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Cole v. State of Illinois Department of Public Health

April 09, 2002

RAYMOND J. COLE, SR., PLAINTIFF-APPELLANT,
v.
STATE OF ILLINOIS DEPARTMENT OF PUBLIC HEALTH, JOHN R. LUMPKIN IN HIS CAPACITY AS DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH, AND THE WATER WELL AND PUMP INSTALLATION CONTRACTORS LICENSING BOARD, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 9th Judicial Circuit, McDonough County, Illinois, No. AO-MR-36 Honorable Patricia A. Walton, Judge, Presiding.

The opinion of the court was delivered by: Justice Slater

PUBLISHED

 The water well and pump installation contractor's license of plaintiff, Raymond J. Cole, Sr. (Cole), was revoked by the Illinois Department of Public Health (Department). The circuit court affirmed the revocation. Cole now appeals, arguing that the Department failed to comply with the mandates of the Water Well and Pump Installation Contractor's License Act (Act) (225 ILCS 345/16 (West 2000)).

The record reveals the following facts. On July 10, 2000, the Department served Cole with a notice of intent to revoke his water well and pump installation contractor's license. The notice alleged that on May 28, 1997, Cole, doing business as J. & R. Well Drilling, had directed an unlicensed employee to construct a private water well and install a water well pump without personally supervising the unlicensed employee. The notice further alleged that the well was improperly constructed. Lastly, the notice alleged that on June 18, 1997, Cole submitted an inaccurate water well construction report to the Department regarding the well constructed on May 28, 1997.

The notice provided that Cole had an opportunity under section 16 of the Act to be heard by an administrative law judge. In order to exercise this right, Cole had to request a hearing within 10 days of receiving the notice. The notice stated in bold-faced type that "FAILURE TO REQUEST THE HEARING AS SPECIFIED HEREIN SHALL CONSTITUTE A WAIVER OF THE RIGHT TO SUCH HEARING."

Cole did not request a hearing. So, on July 25, 2000, the Department issued a final order revoking Cole's license without holding an evidentiary hearing. This order indicated that it was subject to judicial review pursuant to the Administrative Review Law (735 ILCS 5/3--101 et seq. (West 2000)).

On August 28, 2000, Cole filed a request for judicial review of the Department's decision to revoke his license. He argued that the Department failed to follow the provisions of the Act by failing to inform him of the date, time and place of the evidentiary hearing in its original notice and by failing to hold an evidentiary hearing.

The trial court upheld the Department's revocation of Cole's license. In doing so, the court found that the procedure used complied with section 16 of the Act. Cole appealed.

Section 16 of the Act provides that before revocation of a license:

"The Department shall, *** at least 10 days prior to the date set for the hearing, notify in writing the applicant for or holder of a license, hereinafter called the respondent, that a hearing will be held on the date designated to determine whether the respondent is privileged to hold such license, and shall afford the respondent an opportunity to be heard in person or by counsel with reference thereto." 225 ILCS 345/16 (West 2000).

The section further states:

"At the time and place fixed in the notice, the Department shall proceed to hear the charges and both the respondent and the complainant shall be accorded ample opportunity to present in person or by counsel such statements, testimony, evidence and argument as may be pertinent to the charges or to any defense thereto." 225 ILCS 345/16 (West 2000).

Cole argues that by using the word "shall," the legislature mandated that before a license can be revoked by the Department, the Department is required to send a notice which includes the date, time and place of the hearing. According to Cole, the Department's procedure violates the statute because he was never informed of the date, time and place of his hearing. Further, Cole argues that even if the respondent does not request an evidentiary hearing, the Department is statutorily required to hold one. Since the Department did not comply with the statute, he asserts that his license revocation was improper.

An administrative agency's interpretation of a statute is subject to de novo review. Branson v. Department of Revenue, 168 Ill. 2d 247, 659 N.E.2d 961 (1995). The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. In re D.D., 196 Ill. 2d 405, 752 N.E.2d 1112 (2001). Where the legislative intent can be ascertained from the language of the statute, it will be given effect without resorting to other aids for construction. People v. Lemons, 191 Ill. 2d 155, 729 N.E.2d 489 (2000). After careful examination of the statutory language, it is clear the legislature intended to require the Department to schedule a hearing before revoking a license. See 225 ILCS 345/16 (West 2000). The statute contains no language placing the burden on ...


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