Section 1110.5  Applicability

 

This Part shall apply to all hearings conducted by the Division pursuant to the DFPR Law and other Acts under the jurisdiction of the Department.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.10  Definitions

 

"Address of Record" means the address and/or email address required to be on file with the Department's Licensure Maintenance Unit by a licensee or, in the case of an unlicensed person, the most recent publicly ascertainable address.

 

"Administrative Law Judge" or "ALJ" means an attorney licensed to practice law in the State of Illinois who has been designated by the Director to conduct any hearings governed by this Part.  For the purposes of this Part, "Administrative Law Judge" means the same as "Hearing Officer" as referenced in the DFPR Law or in any Act administered by the Division.

 

"Board" means any Board or Committee created or existing under the DFPR Law or other Acts as advisory Boards or Committees to the Secretary or Director.

 

"Clerk of the Court" means the person or unit designated by the Division to receive filings and to date stamp them.

 

"Department" means the Department of Financial and Professional Regulation.

 

"DFPR Law" means the Department of Financial and Professional Regulation Law of the Civil Administrative Code of Illinois [20 ILCS 2105].

 

"Director" means the Director of the Division of Professional Regulation or the Director of the Division of Real Estate or duly appointed Acting Director, with the authority delegated by the Secretary.

 

"Division" means the Division of Professional Regulation or the Division of Real Estate within the Department, as the context indicates.

 

"Formal Hearing" means a formal proceeding that is conducted on the record before an Administrative Law Judge during which the parties present evidence and make arguments regarding appropriate action on a contested matter.

 

"Hearing" means any hearing authorized to be held in the Department or before any of its several Boards within the Division, an Administrative Law Judge, the Director or the Secretary by the DFPR Law or any and all other applicable statutes at any time in force in the State of Illinois.

 

"Licensee" means any holder of, or applicant for, a license, registration or other credential issued by the Division.  "Licensee" also includes an unlicensed person who holds himself or herself out to be a licensee or engages in a licensed activity.  For purposes of this definition, a license, registration or credential issued by the Division may be active, inactive, expired or in any other status.

 

"Petitioner" is a party who, by written petition, seeks relief or licensure under any provision of the statutes of the State of Illinois or any rule, order or determination of the Division.  The party seeking licensure may also be identified as "applicant".

 

"Respondent" is a person, firm, association, partnership, corporation, limited liability company or other legal entity against whom a complaint or notice initiating a proceeding is filed or to whom an order or complaint is directed by the Division.

 

"Secretary" means the Secretary of Financial and Professional Regulation.

 

"Unlicensed Person" means any person who has never held a license and who is not an applicant for licensure.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.20  Institution of a Contested Case by the Division

 

a)         A contested case is instituted by the Division when a Complaint and Notice of Preliminary Hearing are filed with the Clerk of the Court and mailed or emailed to the Respondent's address of record.

 

b)         A Complaint shall be in writing, signed by a Chief of Prosecution, and shall include a clear statement of the acts or omissions alleged to violate a statute or rule and the citation of the particular Sections of the substantive and procedural statutes and rules involved.  Any allegation of a violation of a statute or rule under the administration of the Department that is premised on a violation of another State or federal statute or rule shall identify that State or federal statute or rule.

 

c)         The Notice of Preliminary Hearing shall be in writing and shall contain the date, time, place and nature of the hearing to be held, shall refer to the Division's Rules of Practice, and shall comply with the Notice requirements of Section 1110.70.

 

d)         A contested case is also instituted by the Division when a Notice of Intent to Refuse to Renew is filed with the Clerk of the Court and mailed or emailed to the Respondent's address of record.

 

e)         A Notice of Intent to Refuse to Renew shall be in writing and signed by a Chief of Prosecution, shall include a clear statement of the acts or omissions alleged to violate a statute or rule, and shall include the citation of the particular Sections of the substantive or procedural statutes and rules involved.  Any allegation of a violation of a statute or rule under the administration of the Department that is premised on a violation of another State or federal statute or rule shall identify that State or federal statute or rule.  It shall notify the licensee that the licensee must request a hearing to contest the notice within 30 days after service and, if a request is not filed within that time, the Director may issue an order refusing renewal of the license.  Upon receipt by the Clerk of the Court of a properly completed request for hearing, a case will be docketed and notice sent to the Respondent setting forth the date, time and place of hearing.

 

f)         The procedures for Rules to Show Cause for each profession are described in the applicable professional Act.  If the Division is seeking a civil penalty for unlicensed practice, the Division shall file a Complaint and Notice of Preliminary Hearing in the same manner as set forth in this Section.

 

g)         Any Notice of Preliminary Hearing or Notice of Intent to Refuse to Renew prepared under the provisions of this Section pertaining to a person licensed under the Real Estate License Act of 2000 [225 ILCS 454] shall also be addressed to and served upon that person's managing broker and sponsoring broker.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.30  Institution of a Contested Case by Petitioner

 

a)         A contested case is instituted by a Petitioner when a Petition for Hearing is filed with the Clerk of the Court.

 

b)         In a case in which a Petitioner is seeking restoration of a license that was revoked or suspended or for termination of an indefinite probation, the Petition for Hearing shall be in writing, signed by the Petitioner, and shall set forth:

 

1)         The number of the license that was suspended, revoked or placed on probation;

 

2)         The docket number of the case that resulted in discipline;

 

3)         The date on which the suspension, revocation or probation was ordered;

 

4)         Whether the order that suspended, revoked, or placed on probation the license was appealed, and if so, whether a stay of the imposition of discipline was granted by any reviewing court;

 

5)         All dates and types of employment held since the discipline was imposed;

 

6)         All continuing or remedial education completed since the discipline was ordered;

 

7)         If the Petitioner has sought medical treatment, psychotherapy or counseling since the discipline was ordered, and if rehabilitation is relied upon as a basis for petitioning that the license be restored or the probation terminated, the name and address of the treating professional, and whether the Petitioner consents to disclosure by the professional of matters that are relevant to whether the Petitioner is fit to resume practice;

 

8)         Any conviction or arrest followed by a charge since the discipline was ordered; and

 

9)         Date and disposition of any other petitions for restoration filed since the discipline was ordered.

