author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TEDDY W. ELLISON, Defendant-Appellant.
    Second District
    No. 2—83—0304
    Opinion filed June 20, 1984.
    Modified on denial of rehearing August 20, 1984.

      G. Joseph Weller, Judith M. Brawka, and Kyle Wesendorf, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Andrea Becker, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Teddy W. Ellison, was charged by indictment with the offenses of burglary, theft and possession of burglary tools. After a jury trial in the circuit court of Kane County he was found guilty of the burglary (Ill. Rev. Stat, 1981, ch. 38, par. 19 — 1(a)) and theft over $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1). He was sentenced to two concurrent four-year terms of imprisonment.

On appeal defendant presents three issues for review. First, he contends the trial court erred in refusing to suppress his statements to the police because he did not knowingly and intelligently waive his Miranda rights prior to making inculpatory statements. Defendant contends the finding that he had waived his rights was against the manifest weight of the evidence. Secondly, he contends that evidence of the theft of a CB radio was improperly admitted at trial. Defendant’s final contention concerns the question of whether or not the jury was properly instructed.

The record shows that defendant filed a motion to suppress his statements to the police, urging that he did not knowingly and intelligently waive his Miranda rights. The motion, filed on November 10, 1982, was denied after a hearing. At the hearing, Arthur Weber, an Algonquin police sergeant, testified that he was on patrol on September 27, 1982, and responded to a call of a possible theft from a model home. He reported to the scene and spoke with David Trotter, who lived next door to the model home. Trotter told him that he had seen two men carry a stove and dishwasher from the home and load them into a white Ford station wagon with blue doors. Weber then heard, over his police radio, that Officer Svenningsen had located a station wagon matching that description.

Officer Svenningsen testified that when she approached the station wagon the defendant was sitting alone in the car and there were large appliances in the back. Defendant told her that the car belonged to his wife and he had been helping a friend move. When Sergeant Weber arrived on the scene, defendant repeated this statement to him and Weber arrested the defendant.

Defendant was informed of his rights under Miranda at the police station by Office Svenningsen. She gave defendant a copy of the Miranda form to read along with her as she read another form. This took above five minutes, and defendant then signed the waiver form. Officer Svenningsen testified that she spoke with defendant for about one-half hour, but she did not ask him any questions pertaining to the charges he had been arrested for.

Lieutenant Steven Schinkel came to the station shortly after 1 a.m. to interview the defendant. He reread the rights from the Miranda form to defendant, and the defendant told him that he knew his rights because he had “been arrested several times before.” The defendant then told Lieutenant Schinkel that a friend of his by the name of Randy had come by his apartment and they had gone fishing. Randy told defendant he wanted to get some property from a house and told him how to get to this house. When they got there Randy went around the back and opened the garage door and asked defendant for some help carrying some of the property. Lieutenant Schinkel testified that the defendant’s speech was coherent and his answers and statements were not unusual. The defendant did not request an attorney and did not ever refuse to answer a question. Defendant told Schinkel that he was just doing this as a favor for Randy. He admitted that both he and Randy had taken the dishwasher and stove and placed them in the back of the station wagon, and were taking them to Randy’s apartment.

Lieutenant Schinkel returned the next morning, sat in the back of a squad car with defendant and advised him of his rights again prior to conversing with him. Lieutenant Schinkel tried to get some information about the defendant’s friend, Randy. Defendant told Lieutenant Schinkel that he and Randy had been together the night before and were in his car driving around looking for a house they could get some property from. They entered the house in question through a basement window, went upstairs, unlatched the garage door, opened the garage and removed the dishwasher and stove. Defendant told Schinkel he had removed these items despite the fact that neither he nor his friend, Randy, knew the people there at the house. He said he was not going to get any money from this, he was just trying to help Randy out. Defendant appeared to be coherent. Defendant never requested an attorney.

The psychologist on staff at the Kane County Diagnostic Center, Roger Hughes, testified on behalf of the defendant. He indicated that the results of six hours of his testing of defendant showed defendant was illiterate. He determined the defendant’s IQ to be 77, which indicates borderline mild mental retardation. Thus, the defendant would score better than only 2% of the population on these tests. Hughes testified that the defendant’s verbal language disability was likely developmental in nature and that he had likely never been motivated to learn verbal material.

With regard to the Miranda rights form read and shown to the defendant, Hughes testified that defendant “definitely” could not read the form for himself and understand it: He indicated that if the form were read to him there would be parts that he could understand but that he could not understand it in its entirety. Specifically, he testified, defendant would likely not know what the word “appointed” means, or what the phrase “exercise these rights” means. Although someone may be able to explain the terms to him, it would be a very slow, arduous process in order for him to “get” the meaning of the words. He would not be able to derive the meaning of the words himself. On the other hand, Hughes testified, defendant was fit to cooperate with counsel and could understand the proceedings of the trial in a general way.

The defendant testified on his own behalf. He identified the Miranda rights form and could vaguely remember that he had signed it. He testified that when he and Lieutenant Schinkel were in the back of the car on the way to the bond hearing Schinkel told him that if he did not talk to him Schinkel would make sure he was not released on bond. When defendant was presented with the Miranda rights form he was able to read only the short and simple words on the form.

Defendant’s motion to suppress the statements was denied and the court ruled that there was no coercion by the police.

At trial, on February 15, 1983, the defense filed a motion in limine to preclude the testimony of David Trotter, the individual living next door to the model home who had initially called the police. Trotter was expected to testify regarding the theft of his CB radio from his car parked next door to the model home. He discovered the theft the morning after defendant was arrested. The prosecutor argued that the evidence was relevant to show the absence of mistake. The motion was denied, and Trotter was allowed to testify.

Trotter testified at trial that he saw two men coming out of the garage of an uncompleted home next door to his house. He saw the men carrying appliances and loading them into a car parked in front of the house, but he could not see their faces. After they tied down the back door of the station wagon, the two men drove away slowly with their lights off. The next morning Trotter found that his car had been broken into and his CB radio had been cut out of the dashboard. Sergeant Weber and Officer Svenningsen testified and provided, essentially, the same details as they did at the suppression hearing.

Lieutenant Schinkel testified that the defendant had told him he stayed in the car while Randy went into the house. Schinkel recalled that defendant was ill in the car when he drove defendant to Elgin for the bond hearing and that defendant mentioned that he had been drinking. Following testimony as to the value of the stove and dishwasher, the prosecution rested.

For the defense, the defendant’s ex-wife testified that the defendant and his friend, Randy, left the house around 8 p.m. to go fishing. Roger Hughes, the psychologist, testified to essentially the same facts as he had related at the suppression hearing.

The defendant testified on his'own behalf. He indicated that he and Randy left the house at either 7, 8 or 9 p.m. They fished, drank beer and smoked cigarettes until dark. Randy told defendant where they could go so they could pick some things up. They went to the house and defendant helped Randy carry a stove and something else in a box and put it in the back of the car. Defendant stated he did not go into the house or into the garage. While they were at the house Randy left and got something somewhere else. On the way back home Randy gave defendant the CB radio for helping him. When defendant got to his house and the police car drove up, Randy ran away. Defendant said he did not run away because he had no reason to run. Defendant stated he was not guilty of the offenses and he denied having told Lieutenant Schinkel that he had planned the burglary or that he knew how Randy got into the house.

The jury returned a verdict of guilty of burglary and theft and not guilty of possession of burglary tools. Defendant’s post-trial motion was denied. The court imposed terms of four years’ imprisonment on each charge, to be served concurrently.

The defendant’s first contention on appeal is that the trial court erred in finding that defendant had knowingly and intelligently waived his Miranda rights and in refusing to suppress his statements to the police. Thus, he urges, his convictions should be reversed.

Defendant contends that the factors which must be taken into consideration here are his low intelligence score and his unfamiliarity with written language. He also points out that the atmosphere in which a defendant waives his rights can be coercive. People v. Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263.

The thrust of defendant’s contention turns on the testimony from Roger Hughes, the psychologist. Hughes concluded that, given the circumstances under which defendant made his waiver, he was incapable of understanding the meaning and appreciating the significance of what he had done. As previously indicated, Hughes found that the defendant was illiterate and had an IQ of 77, which indicated borderline mild retardation. He attributed the defendant’s low abilities to a verbal language disability. Hughes testified that the defendant could not have understood the terms used in the Miranda form and he would have to be taught what the words meant in order to fully understand the meaning of the words. He also indicated that repeated exposure to the words alone would be an insufficient way for defendant to learn what they meant.

Defendant also urges that the entire procedure of signing the Miranda card took approximately five minutes, but more time would be necessary for a complete explanation. The defendant contends that the State failed to rebut the Hughes testimony. He urges that the officers who testified about defendant’s arrest were mistaken in their opinions of his abilities and intelligence. Further, he urges, their observations could be viewed as consistent with Hughes’ conclusions.

