{ "id": 2614989, "name": "MOON LAKE CONVALESCENT CENTER, Plaintiff-Appellee, v. JEREMY MARGOLIS, Acting Director of the Department of Public Health, et al., Defendants-Appellants", "name_abbreviation": "Moon Lake Convalescent Center v. Margolis", "decision_date": "1989-02-21", "docket_number": "No. 1\u201487\u20142967", "first_page": "245", "last_page": "262", "citations": [ { "type": "official", "cite": "180 Ill. App. 3d 245" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "509 N.E.2d 467", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 275", "category": "reporters:state", "reporter": "Ill. 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App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650456 ], "weight": 4, "pin_cites": [ { "page": "941" }, { "page": "941" }, { "page": "941" }, { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0937-01" ] }, { "cite": "373 N.E.2d 1332", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "1335" }, { "page": "1335" }, { "page": "1335" } ], "opinion_index": 0 }, { "cite": "71 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448551 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "21" }, { "page": "21" }, { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0013-01" ] }, { "cite": "413 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "420" }, { "page": "421" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 556", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474979 ], "weight": 2, "pin_cites": [ { "page": "563" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0556-01" ] }, { "cite": "478 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "529" } ], "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441994 ], "weight": 2, "pin_cites": [ { "page": "973" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0969-01" ] }, { "cite": "253 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "115 Ill. App. 2d 460", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1588342 ], "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/115/0460-01" ] }, { "cite": "510 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 158", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3544395 ], "year": 1969, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0158-01" ] }, { "cite": "486 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "895-96" }, { "page": "895" } ], "opinion_index": 0 }, { "cite": "109 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3127069 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0202-01" ] }, { "cite": "511 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "171" } ], "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 608", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543845 ], "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0608-01" ] } ], "analysis": { "cardinality": 1480, "char_count": 39530, "ocr_confidence": 0.77, "pagerank": { "raw": 1.720358893717005e-07, "percentile": 0.7038300302450066 }, "sha256": "3acf754163a4b2b318a7ee890285e4a4c4e083f052df740ed24361df85d8ba31", "simhash": "1:0f77999cbfb574de", "word_count": 6424 }, "last_updated": "2023-07-14T16:06:12.370658+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MOON LAKE CONVALESCENT CENTER, Plaintiff-Appellee, v. JEREMY MARGOLIS, Acting Director of the Department of Public Health, et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nFollowing an administrative hearing on violations of the Minimum Standards, Rules and Regulations for the Licensure of Skilled Nursing Facilities and Intermediate Care Facilities (1980) (the Rules), the Director of the Department of Public Health, State of Illinois (IDPH), affirmed the hearing officer\u2019s decision to impose penalties on and revoke the license of Moon Lake Convalescent Center (Moon Lake), a long-term intermediate and skilled nursing-care facility located in Hoffman Estates, Illinois. On administrative review, the circuit court reversed the Director\u2019s decision, finding that the hearing officer lacked authority to hear the matter, that IDPH had no jurisdiction to proceed against Moon Lake, that the proceedings to revoke Moon Lake\u2019s license were moot, and that the Director\u2019s decision was contrary to the manifest weight of the evidence. The court also ordered IDPH to pay costs and attorney fees under section 2 \u2014 611 of the Code of Civil Procedure (111. Rev. Stat. 1985, ch. 110, par. 2 \u2014 611). IDPH appeals from that judgment. For the reasons set forth below, we reverse.\nThese proceedings arose from an incident which occurred at Moon Lake on November 13, 1983. At approximately 10 a.m. on that morning, Moon Lake\u2019s nursing assistant Lionel Deere prepared a tub bath for one of its residents, 73-year-old Benjamin Ovitz. Ovitz, as a result of a stroke, had paralysis of his right side, wore a brace on his right leg, and articulated only by the words \u201cyes\u201d and \u201cno.\u201d After checking the water temperature with his hand, Deere bathed Ovitz in the bathtub. Between 1 and 1:30 p.m. later that day, nurse Elizabeth Timm noticed that Ovitz\u2019 leg was bleeding and that Ovitz\u2019 skin was sloughing off of his leg. Moon Lake then contacted the paramedics.\nMembers of the responding paramedic team determined that Ovitz had suffered a third degree bum and transported Ovitz to Hu-mana Hospital. From there, Ovitz was transferred to the burn unit at Evanston Hospital. Dr. Charles Dmeck III, the surgeon in charge of the bum unit at Evanston Hospital, observed that Ovitz had suffered third degree bums over 40% of his body, primarily on his back, buttocks, both sides, genitals and lower legs. Ovitz\u2019 knees were not burned, nor were there splatter burns. The burns were consistent with immersion in a discrete body of water.