                                                                               Digitally signed by
                             Illinois Official Reports                         Reporter of Decisions
                                                                               Reason: I attest to the
                                                                               accuracy and integrity
                                                                               of this document
                                     Appellate Court                           Date: 2016.11.29
                                                                               13:35:01 -06'00'




                  Perez v. Illinois Concealed Carry Licensing Review Board,
                                    2016 IL App (1st) 152087



Appellate Court         BENJAMIN PEREZ, Plaintiff-Appellant, v. THE ILLINOIS
Caption                 CONCEALED CARRY LICENSING REVIEW BOARD, THE
                        ILLINOIS STATE POLICE, and HIRAM GRAU, as Director of State
                        Police, Defendants-Appellees.



District & No.          First District, Fourth Division
                        Docket No. 1-15-2087


Filed                   September 15, 2016



Decision Under          Appeal from the Circuit Court of Cook County, No. 14-CH-6992; the
Review                  Hon. Mary L. Mikva, Judge, presiding.



Judgment                Affirmed.



Counsel on              Joel A. Brodsky, of Chicago, for appellant.
Appeal
                        Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                        Solicitor General, and Mary C. Labrec, Assistant Attorney General, of
                        counsel), for appellees.



Panel                   JUSTICE McBRIDE delivered the judgment of the court, with
                        opinion.
                        Justices Howse and Cobbs concurred in the judgment and opinion.
                                               OPINION

¶1       Plaintiff, Benjamin Perez, filed an application with defendant, the Illinois State Police,
     seeking a license to carry a concealed firearm in Illinois pursuant to the Firearm Concealed
     Carry Act (Act). 430 ILCS 66/1 et seq. (West 2014). Objections were made from two law
     enforcement agencies, the Cook County sheriff and the Chicago police department. The
     application was referred to defendant, the Illinois Concealed Carry Licensing Review Board
     (the Board), for administrative review. The Board subsequently denied plaintiff’s application,
     finding by a preponderance of the evidence that plaintiff posed a danger to himself or others, or
     a threat to public safety. 430 ILCS 66/10 (West 2014).
¶2       Plaintiff appeals, arguing that the Board’s decision was against the manifest weight of the
     evidence because (1) it was based on police reports and criminal history reports regarding
     criminal charges for which plaintiff was either found not guilty or was not charged, (2) the
     decision was based on inadmissible and unreliable hearsay evidence, and (3) the Board’s
     decision to deny his application without conducting an evidentiary hearing denied plaintiff of
     his due process rights.
¶3       In January 2014, plaintiff filed his application for a concealed carry license with the Illinois
     State Police. In March 2014, the Illinois State Police notified plaintiff that they received
     objections to his eligibility from a law enforcement agency. The objections were submitted to
     the Board, which would issue a decision within 30 days of receipt of the objections. The
     objection from the Chicago police department was from a police report of domestic violence in
     February 2007.
¶4       The narrative section of the report stated that the reporting officers responded to a domestic
     battery. Upon arrival the officers spoke with the victim, plaintiff’s girlfriend. She informed
     them that she and plaintiff were in a verbal argument and plaintiff “without justification struck
     victim in the back of head with his fist.” Plaintiff then “struck victim several more time[s]
     using his hands and feet about the head, face, and body before fleeing the scene.” The officers
     observed “minor bruising to the left eye and lower right leg.” The victim refused medical
     treatment and did not sign a complaint. The report indicated that there were 14 past instances of
     abuse and that two children were present. The investigation was subsequently suspended when
     the detective was unable to contact the victim for an interview.
¶5       The objection from the Cook County sheriff was based on plaintiff’s arrest in August 2011
     for aggravated assault to a police/sheriff employee (720 ILCS 5/12-2(a)(16) (West 2010)).
     Plaintiff was subsequently found not guilty following a January 2012 bench trial.
¶6       In addition, plaintiff’s criminal history disclosed that in August 2003, plaintiff was charged
     with four vehicle-related offenses, including criminal trespass to vehicle and driving without a
     license. The history indicated these charges were “stricken from docket with leave to
     reinstate.” Plaintiff also had a 2001 juvenile arrest for assault with a disposition that was “not
     mandated to be reported.”
¶7       In March 2014, plaintiff received a letter from the Illinois State Police informing him that
     the Board “has determined by a preponderance of the evidence” that he posed a danger to
     himself or others and was a threat to public safety. The Board affirmed the objections and
     denied plaintiff’s application.