We believe the trial court was in a better position than this court to evaluate the defendant’s ability to understand his rights. After a hearing on the motion to suppress, the trial court’s ruling will not be disturbed unless it is against the manifest weight of the evidence. (People v. Higgins (1972), 50 Ill. 2d 221, 278 N.E.2d 68.) The test for admissibility of a confession is whether it was made freely, voluntarily and without compulsion. (People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093, 1096.) The burden of proving the voluntariness of a confession is on the State (People v. Jackson (1968), 41 Ill. 2d 102, 242 N.E.2d 160), and this must be proved by a preponderance of the evidence. People v. Harper (1967), 36 Ill. 2d 398, 223 N.E.2d 841.

Evidence of limited intellectual capacity, standing alone, does not indicate that a defendant is incapable of waiving his constitutional rights and making a confession. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677, 685.) Such evidence is but one of the issues to be considered in reviewing the totality of the circumstances under which a confession is made. People v. Turner (1973), 56 Ill. 2d 201, 206, 306 N.E.2d 27.

Further, it should be noted that the police are not required, as a prerequisite to accepting a waiver, to conduct a mental examination of the accused with a view to ascertaining his ability to comprehend his rights. (People v. Cooper (1975), 30 Ill. App. 3d 326, 332, 332 N.E.2d 453, 458, cert. denied (1976), 425 U.S. 994, 48 L. Ed. 2d 818, 96 S. Ct. 2206.) The particular facts and circumstances of each case, and the background, experience and conduct of the accused must be considered in determining whether a waiver is knowing and intelligent. People v. Cooper (1975), 30 Ill. App. 3d 326, 332 N.E.2d 453.

In People v. Simmons (1978), 58 Ill. App. 3d 1026, 374 N.E.2d 1290, this court held a minor’s confession was admissible despite his low intelligence. Defendant had passed the eighth grade and had been expelled in the ninth grade. He had received a score of 80 on the Wechsler adult intelligence scale. This placed him in the “dull normal” range. Citing People v. Hester (1968), 39 Ill. 2d 489, 500-02, 237 N.E.2d 466, the court noted that these facts did not make defendant incapable of understanding his Miranda warnings. This court deferred to the trial court’s determination that the waiver was knowing and voluntary. In the case at bar, the defendant had approximately the same level of education, eighth grade, as the defendant in Simmons. He had a somewhat lower intelligence test score, i.e., 77. However, defendant in the instant case was not a minor. He was 28 years old at the time of his arrest and had been arrested a number of times prior to this occurrence. In Simmons, the trial court noted that the defendant was articulate and understood his rights, that he was experienced in dealing with the criminal justice system, and that there was no evidence of physical force or coercion. Simmons indicates that the trial court in the instant case should be affirmed.

In People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093, the defendant was a 17-year-old who confessed to murder. On review her confession was held voluntary despite her marginal intelligence. She had a ninth grade education, an IQ of 78, and was diagnosed as having a personality disorder. The Avery court noted that defendant’s mental capacity was but one factor in determining the voluntary nature of a confession from the totality of the circumstances.

The cases cited by defendant are inapposite. People v. Markiewicz (1976), 38 Ill. App. 3d 495, 348 N.E.2d 240, the principal case relied on by defendant, is distinguishable in that the inculpatory statement was taken from defendant while she was in the intensive care unit of a hospital and there was evidence that she was under the influence of drugs, near death, and had just begun to come out of a coma. In the instant case, although there was evidence defendant had been drinking, the defendant did not argue, and the record does not indicate, that he was so drunk he did not understand the Miranda warnings. Defendant also urges that the Markiewiez court gave great weight to the fact that defendant’s expert testimony went unrebutted. Although the Markiewiez court affirmed the trial court’s conclusion that the State’s evidence was insufficient to overcome the defendant’s expert medical testimony, the fact that the expert testimony went unrebutted was not the sole determining factor in the case. In fact, the court stated:

“Admittedly, the trial court has no obligation to adopt, in whole or in part, the experts' medical conclusions. The judge, rather than the experts, was the trier of fact.” (People v. Markiewicz (1976), 38 Ill. App. 3d 495, 498-99, 348 N.E.2d 240, 243.)

Further, in the present case the defendant testified on his own behalf. The trial court was thus able to observe the defendant and evaluate his ability to respond to verbal questioning.

The defendant’s evidence of limited intellectual capacity is one of the circumstances to be considered in reviewing the totality of the circumstances under which a confession is made. (People v. Turner (1973), 56 Ill. 2d 201, 306 N.E.2d 27.) In light of defendant’s eighth grade education and the evidence of a lack of coercion by the police, we believe the trial court properly denied defendant’s motion to suppress.

The defendant’s next contention on appeal is that evidence of his possession of a stolen CB radio was improperly admitted because it was not relevant for any proper purpose. Defendant contends that this evidence, together with the jury instruction regarding his responsibility for the theft of the CB radio, denied him a fair trial. The prosecution argued that the evidence was relevant to show absence of mistake and to establish defendant’s intent and knowledge. We agree.

Defendant points out that his presence at the scene of the crime was not a fact in issue in the instant cause. He argues that the evidence of the theft of the radio is not relevant because it does not prove a fact in issue to the offense for which the defendant was tried.

It has generally been held that evidence of other crimes is admissible to show knowledge, intent, motive, design, plan or identification. (People v. Alexander (1982), 93 Ill. 2d 73, 442 N.E.2d 887.) Evidence of other crimes will not be admitted, however, where the grounds for establishing its relevance are speculative. (People v. Spiezio (1982), 105 Ill. App. 3d 769, 434 N.E.2d 837, 839.) The question of whether such evidence should be admitted as evidence requires the trial judge to balance the relevancy of that evidence against its prejudicial impact. People v. James (1981), 100 Ill. App. 3d 884, 888, 427 N.E.2d 248.

In the instant case, the defendant maintains he had no knowledge of the burglary or theft and did not intend to commit either crime. Thus, his state of mind as to knowledge and intent is in issue.

Despite the somewhat vague nature of the testimony regarding how the defendant and Randy came into possession of the radio, we believe that the evidence of Randy having received the radio was sufficiently probative to warrant being admitted into evidence. Defendant, in his own cross-examination testimony, conceded that he and Randy arrived at the model home without a CB radio, but when they left they had one. As previously indicated, the radio was recovered from defendant’s vehicle when he was arrested. It was found under the driver’s seat. Defendant testified that Randy gave him the radio shortly after Randy had run off and then returned to the car. This occurred while they were at the model home. Randy gave him the radio for helping him.

Defendant’s reliance on the case of People v. Bailey (1980), 88 Ill. App. 3d 416, 410 N.E.2d 545, and People v. Gugliotta (1980), 81 Ill. App. 3d 362, 401 N.E.2d 262, is misplaced. In the instant case, defendant was found in possession of the stolen CB radio, stove and dishwasher within minutes of the crime. The State contends that the evidence of his possession of the stolen goods was properly introduced into evidence. Both Bailey and Gugliotta involved evidence of subsequent criminal activity, while in the case at bar the evidence concerned criminal activity which, according to the Trotter testimony, took place at the scene of and at the same time as the crimes for which defendant was charged. For this reason, the evidence was probative on the question of defendant’s motive and intent at the time of the crimes in issue. (People v. Smith (1972). 3 Ill. App. 3d 958, 279 N.E.2d 512; People v. Clark (1968), 104 Ill. App. 2d 12, 24-25, 244 N.E.2d 842.) Further, we believe the jury instruction on other-crimes evidence was properly given. This instruction, Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.14 (2d ed. 1981), which advised the jury that evidence had been received that the defendant had been involved in an offense other than that he was charged with, was a limiting instruction which informed the jury that the other-crimes evidence was to be considered solely on the question of defendant’s intent and knowledge. (People v. Parker (1976), 35 Ill. App. 3d 870, 343 N.E.2d 52.) We see no error in this regard.

In defendant’s final contention on appeal he urges that the trial court erred in refusing to instruct the jury on the affirmative defense of ignorance or mistake, and erred in granting the State’s instruction on the presumption arising from the possession of recently stolen property.

We first address the contention that the trial court erred in giving an instruction on the presumption arising from the possession of recently stolen property. Defendant argues that, because he conceded possession and the commission of the acts which resulted in the possession, it was prejudicial error for the trial court to allow this instruction. Thus, he contends, he is entitled to have the cause reversed and he should be granted a new trial. We disagree.

The appropriate time for the granting of IPI Criminal No. 13.21, regarding the presumption arising from the possession of recently stolen property, was discussed in the case of People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160. Housby requires that three requirements be met for determining whether IPI Criminal No. 13.21 is proper. First, if there is a rational connection between possession of recently stolen property and participation in a burglary; second, guilt of burglary more likely than not flows from possession; and third, that there is evidence corroborating the inference. (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, 155.) In the instant case, the defendant conceded that he was in possession of the stolen items, and there was evidence that the items had been stolen only a few minutes before he was found with them in his possession.

We believe there was sufficient evidence that the defendant’s guilt of the crimes more likely than not did flow from his possession of the items. His story that his friend, Randy, asked for help in moving some property was a question of credibility and could easily be disbelieved by the jury. There was evidence that the car was being driven in the area after the burglary with its lights off, and that the men were arguing about where to take the items they removed from the house. These circumstances could suggest, more likely than not, that the defendant’s involvement in the moving of the stolen goods was not innocent. Further, the defendant’s explanation of his possession of that property could reasonably have been found to be false. Thus, there was evidence in the form of defendant’s testimony corroborating his guilt, and that the three requirements of Housby have been met in the instant case.