\nDuring his hospitalization, Ovitz developed pneumonia and died on January 15, 1984. Dmeck diagnosed Ovitz\u2019 cause of death as complications following his burns.\nOn March 12, 1984, IDPH issued a notice of complaint findings and determinations, stating that Moon Lake had violated a number of the Rules. Moon Lake, on March 23, 1984, requested a hearing on the violations. Before IDPH issued notices of penalty assessment and license revocation on July 18, 1984, Moon Lake had sold its facility to Midwest Carbridge, Inc., and surrendered its license. Discussions concerning this purchase had initiated in October 1983, and the sale was consummated in May 1984.\nHearings on the violations opened on July 31, 1984. At the first evidentiary session held on October 18, 1984, hearing officer William Stanley White announced that one of IDPH\u2019s witnesses, nurse Barbara Whelan, had been the office nurse of his parents for 17 years, working full time until 1979 and occasionally since then. White refused Moon Lake\u2019s request to recuse himself because of this relationship. White also denied Moon Lake\u2019s motions to dismiss the proceeding on grounds that White was not an \u201cemployee\u201d of the Department, that the matter was moot based upon the sale of Moon Lake, and that IDPH had violated its own regulations by failing to provide prompt notice of the violations.\nThe testimony at the administrative hearing disclosed the following responses and investigations to the November 13 incident. On the day of the incident, Moon Lake supervisor Ada Irene Morris Wiren questioned Deere, who stated that he had given Ovitz a shower. Barbara Suchecki, the person with the highest authority present at the facility on November 14, collected additional information and informed director of nurses Judy Ann Schillace of the incident that afternoon. Schillace already knew that Jean Hefner, the night supervisor on November 13, was informed by Evanston Hospital that it was the medical staff\u2019s opinion that Ovitz had suffered an immersion burn. Ovitz\u2019 injury was reported to IDPH on November 16,1983.\nDetective Robert Syre from the Hoffman Estates police department investigated the incident. Syre interviewed Ovitz at Evanston Hospital, and Ovitz responded affirmatively when asked if he had received a bath. Drueck also expressed to Syre the opinion that Ovitz was burned in a bath. In an interview with Deere, Deere told Syre that he might have left the shower area for a couple of seconds to fetch a towel and that Ovitz received a shower, although on January 31, 1984, he acknowledged during testimony before a grand jury that he had in fact given Ovitz a bath.\nOn November 17, 1983, IDPH sent three investigators to Moon Lake to investigate a complaint of abuse and neglect. Deere told the investigators that he had given Ovitz a shower. Farrell did not issue her report regarding her investigation until January 11, 1984. The report noted citations issued to Moon Lake on November 17 for failing to timely report the Ovitz incident and for employing an unlicensed nurse who was unconnected with the November 13 incident.\nOn November 18, another IDPH inspector visited Moon Lake to examine its plumbing and water systems. He noted the absence of vacuum breakers and backflow preventers in some systems but issued no citations.\nOn February 1, 1984, registered nurse Barbara Ann Whalen and sanitarian Theodore. Zelinski conducted a reinvestigation of the incident. Upon examining its records, they noted that Moon Lake\u2019s daily water temperature log for the day of Ovitz\u2019 injury showed a temperature of 110 degrees Fahrenheit. The log indicated that during November 1983, the average water temperature exceeded 110 degrees on the 5th, 7th and 22nd of the month. In January 1984, the temperature measured 130 degrees on January 18.\nUpon testing the water temperature on Ovitz\u2019 floor, Zelinski and Whelan found that at different times of the day, the temperature of the water in sinks and bathtub exceeded 110 degrees. Zelinski also observed that the in-line thermometer reading of the hot water system in the basement fluctuated between 105 and 120 degrees. Ze-linski cited Moon Lake for the temperatures exceeding 110 degrees in violation of the Rules requiring facilities to have protective measures to ensure that water temperatures do not exceed 110 degrees Fahrenheit.\nWhalen further examined Moon Lake\u2019s \u201cManual of Policy and Procedure,\u201d which contained a bath policy requiring that water temperature range between 95 and 100 degrees. Whalen interpreted this policy to require its staff to use thermometers to measure bath temperatures, but she admitted that no Moon Lake written policy required it to have thermometers at the baths. Whalen also admitted that no State or Federal regulation prescribed temperatures between 95 degrees and 100 degrees and that no law, policy or regulation of the State of Illinois required the use of thermometers to measure bath temperatures. Schillace informed Whalen that the bath thermometers had all been broken since September or October 1983 and that she submitted a purchasing request for new thermometers in January 1984 but the thermometers had not yet been purchased. Moon Lake\u2019s witnesses testified that Moon Lake had never regarded the 95- to 100-degrees temperature range to be absolute or as requiring thermometers to ensure that water temperature range.