic liquor. (Ill. Rev. Stat. 1989, ch. 43, par. 173.) On April 2, 1985, another referendum was held. Pursuant to the definition of ‘annexed area’ in paragraph 166, the territory in which Defendants reside lost its status as ‘annexed area’ on April 7, 1981. (Ill. Rev. Stat. 1989, ch. 43, par. 166.) Ergo, Defendants’ property is not ‘annexed area’ and its status may be changed only by referendum vote. (Ill. Rev. Stat. 1985, ch. 43, par. 173.) Paragraph 173.l[a] will not assist Defendants as they do not wish to continue the area’s current status. Said paragraph is inapplicable to the case at bar. Ill. Rev. Stat. 1989, ch. 43, par. 173.1[a].
The Legislature has provided a statutory scheme for the continuation or change in status relative to sale of alcohol at retail where a territorial change has occurred. Attorney Leiken is correct that the procedure to change the status of an ‘annexed area’ is a simple summary procedure, but the definition provided by the Legislature indicates an intent of stability. That is, once the referendum approach is utilized, the simple summary approach is lost.”

The Knapps and Conklin Players argue the circuit court focused on the definition of “[a]nnexed area” in section 9 — 1 (Ill. Rev. Stat. 1989, ch. 43, par. 166) and ignored other portions of the Act. Specifically, they argue the court failed to consider the language of section 9 — 8 (Ill. Rev. Stat. 1989, ch. 43, par. 173), which states the status of a territory remains the same notwithstanding a boundary change until the voters have changed the status of the original territory. The referenda of 1981 and 1985 did not change the Village’s status and, thus, have no effect in the present controversy. The Knapps and Conklin Players argue strict application of the definition of an “[a]nnexed area” would therefore render meaningless the language of section 9— 8 (Ill. Rev. Stat. 1989, ch. 43, par. 173), requiring a change in status.

They also contend the circuit court ignored the language of sections 9 — 9(a) and (c). (Ill. Rev. Stat. 1989, ch. 43, pars. 173.1(a), (c).) Section 9 — 9(a) provides, in pertinent part: “The provisions in Sections 9 — 1, 9 — 2, 9 — 4, 9 — 5, 9 — 6 and 9 — 7 shall apply except where they conflict with this Section, in which event the provisions of this Section shall control.” (Ill. Rev. Stat. 1989, ch. 43, par. 173.1(a).) Section 9 — 9(c) states: “A vote under subsection (a) above or the filing of a valid petition under subsection (b) above shall bar further proceedings under this Section for 47 months thereafter.” (Ill. Rev. Stat. 1989, ch. 43, par. 173.1(c).) The Knapps and Conklin Players contend this section limits the effective period of the result of an election or petition to 47 months. Finally, the Knapps maintain they successfully changed the status of the territory in which they reside using the petition method set forth in section 9 — 9(b) (Ill. Rev. Stat. 1989, ch. 43, par. 173.1(b)), as they are the only legal voters residing in the area annexed by the Village.

We disagree with all of these arguments. The annexed area ceased to be an annexed area within the meaning of the Act when the Village held its 1981 referendum pursuant to the Act. The only means now available to alter the Village’s prohibition on the retail sale of alcohol is another referendum. The Village asserts, and we agree, it would be an absurd interpretation of the statute to find, after the entire municipality has elected to continue the prohibition against alcohol, that two voters who have been part of the Village through both of these village-wide referenda would be able to change the status of their part of the Village by simply filing a petition. Section 9 — 8 of the Act (Ill. Rev. Stat. 1989, ch. 43, par. 173) simply protects the existing status of a political subdivision which annexes additional territory. Annexation of territory with a different status than the annexing territory does not change the status of the annexing territory until voters conduct a referendum pursuant to the Act to change the status. This section is inapplicable in this case because both the Village and the area annexed prohibited the retail sale of alcoholic beverages.

The defendants also misinterpreted the 47-month limit found in section 9 — 9(c) (Ill. Rev. Stat. 1989, ch. 43, par. 173.1(c)). The legislature included the 47-month provision to preclude status change questions at every election, and allows such questions to appear on the ballot only after the lapse of 47 months from the last time the issue appeared.