The defendant’s reliance on People v. Smith (1979), 77 Ill. App. 3d 666, 396 N.E.2d 638, is misplaced. In that case, a prosecution for armed robbery, this court held that it was error for the jury to be instructed on the definition of “possession” in a case where defendant had admitted possession of the stolen articles. However, the error was viewed as harmless in light of the strong circumstantial evidence incriminating defendant. Further, in Smith no challenge was made to IPI Criminal No. 13.21. Smith is inapposite. People v. Moats (1980), 89 Ill. App. 3d 194, 411 N.E.2d 573, also cited by defendant, is distinguishable. In Moats, defendant was prosecuted for receipt of stolen property and the court held he was prejudiced by the jury having been given instruction IPI Criminal No. 13.21. Although Moats does prohibit the giving of No. 13.21 when one is charged with receiving stolen property, it also specifically allows that instruction to be given when the defendant has been charged with theft, as in the instant case. (People v. Moats (1980), 89 Ill. App. 3d 194, 411 N.E.2d 573, 578.) We see no error in this instruction having been allowed.

We next address the issue of defendant’s requested instruction on the affirmative defense. Defendant had tendered a non-IPI instruction patterned upon the statute which makes ignorance or mistake as to a matter of fact or law an affirmative defense. The instruction tendered by the defense, taken from the statute (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 8), stated:

“A person’s ignorance or mistake as to a matter of either fact or law *** is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the offense.”

Defendant argues that if the court had properly allowed this instruction, then the State would have been required to disprove the defense of ignorance or mistake.

Generally, it has been held that if there is any evidence which supports the defendant’s theory of the case, and if the defendant’s instruction embodies that theory, then the instruction should be allowed. People v. Fox (1983), 114 Ill. App. 3d 593, 596, 449 N.E.2d 261, 264; People v. Ulatowski (1977), 54 Ill. App. 3d 893, 897, 368 N.E.2d 174, 177.

In this case defendant himself testified that it was his mistaken belief that he was helping his friend, Randy, move some property. In order to be guilty of burglary, defendant must have known that he entered the model home without authority and “with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a).) In order to be guilty of theft in this case the State must show, inter alia, that defendant “knowingly” obtained control over property of another (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(d)). Defendant presented evidence which showed the items were not knowingly taken under circumstances that would induce him to believe the property was stolen. Further, he presented evidence of his limited mental capacity. We note that his borderline mental retardation could have allowed him to make this mistake of fact; i.e., thinking he was simply helping his friend, Randy, move some property. Defendant’s statements throughout the case were consistent with his mistaken belief, except the purported statement he gave to Lieutenant Schinkel in the squad car — and this was given when defendant was sick.

Because the defendant presented evidence in the form of his own testimony and expert opinion regarding his mental capacity which supports his theory that he lacked the requisite knowledge, the court should have allowed the defendant’s instruction. Section 3 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 2(a)) provides that unless the State’s evidence raises the issue involving the alleged defense, in order for the defendant to raise the issue, he must present “some evidence” thereon. We believe the defendant presented such evidence and he was therefore entitled to the instruction. (People v. Unger (1977), 66 Ill. 2d 333, 338, 362 N.E.2d 319, 321.) We would also note that while the tendered instruction is not contained in IPI Criminal (2d ed. 1981), it is, we believe, simple, brief, impartial and free from argument, as required by Supreme Court Rule 451(a) (87 Ill. 2d R. 451(a)). Therefore, the trial court erred in denying defendant’s requested instruction on ignorance or mistake of fact or law.

We cannot hold that this constituted harmless error. Although there was ample evidence to show that defendant was involved in removing the items from the home, the requested instruction would have allowed the jury to consider a key part of the case: whether defendant, in light of .his level of intelligence, mistakenly thought he was simply helping a friend move some property.

The State contends that the affirmative defense of ignorance or mistake of fact or law was never raised by defendant. Rather, it urges, the jury was properly instructed on the defendant’s theory of the case when they were instructed on the elements of burglary and theft in accordance with the IPI instructions which were given. The thrust of the State’s argument is that in order to raise this affirmative defense defendant must show more than a denial of criminal intent. We disagree.

Raising the affirmative defense of ignorance or mistake can disprove the intent specified as an element of the crimes of burglary and theft. Absent an instruction on this point, the jury is not specifically made aware that ignorance or mistake of fact or law can negate the intent. Further, the statute clearly states that because ignorance or mistake of fact or law is an affirmative defense (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 8(d)), the State must sustain the burden of proving the defendant guilty “as to that issue together with all other elements of the offense.” (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 2(b).) We believe that under the applicable statutes the defendant was entitled to have his defense presented to the jury by way of the requested instruction.

Therefore, defendant is entitled to a new trial. For the reasons stated, the judgment of the circuit court of Kane County is reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded.

NASH and VAN DUESEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MILLS JUSTICE GREEN,

license: Public Domain

text:
    BURNHAM CITY HOSPITAL, Plaintiff-Appellee, v. HUMAN RIGHTS COMMISSION et al., Defendants-Appellants.
    Fourth District
    No. 4—83—0680
    Opinion filed August 13, 1984.

      GREEN, J., concurring in part and dissenting in part.
    Neil F. Hartigan, Attorney General, of Springfield, and Walter S. Clifton, Jr., of Urbana (Fredric D. Tannenbaum, Assistant Attorney General, of counsel), for appellants.
    Stephen M. O’Byrne, of Reno, O’Byrne & Kepley, of Champaign, for ap-pellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court: Discrimination?

Administrative law judge said yes.

Human Rights Commission said yes.

Circuit court said no.

We affirm.

On September 18, 1979, defendant, Walter S. Clifton, Jr., filed a complaint with the Illinois Fair Employment Practices Commission (FEPC) against plaintiff, Burnham City Hospital of Champaign (Burnham). He alleged a violation of section 3(a) of the Fair Employment Practices Act, which then stated:

“It is an unfair employment practice:
(a) For any employer, because of the race *** of an individual ***, to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment.” (Ill. Rev. Stat. 1979, ch. 48, par. 853(a).)

Shortly thereafter, that Act was repealed and replaced by the Illinois Human Rights Act (Ill. Rev. Stat. 1981, 'ch. 68, par. 1 — 101 et seq.), which comprehensively treats various types of discrimination and provides for a Human Rights Commission (HRC) whose function includes those previously performed by the FEPC. The legislation provided for the HRC to proceed with cases pending before the FEPC. Ill. Rev. Stat. 1981, ch. 68, par. 9 — 102.

Prior to its termination, the FEPC filed a formal complaint against Burnham on June 10, 1980, charging it with a violation of section 3(a) of the Fair Employment Practices Act because it refused to hire Clifton, a black male, as a pharmacy technician while hiring a less qualified white person. The case was heard on August 26 and 27, 1980, before an HRC administrative law judge who issued an opinion and recommended order on October 13, 1981. He found the charges to have been sustained. On January 8, 1982, the HRC approved the administrative law judge’s report and entered the recommended order which included among its requirements that Burnham (1) make Clifton whole for lost wages he may have suffered, (2) cease and desist from such discrimination, and (3) report to the HRC within 45 days as to the steps it had taken in compliance.

Burnham appealed to the circuit court of Champaign County for administrative review. That court reversed the order of the HRC which, together with Clifton, has in turn appealed to this court. We affirm the circuit court.

In dealing with the allocation of burdens of proof and persuasion in cases where discrimination in employment is charged, the appellate court of this State has drawn an analogy to the procedures used in cases under the Federal Civil Rights Act. (42 U.S.C. sec. 2000e (1982); see McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed 2d 668, 93 S. Ct. 1817.) We did so in Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1976), 45 Ill. App. 3d 116, 359 N.E.2d 174, rev’d in part on other grounds (1978), 71 Ill. 2d 61, 373 N.E.2d 1307, as did the Fifth District in City of Cairo v. Fair Employment Practices Com. (1974), 21 Ill. App. 3d 358, 315 N.E.2d 344. The First District gave full application to the Federal procedure in A.P. Green Services Division of Bige-low-Liptak Corp. v. Fair Employment Practices Com. (1974), 19 Ill. App. 3d 875, 312 N.E.2d 314.

The Federal cases on employment discrimination have proceeded on theories of (1) disparate treatment, which requires proof of a discriminating motive by the employer (United States Postal Service Board of Governors v. Aikens (1983), 460 U.S. 711, 75 L. Ed. 2d 403, 103 S. Ct. 1478), and (2) disparate impact, which involves employment practices which, without justified business necessity, fall more heavily on minority groups. (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 52 L. Ed. 2d 396, 97 S. Ct. 1843; Griggs v. Duke Power Co. (1971), 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849.) In the case before us, the HRC found discrimination to have been proved under both theories.