                                                  -2-
¶8          In April 2014, plaintiff filed a pro se complaint in the circuit court seeking review of the
       Board’s decision to deny his application. In July 2014, defendants filed a motion to remand to
       the Board. Defendants asserted that subsequent to its denial of plaintiff’s application, the
       Illinois Administrative Code was amended to include new rules regarding the Board and its
       review of law enforcement objections. See 20 Ill. Adm. Code 2900.100 et seq., adopted at 39
       Ill. Reg. 1518 (eff. Jan. 6, 2015) (adopting emergency rule at 38 Ill. Reg. 19571 (eff. Sept. 18,
       2014)). Defendants asked for a remand for further proceedings consistent with the new
       administrative rules. In July 2014, the circuit court granted defendants’ motion and remanded
       the case to the Board for further proceedings.
¶9          Following remand, plaintiff received a letter from the Illinois State Police informing him of
       the objections to his concealed carry application and his right to submit relevant evidence to
       the Board for its consideration. Plaintiff submitted a response, arguing that (1) there was no
       competent evidence that he committed an act of domestic violence or the aggravated assault of
       police or sheriff employee, (2) the not guilty finding in the aggravated assault of police or
       sheriff employee was evidence of his innocence, and (3) the failure of police to arrest and
       charge him in the domestic violence case was evidence that he did not perform the acts.
       Plaintiff attached the certified statement of conviction/disposition for the aggravated assault
       case, stating that there was a finding of not guilty.
¶ 10        In December 2014, the Board issued its final order denying plaintiff’s application for a
       concealed carry license. “After reviewing the evidence received, the [Board] determined, by a
       preponderance of the evidence, that [plaintiff] is a danger to him/herself, is a danger to others,
       or poses a threat to public safety. Therefore, the objection is sustained and the Illinois State
       Police is directed to deny” plaintiff’s application.
¶ 11        Thereafter, plaintiff filed a motion asking to file his first amended complaint for
       administrative review. Plaintiff later filed a “specification of errors” in regard to the Board’s
       final decision, arguing that (1) the Board’s decision was contrary to the record and against the
       manifest weight of the evidence and clearly erroneous, (2) the finding that plaintiff is a danger
       to himself and others or poses a threat to public safety is based on inadmissible and unreliable
       hearsay evidence, and (3) plaintiff was denied due process when the Board failed to hold an
       evidentiary hearing. In response, defendants contended that (1) there was sufficient evidence
       in the record to support the Board’s finding and the Board is authorized to review an
       applicant’s complete criminal history and (2) the Board is not statutorily required to conduct an
       evidentiary hearing on an application for a concealed carry license.
¶ 12        In July 2015, the circuit court conducted a hearing. At the conclusion of the hearing, the
       court affirmed the Board’s order denying plaintiff’s application.
¶ 13        This appeal followed.
¶ 14        On appeal, plaintiff argues that the Board’s denial of his concealed carry license
       application was against the manifest weight of the evidence because (1) it was based on police
       reports and criminal history reports regarding criminal charges for which plaintiff was either
       found not guilty or was not charged, (2) the decision was based on inadmissible and unreliable
       hearsay evidence, and (3) the Board’s decision to deny his application without conducting an
       evidentiary hearing denied plaintiff his due process rights.
¶ 15        When a party appeals the circuit court’s decision on a complaint for administrative review,
       the appellate court’s role is to review the administrative decision rather than the circuit court’s
       decision. Siwek v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 324 Ill. App.

