Austin v. Illinois Department of Financial and Professional Regulation , 2022 IL App (1st) 210997-U ( 2022 )

2022 IL App (1st) 210997-UNo. 1-21-0997
Order filed August 15, 2022
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
KATTIE AUSTIN, )
) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
) Cook County.
v.
)
ILLINOIS DEPARTMENT OF FINANCIAL AND ) No. 19 CH 13510
PROFESSIONAL REGULATION, and CECILIA )
ABUNDIS, in her official capacity as Acting Director of ) Honorable
the Illinois Department of Financial and Professional ) Alison C. Conlon,
Regulation, Division of Professional Regulation, ) Judge, presiding.
)
Defendants-Appellants.
PRESIDING JUSTICE HYMAN delivered the judgment of the court.
Justices Walker and Coghlan concurred in the judgment.
ORDER
¶1 Held: Administrative decision denying plaintiff’s application for a licensed practical
nursing license affirmed where plaintiff did not show she was prejudiced by lack
of proper notice and an opportunity to be heard and the denial was not clearly
erroneous.
¶2 Kattie Austin represents herself in appealing a decision of the Director of the Department
of Financial and Professional Regulation denying her application to practice as a licensed
practical nurse (LPN). Austin held a registered nurse (RN) license, which the Department
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suspended indefinitely in 2014 after learning Austin had provided false information on an
application for a RN license in Arizona. The Director found that the suspension of Austin’s
RN license was grounds for denying her application for a LPN license under section 70-5(b)(7)
of the Nurse Practice Act. That section permits the Department to refuse to issue a license for
“[e]ngaging in dishonorable, unethical[,] or unprofessional conduct of a character likely to
deceive, defraud or harm the public ***.” 225 ILCS 65/70-5(b)(7) (West 2020) (“Act”).
¶3 Austin filed a complaint for administrative review, arguing (i) the Department violated her
due process rights by failing to provide proper notice and an opportunity to be heard before
denying her application and (ii) improperly denied her application for a LPN license. The
circuit court affirmed the Director’s decision, finding that the Department adhered to due
process requirements by sending notice that it intended to deny her application to her last
known address and by email. The court also found the Department’s decision was not against
the manifest weight of the evidence under the Act.
¶4 Austin argues the Director’s decision should be reversed given: (i) the Department violated
her Due Process Rights by only sending email notice of its intent to deny her application and
right to a hearing when she does not have an email address, and (ii) the Director’s decision to
deny her LPN application was clearly erroneous because her RN license was improperly
suspended. Austin asks that we reverse, order the Director to issue the LPN license and the
Department to pay damages.
¶5 The Department concedes Austin may not have received the email notice. Still, it argues
lack of notice did not prejudice her inasmuch as (i) she would have been unable challenge the
validity of the suspension of her RN license, which triggered the Director’s denial of the LPN
license application, and (ii) she was able to timely bring a complaint for administrative review
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to challenge the denial of her application. The Department also asserts the decision to deny her
application was not clearly erroneous
¶6 We agree with Austin—she was not given proper notice. But, we affirm due to Austin’s
failure to show the due process violation prejudiced her or that the Department’s decision to
deny the LPN application was clearly erroneous.
¶7 Background
¶8 Austin began her nursing career in 1985, obtaining an LPN license and an RN license two
years later. Austin’s LPN license expired in 1999, and she did not renew it. (An LPN assists in
the nursing process under the guidance of a registered professional nurse or an advanced
practice registered nurse (225 ILCS 65/50-10 (2020)); an RN may engage in the full scope of
nursing (225 ILCS 65/60-35 (2020))). In 2010, Austin applied for a RN license in Arizona. In
response to a question on the application, Austin denied she had ever been convicted or had
prosecution deferred on a felony charge. Yet, an investigation by the Arizona State Board of
Nursing revealed Austin (i) had been indicted on multiple charges, including fraud and
swindling in federal court, (ii) had been found not competent to stand trial, and (iii) had
prosecution deferred six months. Those charges were later dropped without prejudice. The
Arizona investigation also revealed that Austin had been convicted of theft of services, a
misdemeanor, in Cook County and sentenced to probation.
¶9 After the Arizona Board asked for additional information about the charges, Austin
declined and told the Arizona Board she would withdraw her application. Nonetheless, the
Arizona Board issued an order denying Austin’s application, finding she violated several of
the Board’s rules, including committing fraud and deceit when applying for a license and
committing an act that deceived the public.
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¶ 10 In 2011, the Department filed a complaint against Austin under section 70-5(b)(10) of the
Act (225 ILCS 65/70-5(b)(10)(West 2020)), which allows the Department to discipline a
licensed individual who has been disciplined in another jurisdiction. After a hearing at which
neither Austin nor her attorney appeared, the administrative law judge found the Department
proved that the Arizona Board had denied Austin’s application for a RN license by making
false statements about her criminal history and failing to provide the additional information
requested. The ALJ recommended the Department suspend Austin’s RN license indefinitely
for at least three years and fine her $500 for costs. The Illinois Board made the same
recommendation to the Department, which adopted the recommendation and ordered Austin
to surrender her RN license immediately.