Our function on review is to determine whether the trial court correctly concluded there were no issues of material fact and correctly entered summary judgment for the Village. Summary judgment is appropriate “when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” (Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 304, 541 N.E.2d 226, 230.) The circuit court correctly concluded there were no genuine issues of material fact. Once the Village held the 1981 referendum, pursuant to the Act, the area in which the Knapps reside was no longer an “[ajnnexed area” for purposes of the Act. (Ill. Rev. Stat. 1989, ch. 43, par. 166.) Sections 9 — 8 and 9 — 9 (Ill. Rev. Stat. 1989, ch. 43, pars. 173, 173.1) are inapplicable to this case.

The judgment of the Woodford County circuit court is affirmed.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
      In re ESTATE OF RENEE A. LANDE, Deceased (Gladys Lande, Independent Adm’r, Petitioner-Appellee, v. Gilbert Lande, Respondent-Appellant).
    Fourth District
    No. 4-90-0519
    Opinion filed February 21, 1991.
    Robert F. Lisco, of Lisco & Field, of Chicago (Jill Kline, of counsel), for appellant.
    Hayes & Power, of Chicago (Joseph A. Power, Jr., Thomas G. Siracusa, David A. Novoselsky, and Linda A. Bryceland, of counsel), for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

This is an appeal from a February 22, 1990, order of the circuit court of Adams County, which provided for the distribution of a wrongful-death settlement, and from the order of June 28, 1990, denying the motion for reconsideration. The order provided for distribution of 90% of the funds to Gladys Lande, mother of decedent Renee A. Lande, and 10% of the funds to Anita Lande, a sister of Renee. The order provided that Gilbert Lande, Renee’s father, would receive nothing.

Renee died at age 23 in a vehicle accident in Adams County. Immediately preceding her death, she was a television news reporter. The trial court’s February 22, 1990, order specifically provided:

“1. Gilbert Lande is the natural father of the decedent, Renee A. Lande, Gladys Lande is her natural mother, and Anita Lande is her sister.
2. Following the divorce of Gilbert and Gladys Lande, when Renee was about two years old, Gilbert provided minimal child support and declined to exercise visitation with the children. After his child support was reduced shortly after the divorce due to a decrease in his income, Gilbert never increased the support despite subsequent increases in his income.
He testified that he spoke with Renee two or three times while she was in high school, contacting her by phone, and also when she was in college. He lived twelve blocks from his daughters’ home for nearly fifteen years while they attended grade school, high school and college, but never attempted to visit them. He did not send his daughters cards or letters. He claims that his former wife, Gladys, discouraged and/or prevented contact with the children. Gladys denied such conduct on her part, and Anita, who was very close to Renee in age and as a sister, testified Renee never mentioned being contacted by Gilbert.
At the time of her death, Gilbert did not know where Renee lived or how she was employed, and did not know when she had moved out of her mother’s home. He did not pay any of her college expenses, nor did he receive any financial support from Renee, despite being disabled while Renee was employed after college.
3. The testimony of Gladys and Anita is credible, while that of Gilbert is not totally credible.
4. In view of the evidence and the circumstances, Gilbert was estranged from his daughter, Renee, and therefore is not entitled to recover for a claim of pecuniary injury due to loss of society. Gabriel v. Illinois Farmers Insurance Co., [171] Ill. App. 3d 663 (1988).”

Gilbert contends that the evidence did not establish by clear and convincing evidence that he was estranged from Renee and, additionally, that estrangement is not sufficient and a showing of abandonment is necessary to justify an order denying him part of the wrongful-death settlement.

Section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, par. 2) provides for recovery for pecuniary injuries and includes the following provisions:

“[NJext of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.”

