author: JUSTICE DUNN

text:
    HIGHLAND PARK WOMEN’S CLUB, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.-RAVINIA FESTIVAL ASSOCIATION, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al, Defendants-Appellants. — PAUL E. HAMER, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants (Ravinia Festival Association, Defendant-Appellee).
    Second District Nos. 2—89—0935, 2—89—0972, 2—89—1230, 2—89-1243, 2—89—1253 cons.
    Opinion filed December 6, 1990.
    Rehearing denied January 24, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Charles B. Hughes, William H. London, and Tanya Solov, Assistant Attorneys General, of Chicago, of counsel), for appellant Department of Revenue.
    Michael J. Waller and Ernest Y. Ling, State’s Attorneys, of Waukegan (Helen S. Rozenberg, Assistant State’s Attorney, of counsel), for appellant Lake County Board of Review.
    Ernest Y. Ling, State’s Attorney, of Waukegan (Paul E. Hamer, pro se, of counsel), for appellant Paul E. Hamer.
    Robert U. Dini, of Law Offices of Robert U. Dini, of Winnetka (Ann L. Dwyer, of counsel), for appellee Highland Park Women’s Club.
    Todd M. Kossow and Terry Marcus, both of Bell, Boyd & Lloyd, of Chicago (Michael Sennett, of counsel), for appellee Ravinia Festival Association.
   JUSTICE DUNN

delivered the opinion of the court:

These consolidated appeals involve challenges by Lake County taxpayer Paul Hamer to exemptions from property .taxation that had been granted to the Highland Park Women’s Club (Women’s Club or Club) and the Ravinia Festival Association (Ravinia). After hearings, the Department of Revenue (Department) decided that the Women’s Club was no longer entitled to its exemption and Ravinia was not entitled to the exemption for a portion of its property but was for the remainder. In separate actions filed pursuant to the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.), the circuit court of Lake County determined that Hamer lacked standing to challenge the exemptions. In the Ravinia case, the circuit court further determined that Ravinia was entitled to the exemption for all of the land in question. The issues common to these appeals are whether Hamer, who paid property taxes on his Lake County land, had standing to initiate complaints concerning property tax exemptions granted to other land owners and whether the Board and Department had jurisdiction even if Hamer lacked standing. In the Ravinia case, the parties contest whether Ravinia’s property was entitled to an exemption from property taxation pursuant to section 19.7 of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1985, ch. 120, par. 500.7) on the basis that Ravinia is a charitable institution and the property is used for charitable purposes.

Paul Hamer filed complaints with the Lake County Board of Review (Board) challenging exemptions from property taxes that had been granted to the Women’s Club and Ravinia for 1985. The Women’s Club case involved a parcel of land which contained a one-story building that was used for club meetings. The Ravinia case involved a parcel containing Ravinia’s administrative headquarters and a 36-acre parcel upon which concerts and other artistic events were presented. In both cases, the Board of Review recommended continuation of the exemptions but certified the matters to the Department for final decision pursuant to section 108(6) of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 589(6)). The initial ruling of the Department in both matters was to reverse the Board and deny the exemptions. The Women’s Club and Ravinia requested and received full hearings from the Department pursuant to section 137 of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 618) following the initial rulings.

The testimony from the. Women’s Club hearing will not be set forth herein because it is not necessary to our resolution of that case. The administrative law judge (ALJ) who conducted the hearing ruled that Hamer had standing under sections 107 and 108(4) of the Act (Ill. Rev. Stat. 1985, ch. 120, pars. 588, 589(4)) to bring a complaint about the Women’s Club exemption. After hearing evidence concerning the nature of the organization and the use of the property, the ALJ ruled that the exemption should be denied.

The Women’s Club then filed a complaint with the circuit court of Lake County pursuant to the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.). The circuit court reversed the Department’s decision on the basis that Hamer did not have standing to complain about the Club’s exemption. The court ordered that the Women’s Club parcel be restored to tax-exempt status. Hamer, the Department, and the Board now appeal from that order.

In the Ravinia case, the following facts were brought out before the ALJ at the Department’s hearing. Ravinia is a not-for-profit corporation that was incorporated in 1936. According to its corporate charter, Ravinia was formed for the “promotion of musical and theatrical art and education for the benefit of the general public.” Ravinia issues no stock, has no shareholders, and pays no dividends.

Until 1944, Ravinia leased a large parcel of land in Highland Park from Jewish Charities in Chicago in order to put on musical and theatrical presentations. In 1944, Jewish Charities conveyed the parcel to Ravinia with several conditions, including continued use of the land for presentation of concerts by outstanding symphony orchestras and other musicians of high artistic purpose, and for presentation of dramatic art. As of 1985, the 36-acre parcel, known as Ravinia Park, contained a pavilion area with a stage and seating for about 3,500 people, an indoor theater with seating for about 900 people, a lawn area with a capacity of about 20,000 people, some food concession buildings, a gift shop, and some parking lots.

Because most of Ravinia’s artistic presentations are held outdoors on the stage in the pavilion area, the season during which these events are presented generally lasts about 11 or 12 weeks during the summer months. With the exception of graduation ceremonies from local high schools, from which Ravinia does not profit, Ravinia Park is not in use during the remainder of the year. In 1985, the Ravinia season lasted from June 28 until September 29. A variety of events were scheduled and held at Ravinia Park during that season including symphony orchestra concerts, other classical music presentations, pop and folk music concerts, jazz concerts, dance presentations, and plays. Featured performers included the Chicago Symphony Orchestra, Pinchas Zukerman, the San Francisco Ballet, and Peter, Paul, and Mary.

About 430,000 people attended events at Ravinia Park during the 1985 season. Admission to the lawn area was generally $4 or $5 for the performances. Sixty-two percent of Ravinia spectators had lawn admission in 1985. While performances could not be seen from this area, music from the concerts was piped into the lawn area from loudspeakers. Pavilion seating prices ranged from $10 to $30 depending upon the event and the location of the seat. Before the 1985 festival season began, Ravinia mailed out between 110,000 and 150,000 schedules of 1985 events to individuals on a mailing list and circulated numerous other schedules through the Chicago Tribune. Ravinia also advertised its schedule through other Chicago area newspapers.

Free lawn admissions to certain Ravinia events were offered to numerous groups through the Ravinia Opportunity Program. Each year, the chairman of the program contacts the United Way of Metropolitan Chicago to ask which of its member agencies might be interested in bringing groups to Ravinia performances free of charge. The specific agency is then contacted, and an event is selected. The chairman then sends the agency a letter authorizing the requested number of free lawn admissions to the event in question. In 1985, the Ravinia Opportunity Program provided 9,691 free admissions which were distributed among 162 agencies. The agencies in question brought disadvantaged youths, inner-city groups, senior citizens, and disabled persons to various Ravinia performances. Ravinia did not mention the possibility of obtaining free admission through the Opportunity Program in any of its advertising.

Additionally, if pavilion seating was not sold out for a particular performance, the seats would sometimes be distributed to senior citizens’ groups free of charge. Uniformed armed service personnel were only charged $1 for lawn admission to all Ravinia events. Ravinia also presented special children’s programs several times each season with a $1 admission charge to children and adults. Masters classes were offered at Ravinia in 1985 for advanced music students free of charge. These classes were taught by vocalists, violinists, or pianists, who had performed at Ravinia events.

