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12/01/95 DONALD L. MILLER v. DEPARTMENT

December 1, 1995

DONALD L. MILLER, PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION AND NIKKI ZOLLAR, DIRECTOR OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of McHenry County. No. 93-MR-56. Honorable James C. Franz, Judge, Presiding.

Released for Publication January 4, 1996.

The Honorable Justice Bowman delivered the opinion of the court: Geiger and Colwell, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendants, the Department of Professional Regulation and Nikki Zollar, the Department's director (collectively referred to as the Department), appeal an order of the circuit court of McHenry County vacating a cease and desist order issued by the Department against plaintiff, Donald L. Miller. The cease and desist order directed plaintiff to refrain from engaging in the unlicensed practice of professionalengineering in violation of the Professional Engineering Practice Act of 1989 (1989 Act) (225 ILCS 325/1 et seq. (West 1992)).

The following summary of the facts is taken from the common-law record. On December 21, 1992, the Department issued plaintiff a rule to show cause why an order to cease and desist from the unlicensed practice of professional engineering should not be entered against him. The rule to show cause alleged that plaintiff had engaged in the unlicensed practice of professional engineering by (1) consulting on, investigating, and evaluating electrical engineering systems; and (2) holding himself out to the public as a professional engineer. The rule to show cause cited cases in which plaintiff had testified as an expert on subjects such as the cause of failures in electrical systems and general standards in electrical engineering. The rule to show cause also set forth instances where plaintiff represented himself as an engineer in sworn testimony and in advertising.

On January 14, 1993, plaintiff submitted to the Department a written answer to the rule to show cause. In his answer, plaintiff stated that he graduated from California Polytechnic University in 1959 with a Bachelor of Science degree in electrical/electronic engineering. He admitted that he was not licensed as a professional engineer and that he had never sought such a license. He disputed the Department's allegation that he had been practicing professional engineering or had represented himself as a professional engineer. Plaintiff admitted, however, that he used the terms "Engineer," "Executive Senior Engineer," and "engineering" to describe his title and occupation. Plaintiff described his occupation as "loss investigation and legal expert testimony" for insurance companies, public adjusters, private corporations, and individuals. (For convenience, we refer to plaintiff's occupation as "investigative engineering.") He further stated that since he began the practice of investigative engineering in 1970, he had investigated over 1,200 losses throughout the United States and testified several hundred times as an expert witness in State and Federal courts. Finally, plaintiff requested that he be excepted from the 1989 Act's requirements because he believed his occupation did not involve the practice of professional engineering as defined in that Act.

On March 22, 1993, the Department issued plaintiff a cease and desist order finding, inter alia, that his answer to the rule to show cause was unsatisfactory. The Department also found that plaintiff had engaged in the unlicensed practice of engineering by "consulting, investigating, or evaluating engineering systems for the public" and noted that the 1989 Act listed "forensic engineering" and "energy analysis" among its examples of the practice of professional engineering. The Department further found that plaintiff had engaged in unlicensed practice by using the title "Engineer." Finally, the cease and desist order stated that the Department was not statutorily empowered to except plaintiff from the 1989 Act's licensing requirements and, in any event, that such an exception would not be in the best interests of the public.

Plaintiff then filed a complaint for administrative review seeking reversal of the cease and desist order. In a memorandum of law in support of his complaint, plaintiff asserted that the 1989 Act was unconstitutional on its face and as applied to him because it violated the due process and equal protection provisions of the United States and Illinois Constitutions. Specifically, plaintiff argued that prior to the passage of the 1989 Act investigative engineering did not fall within the statutory definition of professional engineering. Thus, plaintiff argued, he began the practice of investigative engineering before it was regulated as a branch of professional engineering, and the failure to allow him to continue as an investigative engineer through a "grandfather clause" constituted a denial of due process and equal protection.

In response, the Department filed a memorandum of law arguing that investigative engineering, as practiced by plaintiff, was impliedly included in the definition of professional engineering contained in statutes which had regulated the practice of professional engineering since 1941 and that plaintiff was not entitled to be "grandfathered" into the practice of professional engineering.

Following oral argument on plaintiff's complaint for administrative review (a transcript of which is not in the record), the trial court vacated the cease and desist order. In a written order, the trial court stated:

"The court finds that the defendant's failure to allow plaintiff to continue practicing forensic and/or investigative engineering through the use or application of a grandfathering provision constitutes an equal protection violation."

The Department filed a timely notice of appeal.

On appeal, the Department contends the trial court's order vacating the cease and desist order should be reversed because the 1989 Act is constitutional both on its face and as applied to plaintiff. In response, plaintiff apparently concedes that investigative engineering is included in the 1989 Act's definition of professional engineering. Plaintiff argues, however, that he began his career as an investigative engineer before it was included in the definition of professional engineering and, as a result, he acquired a vested right in the practice of his profession. Thus, plaintiff argues, the guarantees of due processand equal protection in the Illinois and United States Constitutions require that he be allowed to continue to practice investigative engineering under a grandfather clause.

Preliminarily, we note that plaintiff's due process and equal protection arguments are premised on the assumption that in 1970, when he began his career as an investigative engineer, investigative engineering was not subsumed under the statutory definition of professional engineering. According to plaintiff, the 1989 Act is the legislature's first attempt to bring investigative engineering within the definition of professional engineering. The Department challenges this assumption and maintains that investigative engineering has been a regulated branch of professional engineering since 1941. Thus, before we address plaintiff's constitutional arguments, we must first consider his foundational contention that, prior to the passage of the 1989 Act, investigative engineering did not fall within the statutory definition of professional engineering. To do so, we trace the history of the regulation of professional engineering in Illinois.

Since 1941, the State of Illinois has provided a statutory scheme for the regulation of professional engineering, embodied in three statutes: the Professional Engineering Act of 1941 (1941 Act) (Ill. Rev. Stat. 1941, ch. 48 1/2, par. 1 et seq.); the Professional Engineering Act of 1945 (1945 Act) (Ill. Rev. Stat. 1945, ch. 48 1/2, par. 32 et seq.); and the Professional Engineering Practice Act of 1989 (1989 Act) (Ill. Rev. Stat. 1989, ch. 111, par. 5201 et seq.). Each of these statutes provided for the comprehensive regulation of the practice of professional engineering and set forth, inter alia, definitions and examples of the practice of professional engineering; educational qualifications for professional ...


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