By the terms of section 8 — 107(E)(2) of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 107(E)(2)), the HRC is required to adopt the findings of fact of the administrative law judge unless they are contrary to the manifest weight of the evidence. That occurs when a contrary result is clearly evident. (Clark Oil & Refining Corp. v. Golden (1983), 114 Ill. App. 3d 300, 448 N.E.2d 958.) Similarly, when tested on administrative review, a decision of the FEPC could not be overturned by a reviewing court on the basis of the sufficiency of the proof, unless that decision was contrary to the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877.) This is the standard for most cases of administrative review and would logically be applied to review of decisions of the HRC. We apply that standard here.

I

Under the disparate treatment theory, proof of discriminatory motive is critical, although it may be inferred in some situations from differences in treatment. (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 415 n.15, 97 S. Ct. 1843, 1854 n.15.) The method applied in such cases was described in A.P. Green Services Division:

“The allocation of the burden of proof in an action challenging employment discrimination was well established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed 2d 668, 677, 93 S. Ct. 1817, 1824 (1973). The Supreme Court in referring to the prima facie case that must be initially put forward by the complainant stated:
‘This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.’
Once this is done the burden shifts to the employer and it is incumbent upon him to rebut the prima facie case by some legitimate, nondiscriminatory reason for the complainant’s rejection. If the employer discharges his burden of proof and meets the prima facie case of discrimination, the burden of proof then shifts back to the complainant and he must establish that the articulated reason for rejection is pretext. (McDonnell Douglas Corp., supra.)” (19 Ill. App. 3d 875, 880-81, 312 N.E.2d 314, 318.)

The footnote in McDonnell Douglas Corp. stated:

“The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802 n.13, 36 L. Ed 2d 668, 677-78 n.13, 93 S. Ct. 1817,1824 n.13.

The “bursting bubble” theory of presumption is operative in civil cases in this State. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.) In passing upon discrimination cases under title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. sec. 2000e et seq. (1982)), the United States Supreme Court more recently has given similar treatment to the rule of McDonnell Douglas Corp. in Aikens. There, the court held that when the complainant makes a prima facie case, and the employer articulates a legitimate reason for its action, the presumption arising from the prima facie case is destroyed. The complainant then has the burden of proving the employer intentionally discriminated against him. He may do this directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer, or indirectly through proof that the employer’s proffered explanation is not to be believed. (See Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) In other words, the trier of fact must decide which party’s explanation of the employer’s motivation it believes. United States Postal Service Board of Governors v. Aikens (1983), 460 U.S. 711, 716, 75 L. Ed. 2d 403, 411, 103 S. Ct. 1478, 1482.

The evidence before the administrative law judge clearly showed that Clifton was a member of a minority group, was qualified for the position of pharmacist’s technician, had applied to Burnham for such a job, and was rejected. The undisputed evidence also showed Clifton (1) graduated from high school and attended the University of Illinois until 1972, when he joined the Army, (2) graduated from the Army’s medical field services school in January 1973 and was assigned to the pharmacy at Fort Gordon, Georgia, (3) was assigned by the Army to a four-month pharmacy technician course from which he graduated in the top 5% of his class, (4) served as a pharmacy technician until his discharge from the Army in August 1975, (5) then attended the University of Illinois where he received a bachelor’s degree in economics in 1977 and a degree from the College of Law in 1980, and (6) while attending college, held several jobs, some of which were during the summer.

During the period from 1975 until the hearing, Harold Wolf was Burnham’s director of pharmaceutical services. Clifton testified he met with Wolf in November 1975 to discuss his qualifications as a pharmacy technician and to give Wolf a copy of his resume. Clifton spoke to Wolf again in March 1976 and in March or May of 1977. Both times Clifton inquired about the possibility of being hired as a pharmacy technician. Wolf recalled having some conversations with Clifton but denied ever receiving Clifton’s resume. Clifton testified he made numerous applications for a job as pharmacy technician. Applications executed by Clifton in 1977 and 1979 for such a position were introduced into evidence. The evidence indicated that earlier applications would not still have been in Burnham’s records.

Burnham placed advertisements about the June 1979 opening in a local newspaper. The Hospital’s personnel department collected about 25 applications and forwarded them to Wolf. The applications themselves did not indicate the applicant’s race. Wolf selected three applicants for an interview. None of the three chosen had any experience related to pharmacy work. Wolf hired one of those interviewed, a white male.

When asked about the requirements for the job opening, Wolf testified he looked for someone who would provide job stability. Wolf had recently become concerned with stability due to the unreliability exhibited by an employee whose application showed a “gap” of two to three months in describing his previous employment. Wolf discharged the employee and later learned the employee had had employment during the “gap” about which he would not have wanted Burnham to know. Wolf was unclear as to whether he focused on the applicant’s prior work record or all of the applicant’s prior activities in determining stability.

The administrative law judge found Clifton had established his prima facie case. That judge also held Burnham had rebutted the prima facie case by offering legitimate nondiscriminatory reasons for Clifton’s rejection. At this point, the presumption of discrimination dropped from the case. The trier of fact had to decide the ultimate issue, whether Clifton’s rejection was racially premised. The administrative law judge concluded it was. The question we must address is whether this conclusion is against the manifest weight of the evidence.

The administrative law judge’s conclusion rested on two findings. First, he determined Clifton was more qualified than the applicant that Burnham hired. Generally, an employer who rejects a minority candidate in favor of a nonminority candidate with inferior qualifications has a burden of explanation. (Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1976), 45 Ill. App. 3d 116, 126, 359 N.E.2d 174, 181.) While the trier of fact’s belief that the employer misjudged the applicant’s qualifications alone does not render the employer liable, it may be probative of whether the employer’s reasons for the rejection are pretext for discrimination. (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089, 1097.) Under the circumstances in this case, we find the administrative law judge’s determination irrelevant to the ultimate issue.

Unlike Burnham’s previous advertisements, which included a statement that experience was preferred, the one in June 1979 stated Burnham was “willing to train.” Wolf explained this change in policy was due to a pharmacy apprentice who would be working in the department for the summer in addition to the full quota of pharmacy technicians. This would reduce the load on the latter so that it would be feasible to hire a person with no experience, but who could be trained. Applications of others not interviewed confirmed Wolf’s testimony on this point. Several applicants had experience and training similar to Clifton’s but were not interviewed.

In order for Clifton’s superior qualifications to be proof of Burnham’s intent to discriminate, several inferences must be made. First, before it advertised for the position, Burnham must have known Clifton would apply. Burnham also must have changed its employment policy to avoid interviewing Clifton, although it had made no such effort when Clifton had applied in the past. Finally, Burnham must have rejected all of the most qualified applicants without, determining their race simply to avoid interviewing Clifton. None of these inferences is even remotely likely. Rather than being proof of Burnham’s intent to discriminate, the evidence demonstrates that Clifton’s experience was treated no differently than the experience of any other applicant.

The second ground supporting the administrative law judge’s conclusion was his determination that Burnham’s proffered explanation was not to be believed. According to the administrative law judge, Burnham rejected Clifton solely because he lacked a stable employment history. The administrative law judge noted Burnham generally was not concerned with applicants’ work histories, and, therefore, he concluded Burnham’s reason must have been a pretext for discrimination.

To support his finding that Burnham was not concerned with work histories, the administrative law judge noted three applicants who were not interviewed had more stable work histories than the three who were interviewed. There was no showing, however, that the first group met the other requirements for the job. The administrative law judge also noted three employees in Wolf’s department had unstable work histories, but two of the three had been hired before stability became a factor in hiring. In fact, one of these two was the former employee whose unreliability forced Wolf to become concerned with stability. The third employee was hired in September 1979. None of the circumstances surrounding this hiring were presented. Whether other applicants for that job had stable work histories is not known. Moreover, Burnham no longer had its summer apprentice, and presumably, experience became a factor again. The applicant hired in September 1979 had experience as a pharmacy technician.

By focusing on the applications of others rather than Clifton’s, the administrative law judge missed Wolf’s real reason for rejecting Clifton. Clifton’s application in June 1979 listed his bachelor’s degree obtained in 1977 and his experience as an Army pharmacy technician from 1972 to 1975. The application, however, made no reference to (1) Clifton’s attendance at Army specialized schools, (2) any employment after he left the Army except for a one-year stint as a desk clerk at a motel while doing his undergraduate work, nor (3) his enrollment in the College of Law from the fall of 1977 until the time of the application. Clifton maintains he did not mention his law school enrollment because that information was not responsive to any question on the application form. The form, however, did request information concerning any professional training and any college post-graduate training the applicant had taken. Clifton left those portions of the form blank. Thus, Clifton’s application revealed none of his activities between November 1977 and the day he filled out the application.

Clifton was denied an interview because he chose not to fully and candidly complete his application. Wolf was concerned with applicants who concealed information. Clifton’s failure to account for most of the two years immediately preceding the application date certainly indicated some concealment. In Wolf’s own words, the problem with Clifton’s application was:

“[W]e gotten [sic] almost two years, or a year and a half, at least, of not knowing exactly what the applicant was doing during that time, or, you know, if they were working or going to school or whatever.”