In 1985, Ravinia had receipts of approximately $4,157,000, including some $3,800,000 from ticket sales. 1985 operating expenses for Ravinia totalled $6,536,562. The deficit was offset by approximately $2,265,000 in contributions and grants received in 1985 and a transfer of about $120,000 from an endowment fund.

The restaurants and food concession stands on the Ravinia Park grounds were operated by the- Levy Brothers organization pursuant to a license agreement with Ravinia. While Ravinia received money from Levy Brothers pursuant to the agreement, it did not realize any profit because it was obliged to pay insurance and maintenance costs for these areas. Ravinia broke even as a result of the food concession stands and restaurants which were only open during Ravinia performances.

The Women’s Board of Ravinia ran a gift shop at Ravinia Park. The shop sold shirts and other souvenirs bearing the name “Ravinia.” Profits were realized from the gift shop and were turned over to Ravinia. Ravinia also claimed an exemption for the parcel containing its administrative office building. This parcel is located in Highland Park away from the Ravinia Park grounds. The building was used exclusively for furtherance of Ravinia Park activities. Ravinia did not rent or lease any portion of the building.

The ALJ determined that Ravinia was entitled to an exemption for all of the property in question with the exception of the parcels containing the gift shop, concession stands and restaurants. Hamer and Ravinia both filed complaints pursuant to the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seg.) challenging different aspects of the ALJ’s ruling. These complaints were consolidated before the circuit court, which dismissed Hamer’s complaint on the basis that he lacked standing to complain of Ravinia’s exemption. The cqurt ruled further that Ravinia was entitled to the exemption for all of the property in question and reversed that portion of the ALJ’s decision which denied the exemption for the land containing the restaurants and concession stands. Hamer, the Board, and the Department now appeal.

The first issue we shall address, which is common to both appeals, is whether Hamer had standing under the Act to challenge the property tax exemptions of the Women’s Club and Ravinia. Section 8 of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 489) provides that in counties with a population of less than one million, assessments will be reviewed by a three-member board of review. In counties with a population of one million or more, this function is performed by a two-member board of appeals. See Ill. Rev. Stat. 1985, ch. 120, par. 492.

In their arguments concerning Hamer’s standing, the parties focus primarily upon three provisions of the Act. The first of these, section 107, provides that there shall be an annual meeting of the board of review and then states:

“At such meeting the board of review upon application of any taxpayer or upon its own motion may revise the entire assessment of any taxpayer or any part thereof and correct the same as shall appear to it to be just.” (Ill. Rev. Stat. 1985, ch. 120, par. 588.)

Section 108(4) of the Act states, in part:

“On complaint in writing that any property described in such complaint is incorrectly assessed, the board shall review the assessment, and correct it, as shall appear to be just ***. *** The board may also of its own motion, at any time before its revision of the assessments is completed in every year, increase, reduce or otherwise adjust the assessment of any individual or corporation, on real property, making changes in the valuation thereof as may be just ***.” (Ill. Rev. Stat. 1989, ch. 120, par. 589(4).)

Finally, section 108(6) states that the “board of review shall hear and determine the application of any person who is assessed on property claimed to be exempt from taxation.” (Ill. Rev. Stat. 1985, ch. 120, par. 588(6).) This provision goes on to state that the board’s decision in such a case is not final; the board must forward a statement of facts to the Department which will then make the final ruling.

It is apparent that section 108(6) does not provide Hamer with standing, because it only vests the board with authority to hear applications of “any person who is assessed on property claimed to be exempt from taxation.” (Ill. Rev. Stat. 1985, ch. 120, par. 588(6).) Hamer is not such a person. While section 108(4) gives the Board the authority to review assessments if there is a complaint in writing that the property described therein was incorrectly assessed, it does not speak to the issue of whether an individual may challenge the assessment of another’s property. Therefore, if Hamer does have standing, it must be derived from section 107.

Hamer and the Department argue that the language of section 107 clearly gives him standing in this case because the provision states that at the annual meeting for reviewing assessments, the Board, “upon application of any taxpayer or upon its own motion may revise the entire assessment of any taxpayer or any part thereof.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 120, par. 588.) Ravinia argues, however, that repetition of the phrase “any taxpayer” in section 107 means the same person is referred to in each instance; therefore, the provision only permits the property owner or owners to apply for a revised assessment. We believe this provision can reasonably be construed in either manner.

• 4 The objective of courts in construing statutes is to determine and give effect to the intent of the legislature. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 362.) Statutory provisions should be interpreted in light of the statute as a whole (Howard v. Board of Education of Freeport School District No. 145 (1987), 160 Ill. App. 3d 309, 312). Sections 107, 108(4), and 108(6) are found in a portion of the Act entitled “Revisions of Assessments by Board of Review” (Ill. Rev. Stat. 1985, ch. 120, pars. 588 through 592). When those provisions are compared to certain provisions in the portion of the Act entitled “Revision of Assessment by Board of Appeals,” it is readily apparent that the legislature did not intend to allow property taxpayers in counties with populations under one million to challenge property tax exemptions granted to other taxpayers.

Section 113(1) of the Act states as follows:

“In counties containing 1,000,000 or more inhabitants, the board of appeals in any year shall
(1) On complaint that any property is over assessed or under assessed, or is exempt, review and order such assessment corrected.” (Ill. Rev. Stat. 1985, ch. 120, par. 594(1).)

Section 117 of the Act states in relevant part as follows:

“In counties containing 1,000,000 or more inhabitants, complaints that any particular real property, described therein, is over assessed or under assessed or is exempt may be made by any taxpayer.” (Ill. Rev. Stat. 1985, ch. 120, par. 598.)

Sections 113(1) and 117 both authorize the board of appeals to consider complaints from any taxpayer that property is exempt or is underassessed. Since a property owner would not be likely to complain that his or her own property was exempt or underassessed, it is apparent that these provisions authorize taxpayers to challenge assessments or exemptions on property other than their own. By contrast, the provisions concerning review of assessments by boards of review never mention complaints that property is underassessed or is exempt.

• 5, 6 The Board notes that an administrative regulation concerning procedures before boards of review specifically provides for complaints by taxpayers about property owned by others since it refers to notices for hearing on real estate complaints and then states “[i]f the owner is not the complainant, an additional copy of the notice shall be prepared and sent to such owner.” (1 Ill. Adm. Code 110.140(d)(2) (1986).) An administrative body may not extend or alter the effect of a statute through the use of its rulemaking powers. (Popejoy v. Zagel (1983), 115 Ill. App. 3d 9, 11.) To the extent an administrative regulation conflicts with a statute, the regulation is invalid. (Popejoy, 115 Ill. App. 3d at 12.) It is apparent from our review of the provisions we have cited from the portion of the Act entitled “Revision of Assessments by Board of Appeals” (Ill. Rev. Stat. 1985, ch. 120, pars. 593, 606) that the legislature intended to allow these bodies to consider complaints of taxpayers about exemptions and underassessment of property belonging to others. The language which grants such authority in the above portion of the Act is absent from the portion entitled “Revision of Assessments by Board of Review” (Ill. Rev. Stat. 1985, ch. 120, pars. 588, 592). We therefore conclude that the legislature, did not intend to permit boards of review to consider complaints from taxpayers about the assessments or exemptions of other property owners. To the extent the above administrative regulation grants such authority, it is invalid.

