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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

January 2016, vol. 17, no. 2

Smoke N Stuff v. City of Chicago: Does the One-Act, One-Crime Rule Apply to Proceedings at Municipal Administrative Hearings?

The Appellate Court in Smoke N Stuff v. City of Chicago, 2015 IL App (1st) 140936, reviewed the issue of whether the one-act, one-crime rule would prohibit convictions for violating the Chicago Municipal Code where Smoke N Stuff, a licensed cigarette retailer, was charged and convicted of possessing cigarettes that did not contain City of Chicago tax stamps as well as a separate violation of the Chicago Municipal Code that requires cigarette packages to contain a proper Cook County tax stamp.

Smoke N Stuff was charged in the City of Chicago Department of Administrative Hearings with having 1127 packs of cigarettes that Smoke N Stuff did not pay for or that did not bear a proper city tax stamp. Smoke N stuff was also charged with violating a separate Chicago ordinance that required sellers of cigarettes to pay for and cigarettes to bear the proper cigarette tax stamp of Cook County. Of the 1127 packs of cigarettes in possession of Smoke N Stuff, 1107 packs did not display the tax stamp of Cook County. After a hearing before a city administrative law judge, Smoke N Stuff was found liable for both the nonpayment of the tax due to the City of Chicago as well as the nonpayment of the tax due to Cook County

The City of Chicago revoked the retail license to sell that had been issued to Smoke N Stuff. On a writ of certiorari to the Circuit Court of Cook County, that court affirmed the findings of the Department of Administrative Hearings that found that the retailer had violated both sections of the municipal code that require the purchase and display of City of Chicago tax stamps as well as the purchase and display of Cook County tax stamps. The court also affirmed the revocation of the retailer’s license as the sanction for the violation of the municipal code.

On appeal, Smoke N Stuff argued that it was improper to be charged twice for the same offense, with both Chicago and Cook County charging it for failing to buy a single stamp. The Appellate Court reviewed the one-act, one-crime rule which does not apply to municipal ordinance violations. That rule applies only to criminal cases to prohibit a defendant from being convicted of multiple offenses based on a single physical act, citing People v. Almond, 2015 IL 113817, ¶47.

The Appellate Court noted that prosecutions for municipal ordinance violations are civil proceedings, “albeit quasi-criminal in nature.” Smoke N Stuff, ¶19. Even if such actions are quasi-criminal, it is civil in form and is “subject to review in a civil proceeding and not as a criminal prosecution, ¶19. The one-act, one-crime rule protects a criminal defendant’s rights and has no application to a civil municipal ordinance violation.

The Appellate Court held that a municipal ordinance prosecution does not parallel a criminal prosecution. A violation of a municipal ordinance under some circumstances, such as liquor regulations, could be prosecuted as a criminal case as well as a municipal ordinance prosecution. ¶21. The Court in Smoke N Stuff rejected a decision of another appellate district, Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 698 (2004), as not being well reasoned on the central issue in Smoke N Stuff. The Court followed the law that “an opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels.” ¶20. Therefore, the one-act, one-crime rule does not apply to these municipal ordinance cases.

Smoke N Stuff also challenged the penalty of license revocation imposed before the City as being arbitrary, harsh, and an abuse of discretion. Smoke N Stuff tried to raise an argument for the first time in administrative review. The Court held that Smoke N Stuff is procedurally defaulted for not raising an argument before the Administrative Law Judge. ¶25.

The Court found that a sanction to be imposed is within the discretion of the administrative agency. Smoke N Stuff had prior infractions of the municipal code within five years of the current violations. The revocation of Smoke N Stuff’s license was affirmed. ¶28.