Regardless of Clifton’s lack of a stable employment history, Burnham had every right to deny Clifton an interview on this ground alone. Nothing in Clifton’s qualifications, his prior conversations with Wolf, the applications of other candidates, or any of the other evidence rebuts this legitimate nondiscriminatory reason for Clifton’s rejection. As it turned out, Wolf was justified in being wary of Clifton’s application. A full-time law student would have difficulty holding down a full-time hospital job.

We also note the administrative law judge virtually ignored one fact that clearly demonstrates Burnham’s intent to discriminate, or lack thereof. Of the eight employees working as pharmacy technicians under Wolf, one was black. Proof of a racially balanced work force, while not conclusive, is relevant on the issue of intent. (Furncoe Construction Corp. v. Waters (1978), 438 U.S. 567, 579, 57 L. Ed. 2d 957, 969, 98 S. Ct. 2943, 2951.) In this case, we find it extremely probative of Burnham’s intent, for Wolf had hired the black employee in May 1979. Thus, one month before Clifton’s rejection, Burnham had hired a member of Clifton’s race for the same position for which Clifton later applied. This fact alone tends to strongly negate any inference that the refusal to interview Clifton was racially motivated. When joined with Clifton’s failure to complete his application, it becomes clearly evident that Burnham never intentionally discriminated.

II

We must then consider whether Burnham unintentionally discriminated. A three-part analysis is applied to disparate impact claims. To establish a prima facie case, the complainant must show that a racially neutral practice has a significantly discriminatory impact. Once that showing is made, the employer must demonstrate that the practice has some manifest relationship to the employment in question. If the employer does so, the complainant may still prevail if he proves the employer used the practice as a mere pretext for discrimination. Connecticut v. Teal (1982), 457 U.S. 440, 447, 73 L. Ed. 2d 130, 137, 102 S. Ct. 2525, 2531.

The administrative law judge held Burnham’s stability requirement had a significantly discriminatory impact on blacks. He characterized Burnham’s policy as one which excluded applicants who had “gaps” in their employment history. He noted this requirement excluded persons who had been unemployed. Because the black unemployment rate is higher than the white unemployment rate, he concluded that the requirement had a discriminatory impact.

Burnham argues Wolf searched for “gaps” in the full history of an applicant, not just in the work history. Burnham further asserts Clifton failed to establish his prima facie case because he failed to prove a higher percentage of blacks than whites had such “gaps.” In ruling on the disparate treatment issue, ■ the administrative law judge found Wolf did not seek applicants with stable work histories. This finding is totally incongruous with holding Burnham liable under a disparate impact theory based on .the same employment practice. If Burnham did not follow the practice, then it would not have any discriminatory impact on blacks. The administrative law judge noted the practice had not been applied either before or after June 1979. He also noted one of the three applicants that Wolf interviewed had a “gap” in employment listed on the application.

Moreover, Clifton failed to show how the unemployment rate correlated to “gaps” in employment. The only evidence introduced on the disparate impact charge was the testimony of Norman Kelewitz. As a labor market economist, Kelewitz made estimates of the civilian labor force in Champaign County. He accomplished this by taking the figures from the 1970 census and using experience factors to calculate changes in the work force. These factors included new entrants, re-entrants, and those going to school. Kelewitz then did a sampling to see if his figures were accurate. Kelewitz also broke his data down to show the racial classification of the work force, but he did no calculations or sampling. Instead, he took the figures directly from the 1970 census. In the same manner, he took the black and white unemployment rates from the 1970 census and presumed the same rates existed in 1979. The 1970 unemployment rate for blacks was 8.4%, while the unemployment rate for whites was 4%.

Thus, from only the 1970 unemployment rates, the administrative law judge concluded more blacks than whites had “gaps” in their employment histories. If an individual is unemployed, he would certainly have a gap in employment. It does not necessarily follow, however, that the race with the highest unemployment rate must have a higher percentage of “gaps” in employment. For example, if the average unemployed black is out of work twice as long as the average unemployed white, then the same percentage of whites and blacks would have “gaps” due to unemployment although the black unemployment rate would be twice the white unemployment rate. Furthermore, “gaps” in an employment record can appear for reasons other than being unemployed. Those who are ill, in school, or not seeking work would have a “gap” without being included in the unemployment rate. Those who did not list their previous jobs on the application form would also have a “gap” without being unemployed. While Kele-witz included some of these factors in calculating the size of the entire labor force, he did not calculate the black or white unemployment rates. It is impossible to conclude that a practice of excluding applicants with “gaps” in employment has a significantly disparate impact on blacks solely from the unemployment rates..

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

Affirmed.

TRAPP, J., concurs.

JUSTICE GREEN,

dissenting in part and concurring in part:

I would uphold the decision of the HRC except to the. extent that it orders Burnham to make Clifton whole for lost wages. As to that issue, I consider the appropriate measure to be a remandment to the HRC pursuant to section 3 — 111(a)(7) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 111(a)(7)) for further evidence and reconsideration. Accordingly, I would (1) reverse the judgment of the circuit court except to the extent that it reverses the portion of the HRC decision ordering reimbursement for lost wages, and (2) affirm that portion of the judgment, but remand to the circuit court with directions that the case be remanded to HRC for further hearing as above described.

The HRC did not determine the amount of back pay to which Clifton was entitled. Under the existing order, there is no way that Burnham can comply with that portion of the HRC decision unless Burnham and Clifton could reach agreement as to an amount. Notably, the HRC did not order Burnham to employ Clifton, apparently because it did not believe that Clifton would then want the job in question. Perhaps, Clifton would likewise have not been ready, willing, and able to perform the work up to the time of the decision. Furthermore, I share the concern of the majority as to whether Clifton, as a third-year law student, was in a position to perform the work at the time of the hiring.

The record before the HRC and its decision indicate that insufficient attention was given to this aspect of the case. Section 3— 111(a)(7) of the Code of Civil Procedure permits the circuit court “to remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just.” (Ill. Rev. Stat. 1983, ch. 110, par. 3— 111(a)(7).) This would appear to be the appropriate course of action in this case. (Sola v. Clifford, (1975), 29 Ill. App. 3d 233, 329 N.E.2d 869; Rizzo v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 460, 297 N.E.2d 247.) The HRC should hear further evidence as to whether Clifton would have been in a position to take the job and, if so, what amount he should be awarded for lost earnings.

The majority correctly sets forth that, under the disparate treatment theory, the critical issue is whether the employer’s motive is discriminatory. Thus, the insufficiency of the record and of HRC’s decision to deal with the question of whether Clifton suffered lost earnings does not necessarily detract from the determination that Burnham was guilty of discrimination. The unavailability or shortcomings of the applicant is generally immaterial unless known by the prospective employer. As also properly stated by the majority, we are bound by the HRC determination that discrimination was proved unless a different decision was clearly evident. While an HRC decision favorable to Burnham would find support in the record, I do not find such a decision to be clearly evident. As with the verdict of a jury, we are required to give deference to the decision of the HRC, whose administrative law judge heard and saw the witnesses, and who was better able than we are to appraise their credibility and accuracy.

The majority correctly describes the allocations of the burdens of proof and persuasion under the disparate treatment theory and that under the evidence here, Clifton had the burden of persuasion, without the benefit of any presumptions, that Burnham had discriminated against him. The circumstantial evidence presented supports the HRC’s determination that Clifton had sustained that burden by showing that Burnham’s explanation for his rejection was not accurate. United States Postal Service Board of Governors v. Aikens (1983), 460 U.S. 711, 75 L. Ed. 2d 403, 103 S. Ct. 1478.

One of the crucial aspects of the case, where the administrative law judge’s vantage point was superior to ours, was in evaluating Clifton’s explanation of the number of times he had applied for work at the Burnham pharmacy and of the extent of his conversations with Wolf. From this evidence, the judge could have concluded that Wolf was aware that Clifton would be likely to apply for the opening which gave rise to this dispute. While, as the majority points out, if Burnham intended to discriminate, the steps taken to do so were quite complicated, the hiring procedure adopted at this time was one which had never been used previously and was one which was apparently not used subsequently. In fact, when a subsequent vacancy was filled in the summer of 1979, it was filled by a person with experience whose resume showed substantial gaps. Of those persons denied interviews at the same time as Clifton, several had resumes showing greater experience, training and job stability than those granted an interview.

The stated reasons for the special hiring procedures used were twofold: (l)(a) A recently terminated unsatisfactory employee had presented a resume which showed “gaps” in his employment record, and (b) Wolf had later learned that the employee had prior unstated employment which, had it been known to Wolf, would have caused the employee to have been rejected; and (2) the requirement of experience for an employee was not as important during the summer of 1979, because an apprentice would be available to help during that summer. The explanation was logical. As determined by the hearing officer, it “burst the bubble” of any presumption in favor of Clifton, but it did not require a determination against Clifton. Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.

Several matters could have been considered by the HRC in weighing the good faith of the Burnham explanation. Wolf’s testimony was somewhat ambiguous as to whether the focus of the alleged special policy used for the occasion was on the applicant’s prior work record or on all of the applicant’s prior activities. The testimony was also unclear as to whether the focus was on determining whether the applicant had been unemployed or on knowing what employment the individual had previously held so that inquiry could be made to see if the employment was in an improper occupation or with an employer who was dissatisfied with the work. As in determining the weight to be given to Clifton’s testimony, the person in the best position to determine the weight to be given to this testimony was the administrative law judge.