\nAfter subpoenaeing documents from Evanston Hospital and from the coroner\u2019s office, Whalen completed her report on the reinvestigation on February 28, 1984. Whalen and Zelinski submitted a combined statement of deficiencies, citing Moon Lake and its staff for five violations of the Rules.\nAt the conclusion of the hearing on February 13, 1985, White affirmed the revocation of Moon Lake\u2019s license and the monetary penalties imposed upon Moon Lake. His decision was thereafter affirmed by the Director.\nThe first question presented for our review is whether the trial court erred in finding that the Nursing Home Care Reform Act of 1979 (the Act) (111. Rev. Stat. 1983, ch. HV-k, par. 4151 \u2014 101 et seq.) requires that hearing officers be IDPH employees and that hearing officer White\u2019s acts were void because he was not an IDPH employee. IDPH advances three arguments in support of its position that the trial court erred in this regard.\nThe gist of IDPH\u2019s first argument is that the issue of the hearing officer\u2019s authority was not properly before the circuit court because the hearing officer\u2019s contract, a copy of which was attached to Moon Lake\u2019s complaint before the circuit court, was never introduced into evidence during the administrative proceedings. Section 3 \u2014 110 of the Administrative Review Law provides that \u201c[n]o new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court.\u201d 111. Rev. Stat. 1985, ch. 110, par. 3 \u2014 110.\nMoon Lake has not responded to the merits of IDPH\u2019s contention but urges that this issue be deemed waived because IDPH failed to object to the exhibit in the circuit court. We find that the issue is not waived, as it involves a question of the circuit court\u2019s jurisdiction. Because the circuit court\u2019s subject matter jurisdiction on administrative review is a special statutory jurisdiction (Rosecky v. Department of Public Aid (1987), 157 Ill. App. 3d 608, 614, 511 N.E.2d 167, 171; Ill. Const. 1970, art. VI, \u00a79), its jurisdiction is limited to the language of the Act conferring jurisdiction (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 486 N.E.2d 893, 895-96; see also Moore v. Board of Trustees of the Sanitary District Employees\u2019 & Trustees\u2019 Annuity & Benefit Fund (1987), 157 Ill. App. 3d 158, 162, 510 N.E.2d 87, 91; Brewton v. Civil Service Comm\u2019n (1969), 115 Ill. App. 2d 460, 466, 253 N.E.2d 504, 507 (a circuit court lacks jurisdiction where it considers questions not presented in the administrative record in violation of section 3 \u2014 110 of the Administrative Review Law)). As our supreme court has stated: \u201cIn the exercise of special statutory jurisdiction, if the mode of procedure prescribed by statute is not strictly pursued, no jurisdiction is conferred on the circuit court. *** The Administrative Review Act was \u2018an innovation and departure from the common law, [and] the procedures it establishes must be pursued.\u2019 \u201d [Citation.] Fredman, 109 Ill. 2d at 210, 486 N.E.2d at 895.\nNonetheless, after reviewing the record, we find that hearing officer White\u2019s contract was sufficiently in issue at the administrative proceedings and that the circuit court properly received the contract as evidence. The issue of the hearing officer\u2019s jurisdiction was timely presented before the administrative agency. Although Moon Lake did not submit the hearing officer\u2019s contract into evidence, the contents of the contract were discussed. White stated that he was a \u201ccontractual attorney\u201d with a written contract. Moon Lake attempted to procure his contract to introduce into evidence. In a document request to IDPH, it requested that copies of White\u2019s contract be furnished to them. White, however, refused to order IDPH to turn over these documents. Under these circumstances, we find that the circuit court did not violate section 3 \u2014 110 by admitting the contract into evidence.\nIDPH next argues that hearing officer White\u2019s status with IDPH satisfied statutory requirements. The statutory provision in issue here, section 3 \u2014 704 of the Act, which governed the review of decisions of IDPH at the time of the hearings before the administrative agency and the circuit court, provides: \u201cUpon the receipt of a request in writing for a hearing, the Director or a duly qualified employee of the Department designated in writing by the Director as a hearing officer shall conduct a hearing to review the decision.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. HV-k, par. 4153 \u2014 704(a).\nWhite acknowledged that his status with IDPH is that of an independent contractor. His contract with IDPH provides: \u201cServices rendered pursuant to this agreement are not rendered as an employee of the State of Illinois and amounts paid pursuant to this agreement do not constitute compensation to an employee.\u201d\nMoon Lake argues that since White is not the Director or an employee of IDPH, he had no authority under the plain language of the Act. IDPH, however, refutes Moon Lake\u2019s interpretation of the Act, contending that section 3 \u2014 704(a) must be read in conjunction with sections 1 \u2014 102 and 1 \u2014 110 for a proper construction of the Act. Section 1 \u2014 102 states that the terms defined in the article have the meanings ascribed to them unless the context otherwise requires. (111. Rev. Stat. 1983, ch. IllVz, par. 4151 \u2014 102.) Section 1 \u2014 110 defines \u201cDirector\u201d as the \u201cDirector of Public Health or his designee.