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Morse v. Illinois Department of Professional Regulation

October 06, 2000

HARVEY E. MORSE, PLAINTIFF-APPELLEE,
v.
THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION AND LEONARD A. SHERMAN, DIRECTOR, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Sangamon County No. 99MR198 Honorable Thomas R. Appleton, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cook

Defendants, the Illinois Department of Professional Regulation and Leonard A. Sherman, Director (collectively referred to as Department), appeal from the circuit court's reversal of the Department's finding that Harvey Morse was unlawfully working as a private detective without a license. We affirm.

On March 23, 1998, the Department issued a cease and desist order to Morse, finding that Morse "was operating as a private detective in Illinois by contacting individuals regarding locating personal property for a fee." The Department's action was prompted by a September 24, 1996, letter that Morse, a Florida resident, sent to an Illinois resident promoting his "International Genealogical Research" firm. Morse stated, "[w]e wish to inform you that we have been conducting research and investigation that indicate that you might be entitled to receive money or assets of which you are currently unaware." Morse's firm specializes in what is commonly referred to as "heir hunting," which typically involves locating persons who are entitled to recover unclaimed estate assets. Morse identifies unclaimed assets, uses genealogical research to trace the potential claimants, and then offers to assist the claimant in retrieving the assets for a 40% contingent fee.

We must determine if Morse's business activities are subject to the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 (Act) (225 ILCS 446/1 through 299 (West 1998)). Section 5 of the Act defines "private detective" as:

"any person who by any means, including but not limited to manual or electronic methods, engages in the business of, accepts employment to furnish, or agrees to make or makes investigations for fees or other valuable consideration to obtain information with reference to:

(3) The location, disposition, or recovery of lost or stolen property." 225 ILCS 446/5 (West 1998).

In response to the cease and desist order, Morse filed a motion to vacate with the Department, arguing that he was not acting as a private detective; rather, he was engaging in genealogy, an exempt practice under the Act. Section 30(a) of the Act provides:

"(a) This Act does not apply to:

(9-5) A person, firm, or corporation engaged solely and exclusively in tracing and compiling lineage or ancestry." 225 ILCS 446/30(a) (West 1998).

The Department responded to Morse's motion, arguing that Morse was engaged in "[t]he location, disposition, or recovery of lost or stolen property" for a fee (225 ILCS 446/5 (West 1998) (subsection (3) of definition of "private detective")) and that his activities constituted acting as a private detective. Director Sherman denied Morse's motion to vacate, and Morse subsequently filed a complaint for administrative review in the circuit court.

After reviewing the record and the parties' written submissions, the circuit court found that Morse was "not in the business of finding lost property" as referenced in the Act. However, the circuit court also noted that Morse was not engaged in "what is commonly understood as genealogical research" but was "employing techniques of both a private detective and a genealogist, [as] a tracer of unclaimed assets." Ultimately, the circuit court held that, as a matter of law, Morse's activities were not governed by the Act. The circuit court reversed the Director's decision and vacated the cease and desist order, finding that the Department could not use such a broad, sweeping application of the Act to regulate Morse's activities.

The Department appealed, asserting the same arguments that it did before the circuit court. The facts are undisputed in this case, and the parties agree that we are presented solely with issues of law; thus, we will conduct a de novo review of the limited record on appeal. Courts give substantial weight and deference to the interpretation placed on a statute by the agency charged with its administration and enforcement (Central City Education Ass'n v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496, 510, 599 N.E.2d 892, 898 (1992)) unless it is erroneous as a matter of law. However, we are not bound by the administrative agency's interpretation of a statute. Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 239, 664 N.E.2d 61, 66 (1996). Our decision hinges upon the interpretation of sections 5 and 30(a)(9-5) of the Act. 225 ILCS 446/5, 30(a)(9-5) (West 1998).

I. LOST PROPERTY

The circuit court ruled that the assets Morse located were not "lost property" but unclaimed assets, because "lost," as used in the Act, "presumes prior ownership and possession." The Department argues that a person's entitlement to unclaimed estate assets qualifies as "lost property." "Lost property" has been defined at common law as property that was unintentionally separated from the dominion and control of its owner. Kahr v. Markland, 187 Ill. App. 3d 603, 607-08, 543 N.E.2d 579, 582 (1989); Hendle v. Stevens, 224 Ill. App. 3d 1046, 1056, 586 N.E.2d 826, 833 (1992). Black's defines "lost property" as "[p]roperty that the owner no longer ...


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