100.400 Procedures Before the Commission on Disputes under Section 35 of the Illinois Wine and Spirits Industry Fair Dealing Act
Pursuant to the Illinois Wine and Spirits Industry Fair Dealing Act [815 ILCS 725] (see P.A. 91‑2, effective. May 21, 1999), Section 6‑9 of the Liquor Control Act [235 ILCS 5/6‑9], Section 100.60 of this Part, and the Illinois Administrative Procedure Act [5 ILCS 100], in all disputes presented to the Commission under Section 35 of the Fair Dealing Act, the following procedures shall be followed:
a) Initiating a dispute resolution proceeding.
The aggrieved party shall file an application (petition, request for relief) with the Commission that shall include, at a minimum, the following information (the application may be supported by documentation, which shall be made a part of the application, supplying all or any part of the information):
1) The party's license classification (i.e., distributor, importing distributor) and Illinois liquor license number and date of expiration.
2) All opposing parties' license classification (i.e., non‑resident dealer) and Illinois liquor license number and date of expiration, if known.
3) A copy of any written agreement between the parties under which the "distributorship relationship" was established; if no written agreement exists or is otherwise unavailable, the essential terms of the agreement shall be pled.
4) A copy of all Registration Statements filed with the Commission granting to the distributor the right to sell at wholesale in Illinois; if no such Registration Statement is available, a statement specifying the trademark, brand or name of alcoholic liquor (product), the geographic area or areas, and the period of time for which the rights are granted.
5) A copy of the Withdrawal of Registration filed with the Commission withdrawing from the distributor the right to sell at wholesale distilled spirits and/or wine in Illinois; if no such Withdrawal is available, a statement specifying the trademark, brand or name of alcoholic liquor (product), the geographic area or areas, and the period of time for which such rights are withdrawn.
6) A detailed statement of the facts and circumstances giving rise to the allegations of violation of the Fair Dealing Act. Evidence shall not be pled.
7) Requests for relief, which may include both temporary (preliminary) and permanent relief, if applicable.
8) The document shall be certified as provided in subsection (g)(15).
The matter shall be docketed by the Commission and given a file number that should be used on all subsequent documents.
The parties to a request for resolution of a dispute under the Fair Dealing Act shall be designated as "Petitioner" and "Respondent". There shall be no other parties joined in the matter without the filing of a motion or petition and the entry of an order by the Commission allowing the joinder of additional parties.
b) Response to application for dispute resolution.
The responding party shall file a response (answer) to the application (petition, request for relief), admitting, denying, averring no knowledge, or such other response as it may deem appropriate, to each allegation in the application; information or documentation supplying additional information in response to the application may also be made a part of the response. The responsive document shall contain the information required under subsections (a)(1) through (6) and (8) of this Section if any allegations in the application are denied. Evidence shall not be pled.
The response shall be filed with the Commission not later than 21 days after service upon the party.
c) Appearance.
Each party appearing before the Commission shall file an appearance, using the Commission form or a reasonable facsimile, that shall contain all information requested in the Commission form. The filing of an appearance with the Commission shall be deemed to authorize the Commission to direct all subsequent communication, verbal, written and electronic, to the listed address or addressee. Service of the communication to that address or addressee shall be deemed service upon the party or attorney.
d) Motions and petitions.
1) Motions directed to the adequacy or sufficiency of the application may be filed with the Commission in lieu of a response under subsection (b); the motion shall be filed not later than 14 days after service of the application. The Petitioner may file a response to the motion within 7 days after service of the motion.
2) Motions or petitions seeking to vacate, alter or otherwise modify orders entered by the Commission shall state all relief sought and all bases upon which relief is sought, and shall be supported by all documentation bearing upon the relief and bases. If documentation is unavailable, the content may be pled with specificity and the party's inability to produce documentation shall be detailed in the motion or petition. The opposing parties may file their response to the motion or petition not later than 7 days after service.
3) The Commission shall take motions or petitions and any responses under advisement and enter its written ruling on the documents filed. Oral argument on motions or petitions and responses shall not be allowed except on order of the Commission.
e) Preliminary relief.
1) If the Petitioner has requested or filed a supplementary (additional) request (motion, petition) for preliminary relief, the Respondent shall be served with notice of the intent of the Petitioner to appear before the Commission to request the entry of an Order granting the relief. The Respondent shall be allowed to file a written response to the notice of intent to request preliminary relief not later than 7 days after service of the notice, and the Commission shall set the request and response for hearing as soon as practicable. The party moving the Commission for the entry of a preliminary order shall have the burden of establishing the entitlement to relief, unless the Fair Dealing Act provides to the contrary.