\u201d (111. Rev. Stat. 1983, ch. HV-k, par. 4151 \u2014 110.) Inserting the definition of \u201cDirector\u201d into the provisions of section 3 \u2014 704(a) (111. Rev. Stat. 1983, ch. HV-k, par. 4153 \u2014 704(a)), it reads \u201c[t]he Director or his designee or a duly qualified employee of the Department designated in writing by the Director as a hearing officer.\u201d White, IDPH contends, is a designee, as his contract states that White would \u201cserve as a hearing officer on behalf of the Director of Public Health for the administrative proceedings for which the contractor is appointed by the Director.\u201d\nMoon Lake responds that section 3 \u2014 704(a) provides for a specific requirement that the designee be a Department employee and that IDPH\u2019s version of the Act would create a redundancy and render surplus the specific qualifications that the General Assembly intended. If anyone can be a \u201cdesignee,\u201d Moon Lake asserts, then the \u201cduly qualified employee\u201d provision becomes utterly meaningless.\nBoth parties cite Heritage Bank & Trust Co. v. Harris (1985), 132 Ill. App. 3d 969, 478 N.E.2d 526, as supporting its position. In issue in Heritage was whether a savings and loan bank, which clearly was a \u201cbank\u201d under the general definition section of the Illinois Banking Act, was also a \u201cbank\u201d under the section of the act providing that \u201c[a] state bank may elect to dissolve voluntarily and wind up its affairs by the act of the bank in the following manner *** [upon adopting a resolution recommending that the bank be dissolved voluntarily, attaching] [a]n executed copy of the contract *** with *** another bank.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. 17, par. 380.\nIn finding that the trial court erroneously concluded that the savings and loan was not \u201canother bank\u201d under this dissolution section, this court noted that where an act defines its terms, those terms must be construed according to the definitions in the act, and there is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports. (Heritage Bank, 132 Ill. App. 3d at 973, 478 N.E.2d at 529.) We rejected the argument that if \u201canother bank\u201d were not read as \u201canother state bank,\u201d the word \u201canother\u201d would be meaningless or superfluous.\nIn the case at bar, the legislature has given the term \u201cDirector\u201d a specific definition. Its inclusion of \u201cor his designee\u201d in the definition of \u201cDirector\u201d recognizes that the Director of an agency cannot possibly perform all of the functions of the agency. Contrary to Moon Lake\u2019s assertion, it is not clear that the legislature intended to deviate from this principle by placing specific eligibility requirements on hearing officers.\nOur conclusion is strengthened by the fact that the legislature, after the circuit court\u2019s decision in this case, amended section 3\u2014 704(a) by replacing the expression \u201cduly qualified employee of the Department\u201d with the word \u201cperson\u201d (Pub. Act 85 \u2014 1183, eff. August 13, 1988 (amending Ill. Rev. Stat. 1987, ch. lllVz, par. 4153\u2014 704(a))), thereby permitting any person designated in writing by the Director to serve as a hearing officer. We do not believe this amendment demonstrates a change in attitude, but reflects the legislature\u2019s original intent in this matter. See People v. Youngbey (1980), 82 Ill. 2d 556, 563, 413 N.E.2d 416, 420.\nBecause we hold that White satisfied the statutory requirements as a \u201cdesignee\u201d of the Director, we need not address IDPH\u2019s final argument that White was a defacto officer whose acts are valid.\nThe next issue before us is whether the statutory time frames within which IDPH is to make a determination about a complaint are mandatory or directory. The circuit court found that IDPH had no jurisdiction to proceed against Moon Lake because it failed to determine the alleged violations within the time limits of the Act. At the time of IDPH\u2019s investigation of this matter, section 3 \u2014 702(d) of the Act provided:\n\u201cA determination about a complaint which alleges a Type A violation shall be made by the Department, in writing, within 7 days after the complaint\u2019s receipt. A determination about a complaint which alleges a Type B or C violation shall be made by the Department, in writing, within 30 days after the complaint\u2019s receipt. The determination shall state the reasons therefor.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. IllVz, par. 4153 \u2014 702(d).\nThe initial complaint here was received by IDPH on November 16, 1983, yet it did not issue its notice of complaint findings and determination that Moon Lake had committed one Type \u201cA\u201d and several Type \u201cB\u201d and \u201cC\u201d violations until March 12, 1984. IDPH concedes that it did not comply with either the 7-day or 30-day time frames set forth in section 3 \u2014 702(d), but it argues that section 3\u2014 702(d)\u2019s time frames are merely directory.\nUnder Illinois case law, while the use of the word \u201cshall\u201d or \u201cmust\u201d in statutory provisions is generally regarded as mandatory, the term \u201cshall\u201d can be construed flexibly to mean \u201cmay,\u201d depending on the legislative intent. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335; Grove School v. Department of Public Health (1987), 160 Ill. App. 3d 937, 941, 513 N.E.2d 973, 976.) However, where the protection of an intended class depends upon giving a mandatory meaning to the word, it cannot be given a permissive meaning (Andrews, 71 Ill. 2d at 21, 373 N.E.2d at 1335; Grove School, 160 Ill. App. 3d at 941, 513 N.E.2d at 976), although to properly interpret a statute a court must also consider the nature, object and consequences of construing it one way as opposed to another. Andrews, 71 Ill. 2d at 21, 373 N.E.2d at 1335; Grove School, 160 Ill. App. 3d at 941, 513 N.E.2d at 976; Youngbey, 82 Ill. 2d at 562, 413 N.E.2d at 421.\nOur analysis under the above principles leads us to conclude that the section 3 \u2014 702(d) time frames are directory rather than mandatory. The primary purpose of the Act undoubtedly is to protect nursing home residents. The legislature promulgated the Act amid concern over reports of inadequate and degrading treatment of nursing home residents. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 357-58, 489 N.E.2d 1374, 1377; 81st Ill. Gen. Assem., Senate Proceedings, May 14, 1979, at 184 (statement of Senator Kare Beming).) While we acknowledge that prompt notice and determination by IDPH is important to nursing home facilities, our focus in construing the Act is on the legislature\u2019s intent and the consequences to nursing home residents, the Act\u2019s intended protected class.\nThe consequences of a mandatory interpretation on nursing home residents are somewhat obvious. Such a finding could result in many unaddressed resident abuses, as one can envision a myriad of circumstances and events which may cause delay. A mandatory construction would also place IDPH in a position of having to file potentially incomplete and inaccurate determinations or be forever barred from proceeding. Moreover, it would encourage facilities to obscure issues and delay in providing necessary information. We find that the legislature could not have intended such a result.\nWhile we agree that prompt action by IDPH is important to ensure that conditions which threaten the residents\u2019 health and safety are corrected, we do not believe that the protection of the residents depends upon a mandatory interpretation. Such a construction would be more injurious to residents than the benefits the residents would receive. As the court in Grove School, in finding section 3 \u2014 704\u2019s time frames for commencing hearings on violations to be directory, succinctly stated:\n\u201c[T]he legislative purpose of the Act is to protect nursing home residents from acts of abuse. The rights of these people will be far more adversely affected if defendant is unable to address charges of abuse because of a mandatory interpretation of the statute which would result in a dismissal of the proceeding, than they would be by a hearing delay.\u201d Grove School, 160 Ill. App. 3d at 941, 513 N.E.2d at 976.\nMoon Lake distinguishes Grove School on the ground that the time requirements were in the period after the issuance of the complaint, at a time when the facilities had notice and opportunity to correct. It contends that, unlike the delay here, the delay in Grove School did not hurt the residents by continuing to expose them to potentially dangerous conditions. We do not believe the fact that the delay occurred at different stages mandates a different outcome, as both delays occurred before final action could be taken against the facilities, either by revoking their licenses or imposing penalties.\nNor do we find persuasive Moon Lake\u2019s contention that Springfield-Sangamon County Regional Plan Comm\u2019n v. Fair Employment Practices Comm\u2019n (1978), 71 Ill. 2d 61, 373 N.E.2d 1307, is more analogous to the case at bar because it involves the time frame under which an agency must issue its complaint. In Springfield-Sangamon, the Illinois Supreme Court considered whether the Fair Employment Practices Commission had jurisdiction to issue a complaint against an employer after the 180-day time period given in the statute. Holding the time limit mandatory, the court stated:\n\u201cCertainly, periods of inaction on behalf of the FEPC would tend to hamper the remedial and reconciliatory procedures which underlie the very purpose of the Fair Employment Practices Act, and should the FEPC find against the respondents the financial burden of the administrative order could be substantially increased by virtue of any extended delay. Consequently, the 180-day period prescribed in the statute was intended to ensure expeditious action on behalf of the FEPC, and must be considered mandatory.\u201d Springfield-Sangamon, 71 Ill. 2d at 68, 373 N.E.2d at 1310.\nSpringfield-Sangamon is clearly distinguishable from the case at bar. As the above language indicates, the underlying purpose of the Fair Employment Practices Act is to encourage remedial and reconcil-iatory procedures. Unlike the instant case, a directory construction in Springfield-Sangamon would be injurious to the statute\u2019s purpose and a mandatory construction necessary to preserve its purpose.