Hamer argues that such an interpretation of the Act. renders it invalid as special legislation and a denial of equal protection because taxpayers residing in counties with a population over one million may challenge property tax exemptions granted to other taxpayers while taxpayers in the rest of Blinois may not do so. Statutes are presumed to be constitutional, and the party challenging a provision has the burden of establishing its constitutional infirmity. (City of Geneva v. Du Page Airport Authority (1990), 193 Ill. App. 3d 613, 621.) Statutory classifications are not required to be completely accurate, logical, harmonious, or scientific, as long as they are not arbitrary and will accomplish the legislative purpose. City of Geneva, 193 Ill. App. 3d at 621.

The provision in the Blinois Constitution banning special legislation states: “The General Assembly shall pass no special or local law when a general law is or can be made applicable. "Whether a general law is or can be made applicable shall be a matter for judicial determination.” (Ill. Const. 1970, art. IV, §13.) Special legislation confers a benefit or privilege on an individual or a group to the exclusion of others similarly situated and discriminates in favor of the select individual or group without a sound, reasonable basis. (Chicago National League Ball Club v. Thompson (1985), 108 Ill. 2d 357, 367.) An equal protection denial is an arbitrary and invidious discrimination that occurs when the government withholds a right, benefit, or privilege from an indi-vidual or a group without any reasonable basis. (Jenkins v. Wu (1984), 102 Ill. 2d 468, 477.) Legislation which confers a benefit upon one class of persons but denies the same to another class may be attacked both on special legislation and equal protection grounds. (Chicago National League Ball Club, 108 Ill. 2d at 367-68.) Although these constitutional protections are not identical, the same standard is generally used in determining whether they have been infringed. 108 Ill. 2d at 368; City of Geneva, 193 Ill. App. 3d at 622.

A legislative classification based upon population will be upheld if it is founded upon a rational difference as to the situation or condition in the persons or objects upon which the classification rests and a reasonable basis exists for the classification in view of the statutory objectives. (Chicago National League Ball Club, 108 Ill. 2d at 369; People v. Palkes (1972), 52 Ill. 2d 472, 477.) Hamer points out that classifications affecting fundamental rights will be upheld only if justified by a compelling State interest. (Hoskins v. Walker (1974), 57 Ill. 2d 503, 508.) He goes on to argue that denying him standing to complain of property tax exemptions granted to others affects his fundamental right to petition for redress of grievances.

The above argument is not persuasive. Hamer cites no cases which would indicate that the right to petition entitles him to a specific administrative remedy. Instead, this right entitles citizens to communicate and address their government in matters which they deem to be important and to lodge complaints with appropriate governmental agencies. (Streif v. Bovinette (1980), 88 Ill. App. 3d 1079, 1083.) Denying Hamer standing to file complaints about property tax exemptions granted to others only prevents him from instituting a formal process by which those exemptions will be reviewed by the Board; it does not prevent him from communicating his displeasure about the exemptions to the Board members or any other public official. Thus denying taxpayers in counties with populations under one million the right to file complaints about property tax exemptions granted to others does not affect the right to petition. Hamer’s argument that this may only be done to advance a compelling State interest is therefore rejected.

If a statutory classification is called into question, and any state of facts can reasonably be conceived to uphold the classification, the existence of those facts at the time the statute was passed must be presumed. (City of Geneva, 193 Ill. App. 3d at 621.) At the time it passed the Act, the legislature could have reasonably concluded that because Cook County is so much larger than other Illinois counties, errors in assessing property and in granting or denying property tax exemptions were more common there than in other Illinois counties. The legislature could also have reasonably determined that many such errors would never come to the attention of the board of appeals because of Cook County’s size unless taxpayers could complain of exemptions granted to others and the underassessment of other taxpayers’ property. This could rationally be considered unnecessary in smaller counties where the board of review would be much more likely on its own to take notice of and correct such errors. Based upon the differing situation in Cook County and other Illinois counties, the legislature could reasonably have concluded that the population classification in this case would advance the statutory objective of creating fair, orderly procedures relating to the assessment and collection of property taxes. Hamer’s equal protection and special legislation challenges are therefore rejected.

Hamer also claims that denying him standing would violate the “certain remedy” provision of the Illinois Constitution (Ill. Const. 1970, art. 1, §12), citing Heck v. Schupp (1946), 394 Ill. 296, in which our supreme court held that a statute eliminating three existing common-law causes of action was invalid under a similar provision in the Illinois Constitution of 1870. (Heck, 394 Ill. at 300.) Denying Hamer standing does not abolish any common-law cause of action as was the case in Heck. Furthermore, our supreme court has recently ruled that the “certain remedy” provision is a mere expression of philosophy, not a mandate that a “certain remedy” be provided in any form for any alleged wrong. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 424.) This argument is therefore without merit.

Also without merit is Hamer’s contention that denying taxpayers standing to challenge property tax exemptions granted to other taxpayers is somehow inconsistent with the decision in Coleman v. McLaren (N.D. Ill. 1985), 631 F. Supp. 749. In Coleman, the court held that a civil rights suit against officials and agencies involved in administering tax assessment systems in all Illinois counties other than Cook County was barred under the Federal Tax Injunction Act (28 U.S.C. §1341 (1988)) because plaintiffs had a plain, speedy and efficient State remedy. (Coleman, 631 F. Supp. at 753-63.) Hamer argues that if he does not have standing in this case, he does not have such a remedy. Plaintiffs argued in Coleman that they lacked a plain remedy since the Illinois statutory scheme prohibited taxpayers in counties other than Cook from challenging other taxpayers’ assessments or objections. The court stated in Coleman as follows, “Absence of a mechanism to force collection of other taxpayers’ taxes does not make a taxpayer’s remedy to reduce his or her taxes any less certain.” (631 F. Supp. at 756.) Thus, our interpretation of the Act as denying Hamer standing is consistent with Coleman and does not deprive him of a plain, efficient, and speedy remedy.

The Board and the Department argue that even if Hamer lacked standing to challenge the exemptions at issue here, they had the authority to review the exemptions on their own initiative. The Board relies upon sections 107 and 108(4) of the Act. Section 107 states that at an annual meeting for the purpose of revising assessments, a board of review “upon application of any taxpayer or upon its own motion may revise the entire assessment of any taxpayer or any part thereof.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 120, par. 588.) Section 108(4) states in relevant part as follows:

“The board may also of its own motion, at any time before its revision of the assessments is completed in every year, increase, reduce or otherwise adjust the assessment of any individual or corporation, on real property, making changes in the valuation thereof as may be just ***.” Ill. Rev. Stat. 1985, ch. 120, par. 589(4).