The distribution of the funds has been tied to the right to recover for loss of a child’s society, in the absence of evidence of the child’s actual support of a parent or sibling. (Gabriel v. Illinois Farmers Insurance Co. (1988), 171 Ill. App. 3d 663, 668-69, 525 N.E.2d 864, 867-68.) Parents are entitled to a presumption of pecuniary injury in the loss of a child’s society, but this presumption may be rebutted by evidence that a parent and child were estranged. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 517, 468 N.E.2d 1228, 1234.) We are aware that the question of whether the loss of society presumption applies to children who have reached the age of majority was not present in the Bullard case. (Bullard, 102 Ill. 2d at 517, 468 N.E.2d at 1234.) While the Bullard opinion expressly uses the word “estranged,” Gilbert would have us decide that there must be a finding of abandonment, citing Mortensen v. Sullivan (1972), 3 Ill. App. 3d 332, 335, 278 N.E.2d 6, 9. Gilbert also contends that the Gabriel opinion suggests the presumption of loss discussed in Bullard must be rebutted by “clear and convincing” evidence. We find no such suggestion in Bullard or elsewhere. The Gabriel appellate opinion quoted the trial court decision, which stated in part: “ ‘The Court finds that the evidence is clear and convincing that no relationship existed ***.’ ” (Gabriel, 171 Ill. App. 3d at 666, 525 N.E.2d at 866.) There is no further reference to “clear and convincing,” and the appellate opinion does not adopt that test. We do not adopt the clear and convincing test, but acknowledge that issue is not before us. The trial evidence was in fact clear and convincing.

The Mortensen opinion discussed loss of future financial support from a son who was near college age at the time he was killed. At the time of the Mortensen opinion, a presumption of pecuniary loss upon the death of a child existed, which arose from the common law rule that a parent is entitled to the services and earnings of an unemancipated minor child. This presumption was put to rest by the opinion in Bullard. (Bullard, 102 Ill. 2d at 516-17, 468 N.E.2d at 1234.) The trial court in Mortensen held there was no possibility that the decedent would ever contribute to his father’s support at any time, basing its decision solely on the fact that the father had sought termination of child support because the son was employed and self-supporting. This fact, combined with evidence that the son had applied for college admission, was the only evidence which would have defeated the then-existing presumption of benefits. The facts are not similar to the present case, and the opinion predates the Bullard decision. We find it inapplicable.

Other authorities are cited by Gilbert, arguing his abandonment theory. If the theory was adopted by this court, it would be in conflict with the Bullard opinion and, in our opinion, would be unjustified.

The hearing for purposes of determining the distribution of the agreed settlement consisted first of testimony in open court by Gladys Lande and the decedent’s sister, Anita Lande. Based on representation of counsel that for health reasons Gilbert could not appear in court, he was allowed to subsequently give an evidence deposition.

Gladys Lande testified of the 1967 divorce, at which time Renee was two years of age (Anita was one year younger). Support was set at $250 per month but, within a few months, Gilbert petitioned for modification based upon no income, and the payments were reduced to a total of $20 per week for both children. According to Gladys (and also testified to by Gilbert), this amount was never increased. Gladys also testified to raising the daughters in a close, loving relationship, and that Gilbert never contacted the two girls. No gifts, cards, or letters were received from Gilbert. According to Gladys, Renee never indicated an interest in seeing Gilbert. Renee took a position in Quincy, Illinois, as a television news reporter after graduating from Northern Illinois University. Gladys and Anita talked to her daily by telephone, and Renee visited Gladys’ home in Skokie about once a month.

Anita’s testimony substantiated that of Gladys and included that she had never been contacted by her father prior to Renee’s death. She did not know him. Anita also testified of the close family relationship between her mother, Renee, and herself.

Gilbert painted a somewhat different scene. He admitted that even though he was living in Skokie within 12 blocks of the girls’ home, he had never seen Renee after the divorce. He did testify he had driven by the house. He blamed the marital breakup on Gladys’ realization that she made a mistake marrying one of his religious persuasion, and attributed his lack of visitation to Gladys’ “very hostile” attitude toward him. He did not seek visitation and “decided because of her belligerent nature and antagonism to stay away.” He paid the $20 child support per week until the girls were age 18 and he never offered to increase the amount after he went back to work, which was not long after the court reduced the support payment. He said he called Renee at her home at least three times when she was in high school and during holidays while she was in college. He did not know of Renee’s position in Quincy until after her death. He stated he received two Father’s Day cards from Renee, but was not sure when they arrived. He did not keep the cards. Gilbert was, by profession, an insurance adjuster. His college degree is from De Paul University, and he attended one year of law school at De Paul University. He was first married in the 1950’s and had two children. The second marriage was to Gladys. The third marriage resulted in the birth of a daughter, Loree, on December 23, 1976, and this marriage ended in divorce in 1981. He testified he pays “approximately $300 a month” for Loree’s support but added “I forget the exact amount. A lot of times I pay more if I have extra money.”

