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Frank Heabler, Jr v. the Illinois Department of Financial and Professional Regulation; Daniel E. Bluthardt

March 28, 2013

FRANK HEABLER, JR.,
PLAINTIFF-APPELLANT,
v.
THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; DANIEL E. BLUTHARDT, DIRECTOR OF THE DIVISION OF PROFESSIONAL REGULATION, OF THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County 09CH49137 The Honorable Richard J. Billik Judge Presiding.

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

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Frank Heabler, Jr., appeals from the trial court's judgment affirming the administrative decision of the Illinois Department of Financial and Professional Regulation (Department), which found that he violated the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004 (the Act) (225 ILCS 447/5-3 et seq. (West 2008)) by engaging in unethical, unprofessional or dishonorable conduct and imposed a reprimand against his private detective license. On appeal, Heabler asserts that the Department's decision was not supported by expert testimony because the Department's expert testified only as to his personal opinion, rather than objective professional standards. Heabler also argues that the reprimand violatedes his first amendment rights because he was sanctioned for protected speech. We affirm.

¶ 2 I. BACKGROUND

¶ 3 It is undisputed that in 2008, Heabler held a private detective license, private security contractor license, permanent employee registration card and firearm control card. On November 4, 2008, Heabler was driving when he had an encounter with Detective Ronald Muich and Lieutenant Paul Messina of the Village of Rosemont police department that led to the reprimand of Heabler's private detective license. The Department filed a complaint alleging, in pertinent part, that during a traffic stop, Heabler yelled obscenities and argued with the officers. The complaint also alleged that Heabler provided inaccurate information regarding the weaponry in his car and had a YouTube video regarding rioting by Obama supporters that was actively running on his laptop computer that was located on the front passenger seat. In addition, the complaint alleged that Heabler later told police he had six weapons in case there was trouble on election night, referring obliquely to the aforementioned video. The complaint alleged that his explosive behavior, excessive use of unsecured weapons, misrepresentation to the police regarding the quantity of weapons he had and his proffered reason for having those weapons constituted unethical, unprofessional and dishonorable conduct warranting discipline (225 ILCS 447/40-10(a)(3) (West 2008)).

¶ 4 At a hearing before Administrative Law Judge (ALJ) John M. Lagattuta, Heabler testified that he had contracted to provide American Taxi with security services. At about 1 p.m. on the day in question, he left a cab lot and drove north on Mannheim Road to meet a client. At that time, he had six loaded weapons in his car, including a Beretta, a Magnum Smith & Wesson, a rifle, a revolver and a stun gun. Heabler would have secured his weapons when he reached his destination but the weapons were in his control. In addition, his weapons were neither locked nor required to be. He carried a rifle because he occasionally carried large sums of money for American Taxi. When asked why he was carrying six guns, he blithely testified, "Just [a] routine day at work, ma'am." In addition, Heabler testified that his laptop computer was closed and denied that a video was on his laptop regarding potential rioting in the event of Obama's election. He explained that a radio program had been discussing a YouTube video regarding a police officer pushing a person at a rally for Obama and an ensuing riot, so he had searched for the video on his laptop but he closed the laptop before leaving the cab lot.

¶ 5 On the way to his meeting, Heabler stopped to check on two American Taxi vehicles that were parked on a service road. Heabler admitted backing out of the service road but denied almost hitting the Rosemont officers' car. Instead, he merely pulled onto the shoulder of the road to allow the unmarked car to pass. The two officers used their air horn and flashed their lights, and the officer in the passenger seat, Lieutenant Messina, swore at Heabler. Heabler testified that at that time, he did not know that the men were officers. Following the initial encounter, Heabler stopped at a traffic light and looked in the general direction of the unmarked car. Heabler said nothing at that time, but the officers in the car rolled down a window and swore at him. He testified that one of the officers actually asked if Heabler was "eyefucking" him. When Heabler asked what the officer's problem was, both officers yelled at him. The officers pulled Heabler over, continued to swear at him and asked whether he wanted a ticket. When asked whether he had a gun, Heabler volunteered all information regarding the weapons within his possession. Although Heabler was not initially given the chance to say anything, at the first opportunity, he identified himself as a private detective to Detective Muich. Heabler was ultimately handcuffed and placed in a squad car. At the police station, Heabler did not say that he was carrying weapons to be ready for any trouble on election night.

¶ 6 On cross-examination, Heabler testified that he conducted many activities from his car and stored his equipment there because he could receive call-outs as a private detective or private security contractor at any time. At the stop light, Heabler saw that the officers were in Rosemont uniforms. The officers yelled at him about backing out on to Mannheim Road. Heabler asked what he was suppose to have done but was not yelling or being argumentative. When the officers continued to berate Heabler, he responded, "[i]f you were so concerned, why didn't you stop and let me out?" After Detective Muich took Heabler's license to the police car, he asked Heabler whether he had been arrested for unlawful use of a weapon (UUW) in 1987. Heabler answered yes and said he was a private detective. The officers patted him down and searched his car. He was released from jail at about 3:30 p.m. the next day with only a citation for improper backing.

¶ 7 Detective Muich testified that on the day in question, he was driving his unmarked car while Lieutenant Messina sat in the passenger seat. Lieutenant Messina was in uniform but Detective Muich was not. When Detective Muich saw a car backing into his lane from a service road, he swerved and used his air horn. Heabler pulled to the left of the police car, waved his arms and appeared to be irate. After they rolled their respective windows down and Detective Muich identified himself as an officer, Heabler yelled a string of obscenities and Detective Muich pulled Heabler's car over. Detective Muich told Heabler that he almost hit their police car and observed that an open laptop in Heabler's car displayed a YouTube video regarding candidate Barack Obama.

¶ 8 Detective Muich then learned through dispatch that Heabler had a prior UUW charge.

Upon inquiry, Heabler stated that he had a gun next to him. Accordingly, Detective Muich had Heabler exit the car and put him in handcuffs. At some point before being placed in the police car, Heabler said he was a private detective. When Detective Muich asked Heabler if he had more guns in the car, Heabler said he did not. Detective Muich later acknowledged on cross-examination, however, that he had testified in traffic court that Heabler "kept telling us he had more guns in the car." The officers recovered several more weapons as well as an expired private detective license card. Because it was election day, the officers were unable to verify the status of Heabler's license with the Department. He was held in custody for 22 hours as a result. When Detective Muich asked Heabler at the police station why he had those weapons, Heabler said that he was authorized to carry them as a private detective. When asked whether carrying six weapons was excessive, Heabler said that he wanted to be prepared in case there was trouble on election night. Heabler also said that the video was displayed on his laptop because he had heard on the radio that there had been rioting and wanted to look into it.

¶ 9 Lieutenant Messina testified that he was in uniform and sitting in the passenger seat of

Detective Muich's car when another car backed out of a construction driveway. Detective Muich took evasive action to avoid a collision and the officers subsequently saw the other driver, Heabler, gesturing and yelling through the window while at the stop light. Detective Muich identified himself as a police officer when talking to Heabler through the window and did so a second time after pulling him over. Heabler was boisterous and asked why the officers used their air horn. On cross-examination, Lieutenant Messina testified that at some point during the encounter, Heabler told Detective Muich that he should ...


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