                                                    -3-
       3d 820, 824 (2001). The Administrative Review Law provides that judicial review of an
       administrative agency decision shall extend to all questions of law and fact presented by the
       entire record before the court. 735 ILCS 5/3-110 (West 2012). Further, “[t]he findings and
       conclusions of the administrative agency on questions of fact shall be held to be prima facie
       true and correct.” Id. “The standard of review, ‘which determines the degree of deference
       given to the agency’s decision,’ turns on whether the issue presented is a question of fact, a
       question of law, or a mixed question of law and fact.” Comprehensive Community Solutions,
       Inc. v. Rockford School District No. 205, 216 Ill. 2d 455, 471 (2005) (quoting AFM Messenger
       Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001)).
¶ 16        “A mixed question of law and fact asks the legal effect of a given set of facts.” Id. at 472.
       Stated another way, a mixed question is one in which the historical facts are admitted or
       established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory
       standard or whether the rule of law as applied to the established facts is or is not violated. AFM
       Messenger, 198 Ill. 2d at 391. A mixed question of law and fact is reviewed under the clearly
       erroneous standard. Comprehensive Community, 216 Ill. 2d at 472.
¶ 17        Under the Act, the Illinois State Police shall issue a concealed carry license to an applicant
       who is at least 21 years old, has no convictions, possesses a valid Firearm’s Owner
       Identification card, and has completed at least 16 hours of firearms training. 430 ILCS 66/25,
       75(b) (West 2014). Upon receipt of the application, the Illinois State Police shall conduct a
       background check of the applicant, including all available state and local criminal history
       record information files, including records of juvenile adjudications. 430 ILCS 66/35 (West
       2014). Section 15(a) provides that “[a]ny law enforcement agency may submit an objection to
       a license applicant based upon a reasonable suspicion that the applicant is a danger to himself
       or herself or others, or a threat to public safety.” 430 ILCS 66/15(a) (West 2014). In
       considering an objection of a law enforcement agency, the Board is required to review the
       materials received with the objection from the law enforcement agency and may request
       additional information from the law enforcement agency or from the applicant. 430 ILCS
       66/20(e) (West 2014). Under the Illinois Administrative Code, the Board may request
       testimony on the objection from the law enforcement agency or the applicant, but “hearings
       shall be limited to circumstances that cannot be resolved to the [Board’s] satisfaction through
       written communication with the parties.” 20 Ill. Adm. Code 2900.140(c), adopted at 39 Ill.
       Reg. 1518 (eff. Jan. 6, 2015) (adopting emergency rule at 38 Ill. Reg. 19571 (eff. Sept. 18,
       2014)). If the Board determines by a preponderance of the evidence that the applicant poses a
       danger to himself or herself, a danger to others, or is a threat to public safety, the Board must
       affirm the objection of the law enforcement agency and notify the Illinois State Police that the
       applicant is ineligible for a license. 430 ILCS 66/20(g) (West 2014).
¶ 18        Plaintiff asserts that the Board’s decision was against the manifest weight of the evidence
       because his criminal history was insufficient to show by a preponderance of the evidence that
       he was a danger to himself or others or posed a threat to public safety. On remand from the
       circuit court, the Board provided plaintiff the opportunity to submit evidence and respond to
       the objections raised by the Chicago police department and the Cook County sheriff. Other
       than the certified statement of disposition indicating a finding of not guilty on the 2011
       aggravated assault, plaintiff offered no additional evidence related to his criminal background.
       Plaintiff argues that the not guilty disposition for the 2011 charge for aggravated assault of a
       police or sheriff employee showed that he did not commit the accused acts. We note that