 

c)         A Notice of an Intent to Deny Licensure shall be in writing, signed by a Chief of Prosecution, and shall include a clear statement of the acts or omissions alleged to violate a statute or rule, and citation of the statute or rule that forms the basis for the denial.  The Notice shall notify the licensee that he or she must request a hearing to contest the notice within 30 days after service and, if a request is not filed within that time, the Director may issue an order denying the license application.  In a case in which the Petitioner, also referred to as the applicant,  seeks to contest a decision by the Division to deny the application for licensure, the Petition for Hearing will be in writing, signed by the Petitioner, and will state with specificity the particular reasons why the applicant believes that the action by the Division to deny licensure was incorrect.

 

d)         Upon receipt by the Clerk of the Court of a properly completed Petition for Hearing, a case will be docketed, and notice sent to the Petitioner setting forth the date, time and place of hearing.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.40  Joinder

 

In the interest of the efficient disposition of related cases, the Division may join cases relating to multiple Respondents without regard to whether the cases relate to the same license or profession so long as the cases involve issues of law or fact that are common to the parties.  The Respondent may contest the decision to join cases by filing a motion pursuant to Section 1110.210(a)(10).

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.50  Form and Filing of Documents

 

a)         All documents filed or submitted to the Division in a contested case shall be typewritten on 8½- by 11-inch white paper.  The first page of each document shall set forth the names of the parties and the docket number assigned to the case by the Division.  Petitions for Hearing that are filed before a docket number is assigned shall contain a space for entry of the assigned number.  (See the Appendices.)

 

b)         All Notices, Complaints, Answers, Petitions, motions, responses, replies and other papers in the nature of a pleading shall be filed with and date stamped by the Clerk of the Court.  A copy of any motion, response, reply, or similar document shall also be provided to the opposing party and/or the opposing party's counsel of record or the assigned Division counsel, as applicable.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.60  Service

 

a)         Service of any document may be by mail or by personal delivery.  Service may also be made by email to the Respondent, Petitioner or licensee to the address of record. Service upon an unlicensed person may only be made by mail to the most recent publicly ascertainable address or by personal delivery.  Service by email to the assigned Division counsel may be addressed to his or her email address appearing on any pleading.

 

b)         Proof of service by mail or personal delivery will be attached to the original of any document served.  Proof of service by email shall be the emailed notice to which the document is attached.  In the absence of evidence to the contrary, the date shown on the proof of service shall be deemed the date of service.  Proof of service may be verified by certification as provided for in Section 1-109 of the Code of Civil Procedure [735 ILCS 5].

 

c)         If service is by email, the Division shall maintain a copy of the sent email and shall verify within one business day that the transmission of the email has not been rejected or has failed. In the event of rejection or failure, absent correction of an erroneous email address, service shall be made by mail.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.70  Notice of Preliminary Hearing

 

a)         The Notice of Preliminary Hearing shall include:

 

1)         A statement of the time, place and nature of the hearing;

 

2)         A statement of the legal authority and jurisdiction under which the hearing is to be held;

 

3)         A reference to the particular Sections of the substantive and procedural statutes and rules involved;

 

4)         Except when a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted, the consequences of a failure to respond, and the official file or other reference number.

 

5)         To the extent such information is available, the names, phone numbers, email addresses and mailing addresses of the administrative law judge or designated agency contact, parties, and all other persons to whom the agency gives notice of the hearing unless otherwise confidential by law. [5 ILCS 100/10-25(a)]

 

6)         A statement that the purpose of the Preliminary Hearing is to set a date on which all parties expect to be prepared to proceed with their cases and to rule on any preliminary motions that are presented.

 

b)         The Notice of Preliminary Hearing shall include a copy of the complaint, if any.

 

c)         Except as otherwise provided by statute, the Respondent or Petitioner will be given at least 20 days notice prior to the first date set for the preliminary hearing or hearings, as the case may be.  Once notice is given, it will thereafter be the responsibility of the Respondent or Petitioner to know subsequent hearing dates.

 

d)         Nothing in this Section will prevent the Division from scheduling a hearing within 20 days after the date on which the Director summarily suspends a license pending proceedings.

 

e)         Any contention that improper notice was given will be deemed waived unless it is raised by the Respondent prior to argument on any other motion or, if no other motions are presented, prior to the commencement of opening statements.          

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.80  Negotiations and Agreed Dispositions

 

a)         The Division and the Respondent or Petitioner may stipulate to facts and that stipulation may be used or otherwise admitted at the hearing.

 

b)         The Division and the Respondent or Petitioner may enter into a written agreement providing for disciplinary or nondisciplinary action against the Respondent or the granting or restoration of a license as a settlement and disposition of the complaint or petition.  The written agreement may also be signed by a Board member from the relevant Board.  The written agreement shall be considered the Findings of Fact, Conclusions of Law, and Recommendation to the Director.  If the Director approves the written agreement, it shall be entered in the same manner as any other Order of the Director and shall constitute a final decision.  If the Director rejects the written agreement, the Respondent or Petitioner shall then be entitled to a hearing on the merits.  It shall not be a bar to participation in the hearing by a Board member that he or she has previously considered a proposed agreement under this Section.  A proposed written agreement not accepted by all parties or rejected by the Director shall be deemed confidential as an unsuccessful attempt to settle and shall not be referenced or included in any future pleading or proceeding.

