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07/24/95 CYRUS BASS v. NIKKI ZOLLAR

July 24, 1995

CYRUS BASS, RICHARD SWARZ, ET AL., PLAINTIFFS-APPELLANTS,
v.
NIKKI ZOLLAR, DIRECTOR OF THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EVERETT A. BRADEN, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Buckley and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Dr. Bass and some other optometrists attack certain regulations of the Illinois Department of Professional Regulation (Department). They say the regulations are "fraudulent," "gobbledegook," and "arbitrary." Dr. Bass further says the Department demonstrated a "reckless disregard for truth and the rights of others."

There is less here than meets the eye.

The only real problem in this case is that the Department made a promise to Dr. Bass and then the Department broke that promise.

For that reason, we remand Dr. Bass' administrative review case for the post-denial interview he was promised. We affirm the trial judge's order dismissing the amended complaint for declaratory relief filed by Dr. Bass and the other optometrists.

PROCEEDINGS IN THE DEPARTMENT--DR. BASS

The dispute between Dr. Bass and the Department has to do with continuing education (CE) requirements.

The Illinois Optometric Practice Act provides:

"All renewal applicants shall provide proof of having met the requirements of continuing education set forth in the rules of the Department. The Department shall, by rule, provide for an orderly process for the reinstatement of licenses which have not been renewed due to failure to meet the continuing education requirements. The continuing education requirement may be waived in cases of extreme hardship as defined by the rules of the Department." 225 ILCS 80/16 (West 1992).

The Department has promulgated regulations that implement the statute. After setting out the 24 hours of continuing education required, and the method of showing compliance, the regulations authorize the Department to waive the CE requirements on a showing of good cause. One of the ways to show "good cause" is to establish, by affidavit or "other evidence," extreme hardship to the applicant. 68 Ill. Admin. Code, ch. VII, sec. 1320.80 (1992).

When an applicant requests a waiver, he also may ask for an interview "with the Committee." The interview is a matter of right. 68 Ill. Admin. Code, ch. VII, sec. 1320.80(f)(3) (1992).

Dr. Bass did not ask for an interview with the Committee when he requested a waiver of the CE requirement for the 1990-92 license renewal period. He relied on his statement that when his wife died in February 1990, he lost his only means of transportation to CE classes. He offered no documents or affidavits in support of his request for waiver.

The Department denied Dr. Bass' request for waiver on September8, 1992, finding no case of extreme hardship had been made. His ...


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