                                                    -4-
       “[a]cquittal does not demonstrate a defendant’s innocence.” People ex rel. City of Chicago v.
       Le Mirage, Inc., 2013 IL App (1st) 093547-B, ¶ 134 (citing People v. Jackson, 149 Ill. 2d 540,
       549 (1992)). “It means only that the prosecution was unable to prove the defendant guilty
       beyond a reasonable doubt.” Id.
¶ 19        However, as previously observed, the Act specifically allows for the Board to consider all
       available state and local criminal history record information files, including records of juvenile
       adjudications. 430 ILCS 66/35 (West 2014). We also point out that an objection from a law
       enforcement agency under section 15(a) of the Act is not required to be based on a prior
       conviction but rather “a reasonable suspicion that the applicant is a danger to himself or herself
       or others, or a threat to public safety.” See 430 ILCS 66/15(a) (West 2014).
¶ 20        “The primary rule of statutory construction is to ascertain and give effect to the intention of
       the legislature. The best evidence of legislative intent is the language used in the statute itself,
       which must be given its plain and ordinary meaning. The statute should be evaluated as a
       whole, with each provision construed in connection with every other section.” Cinkus v.
       Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 216-17 (2008).
¶ 21        Plaintiff’s argument that his criminal history is insufficient to create a reasonable suspicion
       under the Act fails to consider the entirety of the Act. The plain language of the Act, which
       allows the Board to consider plaintiff’s entire criminal history as well as the objections based
       on a reasonable suspicion, shows the legislature’s intent not to limit considerations for an
       application to convictions. If the legislature had intended to limit the consideration of an
       applicant’s background to his or her convictions, then the language would reflect that narrow
       intent. Instead, the broad language illustrates the intent for a wide ranging consideration of an
       applicant’s criminal history.
¶ 22        Here, the Board had sufficient evidence of plaintiff’s criminal history. Plaintiff’s criminal
       background included the 2007 domestic battery, the 2011 aggravated assault, 2003 charges for
       criminal trespass to a vehicle and driving without a license, and a 2001 juvenile arrest for
       assault. The Board’s determination under the Act was the lesser standard of a preponderance of
       the evidence, not the higher burden of reasonable doubt. The police report for the domestic
       battery disclosed that plaintiff’s girlfriend informed officers that plaintiff struck her on her
       head, face, and body after a verbal argument. The report noted that the officers observed minor
       bruising around the victim’s eye and leg. Plaintiff did not offer a statement refuting or
       explaining the evidence against him. Based on this evidence, we cannot say the Board’s
       determination that plaintiff was a danger to himself or others or posed a threat to public safety
       was against the manifest weight of the evidence or clearly erroneous. The opposite conclusion
       is not clearly evident, nor are we left with a firm conviction that a mistake was made.
¶ 23        Further, we are not persuaded by plaintiff’s assertion that the evidence related to his
       criminal history was inadmissible hearsay. First, we point out that plaintiff failed to raise this
       hearsay argument before the Board and any objection has been forfeited. “It is well established
       that when hearsay evidence is admitted without an objection, it is to be considered and given
       its natural probative effect.” Jackson v. Board of Review of the Department of Labor, 105 Ill.
       2d 501, 508 (1985).
¶ 24        Forfeiture aside, Rule 802 of the Illinois Rules of Evidence provides that hearsay is not
       admissible except “by statute as provided in Rule 101.” See Ill. R. Evid. 802 (eff. Jan. 1, 2011).
       As we have discussed, the statutory scheme under the Act permits such an exception because it
       requires the Illinois State Police as well as the Board to consider an applicant’s criminal

