Rodriquez v. Department of Financial and Professional Regulation

SIXTH DIVISION
June 22, 2007
No. 1-05-1717
JACK V. RODRIQUEZ, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
THE DEPARTMENT OF FINANCIAL AND )
PROFESSIONAL REGULATION, Division )
of Professional Regulation, ) Honorable
) Richard A. Siebel,
Defendant-Appellee. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
In June 2003 the Department of Financial and Professional
Regulation charged Dr. Jack Rodriquez with improper treatment of
a patient and with failure to document adequately that patient's
medical condition. In discovery Rodriquez sought to depose five
persons the Department listed as potential witnesses. The
Department refused to issue subpoenas for discovery depositions.
Rodriquez then brought this lawsuit for a judgment declaring
that section 2105-105 of the Department of Professional
Regulation Law (Department Law) (20 ILCS 2105/2105-105 (West
2004)) gave Rodriquez a right to issuance of the subpoenas. The
trial court dismissed the lawsuit. Rodriquez now appeals.
The Department argues that section 2105-150 of the
Department Law (20 ILCS 2105/2105-150 (West 2004)) makes section
2105-105 inapplicable to the proceedings on the charges against
Rodriquez. Section 2105-150 of the Department Law provides:
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"Notwithstanding any of the provisions of Section
2105-5, 2105-15, 2105-100, 2105-105, 2105-110, 2105-
115, 2105-120, 2105-125, 2105-175, 2105-200, or 2105-
325 of this Law, for violations of Section 22 of the
Medical Practice Act of 1987 [(the Act) 225 ILCS 60/1
et seq. (West 2004)], the Department shall suspend,
revoke, place on probationary status, or take other
disciplinary action as it deems proper with regard to
licenses issued under that Act only in accordance with
Sections 7 and 36 through 46 of that Act." (Emphasis
added.) 20 ILCS 2105/2105-150 (West 2004).
In the underlying case the Department charges Rodriquez with
violations of section 22 of the Act. Thus, section 2105-150
applies to the charges against Rodriquez. Section 2105-150
establishes that the Department shall take disciplinary action
against Rodriquez only in accordance with the specified sections
of the Act, notwithstanding any provisions of section 2105-105 of
the Department Law.
In his brief on appeal Rodriquez suggests five reasons for
finding that the Department retains the subpoena powers of
section 2105-105 for the proceedings on the charges against him:
(1) waiver, (2) past Department practice, (3) our decision in
Sharma v. Zollar, 265 Ill. App. 3d 1022 (1994), (4) limitation of
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section 2105-150 solely to disciplinary actions, and (5) a
proposed harmonization of section 2105-150 with section 2105-105.
In a motion filed a week before oral argument, Rodriquez added an
argument asking us to declare section 2105-150 invalid. We
denied the untimely motion without prejudice to Rodriquez's right
to raise the issue in a separate proceeding.
First Rodriquez argues that the Department waived the
argument concerning section 2105-150 by failing to raise it in
the trial court. We may affirm the trial court's decision on any
basis that finds adequate support in the record. City of Chicago
v. Holland, 206 Ill. 2d 480, 492 (2003). As the Department's
argument relies solely on the interpretation of statutes, and not
at all on any facts, we choose to address the argument on its
merits.
Next, Rodriquez points to the subpoenas the Department
issued him in this case. He argues that sections 36 through 46
of the Act include no authorization for such pretrial subpoenas.
Thus, the Department in this case (and, according to Rodriquez's
counsel, in numerous past cases) exercised powers beyond those
permitted under the Department's interpretation of section 2105-
150. Rodriquez's argument shows only that the Department may
have misconstrued its powers in the past.
Rodriquez does not expressly argue that the Department's
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past practice estops it from denying his request for subpoenas.
If he had made such an argument, it would have failed because he
could not show detrimental reliance on the Department's past
practice. See Baldwin v. Wolff, 294 Ill. App. 3d 373, 378
(1998). Rodriquez claims that he responded to a subpoena when
the Department interviewed him, but the subpoena does not appear
in the record. The Department answers that it interviewed
Rodriquez pursuant to its investigatory powers under section 36
of the Act. 225 ILCS 60/36 (West 2004). The response to such an
investigation does not show detrimental reliance on the
Department's past use of its subpoena power.
The Department actually issued some of the subpoenas
Rodriquez sought, and he benefitted from those subpoenas by
gaining access to information otherwise unavailable. Without any
detrimental reliance, the Department's past practice provides no
grounds for ignoring the express directive of section 2105-150.