 

c)         Participation in an informal conference shall not be a basis to exclude Board members from deliberating with the full Board on an Administrative Law Judge's Report and Recommendation in a contested matter.

 

d)         Statements made during informal conferences are confidential, including proposed dispositions and shall not be used or admitted in any proceeding regarding the allegations.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.90  Representation

 

a)         A party may be represented by an attorney who is licensed in Illinois or by an attorney otherwise permitted by law to practice in the State.  Attorneys who appear in a representative capacity must file written notice of appearance setting forth:

 

1)         The name, address, email address, telephone number and Supreme Court registration number of the attorney;

 

2)         The name, address and email address of the party represented; and

 

3)         An affirmative statement indicating that the attorney is licensed in Illinois or is appearing pro hac vice.

 

b)         An attorney may withdraw from employment as a representative only upon written notice to the Division and the licensee stating the specific reasons for the withdrawal.

 

c)         A law student licensed under Supreme Court Rule 711 may appear on behalf of any party as permitted by Supreme Court Rule 711 and shall be subject to the same requirements as an attorney.

 

d)         Attorneys admitted to practice in states or jurisdictions other than the State of Illinois may appear and be heard in a specific hearing pro hac vice as authorized and in compliance with Supreme Court Rule 707.  The attorney's appearance shall include documentation as to his or her eligibility or qualification under Supreme Court Rule 707.

 

e)         Any individual may appear on his or her own behalf.

 

f)         A corporation, limited liability company, professional limited liability company, or partnership must appear by legal counsel, licensed to practice in the State of Illinois or appearing pro hac vice.

 

g)         Once an appearance is filed, a copy of all future filings shall be served upon the counsel of record, unless that counsel has withdrawn. In addition to that service, a copy may be served on the licensee.

 

h)         The standard of conduct shall be the same as before the Courts of Illinois. Attorneys appearing before the Division shall conform their conduct to the Illinois Rules of Professional Conduct.  Any failure to behave in a manner consistent with those standards of conduct or this Part will authorize an Administrative Law Judge to take the following actions:

 

1)         Limitation of evidence;

 

2)         Substitution of written argument in place of oral argument; or

 

3)         If warranted, report an attorney's misbehavior to the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court.

 

i)          If any of the actions authorized by subsection (h) are taken by the ALJ, it shall be done as a matter of record, and the ALJ shall state for the record the specific reasons for the action.

 

j)          A party sanctioned under this Section may request the decision be reviewed by the Director.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.100  Failure to Appear

 

Failure to appear at the time and place set for formal hearing shall be deemed a waiver of the right to present evidence unless otherwise reflected by order of the Administrative Law Judge.  After presentation by the Division of proof that the Respondent was given proper notice and the Division has been given an opportunity to present evidence, the ALJ shall make his or her recommendation.  When a Petitioner fails to appear at the time and place set for formal hearing, the Petition for Hearing shall be dismissed.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.110  Amendment, Withdrawal of Complaints and Petitions for Hearing

 

a)         The Complaint, Notice of Intent to Refuse to Renew, or Notice of Intent to Deny a License may be amended at any time, except in the course of the hearing without leave or approval of the Administrative Law Judge.  An amended Complaint or amended Notice shall be filed in the same manner as a Complaint.  If an amended Complaint or Notice is filed during the course of the hearing, it shall also be presented to the Administrative Law Judge. A continuance shall be granted whenever the amendment materially alters the Complaint or Notice and when the Respondent demonstrates that he or she would otherwise be unable to properly prepare an Answer to the Amended Complaint or Notice or prepare his or her case.

 

b)         A Complaint, Notice or Petition for Hearing may be withdrawn at any time prior to the hearing by the party who initiated it.  After a hearing has begun, a Complaint, Notice or Petition may be withdrawn only with leave of the ALJ.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.120  Requirement of an Answer; Defaults

 

a)         In contested cases involving a Complaint and unless otherwise provided by law, the Respondent shall file an Answer within 20 days after the date on which the Complaint was filed.  The Answer shall be in writing, signed by the Respondent or his or her representative, and shall contain a specific response to each allegation in the Complaint.  The response shall either admit or deny the allegation, or shall state that the Respondent has insufficient information to admit or deny the allegation.  Any Answer not conforming to the requirements of this Section may be stricken.

 

b)         Any Answer that states that the Respondent has insufficient information to admit or deny the allegation shall be accompanied by an affidavit attesting to the truth of this assertion.

 

c)         If the Respondent does not file an Answer conforming with the requirements of this Section or otherwise does not file a responsive pleading, on motion by the Division the Administrative Law Judge will cause to be issued a Notice to plead or be held in default.  If, within 15 days after issuance of the Notice, the Respondent does not file an answer conforming with the requirements of this Section or otherwise file a responsive pleading, the Respondent will be held in default and the allegations of the Complaint will be deemed to have been admitted.  In a like manner, if a Respondent fails to appear for any scheduled hearing or proceeding without cause, he or she may be held in default and the allegations of the Complaint will be deemed to have been admitted.

 

d)         In all contested cases involving a Petition to Restore, the Petitioner's failure to appear, without cause, at a scheduled hearing to prosecute or pursue his or her petition may result in a default and/or the dismissal of the Petition by the ALJ.

