Shakari v. Department of Financial & Professional Regulation
Docket No. 1-17-0285
Appellate Court of Illinois, First District, First Division
February 20, 2018
Rehearing denied March 9, 2018
2018 IL App (1st) 170285
Hon. Franklin Valderrama, Judge, presiding.
Illinois Official Reports
Appellate Court Caption: BATU SHAKARI, Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION and JAY STEWART, in His Official Capacity as Director of the Division of Professional Regulation, Defendants- Appellees.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-CH-16520; the Hon. Franklin Valderrama, Judge, presiding.
Judgment: Affirmed.
Counsel on Appeal: Lillian Walanka, of Crick Walanka Law Group, Ltd., of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Bridget DiBattista, Assistant Attorney General, of counsel), for appellees.
OPINION
¶ 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.
¶ 2 In 2011, the General Assembly passed
¶ 3 On appeal, Mr. Shakari argues that
¶ 4 For the following reasons, we affirm the Department‘s revocation order.
I. BACKGROUND
¶ 5 ¶ 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
¶ 9 But on August 17, 2015, the Department notified Mr. Shakari that it intended to permanently revoke his RN license pursuant
¶ 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
¶ 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 interpretation of the Department of Professional Regulation Law, stating:
“The Illinois Supreme Court in the Hayashi decision held that the plain language of the Act related to the phrase ‘had been convicted’ clearly indicates the legislative intent to subject persons to the Act without regard to the date of their conviction.
Other arguments addressed or advanced—excuse me—by the plaintiff, this Court also finds were front and center and directly addressed by the Hayashi decision and rejected by the Illinois Supreme Court in Hayashi such as, plaintiff‘s argument regarding retroactivity and due process; therefore, the Court finds that those arguments have already been decided by Hayashi and the Court is certainly in no position to review a Supreme Court decision.”
¶ 15 The court went on to address, not collateral estoppel, but equitable estoppel, a doctrine it noted courts do not favor applying against public bodies. Although the court expressed sympathy for Mr. Shakari‘s situation, it concluded that the doctrine did not apply because the new law eliminated the Department‘s authority to renew Mr. Shakari‘s license. As the court explained:
“Here, the revocation, per the Act, acts and applies as a matter of law. The 2014 renewal of the plaintiff‘s license was unauthorized under the Act. As such, plaintiff cannot rely on that unauthorized [a]ct to support a claim for equitable estoppel. Plaintiff here presents, beyond words, a very sympathetic case. Plaintiff has, by all accounts, been a contributing member to society who has more than paid his share for his previous acts.
The arguments relating to the facts and reasons why this now approximately 40-year-old conviction should not prevent him from practicing his chosen profession, a profession in which—from this Court‘s—excuse me—from the record before the Court, he has not faced any criminal or disciplinary action as a nurse, are compelling. This Court, however lacks authority to depart from the General Assembly‘s mandate.”
¶ 16 The circuit court also noted that Mr. Shakari could avail himself of amendments to
¶ 17 Mr. Shakari now appeals the circuit court‘s order affirming the Department‘s revocation of his license.
II. JURISDICTION
¶ 18 ¶ 19 The circuit court affirmed the Department‘s permanent revocation of Mr. Shakari‘s RN license on January 5, 2017, and Mr. Shakari timely filed his notice of appeal on February 1, 2017. We have jurisdiction over this matter pursuant to
III. ANALYSIS
¶ 20 ¶ 21 On appeal, Mr. Shakari argues that the Department erroneously construed
¶ 22 ¶ 23 Mr. Shakari contests neither the fact of his prior conviction for a forcible felony nor that this is an offense that can trigger the revocation of a health care worker‘s license under
¶ 24
“(a) When a licensed health care worker, as defined in the Health Care Worker Self-Referral Act [(
225 ILCS 47/1 et seq. (West 2014) )], (1) has been convicted of a criminal act that requires registration under the Sex Offender Registration Act [(730 ILCS 150/1 et seq. (West 2014) )]; (2) has been convicted of criminal battery against any patient in the course of patient care or treatment ***; (3) has been convicted of a forcible felony; or (4) is required as part of a criminal sentence to register under the Sex Offender Registration Act, then, notwithstanding any other provision of law to the contrary, except as provided in this Section, the license of the health care worker shall by operation of law be permanently revoked without a hearing.” (Emphases added.)20 ILCS 2105/2105-165(a) (West 2014) .