Ravinia and the Women’s Club contend that an exemption is not an assessment and the above provisions only authorize boards of review to review assessments on their own initiative. They further point out that section 108(6) of the Act specifically deals with exemptions and provides that a board of review “shall hear and determine the application of any person who is assessed on property claimed to be exempt from taxation.” (Ill. Rev. Stat. 1985, ch. 120, par. 589(6).) Section 108(6) goes on to state that the board’s decision will be reviewed by the Department, which will issue the final decision. Ravinia and the Women’s Club therefore assert that the Board and Department only have the authority to review exemptions if an application is filed by the property owner.

The word “assessment” as employed in the above-quoted portions of sections 107 and 108(6) is ambiguous. The word can be understood to apply only to the valuation of property and not to exemptions. On the other hand, an exemption may be viewed as an assessment of $0 for purposes of property taxation. (See In re Application of the County Collector (1987), 157 Ill. App. 3d 355, 361.) This is illustrated by the language of section 113(1) of the Act, which states, as we have seen, that in counties with a population over one million, the board of appeals shall, on complaint that any land “is over assessed or under assessed, or is exempt, review and order such assessment corrected.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 120, par. 594(1).) This language is a further indication that an exemption may be considered an assessment of $0.

Acceptance of the contention advanced by Ravinia and the Women’s Club in this context would mean there would be no provision in the Act authorizing review of existing exemptions. Under such circumstances, if an owner began to use exempt land for nonexempt purposes but continued to certify the use of the property as exempt pursuant to section 19 of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 500), the exemption could not be reconsidered in counties with populations under one million. Ordinarily it will be presumed that the legislature, in enacting a statutory provision, did not intend absurdity or inconvenience. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 363.) Since the above result would be absurd, we conclude sections 107 and 108(4) do authorize the Board to review exemptions on its own motion.

The language of section 108(6) would seem to indicate, as Ravinia and the Women’s Club maintain, that the Department only has jurisdiction to review exemptions if the proceedings were initiated by the property owner. There would seem to be little reason, if any, for requiring review by the Department in this situation but not permitting it if a board of review initiated the matter sua sponte. Furthermore, section 131a of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 612a) states, in part, as follows:

“If the Department determines that any property has been unlawfully exempted from taxation, or is no longer entitled to exemption, the Department shall, before January 1 of any year, direct that the county assessor, supervisor of assessments or board of assessors assess the property and return it to the assessment rolls for the next assessment year.” (Ill. Rev. Stat. 1985, ch. 120, par. 612a.)

The expansive language in this provision, in our view, reflects a legislative intent to authorize review of exemption claims by the Department regardless of whether the property owner initiated the proceedings, a board of review did so, or the Department itself wished to review the exemption on its own motion. We therefore agree with the Board and the Department that both had the authority to review the exemptions in question even though Hamer lacked standing.

Ravinia and the Women’s Club assert that, even if the Board and Department may review exemptions sua sponte, the proceedings in this case were initiated by Hamer and they must therefore be dismissed. We disagree. Even if the Board and Department reviewed the exemptions in question under the mistaken belief that they were required to do so because of Hamer’s complaint, the determinative factor, in our view, is that both had the authority to review the exemptions under the Act.

In the Women’s Club case, the circuit court determined that the Board and Department lacked jurisdiction to proceed and did not resolve the issue of whether the Department’s conclusion that the Club was not entitled to the exemption was against the manifest weight of the evidence. We therefore remand that case to the trial court for resolution of this issue and any remaining issues other than the jurisdiction of the Board and Department.

Since Hamer was not authorized by statute to participate in the proceedings before the Board and Department, he cannot be considered a party in these cases. We must therefore consider his standing to appeal from the circuit court’s order in the Ravinia case. A nonparty has standing to appeal if he or she has. a direct and substantial interest in the subject matter which would be prejudiced by the judgment or benefited by its reversal. (In re Estate of Strong (1990), 194 Ill. App. 3d 219, 225.) Our supreme court has held that individual property taxpayers do not have standing to file lawsuits in the circuit court to force the return of exempt parcels to the tax rolls. (Schlenz v. Castle (1986), 115 Ill. 2d 135, 144.) In so holding, the court stated: “[t]he plaintiffs’ interest in the taxation of any parcel of exempt property is extremely remote.” (Schlenz, 115 Ill. 2d at 144.) In light of this statement, it is apparent that Hamer’s interest as a Lake County taxpayer in the question of whether Ravinia’s land should be exempt is too remote to provide him standing to appeal. Hamer’s appeal in that case is therefore dismissed. Additionally, upon remand, Hamer should not be permitted to participate as a party in the Women’s Club case.

The Board and Department have also appealed the circuit court’s ruling in the Ravinia case. The Board contests only the circuit court’s finding that Hamer had no standing, an issue we have already resolved. The Department contends only that the circuit court erred in ruling that Ravinia was entitled to an exemption for the Ravinia Park land containing the gift shop and restaurant facilities. The Department and circuit court agreed that Ravinia was entitled to an exemption for the remainder of Ravinia Park plus the separate parcel containing Ravinia’s administrative building. We shall now consider the issue raised by the Department.

Section 19.7 of the Act exempts from property taxation “[a]ll property of institutions of public charity, all property of beneficent and charitable organizations *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit.” (Ill. Rev. Stat. 1985, ch. 120, par. 500.7.) Tax-exemption statutes are gtrictly construed in favor of taxation, and the party applying for an exemption has the burden of proving clearly and conclusively that it applies. Du Page Art League v. Department of Revenue (1988), 177 Ill. App. 3d 895, 899.

Our supreme court has held that the distinctive attributes of a charitable organization are as follows:

“(1) the benefits derived are for an indefinite number of persons;
(2) the organization has no capital, capital stock or shareholders and does not earn profits or dividends;
(3) the organization derives its funds primarily from private and public charity and the funds are held for the objects and purposes expressed in its charter;
(4) charity is dispensed to all who need and apply for it;
(5) no obstacles seem to be placed in the way of those seeking its benefits; and
(6) the primary use of the property is for charitable purposes.” (Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 157.)

(Decatur Sports Foundation v. Department of Revenue (1988), 177 Ill. App. 3d 696, 708.) Additionally, the organization’s activities must ease the burdens of government. Board of Certified Safety Professionals of the Americas, Inc. v. Johnson (1986), 112 Ill. 2d 542, 546.

The Department argues that the land containing the food stands and gift shop is not exempt because it was used to generate a profit for Ravinia. The Department relies upon Salvation Army v. Department of Revenue (1988), 170 Ill. App. 3d 336, a case which is distinguishable. In Salvation Army, plaintiff owned a building in which it operated a thrift shop. This court held that the primary purpose of the building was to generate a profit, even though the income from the shop was used to help fund plaintiff’s charitable activities at other locations; therefore, the land was not exempt from property taxation. Salvation Army, 170 Ill. App. 3d at 344-45.

In Salvation Army, the only activity conducted by the property owner on the premises was the operation of the thrift shop. This is not true in the case at bar. The land containing the food stands and gift shop was a small portion of the 36-acre Ravinia Park parcel at which Ravinia concerts were held. The Department concluded that Ravinia was a charitable organization engaged in the promotion of the arts, including music, dance, and theater, by putting on performances at the Park and making the performances readily available to the public through low admission prices and the Opportunity Program. We believe the food stands and gift shop were incidental uses of the property; the primary use for the entire parcel was still fostering appreciation of the arts through the performances on the premises. In Salvation Army, use of the property as a thrift shop could not be considered incidental or secondary to plaintiff’s charitable activities when those activities were conducted off the premises.