 

e)         In contested cases involving a Notice of Intent to Refuse to Renew, the Respondent shall file a request for a hearing to contest the Notice within 30 days after service.  If a request is not filed within that time, the Director may issue an order refusing renewal of the license.  If a request for hearing is filed but the Respondent fails to appear, without cause, at a scheduled hearing to prosecute or pursue his or her request, the ALJ may dismiss the request for want of prosecution and refer the notice to the Director for action.

 

f)         In contested cases involving a Notice of Intent to Deny Licensure, the Applicant shall file a request for hearing to contest the Notice within 30 days after service.  If a request is not filed within that time, the Director may issue an order denying the license.  If a request for hearing is filed but the Applicant fails to appear, without cause, at a scheduled hearing to prosecute or pursue his or her request, the ALJ may dismiss the request for want of prosecution and refer the notice to the Director for action.

 

g)         In a case involving a Tax Liability Order, the Respondent shall file a request for a hearing to contest the Order within 60 days after the effective date of the Order.  If a request for hearing is filed but the Respondent fails to appear, without cause, at a scheduled hearing to prosecute or pursue his or her request, the ALJ may dismiss the request for want of prosecution and refer the Order to the Director for action.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.125  Tax Default; Repayment

 

a)         Upon notice from the Illinois Department of Revenue that a person has failed to file a return, or to pay the tax, penalty, or interest, as required by any tax Act administered by the Illinois Department of Revenue, the Division of Professional Regulation or the Division of Real Estate of the Department of Financial and Professional Regulation shall:

 

1)         issue an order refusing to renew the license of the person; or

 

2)         issue an order denying the application for licensure of the person; or

 

3)         issue an order suspending the license of the person.

 

b)         The Division shall take one of the actions set forth in subsection (a) upon notification from the Illinois Department of Revenue of a certification, signed by its Director or designee, attesting to the following:

 

1)         the amount of any unpaid tax liability; and/or

 

2)         the years for which a return was not filed.

 

c)         Notification received from the Department of Revenue including items set forth in subsection (b) shall be considered prima facie evidence of a licensee's or applicant's failure to comply with any of the tax laws administered by the Illinois Department of Revenue.

 

d)         The Division, pursuant to 20 ILCS 2105/2105-15(g), shall not be required to hold a hearing prior to or following taking any of the actions set forth in subsection (a), except as provided in subsection (f).

 

e)         The Division shall forward notice of any order entered pursuant to this Section to the licensee or applicant by mailing or emailing a copy of its order to the person's address of record or email address of record with the Division, as defined by 20 ILCS 2105/2105-5.  The Notice shall include the following information:

 

1)         that the order shall be stayed for a period of 60 days from the date signed; and

 

2)         the stay shall not be extended unless the licensee or applicant files a request for a hearing with the Division in accordance with this Part to dispute the matters contained in the order.

 

f)         An order suspending or denying a license under subsection (a) shall be immediately stayed for a period of 60 days.  After the expiration of the 60-day period, the Division shall change the license status to suspended or not renewed or application denied, unless the licensee/applicant has filed a request for hearing prior to the expiration of the 60-day period.  The purpose of the hearing is to afford the licensee/applicant an opportunity to contest the order on the basis that the licensee/applicant is in compliance with the tax laws administered by the Illinois Department of Revenue or that the tax matter has been resolved with the Illinois Department of Revenue.  The Division does not have the jurisdiction to determine the validity of the tax matter or the amount of any tax, penalty, or interest assessment as these issues can only be addressed by the Illinois Department of Revenue.  If the contest of the order is denied or dismissed, the suspension, refuse to renew, or denial of licensure shall become effective.

 

g)         The Division shall restore or renew the license of a licensee that was suspended or refused renewal, or issue the license of an applicant that was denied issuance pursuant to this Section, if the licensee or applicant has provided proof of a satisfactory repayment record with the Illinois Department of Revenue and if all other requirements of the Act and rules governing the profession for which the license was issued or sought have been met.

 

h)         "Satisfactory Repayment Record" as used in this Section and in 20 ILCS 2105/2105-15(g) shall mean submission of the following by the Illinois Department of Revenue to the Division:

 

1)         documentation from the Illinois Department of Revenue that the applicant or licensee who has been denied license issuance or renewal or whose license has been suspended based upon 20 ILCS 2105/2105-15(g) has paid in full the final assessment of any tax, penalty, or interest, as required by any tax Act administered by the Illinois Department of Revenue; or

 

2)         documentation from the Illinois Department of Revenue that the applicant or licensee who has been denied license issuance or renewal or whose license has been suspended based upon 20 ILCS 2105/2105-15(g) has entered into and is in compliance with a payment plan that has been accepted by the Illinois Department of Revenue.

 

(Source:  Added at 48 Ill. Reg. 13602, effective August 30, 2024)

 

Section 1110.130  Discovery

 

a)         Discovery shall not be the subject of motions presented to the Administrative Law Judge, except when a motion is made alleging failure to comply with this provision and requesting appropriate relief.

 

b)         Upon written request served on the opposing party or by order of the Administrative Law Judge, any party shall be entitled to:

 

1)         The name and address of any witness who may be called to testify, including identification of any witness to be offered as an expert;

 

2)         Copies of any document that may be offered as evidence;

 

3)         A description of any other evidence that may be offered;

 

4)         Any nonprivileged evidence in the Division's possession; and

 

5)         Copies of any Division investigative report created for the case.

 

c)         The information listed in subsection (b) shall be provided within 30 days after service of a request or as otherwise directed by an ALJ.  In the event that the Division withholds any evidence asserted to be privileged (see subsection (b)(4)), the Division shall give notice to the other party that it is doing so and provide a description of the evidence withheld.  Notwithstanding any provision of this Section, the other party may file a motion regarding the Division's withholding of evidence asserted to be privileged.

