Appeals of Agency Decisions to the Court


DISCIPLINE VACATED ON APPEAL

License Suspension Imposed Against Real Estate Managing Broker Vacated by the Court on Appeal — A real estate managing broker was accused of failing to cooperate with the Illinois Department of Financial and Professional Regulation’s (IDFPR) request for documentation and records. Because the broker did not participate in the administrative proceeding, the IDFPR entered a “default” order against the broker, suspended the broker’s license for six months, and imposed a $2,500 fine. We appealed the discipline to the Circuit Court and argued that the IDFPR deprived the broker of constitutional due process because the broker was not given notice of the administrative proceeding. We convinced the Court to vacate the discipline and order the IDFPR to hold a new administrative proceeding.

Insurance Producer License Revocation Vacated by the Court on Appeal — The Illinois Department of Insurance (DOI) issued an order revoking an insurance producer’s license on the basis that he improperly withdrew premium money from his Premium Fund Trust Account (PFTA), made impermissible personal expense payments directly to vendors from his PFTA, and had his PFTA overdrawn with a negative balance. Following a formal hearing, the DOI affirmed the revocation of the insurance producer’s license and imposed a $10,000 fine. We appealed the decision to the Circuit Court and successfully convinced the Court to stay the discipline pending the appeal. We then argued that the discipline was erroneous because the DOI (1) deprived the insurance producer of constitutional due process by finding him guilty of misconduct that was not alleged in the initial order of revocation, (2) deprived the insurance producer of constitutional due process by allowing a previously undisclosed expert witness to testify at the formal hearing, and (3) imposed discipline that was overly harsh under the circumstances. We successfully convinced the Court to vacate the discipline.

Finding of Abuse Against CNA Vacated by the Court on Appeal — The Illinois Department of Public Health (IDPH) commenced administrative proceedings against a CNA, however the CNA never received notice of the proceedings. An administrative finding of abuse against the CNA was recorded on the IDPH’s Healthcare Worker Registry, but it did not prevent the CNA from working in the healthcare field. Years later, a change in the law rendered the CNA ineligible to work in the healthcare field, and the CAN first learned of the IDPH finding of abuse at that time. We filed a complaint in the Circuit Court against the IDPH seeking to vacate the administrative finding due to the CNA never receiving any notice of the administrative proceedings, and therefore being deprived of the opportunity to contest the findings. We argued to the Court that the IDPH failed to provide the CNA with statutorily and constitutionally sufficient notice of the IDPH’s proceedings, and the finding of abuse was entered without statutory authority and in violation of the CNA’s due process rights. The Court agreed with us and declared the IDPH’s finding of abuse to be void and unenforceable, and the Court ordered the administrative finding to be removed from the IDPH’s Healthcare Worker Registry so the CNA could work in the healthcare field.

License Suspension Imposed Against Real Estate Managing Broker Vacated by the Court on Appeal — A real estate managing broker was accused of lying on her license renewal application about the completion of mandatory continuing education hours. Because the broker did not participate in the administrative proceeding, the IDFPR entered a default order and suspended the broker’s license for six months. The broker had not received notice of any of the IDFPR proceedings until the default order was entered. We appealed the discipline to the Circuit Court, and argued that the IDFPR deprived the broker of constitutional due process because the broker was not given notice of the administrative proceeding. We convinced the Court to vacate the discipline and order the IDFPR to hold a new administrative proceeding.

Home Inspector’s License Suspension Vacated by the Court on Appeal — A home inspector was accused of lying on his license renewal application about completing the required continuing education hours. After the Illinois Department of Financial and Professional Regulation (IDFPR) filed a complaint against the home inspector, he contacted an attorney at the IDFPR and submitted proof that the continuing education hours had been completed prior to submitting his renewal application. The IDFPR attorney assured him that the matter would be closed after he provided this proof, but unbeknownst to the home inspector, the case continued and an order of default was subsequently entered indefinitely suspending the home inspector’s license. We appealed the IDFPR’s decision to the Circuit Court and argued that the IDFPR deprived the home inspector of his procedural due process rights by proceeding with the case notwithstanding the IDFPR attorney’s assurance that the case would be closed. We convinced the Court to vacate the order suspending his license.

Discipline Imposed on Real Estate Broker Reversed and Vacated on Appeal to the Court — A real estate broker was accused of misconduct by (1) serving as a dual agent in a transaction to which she was a party, and (2) accepting payment of a commission from the sellers for the sale of property that she bought for herself while representing other prospective buyers. The Illinois Department of Financial and Professional Regulation (IDFPR) held a formal hearing, and during the hearing we learned that a specific investigative report was relied upon by the IDFPR’s expert witness. However, that report was never tendered to us during discovery, as required by the rules. We filed a motion for sanctions, and the judge barred the testimony of the IDFPR’s expert witness. After the formal hearing concluded, the judge issued her recommendation that no discipline be imposed against the broker’s license because the IDFPR failed to prove by clear and convincing evidence the allegations against the broker. The IDFPR Director entered an order for rehearing, and we filed a complaint in the Circuit Court against the IDFPR seeking an injunction preventing the IDFPR from enforcing the order for rehearing. During the Circuit Court case, the Director entered an order imposing a $10,000 fine against the broker. We filed an emergency motion in the Circuit Court to stay the Director’s order and the Court granted our motion. We then appealed the Director’s decision to the Circuit Court and argued that (1) the Director’s order imposing discipline was not supported by the evidence in the case, (2) the broker did not violate the statutes and rules she was accused of violating, (3) the broker’s expert witness testified that she did not violate the statutes or the rules, and the IDFPR failed to rebut this testimony, (4) the Director’s order was motivated by animus, and (5) the discipline imposed by the Director was overly harsh.  The Circuit Court agreed with us, and reversed in its entirety the order entered by the IDFPR imposing discipline upon the broker’s license.

