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Leu v. Dept. of Registration & Education

OPINION FILED SEPTEMBER 8, 1980.

DR. PAYMING LEU, PETITIONER-APPELLANT,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Petitioner-appellant, Dr. Payming Leu, was granted a license in 1970 to practice medicine in the State of Illinois. In 1974, petitioner was convicted in Federal court of 19 counts of improperly dispensing controlled substances and sentenced to 5 years' imprisonment. On or about May 13, 1975, while petitioner was serving his sentence, the Department of Registration and Education (hereinafter the Department), revoked his medical license based on the fact that he had been convicted of a felony. Ill. Rev. Stat. 1977, ch. 111, par. 4433(2).

Petitioner was paroled from prison in February 1976 and opened two coin-operated laundromats. In July 1977, petitioner filed his petition with the Department seeking the restoration of his license. The Illinois State Medical Disciplinary Board (Ill. Rev. Stat. 1977, ch. 111, par. 4435) (hereinafter the Board) held a hearing on November 16, 1977, on petitioner's petition and made a finding of fact on March 29, 1978:

"THAT testimony given by the Petitioner and other evidence introduced in this matter indicate that the physician's license of Payming Leu, previously revoked, should not be restored to him as he failed to demonstrate that he was competent to practice as a physician."

The Board recommended to the Director of the Department that petitioner's license not be restored "until the petitioner takes the Flex examination in its entirety and successfully passes same." Petitioner filed a petition for a rehearing and said rehearing was denied. Thereafter, the instant action was brought pursuant to the Administrative Review Act for a judicial review of the final administrative decision. The action of the Department was affirmed by the trial court and this appeal followed.

On appeal, petitioner-appellant has raised the following issues for review:

(1) Whether the findings of the Medical Disciplinary Board and the trial court are contrary to the manifest weight of the evidence;

(2) Whether the Director of the Illinois Department of Registration and Education exceeded the statutory authority by requiring petitioner to retake and repass the Flex medical examination as a condition to the return of his medical license;

(3) Whether section 17.07 of the Medical Practice Act (Ill. Rev. Stat. 1977, ch. 111, par. 4446) is void as an unlawful delegation of legislative power;

(4) Whether the competency hearing resulted in a total denial of due process to petitioner;

(5) Whether the Director's decision is contrary to the legislative requirements of section 5-5-5(a), (d) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-5-5(a), (d)).

At the administrative hearing before the Board the evidence disclosed that petitioner had graduated from the Chinese Medical School, in Shanghai, China, in 1949, and had practiced medicine until he came to the United States in 1956. In 1969 petitioner passed the Flex medical examination and on January 30, 1970, received his Illinois license. Petitioner worked at Provident Hospital in Chicago from 1970 to 1973, and in 1973, began a part-time private practice. Prior to the revocation of his license in 1975, petitioner claimed to have had some 26 years in the field of medicine, including five years in Illinois since 1970.

Petitioner was released from prison in 1976, and rather than seek his immediate return to the practice of medicine, opened two coin-operated laundromats. In July 1977, more than three years since the time he had last practiced medicine, petitioner filed his petition seeking the restoration of his license. During this time, petitioner gave the following responses at the hearing as to his training and education since 1976:

"Q. Dr. Leu, since the time of February of '76, to the present time, you have not taken any medical courses or refresher courses?

A. No.

Q. Are you a specialist — were you a specialist prior to your revocation?

A. I had a training in pediatrics and also had training in general practice.

Q. General practice?

A. Yes.

Q. And some specialty in ...


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