                                                    -5-
       history, including arrests, when reviewing an application for a concealed carry license. See 430
       ILCS 66/15(a), 20(e), 35(2) (West 2014). In raising an objection, law enforcement agencies are
       required to submit “any information relevant to the objection.” 430 ILCS 66/15(a) (West
       2014). Additionally, as plaintiff concedes, the Administrative Procedure Act provides
       “[e]vidence not admissible under those rules of evidence may be admitted, however, (except
       where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men
       in the conduct of their affairs.” 5 ILCS 100/10-40(a) (West 2014). The language of the Act
       establishes the intent to permit the admission of hearsay evidence before the Board for
       considering a concealed carry license application.
¶ 25       Plaintiff also argues that because he “is being charged with committing a criminal act in a
       civil proceeding, there is an extra burden of clear and convincing evidence.” We find
       plaintiff’s argument lacks merit. First, plaintiff’s argument relies on the decision in Shallow v.
       Police Board, 95 Ill. App. 3d 901, 908 (1981), but the bright line holding has been questioned.
       See Board of Education of the City of Chicago v. State Board of Education, 113 Ill. 2d 173, 194
       (1986) (finding that in administrative proceedings concerning a teacher’s dismissal “in which
       conduct constituting a crime is alleged the charge need only be proved by a preponderance of
       the evidence”). Significantly, the Act specifically designates that the standard is
       preponderance of the evidence. 430 ILCS 66/20(g) (West 2014). Moreover, the Seventh
       Circuit has recently considered and rejected the same argument, observing that “[a]s a matter
       of administrative law, the proponent of a position bears the burden of showing entitlement by a
       preponderance of the evidence.” Berron v. Illinois Concealed Carry Licensing Review Board,
       No. 15-2404, slip op. at 8 (7th Cir. June 17, 2016). “Plaintiffs are the applicants for licenses, so
       they bear the burden of showing entitlement. To be more precise, a state may assign applicants
       that burden without transgressing the Constitution. Illinois is a little more generous, placing the
       burden on the state to show why an application should be denied.” Id. (citing 430 ILCS
       66/20(g) (West 2014)). “Section 66/20(g) uses a preponderance standard, which is the norm in
       civil litigation.” Id. We agree with the Seventh Circuit in Berron and find that the statutory
       language controls the required standard of evidence before the Board.
¶ 26       Finally, plaintiff asserts that he was denied his right to due process because the Board
       failed to conduct an evidentiary hearing. Specifically, plaintiff contends that since he was
       being charged with criminal conduct, the failure to hold an evidentiary hearing regarding the
       allegations against plaintiff was a denial of due process.
¶ 27       First, “[d]ue process is a flexible concept which ‘requires only such procedural protections
       as fundamental principles of justice and the particular situation demand.’ ” Hayashi v. Illinois
       Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 40 (quoting
       Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 92 (1992)). “An
       administrative proceeding need not involve a hearing in the nature of a judicial proceeding in
       order to comply with due process.” Id. Rather, at its core, due process requires notice and an
       opportunity to be heard. Chamberlain v. Civil Service Comm’n, 2014 IL App (2d) 121251,
       ¶ 46. Under the administrative rules interpreting the Act, the Board was not required to hold an
       evidentiary hearing since hearings “shall be limited to circumstances that cannot be resolved to
       the [Board’s] satisfaction through written communication with the parties.” 20 Ill. Adm. Code
       2900.140(c) adopted at 39 Ill. Reg. 1518 (eff. Jan. 6, 2015) (adopting emergency rule at 38 Ill.
       Reg. 19571 (eff. Sept. 18, 2014)); see also 430 ILCS 66/20(e) (West 2014) (the Board may
       request testimony from law enforcement, the Department, or the applicant). Here, the Board


                                                    -6-
       notified plaintiff of the law enforcement objections to his license application and provided him
       the opportunity to respond, which he did.
¶ 28       Second, we point out that plaintiff did not request a hearing after receiving notice of
       objections by law enforcement agencies, nor did he challenge the administrative process that
       allows for the denial of an application without an evidentiary hearing. The failure to raise an
       issue before an administrative body, even a question of constitutional due process rights,
       results in the forfeiture of the issue on appeal. Cinkus, 228 Ill. 2d at 212-13.
                “Additionally, raising an issue for the first time in the circuit court on administrative
                review is insufficient. The rule of procedural default specifically requires first raising
                an issue before the administrative tribunal rendering a decision from which an appeal is
                taken to the courts. Given that in administrative review cases the circuit courts act as
                the first-tier courts of review, the reason and logic behind that requirement are clear.”
                Id. at 213.
       Rather, plaintiff consented to the administrative procedure of written communications. See
       McMath v. Katholi, 191 Ill. 2d 251, 255 (2000) (a party may not complain of error to which he
       consented).
¶ 29       Finally, plaintiff has not cited nor developed an argument regarding the factors to guide a
       due process analysis as set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). Given plaintiff’s
       forfeiture of the matter before the Board as well as his failure to fully develop his due process
       argument on appeal, we need not address those factors. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1,
       2016) (points not argued are waived and shall not be raised in the reply brief); see also Express
       Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855 (2007) (an issue not clearly defined
       and sufficiently presented fails to satisfy the requirements of Rule 341(h)(7) and is, therefore,
       waived). Accordingly, plaintiff’s due process argument fails.
¶ 30       Based on the foregoing reasons, we affirm the judgment of the circuit court of Cook
       County affirming the Board’s order denying plaintiff’s application for a concealed carry
       license.

¶ 31      Affirmed.




                                                    -7-