The HRC and its hearing officer may also have considered whether the addition of a pharmacy apprentice would substitute for the need for experience by the technician to be hired. The work load would be reduced with more people to do the work, but there was no showing that the apprentice would have the experience to substitute for that which an experienced technician would possess. The HRC and its hearing officer may also have wondered whether the problem of “gaps” in the employment record of an applicant might be handled reasonably well by questioning the applicant at an interview.

Clifton’s latest resume given at the time of the application in question did leave much to be desired and did contain “gaps.” Burnham may very well have eliminated him from consideration because of those gaps. The majority properly mentions that the existence of a recently hired black employee among the eight Burnham pharmacy technicians is a circumstance tending to negate a discriminatory intent upon Burnham’s part. Nevertheless, in view of the circumstantial evidence presented, particularly the one-time hiring policy used on the occasion, I cannot say that a determination different from that of the HRC in regard to the proof under the disparate treatment theory is clearly evident.

I agree with the majority that the proof failed under the disparate impact theory.


author: JUSTICE KARNS

text:
    PAMELA COOK et al., Plaintiffs-Appellees and Cross-Appellants, v. THE BOARD OF EDUCATION OF EDWARDSVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 7, MADISON COUNTY, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5-83-0695
    Opinion filed July 18, 1984.
    Rehearing denied August 14, 1984.

      Larry E. Hepler and David A. Bloch, both of Edwardsville, for appellant.
    Drach & Deffenbaugh, P.C., of Springfield, for appellees.
   JUSTICE KARNS

delivered the opinion of the court:

The board of education of Edwardsville Community Unit School District No. 7, Madison County (board), appeals from the judgment of the circuit court of Madison County awarding damages to Pamela Cook in the amount of $2,389, ordering the board to give Cook credit on the salary schedule for one year’s teaching experience as a graduate assistant at Southern Illinois University at Edwardsville (SIU-E), and ordering each party to pay its own costs. Pamela Cook and James Jackson, teachers, cross-appeal from that portion of the judgment and that portion of the subsequent denial of the motion to vacate judgment which denied relief to James Jackson and held that Cook was barred from recovery for damages prior to May 4, 1977, by the five-year statute of limitations. Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205.

Pamela Cook was hired by the board in 1972 as a full-time teacher of business education. The year before she was hired she was a graduate student at SIU-E and held a graduate teaching assistantship as a typing instructor. As a graduate assistant she was responsible for planning classwork, teaching, and grading student work. She also attended faculty meetings and served on faculty committees. She was a certified teacher at the time she worked for the university. When she was hired by the board, Cook was refused credit on the salary schedule for her experience as a graduate assistant.

James Jackson was hired by the board in 1978 as a half-time audio-visual director. He became the full-time audio-visual director in 1979. Jackson was refused credit for his experience as an audio-visual intern in the Mt. Prospect school district. At Mt. Prospect he was paid less than the regular teacher’s salary but worked full time as assistant audio-visual director.

The board hired both Cook and Jackson after the Edwardsville Education Association (EEA) became the sole bargaining agent for teachers in the district in 1969. The contract between the board and the EEA provided that:

“3) Teachers new to the system shall be given credit on the salary schedule as follows:
1. Full credit for the first five years
2. Half credit for the next ten years.”

The board adopted the contract provision into its policy in the following form:

“Teachers entering the school system after this date shall receive full credit for five years experience and half credit for the next ten years experience in other school districts.”

The policy continued unchanged until April 14, 1980, when the board voted to

“give full credit for 1979-1980 salary schedule for past public school teaching experience and that this adjustment be made on the June, 1980 paycheck.”

This change brought Edwardsville’s policy into compliance with section 24 — 8 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24— 8), as interpreted in Hardway v. Board of Education (1971), 1 Ill. App. 3d 298, 274 N.E.2d 213. Hardway affirmed the trial court’s judgment that full credit must be given for teaching in other school districts.

Following this change in the wording of the policy, Superintendent Roy Olive notified teachers that their records would be reviewed to determine who was entitled to salary increases on the basis of past teaching experience. Cook’s request for credit for her experience as a graduate assistant was denied by Olive on three occasions, each for a different reason. Olive first stated that she could receive credit only if she had been certified while at SIU-E. He then said she had accumulated more credit for additional education than a full-time employee. Finally he stated that she could not receive credit unless the assist-antship experience qualified her for credit with the Teachers Retirement System (TRS). Cook was certified while at SIU-E and the TRS gave her credit for her experience at SIU-E. Olive continued to deny her credit. Olive also denied Jackson’s request for credit for his experience at Mt. Prospect because Jackson was not certified while at Mt. Prospect but was working as an intern at a reduced salary to satisfy a requirement of his master’s degree program. Jackson testified that the internship was not a course requirement and that he had not applied for an Illinois certificate because of the fees involved. He was certified in Missouri. We note that much of the confusion about board policies might have been reduced if the superintendent had checked his facts before offering piecemeal explanations.

Prior to 1969 when the contract between the board and the EEA was executed, two teachers had been given credit for experience as graduate assistants. Another teacher hired in 1969 was denied credit, and there was no evidence that any teacher hired since 1969 had received credit for a graduate assistantship. Since 1969 the board has given credit for experience as a coordinator and teacher in a federally funded alternative school for Granite City high school students who received high school credit for their work, for parochial school teaching while uncertified, and for experience as assistant audio-visual director at SIU. Olive testified that neither the title held by the teacher in his prior position nor the lack of a certificate while in that position was the determining factor in the decision to give credit for prior teaching experience. The significant factor was the content of the teacher’s experience in his former position. Olive stated that a full professor’s experience would be evaluated on the same terms as that of a teacher. Olive testified that school nurses and psychologists required to serve paid internships for certification were not given credit for internship experience.

Cook and Jackson filed a two-count complaint against the board on May 4, 1982, alleging that the board’s action was arbitrary, capricious and discriminatory in violation of the fourteenth amendment of the United States Constitution and article I, section 2, of the Illinois Constitution. The complaint was amended on January 18, 1983, to include count III which alleged that the board’s refusal to give credit to Jackson for “all years of previous school teaching experience” violated section 24 — 8 of the School Code (Ill. Rev. Sat. 1981, ch. 122, par. 24 — 8). Section 24 — 8 provides that salaries for full-time teachers with “previous public school experience” be increased over those of teachers without such experience. On March 31, 1983, the complaint was amended to allege in counts IV and V that the board’s action was a breach of contract and violated its own policy to give credit for “past public school teaching experience.” The board denied all counts and raised defenses of waiver, laches, estoppel and the statute of limitations.

Following a bench trial, the trial court entered judgment for Cook in the amount of the difference between her actual salary and the salary she would have received after May 4, 1977, if she had been given credit for her graduate assistantship. The court found that the five-year statute of limitation barred her recovery for damages prior to May 4, 1977. The court found that the board had “acted in an arbitrary and capricious manner” in denying Cook credit “while giving credit on the salary schedule to other similarly situated teachers,” and had violated the contract with EEA and its own policies with regard to Cook. Finding no violation of Jackson’s rights under the constitutions, contract or policy, the court entered judgment in favor of the board with respect to Jackson. The court ordered the board to give credit to Cook, and all parties were ordered to pay their own costs.

Jackson moved for reconsideration of the court’s denial of relief to him, pointing out that the court had not considered his arguments that the board had violated section 24 — 8 of the School Code. The board moved that the court vacate its judgment and enter judgment for the board against both Cook and Jackson. The board sought clarification of the grounds on which the court found against the board.

At the hearing on the motion to vacate, the court expressed concern that the board’s policy would permit the board to give credit to an uncertified university professor while denying it to a person in Cook’s position. The court was concerned that distinctions would be made on the basis of title alone, but he also recognized the board’s argument that “because Graduate Assistants have so many different definitions and responsibilities, it would be difficult for the Board to determine what Graduate Assistants should get [credit for] experience.” Conceding that there might be a problem in the drafting of his original order, the court denied both motions to reconsider. The appeal and cross-appeal followed.

The issues presented for review are: (1) whether the trial court erred in finding that the board had discriminated against Cook in denying her credit for her graduate assistantship; (2) whether the denial of credit to Cook and Jackson was a violation of the contract with the EEA and of the board’s policy incorporating the contract; (3) whether denial of credit to Jackson violated section 24 — 8 of the Illinois School Code; (4) whether Cook’s full recovery was barred by the five-year statute of limitations; (5) whether the 10-year statute of limitations applies to actions on the contract between the board and the EEA; and (6) whether the court abused its discretion in allowing Cook and Jackson to amend their pleadings.

Cook and Jackson seek relief under various theories. Whether phrased in terms of constitutional, contractual, policy or statutory rights, Cook and Jackson must show that they have not received credit while others in like circumstances have received credit. Cook has not shown that any graduate assistant has received credit for an assistantship since 1969, when the contract with EEA was adopted as board policy. Jackson, on the other hand, has shown that another teacher hired since 1969 was given credit for teaching while she was not certified. He has also shown that his work at Mt. Prospect was not an internship such as that required of school nurses and psychologists for which they receive no credit. It is beyond question that Jackson’s prior experience was in a public school district.