Our conclusion is bolstered by Decatur Sports Foundation v. Department of Revenue (1988), 177 Ill. App. 3d 696, in which the court ruled that an organization which operated a complex containing baseball diamonds and other recreational facilities and provided these facilities to youth sports organizations and other groups at little or no cost was entitled to a property tax exemption as a charitable organization for the land containing the facilities. (Decatur Sports Founda tion, 177 Ill. App. 3d at 712.) The court noted that this land contained a concession stand at which food and refreshments were sold but concluded this did not affect the tax-exempt status of any portion of the land, stating: “[T]he concession stand operates as an adjunct to the Field’s operation and, consequently, to the enjoyment of sports facilities. All concession proceeds are used to run the field.” (177 Ill. App. 3d at 711.) Similarly, the concession stands and gift shop at Ravinia Park are a mere adjunct to the Park’s operation and to the enjoyment of the concerts held there; they are provided as a convenience for concertgoers. Since the primary use of the Ravinia Park parcel is a charitable use, the entire parcel is exempt, including the portions containing the food facilities and the gift shop.

In summary, for the above reasons, Hamer’s appeal in the Ravinia case is dismissed. The circuit court’s decision in that case is affirmed. The circuit court’s decision in the Women’s Club case is reversed, and the cause is remanded for further proceedings to which Hamer shall not be a party.

Nos. 2 — 89—0935 & 2 — 89—0972, Reversed and remanded.

Nos. 2-89-1230 & 2-89-1243, Affirmed.

No. 2 — 89—1253, Dismissed.

REINHARD and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    HARTFORD INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. BAILEY B. JACKSON et al., Defendants (Robert O. Duffy, Special Adm’r of the Estate of Robert N. Duffy, Deceased, Defendant-Appellant).
    Second District
    No. 2—89—1334
    Opinion filed December 18, 1990.
    Rehearing denied January 24, 1991.

      Robert A. Clifford, Keith A. Hebeisen, and Robert R Sheridan, all of Robert A. Clifford & Associates, of Chicago, for appellant.
    D. Kendall Griffith, Stephen R. Swofford, Robert G. Black, and Peter C. Morse, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Robert 0. Duffy, special administrator of the estate of Robert N. Duffy (Robert), appeals from an order of the circuit court granting summary judgment in favor of plaintiff, Hartford Insurance Company of Illinois.

Initially, we address defendant’s motion for leave to supplement the record, which this court ordered taken with the case. Specifically, the motion requests leave to supplement the record with the November 16, 1989, report of the proceedings. We grant this motion.

Next, plaintiff argues that this court does not have jurisdiction to hear this appeal. Its contentions are essentially the same as those brought before this court in a motion to dismiss the instant appeal. Said motion was denied by this court on April 24, 1990. After carefully reviewing plaintiff’s argument, we adhere to our prior position that this appeal should not be dismissed for lack of jurisdiction.

In June 1986, defendant filed a complaint against Bailey Jackson (Bailey) and Jacqueline Jackson (Jacqueline) for damages arising by reason of Robert’s death. On October 13, 1986, a complaint was also filed against Bailey and Jacqueline by Fireman’s Fund Employer’s Insurance Company (Fireman’s) as subrogee of defendant for medical payment made by reason of Robert’s injuries. On July 28, 1985, Robert was involved in an automobile accident, sustaining injuries from which he died the following day. Bailey drove the vehicle involved in the fatal accident. At this time, he was a minor and unlicensed to drive. The car in question was owned by Bailey’s mother, Jacqueline, and was insured by a policy of insurance issued by plaintiff. Said policy, No. 82 PH 531573, was issued to the estate of Robert S. Jackson and was in effect from May 3, 1985, to November 3,1985.

On April 5, 1988, plaintiff filed suit seeking a declaration that it was under no duty to defend or indemnify defendant for the one-car accident arising from Bailey’s operation of an automobile on July 28, 1985. Plaintiff’s complaint named Bailey, Fireman’s, and the instant defendant as defendants. Plaintiff alleged that Bailey was not a licensed driver and, further, did not have the permission of his mother, Jacqueline, to drive the subject vehicle.

Plaintiff’s complaint for declaratory judgment named Fireman’s and Bailey as defendants. In asserting no liability coverage for the accident, plaintiff relied on the following exclusion in its policy:

“Exclusions
We do not provide liability coverage for any person: * * *
8. Using a vehicle without a reasonable belief that that person is entitled to do so.”

Following answers by all defendants, plaintiff filed a motion for summary judgment asserting Bailey was operating the insured 1969 Oldsmobile Cutlass without a reasonable belief he was entitled to do so. Thereafter, his actions fell squarely within the exclusionary language cited above, and no coverage could be afforded.

Bailey admitted in deposition testimony that he was 15 years old at the time of the accident, did not possess a valid driver’s license, and could not legally drive in Illinois. Bailey knew he could not drive a car, and he admitted that he never received any permission from his mother to operate the 1969 Oldsmobile Cutlass. Bailey obtained an extra set of keys for the car surreptitiously while searching through his father’s belongings. Bailey stated that he had no reason to believe he was permitted to drive the car and that he had no reason to believe he was entitled, legally or otherwise, to use the car.

On July 28, 1985, Bailey stayed at home while his mother went out for dinner. Bailey called his friend, Robert, to go for a “joy ride” in the subject automobile, despite the fact local police had previously ordered the two boys to stay away from each other following their apprehension for stealing hood ornaments from cars. This joy ride ended in the fatal accident.

At her deposition, Jacqueline testified that she never allowed her son, Bailey, to operate the vehicle and expressly denied him permission to do so. Based upon these facts, plaintiff’s motion for summary judgment concluded that Bailey had no reasonable belief he was entitled to use the insured vehicle. Therefore, the reasonable belief exclusion applied, and plaintiff had no duty to defend or indemnify him for the underlying lawsuits arising out of the accident.

Defendant also filed a motion for summary judgment, conceding the facts were clear but asserting the exclusionary language itself was ambiguous. Defendant’s argument focused solely on whether, under Illinois law, by stating the exclusion was applicable to “any person” under the preamble to the exclusion in the policy, plaintiff’s policy exempted family members like Bailey from the exclusion. Fireman’s also filed a motion for summary judgment claiming ambiguity and, therefore, coverage to Bailey.

After a hearing on March 3, 1989, the trial court found in favor of plaintiff and against all defendants. Following an extension of time granted on March 31, 1989, defendant filed a motion for rehearing or, alternatively, to vacate on April 21, 1989. Defendant argued that the trial court’s determination was erroneous in light of the decision in Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, and that, irrespective of Kubik, Illinois law and public policy forbade the application of the exclusion to family members.