\nWe next address whether the license revocation proceedings were moot from their inception. The circuit court found that since Moon Lake surrendered its nursing home license before IDPH notified Moon Lake of its intent to revoke the license, the revocation was moot and the proceedings to revoke thereby void. On appeal, Moon Lake advances a number of arguments in its brief to support the circuit court\u2019s ruling, none of which are relevant to the mootness issue. An issue is moot if no actual controversy exists or where events occur which make it impossible for the court to effectively grant relief. (Wheatley v. Board of Education (1984), 99 Ill. 2d 481, 484-85, 459 N.E.2d 1364, 1366; People v. Lynn (1984), 102 Ill. 2d 267, 272, 464 N.E.2d 1031, 1034.) Illinois courts have found exceptions to the mootness doctrine where there is substantial public interest involved or where the issues are likely to recur but unlikely to last long enough to allow appellate review to occur. (Wheatley, 99 Ill. 2d at 485, 459 N.E.2d at 1367.) It is unnecessary for us to consider IDPH\u2019s alternative contention that these exceptions apply because we agree with IDPH that an actual controversy existed here.\nIDPH contends that an actual controversy existed, despite the surrendering of Moon Lake\u2019s license, to the extent that Moon Lake, an entity still in existence on September 10, 1987, was barred from obtaining a license for the five years after its license was revoked. Section 3 \u2014 117 of the Act lists the revocation of a license during the previous five years as a ground for denial of a license. (111. Rev. Stat. 1983, ch. lllVa, par. 4153 \u2014 117(5).) Section 3 \u2014 109 of the Act also provides:\n\u201c[T]he Director shall issue a license if he finds: *** [t]hat [the entity] *** is a person responsible and suitable to operate or to direct or participate in the operation of a facility by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the Department and lack of revocation of a license during the previous 5 years.\u201d 111. Rev. Stat. 1983, ch. lll1^, par. 4153 \u2014 109(1).\nThe Illinois Supreme Court has addressed a similar issue in Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 437 N.E.2d 638. The issue there was whether a taxpayer which had an overall loss in terms of Federal taxable income but a gain from municipal bonds under the Illinois income tax could enter a negative number as its taxable income or whether the figure it had to enter was \u201czero.\u201d After the appellate court ruled that the same deduction could not be taken twice, the taxpayer paid the amount of loss it had previously carried back to an earlier year. Although the supreme court recognized that the determination of the disputed question would determine whether the taxpayer could in future tax years carry back a Federal loss to offset earlier years\u2019 gains, it found no present controversy between the litigants since the Department of Revenue would have no greater present rights against the bank were it to receive the ruling it requested. Madison Park, 91 Ill. 2d at 235, 437 N.E.2d at 639.\nThe instant case is distinguishable from Madison Park. Here, the revocation of Moon Lake\u2019s license would affect Moon Lake\u2019s present status or rights in that it no longer would have the present ability to obtain a license by complying with the Act\u2019s conditions. IDPH, in turn, would have a greater present right against the entity. Accordingly, we find that an actual controversy existed and the revocation proceedings were not moot.\nFinally, we review the circuit court\u2019s holding as to the merits of this controversy. The circuit court commented on hearing officer White\u2019s findings in the administrative proceedings as follows:\n\u201cThe findings of neglect are against the manifest weight of the evidence as well as being capricious and arbitrary ***. The findings rest on untrue and unreasonable allegations that plaintiff\u2019s written bath procedures required the use of thermometers instead of human hands to determine whether bath water was in a comfortable range. All the testimony was to the contrary, and defendants twisted and distorted the written procedures to support the \u2018neglect\u2019 allegations. There was no competent evidence of the temperature or duration of the bath in which the resident may have suffered immersion bums, and substantial evidence that he was cared for by an attentive staff throughout.\u201d\nAt the administrative proceedings, White found that Moon Lake had committed six violations of the Rules: (1) an act of neglect, a type \u201cA\u201d violation of Rule 16.04.01.00 for fine of $1,000; (2) failing to follow its own resident care policies, two type \u201cB\u201d violations of Rule 03.01.01.00 for fines of $2,492.60 and $618; (3) the director of nurses failed to maintain the musing standards of the facility, a type \u201cB\u201d violation of Rules 06.02.02.00 and 06.02.02.05 for a $618 fine; (4) failed to notify IDPH of the Ovitz incident within 24 hours as prescribed by Rule 09.01.06.00 for a $309 fine; (5) failed to have protective devices to ensure that water temperatures did not exceed 110 degrees, a type \u201cC\u201d violation of Rule 15.13.03.05 for a $309 fine.\nOn administrative review, the findings of fact made by an administrative agency are prima facie true (Ill. Rev. Stat. 1985, ch. 110, par. 3 \u2014 110), and the reviewing court\u2019s inquiry is limited to ascertaining whether the agency\u2019s findings and decision are against the manifest weight of the evidence. Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 287, 509 N.E.2d 467, 471.