¶ 11 In 2016, Austin filed a complaint in circuit court against the Illinois Board, the Department,
the State of Illinois, and individual defendants challenging the suspension of her RN license.
After the circuit court dismissed some claims with prejudice and others without prejudice,
Austin voluntarily dismissed all remaining claims. She then filed a second complaint in 2018
against the same defendants, again challenging the suspension of her RN license. Again, the
circuit court dismissed the complaint. The appellate court affirmed on res judicata grounds.
Austin v. Illinois State Board of Nursing, 2020 IL App (1st) 191170-U.
¶ 12 While her RN license was suspended, Austin applied for the LPN license. The Department
issued a notice of intent to deny license letter (“notice of intent letter”) stating that the
Department intended to deny her application because her RN license was currently suspended
for a violation in another state, grounds for denial under section 70-5(b)(7) (225 ILCS 65/70-
5(b)(7) (West 2020)). That section allows the Department “to refuse to issue or to renew ***
or take other disciplinary or non-disciplinary action as the Department deems appropriate
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*** with regard to a license” when an applicant has engaged in “dishonorable, unethical or
unprofessional conduct of a character likely to deceive, defraud or harm the public.” 225 ILCS
65/70-5(b)(7) (West 2020). The notice of intent letter listed Austin’s home and an email
address and stated it had been sent to Austin via email.
¶ 13 The Department issued a nearly identical notice of intent letter a few days later, which
omitted an email address for Austin. Nonetheless, the proof of service again stated it had been
sent via email. Austin asserts she does not have an email address and did not receive either
notice.
¶ 14 Shortly thereafter, the Department Director issued a final administrative decision, sent to
Austin’s home address, denying her application for an LPN license. The order stated, in part,
that the Department sent the notice of intent letter to Austin at her address of record and that
she had not filed a petition for a hearing within the designated time. Austin filed a complaint
for administrative review in the circuit court, asserting (i) the Department violated her due
process rights by failing to provide proper notice or a hearing before denying her application;
and (ii) the Department erred in denying her LPN application as it had improperly suspended
her RN license.
¶ 15 The circuit court affirmed the Department’s order denying Austin’s application, finding
that the Department provided proper notice under the Administrative Review Law and the
Nurse Practice Act by sending the notice of intent letter to Austin’s last reported address. The
court also found no violation of Austin’s due process rights because (i) she was given proper
notice and an opportunity to request a hearing but did not do so, and (ii) the decision to deny
her application was not clearly erroneous because the administrative record is “replete” with
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evidence that Austin’s RN license was suspended for the violations in Arizona, which was
grounds for denial under section 70-5(b)(7).
¶ 16 Analysis
¶ 17 Due Process
¶ 18 “[A]n administrative proceeding is governed by the fundamental principles and
requirements of due process of law. In administrative proceedings, notice does not need to be
as precise or detailed as in normal court proceedings. Abrahamson v. Illinois Department of
Professional Regulation, 153 Ill. 2d 76, 93 (1992). “ An administrative hearing comports with
due process where the parties are given the opportunity to be heard, the right to cross-examine
adverse witnesses, and impartiality in ruling upon evidence.” Gonzalez v. Pollution Control
Board, 2011 IL App (1st) 093021, ¶ 42. A court will find a due process violation only if
prejudice is shown. Id. A claim that an administrative proceeding violated an individual’s right
to due process presents a question of law and, therefore, is subject to de novo review. People
ex rel. Devine v. $30,700.00 United States Currency, 199 Ill. 2d 142, 155 (2002).
¶ 19 Although the circuit court found that the Department sent the notice of intent letter to
Austin at her last mailing address, the record shows the Department attempted to serve Austin
with the notice by email only. Austin asserts she does not have an email address and never
received the notice. The Department presents no evidence to refute her. So, Austin was not
provided notice or an opportunity to be heard that comported with due process requirements
before the Department denied her application.
¶ 20 Next, we must then determine whether this due process violation prejudiced her. The
Department says “no.” It maintains that had there been a hearing, Austin could not present
evidence that would have resulted in a different outcome. Simply put, the Department argues
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that if Austin had filed a petition for a hearing, she would have had to “state with specificity
the particular reasons why [she] believes that the action by the Division to deny licensure was
incorrect.” 68 Ill. Admin. Code 1110.30(c). The Department argues Austin could not make that
showing because her RN license was suspended, which constituted a continuing violation of
section 70-5(b)(7) of the Nurse Practice Act (225 ILCS 65/70-5(b)(7) (West 2020), permitting
the Department to deny her application. The Department also contends that because this court
found that issues regarding the proceedings leading to the suspension of her RN license are
barred by the doctrine of res judicata (Austin v. Illinois State Board of Nursing, 2020 IL App
(1st) 191170-U)), she would be precluded from challenging the validity of the suspension, the
basis on which the Director made the determination.