 

d)         Upon a written request served on the Respondent, at any time after a Complaint, Notice of Intent to Deny, or Notice of Intent to Refuse to Renew is filed, or at any stage of the hearing, the Respondent will be required to produce documents, books, records or other evidence that relate directly to conduct of the trade, occupation or profession.

 

e)         Nothing in this Section shall prevent the parties in a contested case from agreeing to a mutual exchange of information that is more extensive than what is provided for in this Section.

 

f)         This provision will be construed to impose a continuing obligation upon the parties to exchange new information as it becomes available.

 

g)         No depositions will be taken, interrogatories proposed, or other discovery mechanism used without the mutual agreement of the parties.

 

h)         Service of notice upon a party licensee of the Division's intention to take his or her testimony at a formal hearing is sufficient to require the licensee's attendance at the formal hearing.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.140  Subpoenas

 

a)         The Chief Administrative Law Judge, or another Administrative Law Judge  designated by the Chief, will issue subpoenas for the attendance of witnesses or production of books, records, documents or other evidence.

 

b)         Any Respondent or Petitioner seeking issuance of a subpoena shall submit a request in writing to the Chief Administrative Law Judge.

 

c)         The request shall set forth facts to demonstrate that the documents or testimony sought are relevant to the issues contained in the Complaint, Notice of Intent to Deny, Notice of Intent to Refuse to Renew, or Petition pending before the Division and are not otherwise excludable by law or by rule.

 

d)         A request for subpoena may be denied if insufficient information is provided in the request to make such a determination.

 

e)         Except for Division investigators, examiners, and profession coordinators who participated in the investigation of the case, the Chief Administrative Law Judge shall not generally issue subpoenas for the testimony of Department or Division officers or employees or members of any Division Board.

 

f)         Upon refusal by an Administrative Law Judge to issue any subpoena, the licensee will be entitled to a hearing before another Administrative Law Judge, to be conducted as a matter of record.

 

g)         Service of subpoenas and payment of witness fees and expenses shall be as provided in Section 2105-105 of the DFPR Law. 

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.150  Prehearings

 

a)         After a case is instituted, upon the written motion of any party, or on his or her own motion, the Administrative Law Judge may direct the parties to attend a prehearing.

 

b)         Upon the request of any party, the prehearing will be conducted as a matter of record.  Participation by any Board member or an ALJ will not affect his or her right to participate in a subsequent hearing on the matter.  The requesting party shall be responsible for the court reporter's attendance and costs.

 

c)         The purposes of the prehearing include:

 

1)         Simplification of issues;

 

2)         Limitation of issues;

 

3)         Negotiating admissions or stipulations;

 

4)         Limitation of witnesses or evidence;

 

5)         Exchange of exhibits;

 

6)         Discussion of any other matter that may aid in efficient disposition of the case; or

 

7)         Agreed dispositions.

 

d)         The parties shall be fully prepared to participate in a prehearing, which shall include:

 

1)         presentation of any prehearing motions;

 

2)         witness and exhibit lists that list only those witnesses the party in good faith intends to call;

 

3)         disclosure of expert witnesses; and

 

4)         any other materials directed by an ALJ.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.155  Remote Proceedings

 

a)         Preliminary hearings may be conducted remotely, either by teleconference or videoconference, provided that the Notice of Preliminary Hearing includes notice that the preliminary hearing will be conducted remotely and includes instructions for accessing the teleconference or videoconference system at the date and time set forth in the Notice of Preliminary Hearing.

 

b)         By order of the Administrative Law Judge, any status hearing or prehearing may be conducted remotely, either by teleconference or videoconference.  The parties shall be provided instructions for accessing the teleconference or videoconference system for the date and time of the scheduled status hearing or prehearing.

 

c)         Upon motion of any party, the ALJ may determine whether the pending matter may be suitable for a formal hearing by teleconference or videoconference, in whole or in part, as an alternative to in-person proceedings.

 

d)         The parties may agree that the formal hearing will be conducted in its entirety by teleconference or videoconference or that a part or parts of the formal hearing will be conducted by teleconference or videoconference, including the testimony of a particular witness or witnesses.  These agreements are subject to the approval of the ALJ by entry of an order.

 

e)         In the absence of any such agreement of the parties, the ALJ may determine whether the formal hearing will be conducted in its entirety by teleconference or videoconference or that a part or parts of the formal hearing will be conducted by teleconference or videoconference, including the testimony of a particular witness or witnesses, or whether the proceedings or any part of the proceedings shall remain in-person.  This determination shall be made by order of the ALJ.  In making this determination, the ALJ may consider factors including, but not limited to, the following:

 

1)         Preference of the parties;

 

2)         Capabilities of participants to participate via video or telephone;

 

3)         Whether the selected method is accessible for persons with health risks or disabilities;

 

4)         Whether the participants have access to the internet;

 

5)         Number of witnesses;

 

6)         Volume of documents offered as exhibits;

 

7)         Complexity of the Complaint or Petition;

 

8)         Expected duration of the formal hearing;

 

9)         Extent to which the credibility of any witness will be at issue;

 

10)        Extent to which exhibits will be used to examine any witness; and

 

11)        Any other consideration that will impede or aid in the fair and efficient administration of the formal hearing process.

 

(Source:  Amended at 45 Ill. Reg. 4476, effective March 24, 2021)

 

Section 1110.160  Hearings

 

The sequence to be followed for all contested cases is as follows:

 

a)         Preliminary Hearing.  The purpose is to set a date on which all parties expect to be prepared to proceed with their cases, and to rule on any preliminary motions that are presented.

