Opinion
No. 1-12-1186
05-13-2013
CURT J. HORRIGAN, Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; and JAY STEWART, Director of the Division of Professional Regulation of the Department of Financial and Professional Regulation, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 11 CH 30179
Honorable
Franklin U. Valderrama,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Rochford and Delort concurred in the judgment.
ORDER
¶ 1 Held: Circuit court did not err in dismissing the plaintiff's complaint, because section 2105-165 of the Illinois Department of Professional Regulation Law (20 ILCS 2105/2105-165 (West 2012) is not unconstitutional, facially or as applied to the plaintiff. ¶ 2 At issue in this appeal is the constitutionality of section 2105-165 of the Illinois Department of Professional Regulation Law (20 ILCS 2105/2105-165 (West 2012)) (hereinafter referred to as the Act) as applied to the health-care-worker plaintiff. Subsection (a) of the Act provides that the license of a health care worker as defined in the Health Care Self-Referral Act (225 ILCS 47/1 et seq. (West 2012)) who: "(1) has been convicted of a criminal act that requires registration under the Sex Offender Registration Act; (2) has been convicted of a criminal battery against any patient in the course of patient care or treatment, including any offense based on sexual conduct or sexual penetration; (3) has been convicted of a forcible felony; or (4) who is required as part of a criminal sentence to register under the Sex Offender Registration Act *** shall by operation of law be permanently revoked without hearing." 20 ILCS 2105/2105-165(a) (West 2012). The Act became effective on August 20, 2011. ¶ 3 The plaintiff, Curt J. Horrigan, had criminal convictions involving sexual conduct with minors when he was 19 and 21 years old in Minnesota. The conduct occurred sometime in 1994. He served a period of incarceration and was required to register as a sex offender. Later, Horrigan obtained a bachelor of science degree in 2005 and a doctorate degree in pharmacy in 2008. Horrigan applied for a pharmacy license in Illinois pursuant to the Pharmacy Practice Act (225 ILCS 85/1 et seq. (West 2008)) and was approved on January 16, 2009. a consent order between the Department of Financial and Professional Regulation (the Department) and Horrigan provided that he would be issued a license subject to probation because of the past conduct. ¶ 4 On August 8, 2011, Horrigan received notice that the Department was permanently revoking his license pursuant to the Act. Shortly thereafter, he filed his complaint against the Department and Jay Stewart, the Director of its Division of Professional Regulation. The complaint was dismissed by the circuit court upon the defendants' motion pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)). Horrigan appeals that dismissal. ¶ 5 Horrigan argues that the Act is unconstitutional because the Act applies retroactively. He further argues that the Act: (1) violates the prohibition against ex post facto laws; (2) impairs the obligations of the contract between the parties, in violation of the contracts clause of the Illinois Constitution; (3) infringes upon his right to due process; (4) offends separation of powers principles by abridging the Department's discretionary authority; and (5) imposes an excessive penalty in violation of the proportionate penalties clause of the Illinois Constitution. We rejected each of these arguments in our recent opinion, Consiglio v. Department of Financial & Professional Regulation, 2013 IL App (1st) 121142. We further determined that the Act was neither retroactive nor punitive in its nature and application. Id., ¶¶ 16, 30. We find no reason to deviate from our previous holding in this case. ¶ 6 In addition to the arguments that we addressed in Consiglio, Horrigan argues that the Act violates the proscription against the forfeiture of an estate contained in article I, section 11 of the Illinois Constitution. Ill. Const. 1970, art. I, § 11 ("No conviction shall work corruption of blood or forfeiture of estate"). He argues that "the forfeiture of estate cannot be imposed where the sufficient and necessary condition for the imposition of the sanction is a conviction." We disagree as no estate is forfeited, but only a right to continue to practice in the health-care field. See Kerner v. State Employees' Retirement System, 53 Ill. App. 3d 747, 754 (1977) (finding no violation of forfeiture of estate clause in case of the plaintiff-governor's pension benefits were revoked upon his conviction of a felony and stating "no estate was forfeited, only a right to continued pension benefits by reason of his actions"). Horrigan does not cite to any authority in which a professional license is considered property for purposes of article I, section 11 of the Illinois Constitution. Rather, the cases that he relies upon (In re Matter of Coslet's Estate, 39 Ill. App. 3d 305, 349 N.E.2d 499 (1976) and Chicago & A.R.Co. v. People ex rel. Koerner, 67 Ill. 11 (1873)) are inapplicable to the facts of this case: Coslet involved, in relevant part, a surviving spouse's retention of a joint tenancy interest in real property (Coslet, 39 Ill. App. 3d at 307); Koerner involved freight charges of railroad companies and was decided on due process grounds (Koerner, 67 Ill. at 27). Accordingly, we reject Horrigan's argument that the Act violates the forfeiture provision of article I, section 11 of the Illinois Constitution. ¶ 7 Horrigan also argues that the consent order entered when he was issued a pharmacist's license created a vested right, because he pursued his career in Illinois based on its issuance. This argument essentially is a restatement of his argument that the Act impairs the contractual obligations of the parties, which we previously rejected. Consiglio, 2013 IL App (1st) 121142, ¶ 40. Further, Horrigan argues that Valdez v. Zollar, 281 Ill. App. 3d 329, 665 N.E.2d 560 (1996), provides that a vested right is established "by reliance on governmental action." In Valdez, the court determined that a change in rules pertaining to the number of times a nurse may take her board exams could not be applied to the plaintiff, because its retroactive application interfered with her vested right in the rule as it existed at the time she began testing. Valdez, 281 Ill. App. 3d at 334-35. We reject Horrigan's reliance on Valdez, because it involved a retroactive change in a nursing license law. Id. In Consiglio, we determined the Act is not retroactive in nature (Consiglio, 2013 IL App (1st) 121142, ¶ 16) and therefore Valdez is inapplicable. Accordingly, Horrigan's contention that the Act affects a vested right fails. ¶ 8 For these reasons, Horrigan's complaint fails to state claims upon which relief might be granted, and it was properly dismissed by the circuit court of Cook County. ¶ 9 Affirmed.