¶ 21 We disagree. While Austin’s RN license did remain suspended, she could have made other
arguments to support her contention that she should be issued the LPN license. Section 70-
5(b)(7) permits the Department to deny a license to an applicant who has engaged in
“dishonorable, unethical or unprofessional conduct.” Without challenging the validity of the
suspension of her RN license, Austin could have made arguments that the Department should
not have denied her LPN license because the suspension did not constitute dishonorable,
unethical, or unprofessional conduct. These arguments may not be successful, but by failing to
provide Austin notice, the Department denied her the opportunity to make them.
¶ 22 Moreover, res judicata would not apply to prevent her from making those arguments. The
doctrine of res judicata provides that a final judgment on the merits rendered by a court of
competent jurisdiction bars any subsequent actions between the same parties or their privies
on the same cause of action.” Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). “Res
judicata bars not only what was actually decided in the first action but also whatever could
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have been decided. [Citation.] Three requirements must be satisfied for res judicata to apply:
(1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2)
an identity of cause of action exists; and (3) the parties or their privies are identical in both
actions.” Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008).
¶ 23 In Austin v. Illinois State Board of Nursing, 2020 IL App (1st) 191170-U, this court
affirmed the dismissal of Austin’s 2018 complaint challenging the suspension of her RN
license, finding that her claims barred by res judicata for the reason that her 2016 complaint
became a final judgment after her claims were dismissed with prejudice or Austin’s voluntary
dismissal of the remaining claims. Id. ¶ 17. Thus, Austin was precluded from bringing in a
subsequent action, the same claims or claims that could have been brought in the 2016 case.
But res judicata does not prevent her from raising issues concerning whether the suspension
of her RN license was grounds for denying her LPN license.
¶ 24 Regardless, we agree with the Department that Austin has failed to show she was
prejudiced. As the Department notes, Austin received the Director’s final administrative
decision, filed a complaint for administrative review, and had an opportunity to challenge the
Director’s findings that suspension of her RN license constituted “dishonorable, unethical[,]
or unprofessional conduct” under the Act and was sufficient grounds for denying her LPN
application. Austin provided no arguments to refute that finding. Instead, on administrative
review and before this court, she continues to rely on her contention that the Department erred
in suspending her RN license rather than arguing that the Director erred in concluding that her
suspension as an RN was “dishonorable, unethical or unprofessional conduct” under the Act.
In short, Austin has not shown that had the Department properly served her with the notice of
intent letter and had she timely requested a hearing, she could have stated “with specificity the
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particular reasons why [she] believes” the Director’s decision to deny her application was
incorrect. Thus, the due process violation did not prejudice Austin.
¶ 25 Department Decision Was Not Clearly Erroneous
¶ 26 In reviewing the Department’s decisions, we consider the Administrative Review Law (735
ILCS 5/art. III (West 2020)). As our supreme court has explained, “[t]he applicable standard
of review depends upon whether the question presented is one of fact, one of law, or a mixed
question of fact and law.” American Federation of State, County & Municipal Employees,
Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577 (2005).
An administrative agency’s findings on questions of fact are “deemed to be prima facie true
and correct” and thus, a reviewing court’s task is limited to “ascertain[ing] whether the findings
and decision of the agency are against the manifest weight of the evidence.” Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). Administrative
decisions based on questions of law are reviewed de novo. City of Belvidere v. Illinois State
Labor Relations Board, 181 Ill. 2d 191, 205 (1998). Decisions based on mixed questions of
fact and law are subject to reversal if clearly erroneous. AFM Messenger Service, Inc. v.
Department of Employment Security, 198 Ill. 2d 380, 395 (2001).
¶ 27 “Mixed questions of fact and law are ‘questions in which the historical facts are admitted
or established, the rule of law is undisputed, and the issue is whether the facts satisfy the
statutory standard, or to put it another way, whether the rule of law as applied to the established
facts is or is not violated.’ ” American Federation of State, County & Municipal Employees,
Council 31, 216 Ill. 2d at 577 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19,
(1982)). As the central dispute concerns whether the Department correctly found that the
suspension of Austin’s RN license was grounds for denying her LPN application under the
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Act, the case presents mixed questions of fact and law, we will reverse the Department’s
decision only if clearly erroneous. City of Belvidere, 181 Ill. 2d at 205. This is a demanding
standard that grants significant deference to the experience and expertise of the agency. AFM
Messenger Service, Inc., 198 Ill. 2d at 395. We accept the agency’s findings “unless we come
to the definite and firm conviction that a mistake has been committed.” Illinois Beta House
Fund Corp. v. Department of Revenue, 382 Ill. App. 3d 426, 429 (2008).
¶ 28 The Act gives the Department broad discretion in determining whether to issue a license.
Under section 70-5(b)(7), the Department may “refuse to issue or to renew *** or take other
disciplinary or non-disciplinary action as the Department deems appropriate *** with
regard to a license” when an applicant has engaged in “dishonorable, unethical or
unprofessional conduct of a character likely to deceive, defraud or harm the public.” 225 ILCS
65/70-5(b)(7) (West 2020). As noted, the Department denied Austin’s LPN application
because it had suspended her RN license for providing false information in Arizona, which
could plainly be deemed “unprofessional conduct of a character likely to deceive, defraud or
harm the public.
¶ 29 On that account, the Department’s decision to deny Austin’s LPN application was not
clearly erroneous.
¶ 30 Affirmed.
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