It is well established that a school board has broad discretion to control the salaries of its teachers, “*** subject only to any limits expressly fixed by the School Code and to constitutional prohibitions against actions that are arbitrary, discriminatory and unreasonable, or based upon an improper classification.” (Richards v. Board of Education (1960), 21 Ill. 2d 104, 109, 171 N.E.2d 37, 41.) A school board has the discretion “to recognize degrees equivalent to a Ph.D. or Ed.D.” required for placement on the schedule with the highest base pay. (Cinquino v. Board of Education (1967), 86 Ill. App. 2d 298, 230 N.E.2d 85.) The court in Cinquino decided that if a school board interprets its own rule liberally rather than literally, it must act consistently with its established pattern of liberal interpretation. Where it was shown that after a certain date the same school board had strictly applied its rule with regard to Ph.D. or Ed.D. requirements for placement, the court determined that it was “within the reasonable exercise of its power” to refuse advanced placement to a teacher with a juris doctor degree. Sullivan v. Hannon (1978), 58 Ill. App. 3d 572, 575, 374 N.E.2d 911, 913.

The board’s discretion in determining salary schedules is not limited to drawing distinctions between advanced degrees but must necessarily include distinctions based on experience, subject always to the requirement that the board act consistently with its own rules. The term “graduate assistantship” has no fixed meaning. It is used to describe positions involving physical labor, clerical work, and various teaching responsibilities. It is not unreasonable that the board would adopt a strict policy of denying credit to graduate assistantships where there are inherent problems of determining which are equivalent to “past public school teaching experience” for which the board must give credit. In the absence of evidence that the board has deviated from this strict view since 1969, we find that the board has not acted in violation of its contract or policy or in violation of Cook’s constitutional rights. Inasmuch as we find that Cook could not prevail on any theory advanced in her behalf, we find it unnecessary to decide whether the court erred in its judgment that the five-year statute of limitations barred full recovery to Cook.

It is unnecessary for us to decide whether the 10-year statute of limitations applies to Jackson’s cause of action. He was first denied credit in 1979 and filed suit in 1982, placing himself well within both the 10- and 5-year limitation periods. Unlike Cook, Jackson can point to teaching experience in a public school district prior to his employment by the board. Section 24 — 8 of the School Code clearly requires that a teacher be given credit for such teaching. (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 8.) Although Jackson’s lack of certification and his position as an intern in Mt. Prospect were given as reasons for denying him credit, the board has shown itself to be more liberal in its attitude toward certification and titles when teachers have experience in dealing with children of the same age as those in the Edwardsville district. Having taken this slightly more flexible position, the board must act consistently. Jackson’s position as “intern” in Mt. Prospect was not a prerequisite to his certification as was the internship of school nurses and psychologists. Mt. Prospect’s definition of intern appears to have reduced Jackson’s salary but not the scope of his duties. Jackson’s former title should be no more a bar to his receiving credit than was that of the coordinator of the federally funded alternative school who was given credit because she also taught Granite City public school children. Jackson’s lack of Illinois certification while at Mt. Prospect should not deny him credit while a former parochial school teacher receives credit for experience gained while she was uncertified.

The board contends that the trial court abused its discretion in allowing Cook and Jackson to amend their pleadings to add counts IV and V alleging breach of contract and violation of board policy. There is no evidence that the board was surprised or prejudiced by pleadings framed in terms of contract and policy because counts I and II were based on the existence of both the contract and policy. Counts IV and V were materially related to the evidence of the board’s hiring practices under the contract and policy. (Powers v. Sturm (1973), 12 Ill. App. 3d 346, 297 N.E.2d 628.) We see no abuse in allowing an amendment which permits controversies to be decided on their merits. Lawson v. Hill (1979), 77 Ill. App. 3d 835, 296 N.E.2d 617.

For all the reasons stated above we reverse the judgment of the circuit court of Madison County with regard to Pamela Cook and James Jackson and enter judgment in favor of James Jackson. We affirm the trial court’s judgment that the parties pay their own costs. We remand for determination of Jackson’s damages.

Reversed in part; affirmed in part; remanded.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES REED, Defendant-Appellant.
    Second District
    No. 2—83—0609
    Opinion filed August 21, 1984.

      James Wrigley, of Illinois Guardianship & Advocacy Commission, of Chicago, and Roger Derstine and Albert L. Purham, Jr., both of Illinois Guardianship & Advocacy Commission, of Peoria, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

On April 22, 1981, defendant, James Reed, was found not guilty of murder and attempted murder by reason of insanity after a jury trial, and was committed by the Kane County Circuit Court to the custody of the Department of Mental Health and Developmental Disabilities (Department) pursuant to section 5 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b)). On April 15, 1983, the facility director of the Elgin Mental Health Center submitted a recommendation to the judge who presided over defendant’s trial that defendant be granted nonsecure off-grounds privileges as part of a treatment plan earlier filed by the facility director on March 15, 1983, as provided by section 5 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 2 — 4(b)). The facility director’s letter, with appended reports by Department personnel, proposed a modification in defendant’s treatment plan, providing that defendant would be permitted three-day unsupervised home visits.

The trial court found that while the Unified Code of Corrections has not established any standard to determine when off-grounds privileges are appropriate, the Department had not established by any standard of proof, either by clear and convincing evidence or mere preponderance of the evidence, that defendant was sufficiently safe mentally for off-grounds privileges. The petition was denied, and this appeal followed.

Before we can address the merits of defendant’s claim, the State raises the issue of appealability of the instant order. The State argues that the order from which defendant appeals is not final and appeala-ble as it did not terminate the rights of the parties with regard to the subject matter of the controversy, that is, whether defendant is still required to be involuntarily committed so as to receive mental health services. According to the State, if this was a denial of a petition for conditional lease or discharge, rather than a proposed modification of a treatment plan, a final order would result. The State points out that under section 5 — 2—4(b) of the statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b)), the requirement of submission of a treatment plan to the circuit court by the Department every 60 days is indicative of the trial court’s continuing supervisory power over defendant’s treatment, which does not end until defendant is discharged. Defendant in response argues that the court’s order was final and appealable, because, once the court denied the Department’s proposed recommendations to the treatment plan, the only manner in which defendant’s rights could be vindicated or protected was by the appeal process. We agree.

While the ultimate issue as to whether defendant should be discharged or conditionally released may potentially arise in the future, this is not the controversy presently before this court. Underlying the State’s argument is the question of mootness. The Department is required under the statute to submit a treatment plan every 60 days for judicial review. Under traditional mootness principles, this appeal would be moot. However, an exception has been carved out in mental health cases where it has been found that to apply the mootness doctrine would prevent issues capable of repetition from ever being susceptible to appellate review. (In re Marquardt (1981), 100 Ill. App. 3d 741, 743, 427 N.E.2d 411, 413.) If the State’s position prevailed, appellate review would never be obtained and there would be no development of a body of case law to provide guidance to the circuit court as an aid in considering the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 911/2, par. 3 — 101 et seq.). (In re Marquardt (1981), 100 Ill. App. 3d 741, 744, 427 N.E.2d 411, 413.) Thus the instant order is final and appealable, as it terminates the litigation between the parties on the merits. Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 443 N.E.2d 268.

Turning to the merits, before determining the correctness of the trial court’s decision, we should first consider the nature of the proceeding required under section 5 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-4(b)). Since the time of the hearing, section 5 — 2—4 and portions of the Mental Health and Developmental Disabilities Code (Code) have been amended. Thus, the law as it is currently in effect will be applied. See Rios v. Jones (1976), 63 Ill. 2d 488, 494-95, 348 N.E.2d 825, appeal dismissed (1976), 429 U.S. 934, 50 L. Ed. 2d 304, 97 S. Ct. 346; People v. Gann (1981), 94 Ill. App. 3d 1100, 1105, 419 N.E.2d 613, 616.

It appears that at the time of the instant hearing the statutes afforded no guidance as to the procedure to be followed, the burden of proof and going forth with evidence and the standard of proof necessary to support the court’s findings. Between the time of the hearing and this appeal an amendment was enacted providing necessary guidance to the circuit court for section 5 — 2—4 hearings.

Under the Code as amended in 1983, since defendant was found not guilty by reason of insanity and is presently committed to the Department of Mental Health and Developmental Disabilities, the amendment to section 5 — 2—4 of the Unified Code of Corrections effective January 1, 1984, is applicable. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 2—4(1).) Further, a treatment plan and its review are subject to the provisions of section 5 — 2—4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1983, ch. 91V2, par. 3 — 814.) When a hearing is initiated by the Department facility director (in contrast to one initiated by a defendant or on his behalf) for transfer to a nonsecure setting, discharge or conditional release, the burdens of proof and going forth with the evidence rest with the State. The standard of proof required to support the findings of the trial court is evidence which is both clear and convincing. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 2—4(f).) If requested by the State or defense or if the court feels it is appropriate, an impartial examination of the defendant by a psychiatrist or clinical psychologist as defined in section 1 — 103 of the Code (Ill. Rev. Stat. 1983, ch. 911/2., par. 1 — 103), who is not in the employ of the Department, shall be ordered, and the report considered at the time of the hearing. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 2—4(f).

