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Shakari v. Illinois Department of Financial and Professional Regulation

Court of Appeals of Illinois, First District, First Division

February 20, 2018

BATU SHAKARI, Plaintiff-Appellant,
v.
THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION and JAY STEWART, in His Official Capacity as Director of the Division of Professional Regulation, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 15 CH 16520 Honorable Franklin Valderrama, Judge Presiding.

          JUSTICE MIKVA delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.

          OPINION

          MIKVA, JUSTICE

         ¶ 1 Plaintiff Batu Shakari worked as a licensed health care worker-first as a licensed practical nurse (LPN) and then as a registered nurse (RN)-for over 30 years. The Illinois Department of Financial and Professional Regulation (Department) was aware, both when it initially approved Mr. Shakari's LPN license and, in the intervening years, when it consistently renewed his LPN and RN licenses, of Mr. Shakari's prior conviction for attempted murder in 1975 and the circumstances surrounding that conviction. Mr. Shakari was never subject to disciplinary action and was never charged with another crime.

         ¶ 2 In 2011 the General Assembly passed section 2105-165 of the Department of Professional Regulation Law (20 ILCS 2105/2105-165 (West 2014)), which requires the permanent revocation without a hearing of the license of any health care worker who, among other things, "has been convicted" of a forcible felony. Although the Department renewed Mr. Shakari's RN license after this law took effect, in 2015 it determined, based on the language of the statute and the fact that attempted murder is elsewhere classified as a forcible felony, that his license should be revoked. Mr. Shakari sought administrative review of that decision in the circuit court, and the court affirmed the Department's revocation order.

         ¶ 3 On appeal, Mr. Shakari argues that section 2105-165 does not apply to individuals who, like him, received their convictions before they became health care workers. Mr. Shakari also argues that, by renewing his license after section 2105-165 was passed and again after it took effect, the Department was estopped from revoking his license.

         ¶ 4 For the following reasons, we affirm the Department's revocation order.

         ¶ 5 I. BACKGROUND

         ¶ 6 In 1975 Mr. Shakari, then known as David Beverly, was convicted of attempted murder. He was 21 years old. This court reversed Mr. Shakari's conviction and remanded his case for a new trial, at which point Mr. Shakari agreed to enter a plea of guilty to attempted murder in exchange for a sentence of time served and two years of probation.

         ¶ 7 Mr. Shakari completed his probation and went on to pursue his education and a nursing career. He obtained a licensed practical nursing degree in 1981 and, after disclosing and appearing before the committee of nurse examiners to explain his prior conviction, was allowed to sit for the state licensing examination. The Department approved Mr. Shakari's LPN license in 1982. Several years later, Mr. Shakari returned to school to obtain an associate's degree in nursing and, after again disclosing his prior felony, was allowed to sit for the licensing examination. The Department approved Mr. Shakari's RN license in 1989 and consistently renewed that license until 2015. Mr. Shakari was never subject to disciplinary action under either his LPN license or his RN license.

         ¶ 8 In 2011, the General Assembly passed section 2105-165, which provides that "[w]hen a licensed health care worker *** (3) has been convicted of a forcible felony[, ] *** the license of the health care worker shall by operation of law be permanently revoked without a hearing." 20 ILCS 2105/2105-165(a) (West 2014). Attempted murder is a forcible felony in Illinois. 68 Ill. Adm. Code 1130.120(a), (c), (jj), amended at 37 Ill. Reg. 7479 (May 31, 2013). Section 2105-165 took effect on July 31, 2012. As it had before, the Department renewed Mr. Shakari's license in 2012, after section 2105-165 was passed, but before it took effect. Throughout the spring and summer of 2014, however, there was an unusual delay in the renewal of Mr. Shakari's license. After corresponding with the Department, Mr. Shakari finally received a notification that his license had been renewed, along with an apology for the delay, which Department personnel indicated "was due to a positive answer [he] provided on [the] personal history questions on [his] renewal form."

         ¶ 9 But on August 17, 2015, the Department notified Mr. Shakari that it intended to permanently revoke his RN license pursuant to section 2105-165. Relying on our supreme court's decision in Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, the Department rejected Mr. Shakari's argument that section 2105-165 did not apply to him and permanently revoked his RN license on September 30, 2015.

         ¶ 10 Mr. Shakari timely filed a complaint for administrative review in the circuit court against the Department and Jay Stewart, its director of professional regulation. In his pro se brief in support of that complaint, Mr. Shakari argued that the plain language of section 2105-165 did not apply to him because he was not a health care worker at the time of his conviction, a fact he contended distinguished his case from Hayashi, which involved three individuals who were already licensed health care workers when they were convicted. Mr. Shakari further argued that the intent of the legislature was not served by predicating revocation of his license on a prior conviction that was unrelated to patient care and did not qualify him as a sex offender, that the Department's erroneous reading of section 2105-165 and of Hayashi prevented it from considering his case in a fair and impartial manner, and that, because the Department had issued him a license with full knowledge of his prior conviction, its revocation of that license was "a violation of its previous judgment on the issue." In his reply brief, Mr. Shakari argued that the Department's decisions to renew his license in 2012 and 2014 "collaterally estopped" it from later revoking his license pursuant to section 2105-165.

         ¶ 11 At the circuit court hearing in this matter, Mr. Shakari, now represented by counsel, reiterated these arguments and stressed that the case was one that "crie[d] out for an equitable and a legal solution." In questioning Mr. Shakari's counsel, the circuit court expressed its view that, previously, the Department "had some discretion as to what penalty, if at all, they would exercise" but "the statute does away with th[at] discretion."

         ¶ 12 Counsel for the Department, who made clear that he had not understood Mr. Shakari to be making an estoppel argument in his brief before the circuit court, nevertheless addressed what he referred to as "plaintiff's equitable estoppel argument" at the hearing. He stated that, "even if the Department did issue a renewal license in 2014, " there was no reason "that [the Department's] mistake of law should serve as some sort of precedent that would prohibit them from following the law where they d[id] not have any discretion."

         ¶ 13 Having considered the parties' arguments, the circuit court affirmed the Department's revocation order. The court concluded that it was bound by Hayashi to reject Mr. Shakari's ...


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