\nIn defending the circuit court\u2019s reversal of the neglect violation, Moon Lake claims that the hearing officer improperly based its decision on the unsupported opinion of Nurse Whelan, who was the office nurse of White\u2019s parents for 17 years, that Moon Lake\u2019s policy required the use of thermometers. WTiile it is true that Moon Lake\u2019s policy did not mention thermometers and Moon Lake\u2019s witnesses did not so interpret its policy, a review of the record reveals that the circuit court misapprehended the hearing officer\u2019s findings as to the neglect violation. Rule 16.04.01.00 provides that \u201can owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident.\u201d \u201cNeglect\u201d is defined in section 1 \u2014 117 of the Act as \u201ca failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical *** injury to a resident.\u201d (111. Rev. Stat. 1983, ch. IIIV2, par. 4151 \u2014 117.) The essence of the neglect violation under these provisions was not Moon Lake\u2019s failure to have thermometers, but that its aide placed a resident in a bath causing his death because Moon Lake did not provide adequate personal care by taking adequate measures to protect its residents from accidents from excessive water temperatures.\nSubstantial evidence supports the neglect violation. First, IDPH sufficiently proved that a resident suffered physical injury from the personal care of Moon Lake. Contrary to the circuit court\u2019s finding that there was \u201cno competent evidence of the temperature or duration of the bath in which a resident may have suffered immersion burns,\u201d IDPH presented substantial evidence showing that Ovitz was burned and ultimately died because of his immersion in bath water at the facility. It was undisputed that Ovitz had no burns on his body before his bath that morning and that Ovitz suffered third degree burns over 40% of his body on that day, requiring emergency attention and hospitalization and ultimately causing his death. Ovitz\u2019 treating physician at Evanston Hospital testified that Ovitz\u2019 burns were caused by immersion in a discrete body of water such as a tub bath, that water temperatures must minimally measure between 106 and 109 degrees to cause third degree burns, and that although the elderly\u2019s skin burns more easily, the early crusting of Ovitz\u2019 skin indicated to him that the water temperature in Ovitz\u2019 bath exceeded 120 degrees.\nSubstantial evidence was also introduced showing that Moon Lake did not provide adequate personal care or maintenance to Ovitz, resulting in his death. Facilities are required to have written procedures governing all services to its residents. (Rule 13.01.01.00.) Moon Lake\u2019s bathing policy, \u201cPrevent accidents \u2014 do not make water too hot (95 degrees to 100 degrees F.),\u201d indicates it recognized the importance of safe water temperatures with elderly residents who are susceptible to burns. Moon Lake\u2019s daily temperature logs for November 1983 also indicate that it knew that the water temperature in its system at times fluctuated above its bathing policy, at times exceeding 110 degrees. Yet, Moon Lake failed to take adequate measures to protect elderly residents from accidents from excessive water temperatures.\nThis evidence is likewise sufficient to establish violations of Rules 03.01.01.00 and 06.02.02.05. Rule 06.02.02.05 provides that the director of nurses shall oversee the nursing services and develop and maintain standards of nursing practice and written policies. The director of nurses here violated her duty to maintain standards of nursing practice by not following its own bath policy in failing to develop standards to prevent accidents from excessive temperatures. Similarly, Moon Lake violated Rule 03.01.01.00, which requires that facilities follow their written policies and procedures governing all services provided by the facility, by failing to provide an adequate means for its employees to follow its policy of preventing accidents to ensure that the water temperatures did not exceed 100 degrees.\nIn addition to the above violation of Rule 03.01.01.00, the hearing officer found a second infraction of this rule for leaving Ovitz unattended in his bath in violation of written policy. Moon Lake\u2019s bathing policy requires the aide to remain with the resident while the resident is in the bath. As Moon Lake points out, the policy does not prohibit an aide from leaving momentarily if the resident is not in the tub. The only evidence introduced by IDPH was testimony from Detective Syre that Deere stated he left the bath area to fetch a towel. The record is devoid of evidence showing at what point Deere left the bath area or that Ovitz was in the tub at the time. Thus, the trial court correctly found the hearing officer\u2019s finding as to this violation to be against the manifest weight of the evidence.\nAs to the hearing officer\u2019s finding of a late notification and its assessment of a penalty for that infraction, the evidence indisputably showed that Moon Lake did not notify IDPH of the Ovitz incident within 24 hours as required by Rule 09.01.06.00. Nonetheless, Moon Lake argues that this infraction should not have been a basis for a penalty assessment because no violation level is assigned to the rule and the Act only authorizes penalty assessments for \u201cA,\u201d \u201cB\u201d and \u201cC\u201d violations. IDPH responds that in failing to assign a specific \u201ctype\u201d violation to this rule, the legislature recognized that the seriousness of a failure to promptly report an incident would vary depending upon the seriousness of the incident.