Revocation of License Under Bingo License and Tax Act

5 TYRONE C. FAHNER ATTORNEY GENERAL STATE OF ILLINOIS SPRINGFIELD December 10, 1981 FILE NO. 81-038 REVENUE: Revocation of License Under Bingo License and Tax Act - Honorable Robert G. Cronson Auditor General State of Illinois 509 South Sixth Street, First Floor Springfield, Illinois 62701 Dear Mr. Cronson: I have your letter wherein you ask the following questions: "(a) When a statute provides for the 'automatic revocation of a license on the occurrence of a particular event, must the provisions of $ 1016(c) of the Administrative Procedure Act be applied before the license is revoked? (b) Is the automatic revocation provision of Section 3 of the Bingo Act self-executing or does the department have to take affirmative setion? If the department must take affirmative action, is the department's action subject to Section 1016(c) of the Administrative Procedure Act?" Honorable Robert G. Cronson - 2. Subsection 16(c) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1016(c)) sets forth the procedures to be followed before a license may be revoked by an agency subject to the Act: "(c) No agency shall revoke, suspend, annul, withdraw, amend materially, or refuse to renew any valid license without first giving written notice to the licensee of the facts or conduct upon which the agency will rely to support its proposed action, and an opportunity for hearing in accordance with the provisions of this Act con- cerning contested cases. At any such hearing, the licensee shall have the right to show compliance with all lawful requirements for the retention, or continuation or renewal of the license. If, however, the agency finds that the public interest, safety or welfare imperatively requires emergency action, and if the agency incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action which proceedings shall be promptly instituted and determined. Any application for renewal of a license which contains required and relevant information, data, material or circumstances which were not contained in an application for the existing license, shall be subject to the provisions of Section 16(a) of this Act." Section 2 of the Act (Ill. Rev. Stat. 1980 Supp., ch. 127, par. 1002) sets forth the limits of applicability of the Act: "This Act applies to every agency as defined herein. Beginning January 1, 1978 in case of conflict between the provisions of this Act and the Act creating or conferring power on an agency, this Act shall control. However if an agency has existing procedures on July 1, 1977 specifically for contested cases or licensing those existing provisions control, except that this exception respecting contested cases and licensing does not apply if the Act creating or conferring power on the agency adopts by express reference the provision of this Act. Where the Act creating or conferring power on an agency establishes administrative Honorable Robert G. Cronson - 3. procedures not covered by this Act, such procedures shall remain in effect. *** " "Agency" is defined in section 3.01 of the Act (Ill. Rev. Stat. 1979, ch. 127, par. 1003.01): "Agency' means each officer, board, commission and agency created by the Constitution, whether in the executive, legislative, or judicial branch of State government, but other than the circuit court; each officer, department, board, commission, agency, institution, authority, university, body politic and corporate of the State: and each administrative unit or corporate outgrowth of the State government which is created by or pursuant to statute, other than units of local government and their officers, school districts and boards of election commissioners; each administrative unit or corporate outgrowth of the above and as may be created by executive order of the Governor. However, 'agency' does not include: (a) the House of Representatives and Senate, and their respective standing and service committees; (b) the Governor; and (c) the justices and judges of the Supreme and Appellate Courts. No entity shall be considered an 'agency' for the purposes of this Act unless authorized by law to make rules or to determine contested cases.' "Licensing" is defined in section 3.04 of the Act (Ill. Rev. Stat. 1979, ch. 127, par. 1003.04): "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license." Section 2 of the Act contains certain exceptions to the application of the Act. The Act will not apply to specific procedures for contested cases or licensing in existence on July 1, 1977, unless the Act creating or conferring power on Honorable Robert C. Cronson - 4. the agency has adopted, by express reference, the provisions of the Illinois Administrative Procedure Act. Section 2 also provides that where the Act creating or conferring power on an agency has established administrative procedures not covered by the Illinois Administrative Procedure Act, such procedures remain in effect. Section 2 of the Act further provides: " * * * The provisions of this Act shall not apply to (1) preliminary hearings, investigations or practices where no final determinations affecting State funding are made by the State Board of Education, (2) State Board of Education statements, guidelines or policies which do not have the force of law, (3) legal opinions issued under Section 2-3.7 of The School Code, and (4) as to State colleges and universities, their disciplinary and grievance proceedings, academic irregularity and capricious grading proceedings, and admission standards and procedures, and (5) the class specifications for positions and individ- ual position descriptions prepared and maintained pursuant to the 'Personnel Code'; however such specifications shall be made reasonably available to the public for inspection and copying: Neither shall the provisions of this Act apply to hearings under Section 20 of the 'Uniform Disposition of Unclaimed Property Act'. " Illinois follows the rule of statutory construction expressio unius est exclusio alterius. (People V. Schaffra (1975). 