LICENSE ISSUED OR RESTORED FOLLOWING APPEAL

Real Estate Broker License Application Approved Following an Appeal to the Court — Following a formal hearing, the Illinois Department of Financial and Professional Regulation (IDFPR) denied an application for licensure as a real estate broker on the basis that the applicant was not of good moral character due to his previous criminal conviction for aggravated battery of a police officer. We appealed the decision to the Circuit Court and argued that the IDFPR’s denial of the license application was erroneous because (1) the IDFPR deprived the applicant of constitutional due process by finding him guilty of misconduct that was not a basis for the initial license denial, (2) the IDFPR erroneously allowed documents to be used at the formal hearing that contained hearsay statements of witnesses who were not subject to cross-examination, and (3) the denial of the application was unwarranted and overly harsh. During the pendency of the appeal, we convinced the IDFPR to approve his application and issue a real estate broker license to him.

Podiatrist’s Licenses Restored Following an Appeal to the Court — A podiatrist’s podiatry and controlled substance licenses were suspended by the Illinois Department of Financial and Professional Regulation (IDFPR) due to his felony conviction for money laundering. After his release from prison, the podiatrist submitted a petition for restoration of his licenses. A formal hearing was held, and the IDFPR denied his petition and decided that his licenses should remain suspended indefinitely. We appealed the decision to the Circuit Court and argued that the denial of his petition for restoration was erroneous because (1) the evidence established that the podiatrist was sufficiently rehabilitated to warrant the public trust, (2) the IDFPR Medical Board was invalidly constituted, as the Board members did not reflect representation from the geographic areas in Illinois, and (3) the denial of the petition was unwarranted and overly harsh. During the pendency of the appeal, we convinced the IDFPR to grant his petition and restore his podiatry and controlled substance licenses to active status.

Denial of Real Estate Broker License Application Reversed by the Court on Appeal — Following a formal hearing, the Illinois Department of Financial and Professional Regulation (IDFPR) denied an application for licensure as a real estate broker on the basis that the applicant was not of good moral character due to his previous felony and misdemeanor convictions. We appealed the decision to the Circuit Court and argued that the IDFPR’s denial of the license application was erroneous because (1) the IDFPR erroneously allowed documents to be used at the formal hearing that contained hearsay statements of witnesses who were not subject to cross-examination, and (2) the denial of the application was unwarranted and overly harsh. We convinced the Court to reverse the denial of the license application and order the IDFPR to hold a new administrative proceeding. Thereafter, we successfully convinced the IDFPR to issue a real estate broker license to him.

STAY OF ADMINISTRATIVE CASE PENDING CONCLUSION OF CRIMINAL TRIAL

Real Estate Managing Broker’s Formal Hearing Stayed by the Court Pending Resolution of Criminal Matter — The Illinois Department of Financial and Professional Regulation (IDFPR) filed a complaint against a real estate managing broker accusing her of theft of cash rent payments that she did not deposit into the business bank account. The managing broker was also a defendant in a criminal court matter arising out of the same allegations of theft. The IDFPR denied the managing broker’s request to continue the formal hearing in the administrative matter to a date after the criminal matter concluded. We sued the IDFPR in the Circuit Court and sought an injunction to prevent the IDFPR formal hearing from proceeding prior to the criminal trial. We argued that the managing broker would be required to testify in her defense at the IDFPR formal hearing and that testimony could subsequently be used against her in the criminal trial, in violation of her Fifth Amendment right against self-incrimination. By requiring that the formal hearing proceed prior to the trial in the criminal case, the managing broker would be forced to choose between presenting a meaningful defense of her license by testifying in her own defense at the formal hearing, or invoking her Fifth Amendment right to protect herself in the criminal case by not testifying at the formal hearing. We convinced the Court to order the IDFPR to stay the formal hearing in the administrative matter until a date after the conclusion of the criminal trial.

STAY OF DISCIPLINE PENDING APPEAL

Medical Practice Act Section Declared Unconstitutional, and License Suspension Imposed Against a Physician Stayed Pending Appeal to the Court — A physician was accused of breaching his physician responsibility to a patient and inappropriately prescribing controlled substances. Following a formal hearing before the Illinois Department of Financial and Professional Regulation (IDFPR), the IDFPR suspended the physician’s license for two years and imposed a $10,000 fine. We appealed the discipline to the Circuit Court and argued that the Court should stay the discipline pending the appeal because the IDFPR erroneously (1) denied the physician’s request to obtain the testimony of a witness vital to his defense, (2) failed to qualify the physician as an “expert” and barred his opinions concerning the standard of care, and (3) imposed discipline that was overly harsh compared to similar cases. The IDFPR argued that the Court could not stay the discipline because a section of the Illinois Medical Practice Act explicitly states that the discipline shall remain in effect until the final disposition of the appeal. We convinced the Court to declare that section of the Medical Practice Act unconstitutional, as it violates the separation of powers between the legislature and Courts by restricting the Court’s inherent equitable power to grant a stay. We successfully convinced the Court to stay the discipline and allow the physician to continue to practice during the pendency of the appeal.

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