\nPrompt reporting of incidents and accidents is vital to the protection of the residents remaining in the facility where the incident occurred. We find nothing in the Act that prohibits a penalty for late notification. Section 3 \u2014 305 outlines the penalties for \u201cA,\u201d \u201cB,\u201d and \u201cC\u201d violations, but also provides \u201cthe license of a facility which is in violation of this Act or any rule adopted thereunder may be subject to the penalties or fines levied by the Department.\u201d (Emphasis added.) (Ill. Rev. Stat. 1985, ch. IIIV2, par. 4153 \u2014 305.) We, therefore, find the hearing officer did not err in assessing a penalty for this violation.\nThe hearing officer assessed the last penalty against Moon Lake for its failure to have protective measures implemented to \u201censure\u201d that water temperature does not exceed 110 degrees in violation of Rule 15.13.03.05. The evidence showed that water temperatures exceeded 110 degrees on February 1, 1985. Moon Lake asserts that it had a mixing valve and daily water temperature checks as suggested in the rule and that, after the temperature rose above 110 degrees during the February 1 inspection, the maintenance supervisor adjusted it. The rule, however, requires Moon Lake to implement protective measures to \u201censure\u201d that the water temperature does not exceed 110 degrees. We agree with IDPH that the fact that water temperatures exceeded 110 degrees on February 1, 1985, is overwhelming evidence that Moon Lake\u2019s measures did not \u201censure\u201d temperatures would not exceed 110 degrees.\nAccordingly, we hold that the circuit court erred in finding the hearing officer\u2019s findings as to all violations except that relating to Ovitz\u2019 unattended bath to be against the manifest weight of the evidence.\nIn view of our above findings, it is apparent that the circuit court erred in awarding section 2 \u2014 611 fees. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 611.) IDPH\u2019s allegations were not \u201cuntrue,\u201d as they were supported by substantial evidence.\nFor the foregoing reasons, we reverse the circuit court\u2019s order setting aside the decision of the Director of IDPH, and we reinstate the order revoking Moon Lake\u2019s license and imposing fines for all violations found by the Director except the $618 fine for violation of Rule 03.01.01.00.\nAffirmed in part; reversed in part.\nCAMPBELL and O\u2019CONNOR, JJ., concur.\nThis section of the Act was subsequently amended by Public Act 83 \u2014 1530, effective July 1, 1985, to provide that Type \u201cA\u201d complaints must be \u201cinvestigated\u201d in seven days (except within 24 hours where a resident\u2019s life or safety is in imminent danger), and Type \u201cB\u201d and \u201cC\u201d violations must be \u201cinvestigated\u201d in 30 days. The amendment also requires all complaints to be classified, and for those classified as valid reports, IDPH must determine within 30 working days whether any rule or provision has been violated. Pub. Act 83 \u2014 1530, eff. July 1, 1985 (amending Ill. Rev. Stat. 1983, ch. lllVz, par. 4153-702(d)).\nThe Act defines a \u201cType A\u201d violation as one which creates a condition or occurrence presenting a \u201csubstantial probability that death or serious mental or physical harm to a resident will result.\u201d (Ill. Rev. Stat. 1985, eh. IIIV2, par. 4151 \u2014 129.) It also classifies a condition or occurrence directly threatening the health, safety and welfare of a resident as a \u201cType B\u201d violation, while one that does so indirectly is classified as a \u201cType C\u201d violation. Ill. Rev. Stat. 1985, ch. IIIV2, pars. 4151\u2014 130, 4151-131.\nMoon Lake argues that prompt notice and determination are essential to nursing home facilities since fines can accrue under the Act from the discovery date until the date a violation is corrected or a plan of correction is filed by the home. (Ill. Rev. Stat. 1983, eh. HV-k, par. 4153 \u2014 305.) The Act has been amended subsequent to the administrative proceedings in this case to limit the assessment of fines from the date of service of notice of violation rather than the date of discovery of a violation. Pub. Act 85 \u2014 1378, eff. September 1, 1988 (amending Ill. Rev. Stat. 1983, ch. \u25a01111/2, par. 4153-305).\nRule 15.13.03.05 was promulgated on November 15, 1983, after the Ovitz incident.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellants.", "Malcolm A. Chandler, of Chicago, for appellee.", "Bruce Stratton and William A. Radkey, both of Stratton, Dobbs, Nar-dulli & Lestikow, of Springfield (Thomas J. Reed and Patricia A. Korn, of counsel), for amicus curiae Illinois Health Care Association." ], "corrections": "", "head_matter": "MOON LAKE CONVALESCENT CENTER, Plaintiff-Appellee, v. JEREMY MARGOLIS, Acting Director of the Department of Public Health, et al., Defendants-Appellants.\nFirst District (1st Division)\nNo. 1\u201487\u20142967\nOpinion filed February 21, 1989.\nRehearing denied April 11, 1989.\nNeil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellants.\nMalcolm A. Chandler, of Chicago, for appellee.\nBruce Stratton and William A. Radkey, both of Stratton, Dobbs, Nar-dulli & Lestikow, of Springfield (Thomas J. Reed and Patricia A. Korn, of counsel), for amicus curiae Illinois Health Care Association." }, "file_name": "0245-01", "first_page_order": 267, "last_page_order": 284 }