On October 17, 1989, this motion was stricken and denied upon technical grounds because it was not called for hearing within the 60 days provided for by local rule. Upon motion to reconsider the foregoing order, the trial court vacated the October 17 order and, on December 14, 1989, denied defendant’s motion for rehearing or, alternatively, to vacate on the merits and reiterated its order granting plaintiff’s motion for summary judgment. Thereafter, defendant filed his notice of appeal on December 18, 1989. No other defendants have appealed.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107.) Construction of an insurance policy is a matter of law to be determined by the court. (Nationwide Mutual Insurance Co. v. Hecker (1989), 183 Ill. App. 3d 13.) A court’s primary purpose in construing an insurance contract is to give effect to the intention of the parties as expressed within that agreement. (Weeks v. Aetna Insurance Co. (1986), 150 Ill. App. 3d 90.) In so doing, words are to be accorded their ordinary and popular meaning. (Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1985), 138 Ill. App. 3d 346.) Where the provisions of an insurance policy are clear and unambiguous, it is the duty of the courts to enforce the policy as any other contract, that is, according to its plain meaning as written. Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365.

A policy provision will only be ambiguous if, in considering the contract as a whole, it is subject to more than one reasonable interpretation. (Dolan v. Welch (1984), 123 Ill. App. 3d 277.) Where an ambiguity does exist, the policy will be construed strictly against the insurer as drafter. (Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367.) Moreover, ambiguous provisions in which the insurance company seeks to limit its liability are construed most strongly against the insurer and in favor of the insured. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250.) Rules of construction, however, do not mean a court will construe a contract to create ambiguity where none exists. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486.) If the words of a policy can reasonably be given their plain, ordinary, and popular meaning, the provisions should be applied as written, and the parties should be bound by the agreement they made. Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376.

Defendant argues that Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, controls this result. Plaintiff contends that Kubik is distinguishable from this case. The disputed policy in Kubik has been included in the instant record. Thus, we cite relevant sections of the Kubik policy for purposes of comparison.

The Kubik policy defines “family member” as a “person related to you *** by blood, marriage or adoption who is a resident of your *** household, including a ward or foster child.” (Kubik, 142 Ill. App. 3d at 909.) The Kubik court surmised that the term “any person” would “seem, standing by itself, to encompass every possible individual including the insured and his family members.” 142 Ill. App. 3d at 909.

Moreover, the Kubik policy includes the following definitions of “covered person”:

“ ‘Covered person’ as used in this Part means:
1. You or any family member for the ownership, maintenance or use of any auto or trailer.
2. Any person using your covered auto.
3. For your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.
4. For any auto or trailer, other than your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of you or any family member for whom coverage is afforded under this Part. This provision applies only if the person or organization does not own or hire the auto or trailer.”

Under the Kubik policy’s “Exclusions” section, the following language is found:

“We do not provide Liability Coverage:
1. For any person who intentionally causes bodily injury or property damage.
2. For any person for damage to property owned or being transported by that person.
3. For any person for damage to property rented to, used by, or in the care of that person. This exclusion does not apply to damage to a residence or private garage. It also does not apply to damage to any of the following type vehicles not owned by or furnished or available for the regular use of you or any family member:
a. private passenger autos;
b. trailers; or
c. pickups, panel trucks, or vans.
4. For any person for bodily injury to an employee of that person during the course of employment. This exclusion does not apply to bodily injury to a domestic employee unless workers’ or workmen’s compensation benefits are required or available for that domestic employee.
5. For any person’s liability arising out of the ownership or operation of a vehicle while it is being used to carry persons or property for a fee. This exclusion does not apply to a share-the-expense car pool.
6. For any person while employed or otherwise engaged in the business or occupation of selling, repairing, servicing, storing or parking of vehicles designed for use mainly on •public highways, including road testing and delivery. This exclusion does not apply to the ownership, maintenance or use of your covered auto by you, any family member, or any partner, agent or employee of you or any family member.
7. For any person maintaining or using any vehicle while that person is employed or otherwise engaged in any business or occupation not described in Exclusion 6. This exclusion does not apply to the maintenance or use of a private passenger type auto.- It also does not apply to the maintenance or use of a pickup, panel truck or van that you own.
8. For the ownership, maintenance or use of any motorized vehicle having less than four wheels.
9. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by you or furnished or available for your regular use.
10. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by or furnished or available for the regular use of any family member. However, this exclusion does not apply to you.
11. For any person using a vehicle without a reasonable belief that the person is entitled to do so.
12. For any person for bodily injury or property damage for which that person is an insured under a nuclear energy liability policy or would be an insured but for its termination upon exhaustion of its limit of liability. A nuclear energy liability policy is a policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters, Nuclear Insurance Association of Canada, or any of their successors.”

The Kubik court found that the manner in which the policy interchanged the terms “family member” and “any person” created an ambiguity which subjected paragraph 11 to more than one interpretation.

Specifically, the Kubik court stated:

“However, while the terms ‘family member’ and ‘any person’ have a clear meaning when standing alone, that meaning can become, as in the instant case, ambiguous through the manner in which those terms are used throughout the policy. In this regard, we note that the terms ‘family member’ and ‘any person’ are used selectively throughout the policy’s exclusions in such a way as to create the impression that they refer to mutually exclusive classes. Exclusion No. 10, for example, applies only to a ‘family member.’ Exclusions Nos. 1, 2, 4, 5, 7, 11 and 12, on the other hand, apply only to the class constituting ‘any person.’ In addition, exclusions Nos. 3 and 6 apply to both a ‘family member’ and ‘any person.’ Thus, the policy implies that some exclusions are applicable to only a ‘family member,’ some exclusions are applicable to only the class comprising ‘any person’ (a group separate and distinct from a ‘family member’), and some exclusions are applicable to both a ‘family member’ and ‘any person.’
This selective use of the terms ‘family member’ and ‘any person’ is critically important, for the term ‘family member’ is notably absent from exclusion No. 11. Again, exclusion No. 11 bars coverage ‘for any person using a vehicle without a reasonable belief that the person is entitled to do so.’ Exclusion No. 11 does not bar, as several other exclusions specifically do, coverage for a ‘family member.’ Consequently, a reading of the policy gives rise to the implication that a ‘family member’ is barred from coverage by only those exclusions wherein the term ‘family member’ is specifically included (Nos. 3, 6 and 10) and is likewise not barred from coverage by those exclusions, such as exclusion No. 11, which do not contain the term ‘family member.’ As a result, because the policy considers a ‘family member’ and ‘any person’ as two distinct classes, and because exclusion No. 11 does not include the term ‘family member’ whereas several other exclusions within the policy specifically do, it is apparent that at the very least, an ambiguity is created with regard to whether a ‘family member’ is barred from coverage by exclusion No. 11.” 142 Ill. App. 3d at 910.

In the instant policy, the term “family member” is defined as “a person related to you [the named insured] by blood, marriage, or adoption who is a resident of your household. This includes a ward or foster child.” As in Kubik, there is no express definition of “any person.” As did the Kubik court, we initially infer that “any person” relates to all possible individuals, including the named insured and his family members.

Further, plaintiff’s policy defines “covered person” thusly:

“ ‘Covered person’ as used in this Part means:
1. You or any family member for the ownership, maintenance or use of any auto or trailer.
2. Any person using your covered auto.
3. For your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.
4. For any auto or trailer, other than your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of you or any family member for whom coverage is afforded under this Part. This provision applies only if the person or organization does not own or hire the auto or trailer.”