30 Ill. App. 3d 600, 602 - 603.) Under this rule the expression of statutory exceptions is generally construed as the intention by the General Assembly to exclude all other exceptions. (Laurent V. Brelji (1979), 74 I11. App. 3d 214, 217.) The mere fact that a statute provides for the automatic revocation of a license on the occurrence of a particular event does not, in itself, appear to fall within any of the exceptions Honorable Robert G. Cronson - 5, provided in section 2 of the Act. It is therefore my opinion that when & statute provides for the automatic revocation of a license on the occurrence of a particular event, the procedures set forth in subsection 16(c) of the Illinois Administrative Procedure Act must be followed before the license is revoked unless the statute otherwise falls within an exception provided in section 2 of the Act. Section 3 of the Bingo License and Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 1103) provides for the automatic revocation of a bingo license for failure to submit either the required payment or report within the specified time: "There shall be paid to the Department of Revenue, 5% of the gross proceeds of any game of bingo conducted under the provision of this Act. Such payments shall be made 4 times per year, between the first and the 20th day of April, July, October and January. Payment must be by money order or certified check. Accompanying each payment shall be a report, on forms provided by the Department of Revenue, listing the number of games conducted, the gross income derived and such other information as the Department of Revenue may require. Failure to submit either the payment or the report within the specified time shall result in automatic revocation of the license. * * * " (Emphasis added.) A statute is considered self-executing when its provisions are carried out automatically upon the occurrence of some specific act or omission of some specific act. (Pierne V. Valentine (1943), 42 N.Y.S. 2d 404, 410-411; State V. Iowa Southern Utilities Company of Delaware (1942), 231 Iowa 784, 2 N.W. 2d 372, 397-398; Ridgeway V. City of Akron (1940), 36 Honorable Robert G. Cronson - 6. Abs. 46, 42 N.E. 2d 724, 726; Feinberg V. Dow (1939), 14 C. 2d 24, 92 P. 2d 640, 642.) "Automatic" is defined as "self- acting or self-regulating". (Black's Law Dictionary, 4th Rev. Ed., P. 169; Land 0' Lakes Dairy Company V. Hintzen (1948), 225 Minn. 535, 31 N.W. 2d 474, 476.) On the basis of the above, it is clear that the provision in section 3 of the Bingo Act providing for the automatic revocation of a license, is self- executing upon the failure to submit either the required payment or report. The self-executing language of section 3 is not in- consistent with a pre-revocation hearing requirement allowing the licensee to prove that he has timely submitted the required payment and report. If such a hearing is requested, revocation of the license would automatically occur at the termination of the hearing unless the licensee has proved that all the requirements of section 3 of the Bingo Act have been met. Therefore, the fact that the automatic revocation provision in section 3 of the Bingo Act is self-executing does not remove the provision from the application of the Illinois Administrative Procedure Act. As I concluded above, when a statute provides for the "automatic revocation" of a license on the occurrence of a particular event, the provisions of subsection 16(c) of the Illinois Administrative Procedure Act must be applied before the license is revoked unless the statute falls within an exception provided for in section 2 of the Act. Section 5.1 of the Honorable Robert G. Cronson - 7. Bingo Act (Ill. Rev. Stat. 1979, ch. 120, par. 1105.1) clearly makes the Bingo Act subject to the Illinois Administrative Procedure Act: "The Illinois Administrative Procedure Act is hereby expressly adopted and shall apply to all administrative rules and procedures of the Department of Revenue under this Act, except that (1) paragraph (b) of Section 4 of the Administrative Procedure Act does not apply to final orders, decisions and opinions of the Department, (2) subparagraph (a)2 of Section 4 of the Administrative Procedure Act does not apply to forms established by the Department for use under this Act, and (3) the provisions of Section 13 of the Administrative Procedure Act regarding proposals for decision are excluded and not applicable to the Department under this Act." The language of section 5.1 of the Bingo Act is clear. Statutory language which is clear and unambiguous must be enforced as enacted. (People ex rel. Gibson V. Cannon (1976), 65 III. 2d 366, 369.) There is nothing in either section 5.1 of the Bingo Act or section 2 of the Illinois Administrative Procedure Act which exempts the automatic revocation provision of section 3 of the Bingo Act from the provisions of subsection 16(c) of the Illinois Administrative Procedure Act. Under the rule of expressio unius est exclusio alterius, no such exception may be inferred. Laurent V. Brelji (1979). 74 III. App. 3d 214, 217. Therefore, it is my opinion that, while the provision in section 3 of the Bingo Act regarding the automatic revocation of a license for failure to submit either the required payment Honorable Robert G. Cronson - 8. or report is self-executing, section 3 is nevertheless subject to the provisions of subsection 16(c) of the Illinois Administrative Procedure Act. Very truly yours, ATTORNEY-CENERAL School