Gilbert is on social security disability and allegedly suffers a lower back problem, coronary artery disease, and depression problems, as a result of which he suffers severe pain, shortness of breath, and anxiety reaction. He testified he attended Renee’s funeral at the Lutheran church, and the evidence indicated he gave a memorial of $100. He is now married for the fourth time. During the deposition, the following questions and answers took place:

“Q. Are you claiming that you feel Renee would have supported you, provided financial support for you?
A. Definitely.
Q. What do you base that claim on?
A. My conversation, the fact that I found out a lot about her after her death. She was a real lady and decent person. I think she would help. I had conversation with her, and she seemed to be a girl without any prejudice, and she was not as brainwashed as the other girl. She was a very nice gal.”

The trial court is in a better position to determine the credibility of conflicting testimony, and that court’s decision will not be disturbed unless it is against the manifest weight of the evidence. (Gabriel, 171 Ill. App. 3d at 668-69, 525 N.E.2d at 867-68.) In the present case, the trial court specifically found Gilbert’s testimony was the less credible, and it had good reason for that determination.

Gilbert never saw Renee after the divorce. Although he said he was in contact with her by phone, he did not know of her Quincy position. For 17 to 20 years, he lived 12 blocks away from his daughters. No offer was made to increase child support, even though he returned to work within one year of the court-ordered decrease. It is interesting that no one else knew of the few supposed calls to Renee during her high school and college years. This supposedly happened, although he did not bother to call his other daughter, Anita, during this same time period. No graduation gifts, birthday gifts, or even cards were sent. No college funds were given or offered. The trial court’s order finding Gilbert estranged from his daughter and depriving him of any portion of the wrongful-death settlement is affirmed, as is the trial court’s order denying the motion for reconsideration.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PATRICK H. CRAY et al., Defendants-Appellees.
    Fourth District
    No. 4-90-0365
    Opinion filed February 6, 1991.
    Rehearing denied March 25, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Ellen Schanzle-Haskins, Assistant Attorneys General, of counsel), for the People.
    Carl E. Kasten, of Phelps, Carmody, Kasten, Verticchio & Ruyle, of Carlinville, for appellee Douglas Crabtree.
    W. Scott Hanken and John H. Long, both of Pfeifer & Kelty, P.C., of Springfield, for appellee Patrick Cray.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

The People of the State of Illinois appeal from the dismissal on May 1, 1990, by the circuit court of Macoupin County of a second superseding indictment charging Douglas Crabtree and Patrick Cray with keeping false records, issuing fraudulent warehouse receipts, State benefits fraud, and conspiracy to commit fraud. The dismissal was based on the theory that the action was barred by statute of limitations. The People contend the statute of limitations was tolled by the provisions of section 3 — 7(c) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 7(c)).

The offenses with which this matter is concerned relate to alleged violations resulting from the operation of Atwater Grain Company and the issuing of warehouse receipts for grain supposedly stored in the company’s warehouse. The last offense charged allegedly took place on March 12,1985.

On October 21, 1986, an indictment relating to various offenses was returned against Patrick Cray (No. 86 — CF—153). On March 14, 1988, a criminal information relating to the same offenses was filed against Douglas Crabtree and Patrick Cray (No. 88 — CF—34). A superseding indictment charging the same offenses was returned against both defendants on December 14, 1988. (No. 88 — CF—223). The second superseding indictment charging the same offenses was returned on July 20, 1989 (No. 89 — CF—114). The defendants do not suggest in this appeal that the March 14, 1988, filing was beyond the statute of limitations.

On April 6, 1988, No. 88 — CF—34 was dismissed by the circuit court because the State did not appear for a hearing. Notice of appeal from that dismissal was filed on April 7, 1988. On December 14, 1988, while the appeal in No. 88 — CF—34 was pending, the superseding indictment (No. 88 — CF—223) was filed. The appeal from dismissal of No. 88 — CF—34 was dismissed on the State’s motion on February 1, 1989. (People v. Crabtree (4th Dist. Feb. 1, 1989), No. 4 — 88—0260 (order of dismissal).) On March 27, 1989, Nos. 86 — CF—153 and 88— CF — 34 were dismissed as to Patrick Cray, upon the State’s motion.