Lacking statutory guidance the trial court found itself compelled to establish at the outset ground rules it believed necessary to accord the parties a fair hearing. In so doing, the court assigned the burdens of proof and going forth with the evidence to petitioner, the Department. Further, it denied the State the opportunity to produce witnesses, and specifically a psychiatrist. Finally, the court declared, without deciding which standard of proof was required, that the Department had not satisfied the court by any standard of proof that defendant is now in a sufficiently safe condition mentally to be permitted noncustodial off-grounds passes. He denied the petition of the Department.

When contrasted with the later-enacted requirements of the Code, we believe the hearing was sufficiently flawed, specifically as to the assignments of the burden of proof and going forward with the evidence and the denial of psychiatric or psychological testimony on behalf of the State as to require remandment for a new hearing.

At such hearing the State will have the burdens of proof and going forth instead of the Department. The parties have the authority to produce psychiatric and psychological testimony. The trial court’s findings will be required to be supported by clear and convincing evidence.

Therefore, we reverse the judgment of the circuit court of Kane County and remand the cause for a new hearing.

Reversed and remanded.

UNVERZAGT and REINHARD, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    VERONICA RHODES, Plaintiff-Appellant, v. MILL RACE INN, INC., et al., Defendant-Appellees.
    Second District
    No. 83—377
    Opinion filed May 2, 1984.
    Rehearing denied September 19, 1984.

      John S. Biallas, of Neri & Hochberg, Ltd., of St. Charles, for appellant.
    George E. Krippner, of Casey, Krippner & Callahan, of Geneva, and D. Kendall Griffith, Stephen R. Swofford, and Joshua G. Vincent, all of Hin-shaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Whether a civil action to impose strict tort liability may be based upon a violation of the Safety Glazing Materials Act (the Act) (Ill. Rev. Stat. 1981, ch. llU/e, par. 3101 et seq.) is the question presented by this appeal. We conclude that such action does not lie and that the circuit court properly dismissed counts I, III, V and VII of plaintiffs amended complaint which sought to impose strict liability in tort.

The stricken counts of the amended complaint alleged in substance that defendant, Mill Race Inn, Inc., operated a restaurant open to the public in Geneva, Illinois. At its main entrance, the restaurant has two sets of doors separated by a small vestibule. Prior to November 1977, both sets of doors were constructed of wood and plate or crystal glass and functioned as “semi-permanent” doors. At some point during the period November 1977 to May 1978, the Inn contracted for the alteration, renovation and repair of the premises, including the alteration of the interior set of doors from the semiperma-nent type to the swinging type. Materials other than safety glazing materials were used in this work, at a location alleged to be a hazardous location within the meaning of section 2.2 of the Act (Ill. Rev. Stat. 1981, ch. lllVa, par. 3104). The complaint alleged that on the evening of July 13, 1980, the plaintiff, Veronica Rhodes, entered the restaurant through the main doors. As she was leaving, she exerted force or pressure upon the glass portion of one of the interior doors, which broke, lacerating her left arm at or near the elbow.

Only counts I, V and VII are before us. Count I sought to impose strict tort liability based upon a violation of the Safety Glazing Materials Act; count V was against the defendant, James Keiser, architect, also charging strict liability predicated on a violation of the Act, and count VII also sounded in strict liability against the general contractor, defendant Wesley W. Peterson.

The Safety Glazing Materials Act (“An Act to protect the consumer and encourage the highest standards of construction safety *** and to provide penalties for the violation thereof”) contains definitions of “safety glazing materials” (Ill. Rev. Stat. 1981, ch. 111½, par. 3104). The Act provides that no person “shall knowingly sell, fabricate, assemble, glaze, install, consent or cause to be installed glazing materials other than safety glazing materials in, or for use in, any hazardous location.” (Ill. Rev. Stat. 1981, ch. 111½, par. 3106.) The Act further provides for public hearings before the Department of Labor determines and adopts further requirements for safety glazing material beyond those specified in the Act and before the Department determines what constitutes an unreasonable hazardous location in need of safety glazing material. Such departmental determinations are made subject to administrative review. (Ill. Rev. Stat. 1981, ch. 111½, pars. 3108 through 3112.) The Act finally provides, “Whoever violates this Act is guilty of a Class A misdemeanor.” (Ill. Rev. Stat. 1981, ch. 111½, par. 3113.) The Act makes no mention of the availability of any form of civil relief for a violation of its terms.

We do not disagree with plaintiff’s argument that the fact that the Act provides only a criminal penalty for its violation does not end the inquiry into whether a civil action is barred. (See Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 155; Burton v. McClellan (1840), 3 Ill. (2 Scam.) 434, 437.) Where it is consistent with the underlying purpose of a statute and necessary to achieve its aim, a private right of action can be implied. (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 386.) In the analysis of whether a private right of action may be maintained, these questions are material: (1) Were plaintiffs members of the class for whose benefit the statute was enacted; (2) is implication of a private right consistent with the underlying purpose of the Act; (3) is plaintiff’s injury one the statute was designed to prevent; (4) is implication of a civil private right of action necessary to provide an adequate remedy for violations of the Act. 89 Ill. 2d 379, 391.

We first conclude that plaintiffs were members of the class for whose benefit the statute was enacted and that the injury was one the statute was designed to prevent. While the Act notes that it'is “to protect the consumer and encourage the highest standards of construction safety ***,” the Act does concern itself with persons who are not consumers but in the position of the plaintiff who go into or come out of dwellings, commercial and public buildings. (See Ill. Rev. Stat. 1981, ch. 111½, par. 3104.) There also appears to be little question that the injuries sustained by plaintiff are among those which the statute was designed to prevent. Section 2.2 of the Act defines safety-glazing material as that which will minimize the likelihood of cutting and piercing injuries resulting from human contact with the glazing material. Ill. Rev. Stat. 1981, ch. 111½, par. 3103.

However, we also conclude that implication of a private right of action is not necessary to provide an adequate remedy for violations of the statute.

Although numerous acts of the legislature may have as their purpose the protection of a substantial segment of the public, the fact alone does not imply that the legislature intended to create a private right of action for breach of the statute. (See Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93, 103-04; Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, 5.) It is proper to inquire in such circumstances whether the Act is a remedial one and whether certain private remedies are provided for within the statutory framework. (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 390.) The Safety Glazing Materials Act is prohibitory in nature, rather than remedial. The operative section (Ill. Rev. Stat. 1981, ch. 111½, par. 3106) merely prohibits certain uses of other than safety glazing materials at hazardous locations. Although there is a provision for public hearings to determine whether certain locations may be hazardous locations (Ill. Rev. Stat. 1981, ch. 111½, par. 3108), there is no provision for aggrieved members of the public to file complaints as there were under the “Brokers Licensing Act” in Sawyer Realty Group. Nor are the remedies for indemnification or private injunction of violations which were featured in the legislation in that case here provided for. We therefore conclude that implication of a private right of action is beyond the scope of the act here in question and thus is not consistent with its purpose.

Further, it does not appear necessary to provision a remedy for violation of the Act that a civil private right of action be implied.

The liability of owners of commercial premises for their negligence is a concept of long standing in our law, and it does not appear that the legislature sought through passage of the Safety Glazing Materials Act to substitute a statutory for a common law duty and to impose strict liability for a violation. (Cf. Boyer v. Atchison, Topeka & Santa Fe Ry. Co. (1967), 38 Ill. 2d 31, cert. denied (1968), 390 U.S. 949, 19 L. Ed. 2d 1140, 88 S. Ct. 1038 (interpreting the Federal Safety Appliance Act).) Neither is this a case where, absent implication of a private right of action, there would be no method available to the individual to vindicate an interest which the statute sought to provide. (Cf. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172 (private action available for retaliatory discharge of employee filing workers’ compensation claim).) To the contrary, plaintiff may bring an action in negligence and has in fact included several counts predicated upon traditional tort theories in her complaint. In the course of litigating those causes of action, plaintiff may avail herself of the rule that the violation of a statute designed for the protection of human life or property is prima facie evidence of negligence. (See Allen v. Dhuse (1982), 104 Ill. App. 3d 806.) We therefore find that a violation of the Act may find adequate remedy without creation of a private action for imposition of strict tort liability.

Count VII was directed against defendant Peterson, a party who had not filed an appearance or motion to dismiss. However, we conclude that the trial court properly dismissed the count on its own motion. The failure of a complaint to state a cause of action is a fundamental defect which may be raised at any time by any means and cannot be waived. (People ex rel. Difanis v. Futia (1978), 56 Ill. App. 3d 920, 925.) The complaint failed to state a cause of action in strict liability as to Peterson, and the court therefore acted properly in ordering count VII dismissed. Crissman v. Strickland (1976), 43 Ill. App. 3d 496, cited by the plaintiff, is distinguishable. In that case, there was no finding that the counts dismissed on the court’s own motion failed to state a cause of action. 43 Ill. App. 3d 496, 498.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT and NASH, JJ., concur.