 

b)         Prehearings – Optional.  The purposes are set forth in Section 1110.150.

 

c)         Formal Hearings

 

1)         Preliminary Matters – Motions, attempts to narrow issues or limit evidence.

 

2)         Opening Statements – The party bearing the burden of proof proceeds first.

 

3)         Case in Chief – Evidence is presented by the party bearing the burden of proof.  Once a witness' direct  testimony is completed, that witness is subject to cross-examination.

 

4)         Defense – Evidence may be presented by the opposing party.

 

5)         Closing Statements – The party bearing the burden of proof proceeds first, then the opposing party, then a final word by the party bearing the burden of proof.

 

d)         In hearings for the sole purpose of determining the length of the automatic suspension of the licensee's license upon conviction or entry of a plea of guilty or nolo contendere in a criminal prosecution to a criminal health care or criminal insurance fraud offense requiring intent under the DFPR Law, the licensee shall proceed first in opening statements and closing statements and shall present evidence in the case in chief.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.170  Administrative Law Judges

 

a)         In any contested case, the Director shall appoint and employ an attorney, licensed to practice in Illinois, to serve as Administrative Law Judge on behalf of the Board.  The Director may also appoint and employ an attorney, licensed to practice in Illinois, to serve as ALJ to conduct any hearing in his or her stead.  The ALJ shall be empowered to conduct the hearing, question witnesses, make rulings on motions and objections, and submit Findings of Fact, Conclusions of Law, and his or her recommendation to the Board or Director at the conclusion of the case.

 

b)         It shall not be a bar to employment as an Administrative Law Judge that the attorney is also a Department employee.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.175  Disqualification of Administrative Law Judge

 

a)         An Administrative Law Judge may, on his/her own motion, recuse himself/herself from presiding over a matter due to conflict of interest or bias.

 

b)         At any time prior to the issuance of the Administrative Law Judge's final decision or recommendation, a party may file a motion to disqualify the ALJ for bias or conflict of interest.  An adverse ruling made by an ALJ, in and of itself, shall not constitute bias or conflict of interest.  The motion shall set forth the alleged grounds of bias or conflict of interest and shall include supporting affidavits.  A different ALJ shall have 7 days after the motion was filed to enter a written ruling, which shall be served on all parties.  An adverse ruling or rulings rendered against the party or its representative in any previous matter shall not, in and of themselves, constitute sufficient grounds for disqualification under this Section.

 

c)         If the motion to disqualify is denied, the moving party may request the decision be reviewed by the Director.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.180  Examination by the Board or Administrative Law Judge

 

a)         Any member of any Board, or any Administrative Law Judge, may examine any witness.

 

b)         Either party may object to specific questions asked by the Board member or ALJ.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.190  Burden of Proof

 

a)         The burden of proof rests with the Division in all cases instituted by the Division by the filing of a Complaint or Notice of Intent to Refuse to Renew.  A recommendation for discipline may be made by the Administrative Law Judge only when the Division establishes by clear and convincing evidence that the allegations of the Complaint or Notice are true.

 

b)         The burden of proof in all cases instituted by the filing of a Petition for Hearing rests with the Petitioner except as provided in this Section.  The Petitioner must prove by a preponderance of the evidence that the license should be restored.

 

c)         An action may be commenced by the Division by the filing of a Notice of Intent to Deny issuance of a license or other credential.

 

1)         If the Notice of Intent to Deny alleges that the applicant has violated a disciplinary provision of the applicable professional Act, the Division has the burden of proof to prove by clear and convincing evidence that the alleged violation occurred.  Upon the Division meeting this burden of proof, the Applicant then has the burden to prove by a preponderance of the evidence that the license or other credential should be granted.  In any contested case in which the Notice of Intent to Deny alleges that the applicant has violated a disciplinary provision of the applicable professional Act, the sequence of the formal hearing shall be as if the Division has the burden of proof.  This provision does not apply in any situation in which the relevant statute provides that no hearing shall be held.

 

2)         If the Notice of Intent to Deny notifies the applicant that he or she does not meet the minimum qualifications for a license or other credential and does not otherwise allege applicant has violated a disciplinary provision of the applicable professional Act, the applicant has the burden of proof to prove by a preponderance of the evidence that the qualifications have been met.  This provision does not apply in any situation in which the relevant statute provides that no hearing shall be held.

 

3)         Upon a finding that the applicant was previously convicted of a felony or misdemeanor that may be grounds for refusing to issue a license or certification or to grant registration, the Administrative Law Judge or Board making a recommendation regarding a Notice of Intent to Deny shall consider the mitigating factors and evidence of rehabilitation contained in the applicant's record, when allowed by the DFPR Law, to determine whether a prior conviction will impair the ability of the Applicant to engage in the practice for which a license, certificate or registration is sought.

 

4)         Upon review of a previous conviction of an initial applicant for the purpose of determining good moral character, the ALJ or Board making a recommendation regarding a Notice of Intent to Deny shall consider evidence of rehabilitation and mitigating factors in the applicant's record, when allowed by the DFPR Law.

 

d)         Except as otherwise provided in this Section, a case instituted by the filing of a Notice to Refuse to Renew shall be handled in the same manner as a Complaint.

 

e)         The burden of proof rests with the Division to prove by clear and convincing evidence that the alleged violation has occurred when a licensee files a Request for Hearing after he or she has been subject to an automatic suspension or other discipline due to a violation of a term of a previous Director's Order or Consent Order.