Under the instant policy’s “Exclusions” section, the following language is found:

“A. We do not provide Liability Coverage for any person:
1. Who intentionally causes bodily injury or property damage.
2. For damage to property owned or being transported by that person.
3. For damage to property:
a. rented to;
b. used by; or
c. in the care of; that person.
This exclusion does not apply to damages to:
a. a residence or private garage; or
b. any of the following type vehicles not owned by or furnished or available for the regular use of you or any family member:
(1) private passenger autos;
(2) trailers; or
(3) pickups, panel trucks, or vans.
4. For bodily injury to an employee of that person during the course of employment. This exclusion does not apply to bodily injury to a domestic employee unless workers’ compensation benefits are required or available for that domestic employee.
5. For that person’s liability arising out of the ownership or operation of a vehicle while it is being used to carry persons or property for a fee. This exclusion does not apply to a share-the-expense car pool.
6. While employed or otherwise engaged in the business or occupation of:
a. selling;
b. repairing;
c. servicing;
d. storing; or
e. parking;
vehicles designed for use mainly on public highways. This includes road testing and delivery. This exclusion does not apply to the ownership, maintenance, or use of your covered auto by:
a. you;
b. any family member; or
c. any partner, agent or employee of you or any family member.
7. Maintaining or using any vehicle while that person is employed or otherwise engaged in any business or occupation not described in Exclusion 6. This exclusion does not apply to the maintenance or use of a:
a. private passenger auto;
b. pickup, panel truck or van that you own; or
c. trailer used with a vehicle described in a. or b. above.
8. Using a vehicle without a reasonable belief that that person is entitled to do so.
9. For bodily injury or property damage for which that person:
a. is an insured under a nuclear energy liability policy; or
b. would be an insured under a nuclear energy liability policy but for its termination upon exhaustion of its limit of liability.
A nuclear energy liability policy is a policy issued by any of the following or their successors:
a. Nuclear Energy Liability Insurance Association;
b. Mutual Atomic Energy Liability Underwriters; or
c. Nuclear Insurance Association of Canada.
B. We do not provide Liability Coverage for the ownership, maintenance or use of:
1. Any motorized vehicle having less than four wheels.
2. Any vehicle, other than your covered auto, which is:
a. owned by you, or
b. furnished or available for your regular use.
3. Any vehicle, other than your covered auto, which is:
a. owned by any family member; or
b. furnished or available for the regular use of any family member.
However, this exclusion does not apply to your maintenance or use of any vehicle which is:
a. owned by a family member; or
b. furnished or available for the regular use of any family member.”

After comparing the Kubik policy with the instant policy, we can find no significant distinctions. For all intents and purposes, the policies are identically worded.

The fact that the preamble to the Kubik exclusions section does not include the term “any person” but instead incorporates said term in the opening words of certain exclusionary paragraphs makes no difference. Further, the language of two exclusions sections is virtually identical in paragraphs 1 through 7. Paragraphs 8, 9, and 10 of the Kubik exclusions section are essentially the same as paragraphs Bl, B2, and B3, respectively, of the instant exclusions section. Paragraphs 11 and 12 in Kubik's exclusions section are very similar to paragraphs 8 (the subject of this appeal) and 9 of the instant exclusions section.

As in Kubik, it is essential to read the subject exclusionary paragraph within the context of the entire exclusion section. (See also Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1985), 138 Ill. App. 3d 346, 350.) In the instant exclusion section, the terms “family member” and “any person” are used selectively, giving the impression that the terms apply to mutually exclusive classes. Exclusion B3 applies only to a “family member” while exclusions Nos. 1, 2, 4, 5, 7, 8, and 9 are directed to “any person.” Exclusions Nos. 3 and 6 apply to both a “family member” and “any person.”

The exclusion under scrutiny here, No. 8, is, as noted above, virtually identical to Kubik’s exclusion No. 11, the subject of Kubik’s appeal. Exclusion No. 8 does not allow coverage for any person “[ujsing a vehicle without a reasonable belief that that person is entitled to do so.” Said exclusion makes no reference to a “family member,” as do exclusions Nos. 3, 6, and B3, which specifically bar coverage to a “family member.” When read as a whole, plaintiff’s policy implies that coverage for a “family member” is barred only by those exclusions which refer to same. As the Kubik court found, where a policy creates two distinct classes, namely, “family member” and “any person,” and where several exclusions specifically include “family member” but the exclusion under scrutiny does not, then, at the very least, it is ambiguous as to whether a “family member” is barred from coverage under said exclusion. (Kubik, 142 Ill. App. 3d at 910.) Such ambiguity causes us to interpret the policy and, specifically, exclusion No. 8 in a light most favorable to defendant. Kubik, 142 Ill. App. 3d at 911.

Accordingly, we find that plaintiff must defend and indemnify defendants, Bailey Jackson and Jacqueline Jackson, for any claims arising from the accident on July 28, 1985, in which Robert N. Duffy was fatally injured.

We reverse the judgment of the circuit court.

Reversed.

McLAREN and GEIGER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN JONES, Defendant-Appellant.
    Second District
    No. 2—88—0543
    Opinion filed December 24, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Janice Lynn Triptow, both of State Appellate Defender’s Office, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William H. Hall, Assistant State’s Attorney, of Springfield, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a bench trial on May 25, 1988, defendant, Martin Jones, was convicted of the offense of forgery (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 3(a)(2)) for having presented a forged check to open an account at the Gary-Wheaton Bank in the amount of $649.98 drawn from the account of Essie D. Lee and made payable to “Kenneth Jones.” The check had apparently been stolen from Lee, a co-worker of defendant. At the time the check was presented to the bank on January 15, 1988, defendant received $50 in cash proceeds from Margaret Chilicki, the personal banker who assisted defendant in opening the account. On June 2, 1988, the trial court imposed a sentence of two years’ imprisonment and ordered defendant to pay restitution to the bank in the amount of $1,938.98.

Defendant appeals, asserting that (1) he did not receive a fair trial by an impartial judge because, at the beginning of the State’s case, the trial judge informed defendant in open court that the judge was a depositor and had loans at the bank in question and orally offered defendant an opportunity to have a change in judges, and defendant orally waived a change in judges, but no written waiver was executed according to Supreme Court Rules 63C(l)(d) and D regarding the disqualification of judges (113 Ill. 2d Rules 63C(l)(d), D); and (2) the amount of restitution ordered was excessive and is not supported by the evidence. We find no basis to reverse defendant’s conviction, and it is therefore affirmed. However, the record does not support the amount of restitution defendant was ordered to pay as part of his sentence. We therefore affirm defendant’s sentence as to the term of imprisonment, we vacate his sentence as to the amount of restitution imposed, and we remand the cause for an evidentiary hearing to redetermine the amount of restitution defendant should be ordered to pay.

The record reveals the following additional relevant facts. At trial, Margaret Chilicki testified that, on January 15, 1988, at 6 p.m., she was working at the Gary-Wheaton Bank in Wheaton, Du Page County, Illinois. At that point in her testimony, the trial judge interjected to defense counsel that he had a checking account at that bank and had loans there. The trial judge asked defense counsel to confer with his client and offered defendant the opportunity to change judges, adding that the trial would likely proceed the same day. After conferring with his client, defense counsel stated that defendant saw no conflict and would not be asking for another judge.