2) No preliminary order directing the parties to continue business on a pre‑termination basis shall be entered without notice to the opposing party or attorney, as the case may be, unless it clearly appears from the facts shown by verified application or by affidavit if by supplemental request (motion, petition) that immediate and irreparable harm, damage or loss will result to the movant before notice can be served and a hearing on the application can be had. In the event the Commission issues, without prior notice, any preliminary order it deems necessary and appropriate, it shall set the matter for preliminary status report at its next regularly scheduled hearing, or within 30 days after the entry of the order, or upon motion of any party, whichever occurs first.
3) However, no immediate and irreparable harm, damage, or loss shall be deemed to result, for purposes of obviating the necessity of the required notice to Respondent and denying Respondent the requisite 7 days to respond, if the Petitioner previously received at least 14 days prior written notice of Respondent's intent to terminate Petitioner.
4) In the event the Commission enters an order granting the preliminary relief, the order shall remain in full force and effect during the pendency of the matter and until the occurrence of any event set forth in Section 35(e) and (f) of the Fair Dealing Act, unless previously vacated, dissolved or modified by subsequent order.
5) Documents seeking such preliminary relief and opposing same shall be certified as provided herein.
f) Discovery.
1) "Document" as used in this subsection (f) shall include but not be limited to: papers; photographs; video; audio; electronic or magnetic recordings; memoranda; books; records; accounts; all written or oral communications; and retrievable information in computer storage.
2) Any party may obtain by discovery the full disclosure of information concerning the subject matter of the proceeding, which may be secured through any or all of the following discovery methods. Discovery shall not be duplicative or repetitious.
3) Methods of discovery:
A) Depositions upon oral questions or written interrogatories.
B) Written Interrogatories.
C) Requests for production of documentation.
D) Requests for the admission of facts or the genuineness of documents.
4) Parties shall serve discovery documents upon the opposing party or attorney. The notice of filing and proof of service of the discovery shall be filed with the Commission stating the nature of the discovery served (i.e., interrogatories, request for production of documents, etc.) but the documents served upon the opposing party or attorney shall not be filed with the Commission.
5) Response to discovery documents shall be served upon the opposing party or attorney and the original response shall be filed with the Commission.
6) Discovery to which written responses are required shall be responded to within 30 days after service of the discovery upon the party or attorney requested to respond.
7) Motions with respect to discovery shall be filed with the Commission and copies served upon the opposing party or attorney. The opposing party or attorney may file with the Commission a response to the motion. Motions and responses shall contain all grounds upon which the movant and respondent rely. Copies of the discovery to which the motions are directed shall be filed with the motion. Privilege, relevance, materiality, work product or other claims asserted in avoidance of responding to discovery hereunder shall be defined in accordance with Section 10‑40 of the IAPA [5 ILCS 100/10‑40], and such claims shall be promptly communicated to the opposing party and the Commission by the filing of an objection to the discovery claimed to be exempt from production.
8) The Commission shall take the motions and responses under advisement and enter its written ruling on the motion and response. Oral argument on the motions and responses shall not be allowed except on order of the Commission.
g) Miscellaneous provisions.
1) Hearing. Conduct of the hearing shall be in accordance with Section 10‑25 of the IAPA.
2) Record. A record of all proceedings before the Commission in open hearing shall be maintained in accordance with Section 10‑35 of the IAPA.
3) Standard of Proof. The standard of proof shall be the preponderance of the evidence in accordance with Section 10‑15 of the IAPA.
4) Rules of Evidence. The admission of evidence shall be in accordance with Section 10‑40 of the IAPA.
5) Stipulations. The Commission directs the parties and attorneys to prepare written stipulations of facts not in dispute, of the applicable law, and of all other matters to which there is agreement. The stipulation shall be filed with the Commission as soon as practical.
6) Subpoenas. Any party may request the Commission to issue a subpoena requiring the presence of any party or witness or for the production of documentation.
7) Legal Precedent. Any party citing case law or other legal precedent for the Commission's consideration shall file with the Commission copies of the case law or precedent. If the case law or precedent is cited in a motion, brief or other document filed with the Commission, copies of the case law or precedent shall be appended to the document.
8) Notice of filing and proof of service shall be required on all documents filed with the Commission and served upon the opposing party or attorney.