On June 6, 1989, the circuit court granted defendants’ motion to dismiss the superseding indictment (No. 88 — CF—223). The State filed a notice of appeal on June 9, 1989. The second superseding indictment (No. 89 — CF—114) was filed on July 20, 1989, and the appeal from the dismissal of No. 88 — CF—223 was dismissed on September 12, 1989, with the State’s approval. People v. Cray (4th Dist. Sept. 12, 1989), No. 4 — 89—0504 (order of dismissal).

On May 1, 1990, the second superseding indictment (No. 89 — CF— 114) was dismissed on defendants’ motion. The court basically stated that the dismissal of the second superseding indictment in No. 88— CF — 223 was a judicial determination that the statute of limitations had run and was the law of the case, and that the only way to set aside that determination was by reversal on appeal. The State filed a notice of appeal on May 23, 1990, relating to the dismissal of the second superseding indictment (No. 89 — CF—114).

Section 3 — 5(b) of the Criminal Code provides, in part, that “prosecution *** must be commenced within 3 years after the commission of the offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 5(b).) The State argues that the limitation was tolled by the provisions of section 3— 7(c) of the Criminal Code, which provides in part:

“Periods Excluded from Limitation. The period within which a prosecution must be commenced does not include any period in which:
* * *
(c) A prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal.” (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 7(c).)

The defendants contend that when the State abandoned its appeal in No. 89 — CF—114, it was precluded from the reconsideration of the determination that prosecution was barred by the statute of limitations. It is contended that the abandonment of the appeal results in collateral estoppel.

An indictment which indicates the filing of the indictment was beyond the statute of limitations must also allege the facts tolling the statute, even though not requiring the particular disposition of the tolling offense. People v. Isaacs (1967), 37 Ill. 2d 205, 230-31, 226 N.E.2d 38, 52; People v. Carman (1943), 385 Ill. 23, 25, 52 N.E.2d 197, 198; People v. Hawkins (1975), 34 Ill. App. 3d 566, 569, 340 N.E.2d 223, 225.

If an information or indictment is dismissed based on a determination that the statute of limitations has expired, the State’s sole recourse is an appeal from the dismissal. Reindictment is not possible, absent a reversal on appeal'. (People v. Zajic (1980), 88 Ill. App. 3d 412, 415-16, 410 N.E.2d 626, 629.) Dismissal of an indictment because of the State’s failure to state an offense does not prevent reindictment, regardless of the appellate procedure. Ill. Rev. Stat. 1989, ch. 38, pars. 114 — 1(a)(8), (e).

The State contends that the dismissal of the superseding indictment (No. 88 — CF—223) was a dismissal for failure to state an offense. Dismissal of a charge because of failure to prosecute within the statute of limitations is provided for by section 114 — 1(a)(2) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(a)(2)), while dismissal for failure to state an offense is provided for by section 114 — 1(a)(8) (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(a)(8)). Section 114 — 1(e) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(e)) provides that dismissal “upon the grounds set forth in subsections (a)(4) through (a)(ll)” of section 114 — 1 “shall not prevent the return of a new indictment or the filing of a new charge.”

The 15 counts in the second superseding indictment (No. 89— CF — 114) were the same as alleged in the superseding indictment (No. 88 — CF—223). While we cannot agree that the failure to allege the tolling information was only the failure to leave out an element of the offense, we also cannot agree that the order of the trial court dismissing the superseding indictment (No. 88 — CF—223) was a dismissal based on the running of the statute of limitations.

The court’s order of June 6,1989, provides, in relevant part:

“The issue to be decided by the Court is, should the indictment returned by the Grand Jury of Macoupin County on December 14, 1988, be dismissed because on its face it shows that the indictment was returned and filed after the Statute of Limitations had expired on the crimes charged, and because the indictment fails to allege facts and circumstances which would show a justification for the tolling or extension of the Statute of Limitations?
This Court is of the opinion that this question should be answered in the affirmative. This Court adopts the reasoning of the cases cited by the Defendants and holds that the indictment returned and filed on December 14, 1988, should be dismissed because it fails to allege facts or circumstances which may have tolled or extended the period of the Statute of Limitations applicable to the charges shown in said indictment. In order to take advantage of the provisions of Section 3 — 7 of Chapter 38 (Illinois Revised Statutes) the information or indictment must contain allegations of fact setting forth the reasons why the Statute of Limitations should be tolled or extended. There are no such allegations in the indictment returned and filed on December 14, 1988.”