¶ 25 In concluding that
¶ 26 Our supreme court declined to focus on the policy concerns raised by the Hayashi plaintiffs because it found the language of
¶ 27 Mr. Shakari correctly notes that, unlike him, all three of the Hayashi plaintiffs were licensed health care workers before they received the convictions that triggered the revocation of their licenses under
¶ 28 Mr. Shakari fails to offer a straightforward reading of the language of
¶ 29 Nor has Mr. Shakari articulated any policy reason why the legislature might wish to exempt health care workers with felonies predating their licensure. This intent would be particularly incongruous since the statute also prevents new applicants with the same kind of criminal records from receiving licenses in the first instance. See
¶ 30 Mr. Shakari also unpersuasively argues that the circuit court in this case improperly extended
¶ 31 In sum, we agree with the circuit court and with the Department that under our supreme court‘s clear articulation in Hayashi of the scope of
¶ 32 ¶ 33 We next consider Mr. Shakari‘s argument that, because the Department renewed his license in 2012, after
¶ 34 We first address the Department‘s contention that Mr. Shakari forfeited any estoppel-based argument by raising it for the first time in his reply brief in the circuit court. “In general, issues or defenses not placed before the administrative agency will not be considered for the first time on administrative review.” Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278 (1998) (citing
¶ 35 It unnecessary for us to decide whether the inclusion of those allegations in Mr. Shakari‘s response filed with the Department was sufficient to preserve the issue for administrative review. It is evident from the record that the Department failed to object to the introduction of Mr. Shakari‘s estoppel argument in the circuit court. Indeed, as the circuit court judge noted, the Department responded to the argument substantively at the hearing in this matter. Under these circumstances, it is the Department‘s objection, and not Mr. Shakari‘s argument, that has been forfeited. See Wilfert, 263 Ill. App. 3d at 546 (finding no forfeiture where a plaintiff‘s argument was raised for the first time in his reply brief on administrative review but where the agency could have, but did not, argue forfeiture at that time). We thus consider the merits of Mr. Shakari‘s estoppel argument. And we do so in reference to both collateral estoppel, the doctrine Mr. Shakari intended to base his argument on, and equitable estoppel, the doctrine the circuit court analyzed.
¶ 36 We agree with Mr. Shakari that collateral estoppel and equitable estoppel are two distinct legal theories. The former “prevents the relitigation of issues resolved in earlier causes of action” where there was a final judgment on the merits against the party against whom the doctrine is asserted (or someone in privity with that party). State Building Venture v. O‘Donnell, 239 Ill. 2d 151, 158 (2010). The latter applies when a party makes a knowing misrepresentation of material fact that another party reasonably relies on and when the relying party would be prejudiced if the representing party were later allowed to deny the truth of the representation. Falcon Funding, LLC v. City of Elgin, 399 Ill. App. 3d 142, 157-58 (2010). For our purposes, however, it does not matter whether the
¶ 37 An analysis of the elements of the two doctrines is unnecessary, however, because neither collateral nor equitable estoppel can be based on the unauthorized act of an administrative agency.
¶ 38 The rule is frequently applied in cases where an administrative agency, whether due to the error of a ministerial employee or otherwise, has acted beyond the scope of its authority to issue or renew a license or permit. See, e.g., Gersch v. Department of Professional Regulation, 308 Ill. App. 3d 649 (1999) (holding that the unauthorized issuance of the plaintiff‘s social worker‘s license by a governmental employee did not prevent the later revocation of the license when it was discovered that the plaintiff did not meet the necessary educational requirements for such a license); Armond v. Sawyer, 205 Ill. App. 3d 936, 939 (1990) (holding a municipality was not estopped from revoking the plaintiff‘s liquor license simply because the local liquor commission had renewed the license in violation of a referendum limiting the sale of unpackaged alcohol); Lake Shore Riding Academy, Inc. v. Daley, 38 Ill. App. 3d 1000, 1003 (1976) (holding that a zoning department‘s renewal of a license to operate a riding stable in violation of a zoning ordinance was an unauthorized act that did not prevent the municipality from revoking the license); People ex rel. Satas v. City of Chicago, 5 Ill. App. 3d 109, 113 (1972) (holding that the approval of an application for a laundromat license that violated a local zoning ordinance was “clearly beyond the scope” of the issuing employee‘s authority and could not form the basis for a defense of equitable estoppel).
¶ 39 Although the rule is typically applied where a party has argued equitable estoppel, the result is the same under a theory of collateral estoppel. As our supreme court has explained, administrative agencies “have no general or common law powers” but are “statutory creature[s],” and “must find within the statute the authority which [they] claim[ ].” City of Chicago v. Fair Employment Practices Comm‘n, 65 Ill. 2d 108, 112-13 (1976). When the order of an agency exceeds the agency‘s jurisdiction, that order is void. Id. And
¶ 40 Here, the Department‘s renewal of Mr. Shakari‘s license in 2012 is of no consequence because, prior to the effective date of
¶ 41 Mr. Shakari‘s concerns with the harshness of
¶ 42 Mr. Shakari has expressed concern that, even if he successfully avails himself of this provision, the fact that his license was once revoked will remain on his record. However, in its motion for leave to cite supplemental authority—which we granted—the Department highlights another part of the 2017 amendment, providing that licensees subject to disciplinary action may apply to have their disciplinary histories “classified as confidential and not for public release and considered expunged for reporting purposes,” so long as they have no new disciplinary incidents or pending investigations and three years have passed since their disciplinary offense or the restoration of their license, whichever is later.
¶ 43 In sum, we agree with the circuit court that the enactment of
IV. CONCLUSION
¶ 44 ¶ 45 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 46 Affirmed.
JUSTICE MIKVA
APPELLATE COURT JUDGE