9) Service of Documents. All applications for relief under the Fair Dealing Act shall be sent to the opposing party by certified or registered mail with return receipt requested; the original return receipts shall be filed with the Commission. All subsequent documents shall be served upon the opposing party or attorney via regular mail, unless the Commission orders that the documents be served by another method. Any documents may be personally served upon the opposing party or attorney. Facsimile service of any document may be had unless any party or attorney files a written objection to that type of service. So‑called "express company", "overnight", or "next day" delivery provided by the U.S. Postal Service or express carrier may be utilized for service upon the opposing party or attorney. E‑mail service may be had of any document or communication unless any party or attorney files a written objection to that type of service. The Commission's e‑mail address is: lcc_webmaster=mail.state.il.us. All documents filed in the proceeding shall be filed with the Commission office at 100 West Randolph Street, Suite 5‑300, Chicago, Illinois 60601.
10) Status Reports. The Commission shall set by order any status reports and status hearings it deems necessary to assure the progress of the matter.
11) Pre‑Final Hearing Memoranda. The parties shall file, not later than 14 days prior to the Pre‑Final Hearing Conference, a Pre‑Final Hearing Memorandum utilizing the Commission form or other reasonably similar format that contains responses to all of the information requested on the Commission form.
12) Pre‑Final Hearing Conference. Any party or attorney may file a written request, or the Commission may order, that the parties and attorneys attend a Pre‑Final Hearing Conference at which the Commission shall consider:
A) the simplification of issues;
B) the amendments to any documents previously filed;
C) the possibility of any or additional stipulations or admissions of fact, document or law;
D) the anticipated scheduling of the final hearing;
E) any other matters that the parties or attorneys may request the Commission to consider; and
F) any other matters that may aid in the simplification of issues or the disposition of the matter.
At the request of any party or attorney, or in the exercise of the sound discretion of the Commission, further or additional conferences may be scheduled in the interests of justice and the resolution of the matter. At the conclusion of the conference process, the Commission may enter an order it deems in the interests of justice and the resolution of the matter. At the conclusion of the conference process, if there has been no resolution of the matter, the Commission shall set the final hearing date.
13) Hearing Exhibits. At the final hearing, the parties shall provide the Commission with an original and 6 copies of all documents, identified as either "Petitioner's Exhibit No. " or "Respondent's Exhibit No. ", which are sought to be introduced into evidence at the hearing.
14) Filing of Documents. An original and 6 copies of any documents in connection with the matter shall be filed with the Commission.
15) Certification of Documents. Any document required under this Part to be under oath shall be under penalty of perjury, and may be accomplished by the use of a certification substantially stating as follows:
"I, , (capacity), certify that the statements set forth in the foregoing document are made upon my personal knowledge and such statements are true and correct, except as to matters stated to be on information and belief, and as to such matters I certify that I believe same to be true and correct. (Signed)"
Certification of any document may also be accomplished via an appropriate attestation statement before a notary public.
16) Telephone Communication. Recognizing that the parties to disputes under the Fair Dealing Act may not be geographically amenable to receipt of written communication, especially when matters that may be deemed to be of an emergency nature are presented to the Commission for action, telephone communication may be employed, and on a case‑by‑case basis that communication will be evaluated for a determination of whether it is prohibited communication within the meaning of Section 10‑60 of the IAPA and Section 100.380 of this Part. So‑called "conference calls" shall include all affected parties and/or their attorneys and shall not be deemed to be prohibited communication. All oral communication shall be directed to the Commission office in Chicago, telephone number 312‑814‑2206, or other number as may be communicated to the parties and attorneys.
17) Hearing Officer. The Commission may appoint one or more of its members to act in the capacity of hearing officer to assist it in the exercise of the powers and the performance of the duties imposed upon it by the Fair Dealing Act, on any matters the Commission may refer for consideration, including but not limited to matters concerning discovery, the conducting of a preliminary hearing, the taking of evidence on motions, or other aspects of the matter it may deem necessary for the proper performance of the duties vested in it.
18) Hearing Schedule. The Commission's regular hearing schedule is set not less than one calendar year in advance and is published in accordance with the Open Meetings Act. The Commission shall set preliminary and final hearings to conform with its published schedule. The Commission shall set such special hearing dates as it deems necessary.
(Source: Former Section 100.400 renumbered to Section 100.370 at 8 Ill. Adm. Code 6041, effective April 19, 1984; new Section added at 23 Ill. Reg. 13609, effective October 28, 1999)
11 Ill. Adm. Code 100.410 Ex Parte Consultations (Renumbered)