The order also provides, in relevant part:

“IT IS, THEREFORE, ORDERED BY THE COURT, AS FOLLOWS:
1. That the motion of the Defendants to dismiss the indictment filed herein are [sic] allowed and the indictment, returned by the Grand Jury and filed herein on December 14, 1988, is dismissed.”

The record clearly indicates the attorneys’ and the court’s awareness of the existence of the toUing information which the State failed to set forth in the superseding indictment.

We conclude that the superseding indictment was dismissed for the failure to include the tolling information, and not because the statute of limitations was a bar to the action.

We determine, under the facts in the present case, the failure to include the tolling information in the superseding indictment (No. 88 — CF—223), and the failure to successfully appeal from the order dismissing that indictment, did not prevent the refiling allowed by section 114 — 1(e) of the Code. We conclude the failure to include the tolling information was similar to a failure to include a necessary element of the offense. Criminal limitation statutes are to be liberaUy construed or interpreted in favor of defendants, because such statutes are enacted in recognition of the fact the passage of time may obscure the basic proof of guilt and of innocence. (People v. Mudd (1987), 154 Ill. App. 3d 808, 813, 507 N.E.2d 869, 873; Toussie v. United States (1970), 397 U.S. 112, 25 L. Ed. 2d 156, 90 S. Ct. 858.) Timely notice of the prosecution protects from the loss of evidence possibly relevant to the defense.

In the present case, the defendants have had knowledge of the charges and the intent to prosecute from a time within the three years of the alleged offenses, and their ability to prepare a defense has not been abnormally hindered. The failure to include the tolling information was a technical error. The trial court’s decision in dismissing the second superseding indictment must be reversed.

Reversed and remanded.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE DUNN

text:
    JEFFREY C. GILMORE et al., Plaintiffs-Appellants, v. THE COUNTY OF DU PAGE et al., Defendants-Appellees.
    Second District
    No. 2-90-0589
    Opinion filed February 22, 1991.
    Harlan J. Spiroff, Kenneth T. Kubiesa, and Barbara J. Gosselar, all of Kubiesa & Power, Ltd., of Westmont, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Carole R. Doris, and Mark Bucksath, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

The plaintiffs, Dr. Jeffrey C. Gilmore and Esther Gilmore, appeal a circuit court judgment affirming the determination of the Du Page County zoning board of appeals (Board) that the plaintiffs’ use of part of their home as a dentist’s office violated a 1980 amendment to the Du Page County zoning ordinance that restricts the use of property in single-family residential districts for “home occupations.” The issue before us is whether the Board erred in holding that the plaintiffs’ conversion of an addition to their house from a chiropractor’s office to a dentist’s office was a prohibited change from one nonconforming use to another and not the continuation of a lawful prior nonconforming use. We affirm.

The plaintiffs own a single-family residence at 2601 Maple Avenue in unincorporated Downers Grove. They purchased the house from Dr. Kowalkiewicz, a chiropractor, in December 1987. From 1972 until a few months before he sold the house to the plaintiffs, Dr. Kowalkiewicz used an addition measuring approximately 700 square feet as a chiropractor’s office.

On or about September 23, 1988, the plaintiffs, without obtaining a special use permit from the county, started to use part of the addition as a dentist’s office. On September 23, 1988, a county deputy zoning officer issued notice to the plaintiffs that they were violating the zoning ordinance by operating a dental office on property zoned R-4 (single-family residential district). The plaintiffs appealed, and on November 17, 1988, the Board held a hearing on the appeal. On December 12, 1988, the Board ruled that the plaintiffs’ use of the property violated the 1980 amendment to the county zoning ordinance and could not be validated as the continuation of the prior lawful nonconforming use of the addition as a chiropractor’s office. The circuit court affirmed the Board's decision on administrative review.