Next, Rodriquez contends that this court, in Sharma, 265
Ill. App. 3d at 1030-31, decided that the predecessor of section
2105-105 applied to proceedings on alleged violations of section
22 of the Act. However, in that case neither party directed our
attention to the predecessor of section 2105-150 and we had no
occasion to discuss the effect of that statute on the
Department's procedures. See Ill. Rev. Stat. 1987, ch. 127, par.
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60m.
Rodriquez suggests that section 2105-150 of the Department
Law limits only the kinds of disciplinary dispositions the
Department can make in cases under the Act, and that it has no
effect on the procedures for reaching those dispositions. The
proposed interpretation makes most of the specifications in
section 2105-150 meaningless. The section lists several
procedural sections and expressly states that those sections do
not apply to cases under the Act. Sections 2105-105, 2105-110,
2105-115, and 2105-120, all specifically rendered inapplicable to
cases under the Act, pertain strictly to Department procedures
for attendance of witnesses, administration of oaths, and
preparation of transcripts and reports. Under Rodriquez's
proposed interpretation of section 2105-150, the reference in
that section to section 2105-105, 2105-110, 2105-115 and 2105-120
has no meaning. We presume that the legislature intended some
consequence to follow from the express reference to section 2105-
105 in section 2105-150. See McNamee v. Federated Equipment &
Supply Co., 181 Ill. 2d 415, 423 (1998).
Section 2105-150 also specifies several purely procedural
sections of the Act that, according to section 2105-150, govern
cases brought under the Act. See 225 ILCS 60/38, 39, 45 (West
2004). Rodriquez's proposed interpretation would read the
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specifications of those sections out of section 2105-150.
Rodriquez presents the specter of a parade of horrible
consequences that will follow if the Department applies section
2105-150 of the Department Law, and stops using, in proceedings
under the Act, the sections of the Department Law enumerated in
section 2105-150. For example, he claims that without section
2105-105 of the Department Law (20 ILCS 2105/2105-105 (West
2004)), the Department will lack authority to "take evidence ***
[or] administer oaths *** at hearing." Section 38 expressly
provides the power to administer oaths and take evidence in
proceedings on alleged violations of section 22 of the Act. 225
ILCS 60/38 (West 2004). Rodriquez claims that without section
2105-115 of the Department Law (20 ILCS 2105/2105-115 (West
2004)), the Department will lack "authority to use stenographers
at hearing for the purpose of creating a record." Section 39 of
the Act, expressly referenced in section 2105-150 of the
Department Law, requires the Department to provide a stenographer
for all proceedings for violations of the Act. 225 ILCS 60/39
(West 2004).
Rodriquez also claims that without section 2105-120 (20 ILCS
2105/2105-120 (West 2004)), the Disciplinary Board will lack
authority to make findings and recommendations, but section 40 of
the Act establishes just such authority. 225 ILCS 60/40 (West
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2004). Rodriquez argues that without section 2105-125 (20 ILCS
2105/2105-125 (West 2004)), the Department will lack authority to
restore licenses, but section 43 of the Act provides exactly that
authority. 225 ILCS 60/43 (West 2004). A detailed comparison of
the Act with the sections rendered inapplicable under section
2105-150 demonstrates the legislature's intention to restrict all
proceedings on complaints under section 22 of the Act to the
procedures established in the Act.
Finally, Rodriquez contends that we should harmonize section
2105-105 of the Department Law with section 2105-150 by finding
that the Department has all the subpoena powers granted by
section 38 of the Act as well as all of the subpoena powers
granted by section 2105-105. The proposal does not seem to
reconcile the sections as much as it nullifies the specification
in section 2105-150 that the Department shall act on these
charges only in accordance with the subpoena powers granted in
section 38 of the Act.
Because section 2105-150 of the Department Law expressly
makes section 2105-105 of the Department Law inapplicable to the
proceedings under the Act against Rodriquez, the Department has
for this case only the subpoena powers listed in section 38 of
the Act and not the broader powers provided in section 2105-105
of the Department Law. Section 38 of the Act does not authorize
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the subpoenas for discovery depositions that Rodriquez seeks in
his action for a declaratory judgment. See Smith v. Department
of Registration & Education, 170 Ill. App. 3d 40, 44-45 (1988).
Accordingly we affirm the judgment dismissing Rodriquez's
complaint.
Affirmed.
FITZGERALD SMITH, P.J., and O'MALLEY, J., concur.
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