Chilicki then continued her testimony, stating that defendant presented her with a check numbered 198 drawn on the account of Essie D. Lee at St. Paul Bank and made out to Kenneth Jones in the amount of $649.98 and that defendant wished to open an account at the bank. Defendant had a driver’s license and military identification card. Chilicki opened the account and gave defendant $50 in cash proceeds as he had requested. Approximately an hour later, defendant returned to the bank and requested more money from the opening deposit, but Chilicki explained that defendant had to wait three business days for the check to clear before any additional money would be available to him. On February 16, 1988, when Detective Ludman of the Wheaton police department showed her photographs from a photo album, Chilicki identified defendant as the one who attempted to open the account. She made an in-court identification of defendant. Chilicki also observed that the check had been marked “payment stopped.”

Essie D. Lee, an employee at the Du Page Convalescent Center, testified that, on January 17, 1988, she noticed that three checks numbered 198, 199, and 200 were missing from the checkbook which she kept in her desk at work. She did not write check No. 198 payable to Kenneth Jones, knew no one by that name, and did not give anyone permission to write out that check. Lee identified defendant as a co-worker who went by the name of S. T. Jones at the convalescent home.

Detective Jeffrey Ludman investigated the forgery that occurred on January 15, 1988. On February 16, 1988, he showed Chilicki a series of photographs from which Chilicki picked out a photograph of the defendant as the person who presented check No. 198 to her at the bank. On February 18, 1988, Ludman arrested defendant at the convalescent center.

Sergeant John Gorajczyk testified regarding latent fingerprints found on check No. 198. Based on his qualifications as an expert fingerprint and document examiner, he concluded that the latent prints matched the prints on the fingerprint card bearing defendant’s name. Gorajczyk also testified that the signature on the check in question was not naturally written and that it was inconsistent with the normal handwriting of a person who writes the same signature from habit.

Defendant presented an alibi defense using as witnesses two employees from the convalescent home where he worked under the name of S.T. Martin Jones; defendant attempted to document by means of a time-punch card that he was at work at the time of the offense. Betty Altman, a personnel employee, acknowledged that she did not personally observe defendant punch in or out on the date in question.

Monrie Neisler, an assistant supervisor at the convalescent center, testified that employees were not to leave the building without her permission. Defendant was on the work schedule for January 15, and there was no report of his absence, but Neisler could not state from personal knowledge whether defendant was in the nursing home at 6 p.m. on that date.

Defendant testified that he had a brother named Kenneth Jones.

After closing arguments, the trial court found defendant guilty of the charge of forgery premised on delivery of a document capable of defrauding another.

Defendant’s first appellate contention is that the trial judge should have disqualified himself from hearing the case since he had a financial interest in the bank by virtue of being a depositor or borrower of the bank and that any oral waiver was ineffective as the actions taken in open court did not conform to Supreme Court Rules 63C(l)(d) and D (113 Ill. 2d Rules 63C(l)(d), D). First, we point out that defendant did not object to the trial judge’s hearing of the cause and that this issue was not specifically raised in defendant’s written post-trial motion; therefore, this claim of error is waived on appeal. See People v. Enoch (1988), 122 Ill. 2d 176,186.

Even if we were to consider defendant’s claim regarding disqualification of the trial judge under the plain error exception to the waiver rule, we would not find that the actions of the trial court constituted error;- much less reversible error. A trial judge should disqualify himself if he knows that he has a substantial financial interest in the subject matter in a controversy or in a party to the proceeding where such an interest might affect the outcome of the proceeding. (113 Ill. 2d R. 63C(l)(d).) However, notwithstanding that a “financial interest” is defined as “ownership of a legal or equitable interest, however small” (113 Ill. 2d R. 63C(3)(c)), the rule also specifies that where the interest is that of a depositor in a mutual savings association or similar proprietary interest, it is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest (113 Ill. 2d R. 63C(3)(c)(iii)).

Subsection (3)(c)(iii) of the rule appears to create an exception to the disqualification of judges who are ordinary depositors or (impliedly) debtors of a savings association or a similar institution. Common sense dictates that the small sum involved in the check forgery in this case could have no real effect on the assets of the bank such that the outcome of the proceeding would substantially affect the value of the judge’s interest in the bank. The connection between the passing of a small, forged check and its effect on a highly regulated, insured banking institution is so tenuous that the defendant himself readily accepted the trial judge’s continued participation in hearing the case. The trial judge in this case was being meticulously candid in disclosing his status as a customer of the bank. Under the circumstances, we find no prejudice to defendant amounting to reversible error.

Defendant nevertheless argues that a written waiver of the judge’s disqualification executed by the parties is mandatory, citing Woods v. Durkin (1989), 183 Ill. App. 3d 870. However, Woods concerned a specific, clear, and previously existing conflict of interest brought to light by the trial judge’s disclosure that his daughter-in-law was an associate of the law firm that was representing defendant. Therefore, a written remittal of disqualification was required pursuant to Rule 63D (113 Ill. 2d R. 63D). Here, we have found no conflict of interest stemming from the judge’s status as an ordinary customer of the bank by virtue of the exception provided in subsection (3)(c)(iii) of Rule 63C. Therefore, no written waiver was required. Although we recognize that there is a paucity of Hlinois case law on the precise question presented by the financial interest exception here, we believe that defendant’s reliance on other cases which do not construe this exception is misplaced.

Defendant also argues that the trial judge’s status as a bank depositor or debtor created the appearance of impropriety requiring recusal. (People v. Bradshaw (1988), 171 Ill. App. 3d 971, 976.) We disagree. The trial judge disclosed his interest in open court at the beginning of the trial when he noticed that the first witness was an employee of the Gary-Wheaton Bank. At this point, no rulings affecting the outcome of the trial had been made and nothing had yet occurred at the trial which would have prejudiced defendant; defendant was given the opportunity to request a substitution of judges with reasonable assurance that the trial would proceed the same day, and defendant declined the offer after conferring with counsel. We find no appearance of impropriety here.

Defendant next contends that the amount of restitution which he was ordered to pay is not supported by the evidence in the record. We agree, and we notice such error under the plain error exception to the waiver rule. Plain error may be considered where, as here, the record clearly shows that an alleged error affecting substantial rights was committed. (See People v. Young (1989), 128 Ill. 2d 1, 46.) The State concedes that the amount of restitution should be modified. The trial court ordered defendant to pay restitution to the bank in the amount of $1,939.98. The State maintains that defendant obtained the full amount of the check from the bank, but we are unable to ascertain from our examination of the record that the bank’s out-of-pocket loss exceeded the $50 in cash advanced to defendant at the time he deposited the forged check. Alleged losses which are unsupported by the evidence must not be used as a basis for awarding restitution. See People v. Chacon (1984), 125 Ill. App. 3d 649,658.

Accordingly, that part of the sentence ordering defendant to pay restitution in the amount of $1,938.98 is vacated, and the cause is remanded for an evidentiary hearing regarding the amount of restitution to be paid by defendant. In all other respects, the judgment of the circuit court is affirmed.

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

UNVERZAGT, P.J., and DUNN, J., concur.