Most of the evidence in this case is undisputed. The parties stipulated before the administrative hearing that up until the amendment of the zoning ordinance on July 18, 1980, the use of the addition for the chiropractor’s office was lawful under the following provision of the zoning ordinance allowing for the operation of “home occupations” in residential districts:

“HOME OCCUPATION. Any gainful occupation or profession engaged in by the occupant of a dwelling at or from the dwelling. *** Permissible home occupations include but are not limited to the following: art studio; dressmaking; professional offices of a clergyman, lawyer, physician, dentist, architect, engineer, or accountant, when located in a dwelling unit occupied by the same.” Du Page County Zoning Ordinance §11 (19-)■

On July 18, 1980, the zoning ordinance was amended to limit home occupations permissible in single-family residential districts to those which, inter alia, “[are] operated in [their] entirety within the residence (not any accessory building) and only by the person or persons residing therein,” do not have “a separate entrance from outside the building,” do not “exceed three hundred (300) square feet in area,” and do not “utilize mechanical or electrical equipment other than the type normally found in the single-dwelling unit.” (Du Page County Zoning Ordinance §11 (amend. 1980).) The parties agree that neither the chiropractor’s office nor the dentist’s office is a permitted home occupation under the code as currently in force and that the use of the addition as a chiropractor’s office was a legal nonconforming use under the ordinance.

Section 37 — 5.2—8 of the zoning ordinance also provides:

“The nonconforming use of land, not involving a structure or building, or in connection with any building or structure thereon, is incidental or accessory to the principal use of the land, may be continued subject to the following:
* * *
c. The nonconforming use of land shall not be changed to any other use except to a use permitted in the district in which the land is located.” Du Page County Zoning Ordinance §37 — 5.2—8 (19-)•

At the administrative hearing, Dr. Gilmore testified that he had had dental equipment installed in his office in July and started seeing patients as of October 14, 1988. He was not yet busy enough to have established a regular schedule, but, as his primary occupation was as a professor at Northwestern University’s Dental School, he planned to see patients at his home office from about 6 p.m. to 8 p.m. on some weekdays and from about 9 a.m. to 2 p.m. on Saturdays. At the time of the hearing his office consisted of a reception room, an operatory with a dental chair and other equipment, and a laboratory.

Dr. Gilmore contrasted his use of the premises with the previous use by Dr. Kowalkiewicz. The chiropractor’s office had taken up the entire addition; the dental office used only about half as much space, 380 square feet, at best. Dr. Kowalkiewicz employed four assistants, could see up to three patients at once, and often had his parking lot filled. At the time of the hearing Dr. and Mrs. Gilmore were the entire dental office staff; although Dr. Gilmore expected to hire a receptionist eventually, he would normally be able to see only one patient at a time, and his parking lot would likely have no more than two patients’ cars in it at one time. Dr. Gilmore stated that his office used the same plumbing and electrical work as did the chiropractor’s office and that the house electric current was adequate to supply the dental office. Dr. Gilmore admitted that he did not know whether the chiropractor’s office had been open evenings and weekends. He stated that he was not allowed to dispense drugs but would be writing prescriptions where appropriate and would administer anesthetics to patients in the course of treatment. He stated that it was possible that he would encounter a medical emergency from a patient’s adverse reaction to the anesthetics.

Two of the Gilmores’ neighbors, each of whom had lived in the area for over 20 years, testified that Dr. Gilmore moved into the house less than a year after Dr. Kowalkiewicz moved out, that Dr. Gilmore appeared to be seeing fewer patients than had Dr. Kowalkiewicz, and that the presence of Dr. Gilmore’s office in the neighborhood had not brought any additional noises or smells and had not in any way made the residence at 2601 Maple Avenue less attractive for the neighborhood. Dr. Gilmore stated that none of his neighbors had objected to his use of the premises for his dental office. The Board received into evidence a letter dated November 16, 1988, from Betty M. Cheever, mayor of the Village of Downers Grove, stating that the plaintiffs’ use of the property appeared to be in compliance with the village’s regulations regarding home occupations.

Dr. Wayne Jacobson, a dentist who had practiced in his home until recently, testified that he was familiar with the type of dental equipment used by Dr. Gilmore and that such equipment would require installation of special plumbing. He acknowledged, however, that he had not visited Dr. Gilmore’s office.