 

f)         No burden of proof applies in hearings conducted for the sole purpose of determining the length of an automatic indefinite suspension imposed pursuant to Section 2105-170 of the DFPR Law.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.200  Documents

 

a)         Business records shall be admissible.  A business record is:

 

1)         Relevant;

 

2)         A memorandum, report, record or data compilation;

 

3)         Made by a person with first-hand knowledge of the facts or from information transmitted by a person with knowledge of those matters;

 

4)         Made at or near the time of the facts;

 

5)         Made as part of the regular practice of the activity; and

 

6)         Kept in the course of regularly conducted activity.

 

b)         Any party may prove elements (a)(3) through (a)(6) by presentation of a sworn statement by an individual responsible for making or keeping those records.  Business records include but are not limited to medical reports and Illinois Department of Public Health or Department of Human Services records.

 

c)         Any party seeking introduction of a document will be allowed to offer a mechanical reproduction or photo copy of the original without any showing that the original is unavailable, upon representation of the party or attorney that the copy is a fair and accurate copy of the original.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.210  Motions

 

a)         Motions will be made in writing, unless otherwise allowed by the Administrative Law Judge prior to or during the course of a hearing.  Written motions are limited to the following:

 

1)         To request dismissal of a Complaint for failure to state facts that, if true, would form a sufficient basis for discipline.

 

2)         To request sanctions in accordance with Section 1110.90 (Representation).

 

3)         To request sanctions in accordance with Section 1110.130 (Discovery).

 

4)         To request dismissal of a Petition for Hearing, for failure to comply with Section 1110.30 (Institution of a Contested Case by a Petitioner).

 

5)         To request dismissal of a Complaint, Notice of Intent to Deny, or Notice of Intent to Refuse to Renew when the Division's case has been concluded without sufficient evidence having been presented to form a basis for discipline.

 

6)         To request a continuance or extension of time to comply with any provision of this Part consistent with the expedited nature of administrative hearings.

 

7)         To request that a member of the Board be excluded from the hearing or deliberations, for prejudice.

 

8)         To request that an Order entered by the ALJ be vacated or modified.

 

9)         To request a prehearing.

 

10)         To request separation of cases joined by the Division.

 

11)         To request disqualification of an ALJ in accordance with Section 1110.175.

 

12)         To request a protective order to prevent exposure in the public domain of records or other information that is of a sensitive or confidential nature.

 

13)         To request that a Notice to Plead or Be Held in Default be issued upon failure to file an Answer or other responsive pleading in accordance with Section 1110.120(c).

 

14)         To compel discovery.

 

b)       When any motion is filed, the ALJ may allow oral argument if this is deemed necessary for a fuller understanding of the issues presented.  When facts that are not part of the record in the case are alleged as a basis for the request, an affidavit will be attached to the motion setting forth those facts.  Facts outside of the Complaint cannot be used to support a motion to dismiss for failure to state facts that, if true, would form a sufficient basis for discipline.

 

c)       Motions and any responses or replies shall be filed in accordance with Section 1110.50 with copies to the ALJ and other parties or their counsel.  Unless otherwise directed by an ALJ, a party shall have 20 days from the date of service to respond to a motion and 10 days from date of service to reply to a response.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.220  Evidence

 

a)         Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed. Evidence not admissible under those rules of evidence may be admitted, however, except when precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced, any part of the evidence may be received in written form. [5 ILCS 100/10-40(a)]

 

b)         Testimony shall be taken only on oath or affirmation.  Subject to the evidentiary requirements of this Section, a party may conduct cross-examination required for a full and fair disclosure of the facts.  [5 ILCS 100/10-40(b)]

 

c)         All exhibits for any party shall be clearly marked for identification. A sufficient number of copies shall be made prior to the commencement of the hearing and when admitted into evidence by the ALJ.

 

d)         Official notice may be taken of past hearings and of any matter of which the Circuit Courts of Illinois may take judicial notice.  In addition, official notice may be taken of generally recognized technical or scientific facts within the Division's specialized knowledge.  Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including staff memoranda and data, and they shall be afforded an opportunity to contest the material so noticed.  The Division's and the ALJ's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.

 

e)         If a licensee appears for a hearing and refuses to testify on the grounds that any answer of his or hers may tend to incriminate him or her, the ALJ may take an adverse inference from the refusal to testify and shall consider the adverse inference in addition to other evidence.  If a licensee appears and refuses to testify without asserting the right against self-incrimination, the ALJ shall enter any appropriate order as is required by the evidence and this Part.

 

f)         The ALJ may, on his or her own initiative or at the request of any party or witness, enter a protective order to prevent exposure in the public domain of records or other information that is of a sensitive or confidential nature.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.230  Adverse Witness

 

a)         Any party or witness may be called as an adverse witness.  In such a case, examination of the witness will be allowed as if under cross-examination.

 

b)         Upon a showing that a witness was called in good faith, and that the party calling him is surprised by his testimony, examination of the witness may proceed as if under cross-examination, and the testimony of the witness may be impeached by prior statements, or otherwise.

 

Section 1110.240  Administrative Law Judge and Board Reports and Orders of the Director

 

a)         In every contested case, except for defaults, the Administrative Law Judge will file a written Report and Recommendation that contains Findings of Fact and Conclusions of Law with respect to the allegations contained in the Complaint, Notice of Intent to Deny, Notice of Intent to Refuse to Renew or Petition for Hearing, unless the parties reach an agreed disposition.

 

b)         When the recommendation is for discipline, the ALJ will include his or her specific recommendation as to type and duration.

 

c)         If the ALJ's Report is made to a Board, the Board shall review the Report and the record and issue its own Report adopting, rejecting or modifying the Findings of Fact, Conclusions of Law and/or Recommendation and make any other recommendation it deems appropriate to the Director.