On December 12, 1988, the Board issued its “Findings and Decision Denying Appeal,” stating that the Board had met on December 1, 1988, to vote on the Gilmores’ appeal and finding, inter alia, that after the amendment of July 18, 1980, the chiropractor’s office had become a legal nonconforming use, that Dr. Gilmore’s equipment was different from that used by the chiropractor, that a dental office and practice are different in nature from a chiropractor’s office and practice, and that the dental office currently operated by Dr. Gilmore did not comply with the requirements of the current zoning ordinance for home occupations. The Board concluded that the use of the property for a dental office constituted a change of use under section 37 — 5.2— 8(c) of the zoning ordinance and was therefore illegal without a special use permit. On administrative review the circuit court held that the Board’s conclusion that the plaintiffs had substituted one nonconforming use for another and not continued the same nonconforming use was not against the manifest weight of the evidence.

On appeal, the plaintiffs contend primarily that their use of the property for a dentist’s office is so similar to the previous use for a chiropractor’s office that the Board erred in finding a change of use. The plaintiffs stress not only the similarity between the two types of medical practices but also the evidence that their use of the property is actually less intensive or detrimental to the surrounding area than the previous use. The county and other appellees respond that the Board’s interpretation of the ordinance to bar any nonconforming use of the property other than the specific one in existence at the time of the amendment is entitled to deference, supported by case law, and related to the zoning ordinance’s legitimate goal of eliminating nonconforming uses as rapidly as possible, thereby furthering the uniformity that is a primary objective of comprehensive zoning.

The zoning ordinance expressly forbids a change from a lawful nonconforming use to “any other use” not allowed by the ordinance. The issue, therefore, is whether the dentist’s office is the same “use” as the chiropractor’s office. The ordinance does not appear to define the term “use,” but the Board implicitly rejected the plaintiffs’ argument that the generic and functional similarity between the two types of offices made the later one a continuation of the earlier one. We cannot say that this interpretation of the ordinance to require identity rather than similarity is improper.

The Board’s interpretation of the statute that it has been charged with administering is entitled to great deference and will not be overturned by a reviewing court unless it is clearly erroneous, arbitrary or unreasonable. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152; Rodgers v. Department of Employment Security (1989), 186 Ill. App. 3d 194, 198.) The Board’s insistence on identity (or something very near identity) rather than similarity of use is adequately supported by precedent. In Wechter v. Board of Appeals (1954), 3 Ill. 2d 13, the supreme court upheld a determination of the Zoning Board of Appeals of Cook County that the plaintiff’s use of his premises for the business of spraying paint and protective coatings onto materials manufactured elsewhere was a change from the prior nonconforming use of the premises for tinsmith and woodworking shops. The court, without relying for this holding on the relative impacts of the old and new uses on the surrounding area, reasoned “[t]he fact that both might be genetically described as ‘manufacturing’ does not make them identical for present purposes. It is the particular use, and not its general classification, that is contemplated by the ordinance.” (3 Ill. 2d at 15.) The Board in the present case has given a similar ordinance a similarly narrow interpretation. Although the zoning ordinance could have been written to allow a lawful nonconforming use to be replaced by a similar or higher use, there is no requirement that it be so written or that the Board interpret the ordinance any more broadly than it has. See Orsolini v. Zoning Board of Appeals (1978), 58 Ill. App. 3d 435, 437; 101A C.J.S. Zoning & Land Planning §165 (1979) (and cases cited therein).

We cannot conclude that the Board’s strict construction of the zoning ordinance is clearly erroneous, arbitrary or unreasonable. The type of zoning restriction involved here, the limitation of home occupations in single-family districts, is a valid exercise of the police power. (Skrysak v. Village of Mount Prospect (1958), 13 Ill. 2d 329.) The narrow scope allowed for such home occupations as nonconforming uses is clearly related to the legitimate goal of eliminating such nonconforming uses as rapidly as possible. The restriction on changing from one nonconforming use to another even where the second use is very similar to the first facilitates the conversion of nonconforming uses to conforming uses, advancing the policy of the zoning ordinance and the homogeneity that is the basic desideratum of comprehensive zoning. Because the restriction on changes from one nonconforming use to another is rationally related to bringing the neighborhood into conformity with a valid exercise of the county’s zoning power, we also cannot say that the ordinance is unconstitutional as applied to the plaintiffs’ property. (City of Decatur v. Chasteen (1960), 19 Ill. 2d 204.) We stress that our holding is limited to the issue presented in this appeal: whether the Board properly held that the plaintiffs’ use of their property for a dental office was not a lawful nonconforming use under the zoning ordinance. The plaintiffs’ possible entitlement to a special use permit or other relief is not involved.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.