 

d)         After the Board or ALJ forwards the report to the Director, all parties will receive "Twenty Day Notice" with a copy of the report.  Within 20 days after the Notice is sent, either party may request that a rehearing, or additional hearings, be ordered by the Director.  A rehearing shall be ordered by the Director when the Director determines that substantial justice has not been done.

 

e)         When a rehearing or additional hearings are requested, the request shall be in the form of a motion and shall state with specificity the reasons for the request.  If it is alleged that new evidence is available that was not available at the time of the hearing, the affidavit shall describe the new evidence and reasons why it was not available for use at the hearing.  The Division may file a response, which shall be filed within 20 days, and, if it does so, the licensee may reply, which shall be filed within 10 days.

 

f)         After a motion for rehearing has been filed and a response and reply has been filed or the time therefor has passed, the Director shall enter an Order ruling on any motion for rehearing.  If the motion is denied, the Director, in the same Order, shall further adopt, reject or modify the Findings of Fact and Conclusions of Law of the ALJ or the Board or both, adopt or reject the recommendation of the Board or the ALJ, and enter a decision.

 

g)         An Order of the Director granting a rehearing is not a final order as defined by the Administrative Review Law [735 ILCS 5/Art. III].  An Order of the Director denying a motion for rehearing and entering a decision on the merits of the case is a final Order as defined by the Administrative Review Law and is subject to judicial review.

 

h)         The Director will not consider motions to reconsider or modify a decision made or Order entered.  The proper avenue of relief is to file a complaint under the Administrative Review Law

 

i)          Whenever the Director enters a final Order under this Section pertaining to a person licensed under the Real Estate License Act of 2000, the Order shall also be served upon the person's managing broker and sponsoring broker.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.245  Privacy

 

a)         Any party may use initials or other identifiers to refer to any patient, client, alleged victim, or minor in any filing in place of that person's name.  The party so doing shall provide to the opposing party and that party's counsel and to the Administrative Law Judge a document identifying by name that person.  This document is deemed confidential under Section 2105-117 of the DFPR Law.  The document shall not be a part of the official record of the proceeding and shall not be subject to disclosure to any non-parties or subject to disclosure under the Freedom of Information Act [5 ILCS 140].

 

b)         The ALJ or Director may seal from public view any portion of an ALJ's or Board's Findings of Fact, Conclusions of Law, and Recommendation or Director's Order that discloses protected health care information or other private information that is protected under federal or State law.  Any portion so sealed shall not be subject to disclosure to any non-parties or subject to disclosure under the Freedom of Information Act.

 

(Source:  Added at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.246  Record of Hearings

 

a)         The record of the hearing in a contested case shall include:

 

1)         All pleadings presented before the Administrative Law Judge (including the Complaint, Notice of Intent to Deny, Notice of Intent to Refuse to Renew, Answer, Petition, all prehearing and hearing notices, and responses, admissions, stipulations of fact, motions and rulings on these issuances);

 

2)         All documentary evidence;

 

3)         A transcript of the proceedings;

 

4)         The Findings of Fact, Conclusions of Law, and Recommendation of the ALJ;

 

5)         The Findings of Fact, Conclusions of Law, and Recommendation of the Board;

 

6)         Any motions and responses filed pursuant to the Twenty Day Notice; and

 

7)         The Order of the Director, which shall constitute a final administrative decision within the provisions of the Administrative Review Law.

 

b)         The record shall be copied and assembled by the Division and certified by the Director upon any complaint for administrative review.  The plaintiff in the administrative review shall pay the copying fee and the certification fee established in Sections 2105-115 and 2105-215 of the DFPR Law.  An index of the record, with each page of the record numbered in sequence, shall be prepared by the Division.

 

(Source:  Added at 43 Ill. Reg. 9969, effective September 13, 2019)

 

Section 1110.250  Severability

 

If any Section, subdivision, sentence or clause of this Part shall be held by a court of competent jurisdiction to be invalid, such holding shall not affect the remaining parts thereof.

 

Section 1110.270  Variances

 

The Director may grant variances from this Part in individual cases in which he or she finds that:

 

a)         The provision from which the variance is granted is not statutorily mandated.

 

b)         No party will be injured by the granting of the variance.

 

c)         The rule from which the variance is granted would, in the particular case, be unreasonable or unnecessarily burdensome.

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

Section 1110.APPENDIX A   Caption for a Case Filed by the Division

 

STATE OF ILLINOIS

 

DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION

DIVISION OF PROFESSIONAL REGULATION (or)

DIVISION OF REAL ESTATE

 

DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION		)
of the State of Illinois,	Complainant	)
		)
v.		)	No.
		)
(Name of Respondent)		)
(License Number)	Respondent	)

 

 

COMPLAINT

or

NOTICE OF INTENT TO REFUSE TO RENEW

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

Section 1110.APPENDIX B   Caption for a Petition for Restoration

 

STATE OF ILLINOIS

 

DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION

DIVISION OF PROFESSIONAL REGULATION (or)

DIVISION OF REAL ESTATE

 

In RE the Petition for Restoration of		)
		)	No.
(Name of Petitioner)		)
(License Number)	Petitioner	)

 

 

PETITION FOR HEARING

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)

Section 1110.APPENDIX C   Caption for an Application for Licensure

 

STATE OF ILLINOIS

 

DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION

DIVISION OF PROFESSIONAL REGULATION (or)

DIVISION OF REAL ESTATE

 

IN RE THE APPLICATION FOR LICENSURE OF		)
		)	No.
(Name of Applicant)	Applicant	)

 

 

PETITION FOR HEARING

 

(Source:  Amended at 43 Ill. Reg. 9969, effective September 13, 2019)