{
  "id": 291559,
  "name": "CYRUS BASS et al., Plaintiffs-Appellants, v. NIKKI ZOLLAR, Director of the Department of Professional Regulation, Defendant-Appellee",
  "name_abbreviation": "Bass v. Zollar",
  "decision_date": "1995-07-24",
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    "judges": [],
    "parties": [
      "CYRUS BASS et al., Plaintiffs-Appellants, v. NIKKI ZOLLAR, Director of the Department of Professional Regulation, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nDr. Bass and some other optometrists attack certain regulations of the Illinois Department of Professional Regulation (Department). They say the regulations are \"fraudulent,\u201d \"gobbledegook,\u201d and \"arbitrary.\u201d Dr. Bass further says the Department demonstrated a \"reckless disregard for truth and the rights of others.\u201d\nThere is less here than meets the eye.\nThe only real problem in this case is that the Department made a promise to Dr. Bass and then the Department broke that promise.\nFor that reason, we remand Dr. Bass\u2019 administrative review case for the post-denial interview he was promised. We affirm the trial judge\u2019s order dismissing the amended complaint for declaratory relief filed by Dr. Bass and the other optometrists.\nPROCEEDINGS IN THE DEPARTMENT \u2014 DR. BASS\nThe dispute between Dr. Bass and the Department has to do with continuing education (CE) requirements.\nThe Illinois Optometric Practice Act provides:\n\"All renewal applicants shall provide proof of having met the requirements of continuing education set forth in the rules of the Department. The Department shall, by rule, provide for an orderly process for the reinstatement of licenses which have not been renewed due to failure to meet the continuing education requirements. The continuing education requirement may be waived in cases of extreme hardship as defined by rules of the Department.\u201d 225 ILCS 80/16 (West 1992).\nThe Department has promulgated regulations that implement the statute. After setting out the 24 hours of continuing education required, and the method of showing compliance, the regulations authorize the Department to waive the CE requirements on a showing of good cause. One of the ways to show \"good cause\u201d is to establish, by affidavit or \"other evidence,\u201d extreme hardship to the applicant. 68 Ill. Adm. Code, ch. VII \u00a7 1320.80(f)(1) (1992).\nWhen an applicant requests a waiver, he also may ask for an interview \"with the Committee.\u201d The interview is a matter of right. 68 Ill. Adm. Code, ch. VII \u00a7 1320.80(f)(3) (1992).\nDr. Bass did not ask for an interview with the Committee when he requested a waiver of the CE requirement for the 1990-92 license renewal period. He relied on his statement that when his wife died in February 1990, he lost his only means of transportation to CE classes. He offered no documents or affidavits in support of his request for waiver.\nThe Department denied Dr. Bass\u2019 request for waiver on September 8, 1992, finding no case of extreme hardship had been made. His license was placed on nonrenewal status.\nThe Department told Dr. Bass this was a final decision and could be appealed by the filing of a complaint in the circuit court under the Administrative Review Law (735 ILCS 5/3 \u2014 101 through 3 \u2014 113 (West 1992)). The Department told Dr. Bass:\n\"Should you wish to take advantage of this right, you must file a lawsuit in the appropriate circuit court of this State within 35 days of the receipt of this letter. You must file your suit directly with the court. Do not contact the Department in regard to the initiation of suit.\u201d\nPROCEEDINGS IN THE TRIAL COURT \u2014 DR. BASS\nDr. Bass filed his complaint for administrative review in the circuit court on September 29, 1992. It was filed as an amendment to a pending declaratory judgment complaint that challenged various Department regulations.\nIn May of 1993 the trial court affirmed the Department\u2019s decision denying Dr. Bass\u2019 request for a waiver of CE requirements. The trial court\u2019s stay of that decision remains in effect.\nDECISION\nDR. BASS\u2019 ADMINISTRATIVE REVIEW\nIt is difficult, at times, to follow the arguments made by Dr. Bass in this pro se appeal.\nAt one point he seems to challenge the Department\u2019s CE requirements. We find the CE requirements are reasonably related to the State\u2019s goals of protecting the public health, safety, and welfare and ensuring that those who are licensed demonstrate minimal competence in the field. Wineblad v. Department of Registration & Education (1987), 161 Ill. App. 3d 827, 833, 515 N.E.2d 705.\nDr. Bass also claims he was denied due process of law because he was not provided with a hearing or Committee interview after his waiver request was denied.\nHe notes, correctly, that administrative proceedings are subject to the requirements of due process of law. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 48, 416 N.E.2d 1082.) \"Due process requires a fair proceeding which includes proper notice, an opportunity to be heard, and an impartial tribunal.\u201d (Sharma v. Zollar (1994), 265 Ill. App. 3d 1022, 1030, 638 N.E.2d 736.) Due process is a flexible concept and requires only such procedural protections as fundamental principles of justice and the particular situation demand. Abrahamson v. Illinois Department of Professional Regulation (1992), 153 Ill. 2d 76, 92, 606 N.E.2d 1111.\nBoth sides agree that neither the statute nor the Department\u2019s regulations provide for an interview after the Committee denies a request for waiver of the CE requirements. However, for some reason that is not clear, the Department promised Dr. Bass such an interview.\nWhen Dr. Bass filed his request for a waiver for the 1990-92 renewal period, the Department sent him a sheet entitled \"Waiver of Continuing Education Requirements\u201d with the renewal application. The sheet states:\n\"If your request is denied, you have the right to submit a written request for interview before the Optometric Licensing and Disciplinary Committee, within 20 days from the date of the Department\u2019s mailing of the denial notice, after which time your license will be cancelled.\u201d\nThe Department now says the statement was a mistake, that it was \"inaccurate\u201d to say Dr. Bass would be provided an interview after denial. But that was not the Department\u2019s position in the trial court. There, the trial judge asked the Department attorney about the statement:\n\"Q. What is an interview? Will the Attorney General please answer me? What is an interview?\nA. Appear before, as it says here, you have a right to submit a written request for interview before the Optometric Licensing and Disciplinary Committee within twenty days of the mailing of the denial notice. You go in front of the Board and explain your situation and you create your record and then you come here.\nQ. Is that like an appeal process within the agency?\nA. It is just a further way to explain your situation.\nQ. What could he hope to accomplish by that interview?\nA. He could hope to change the Board\u2019s mind so that when the Board makes the recommendation to the Director, which hadn\u2019t been done prior to the interview, he could convince the Board that he should have been granted a waiver.\u201d (Emphasis added.)\nIt is unbecoming of the Department to now say Dr. Bass was not entitled to a post-trial interview. We do not accept this change of position at the appellate level.\nThe Department also contends that Dr. Bass cannot rely on the \"inaccurate statement\u201d because he did not request the interview within 20 days of receiving the denial notice.\nThat contention is disingenuous. The Department\u2019s denial notice told Dr. Bass he had 35 days to file a complaint for administrative review in the circuit court. The clock was running and there was no way to stop it. Further, he was told: \"Do not contact the Department in regard to the initiation of suit.\u201d Faced with the imminent loss of his license, Dr. Bass went to court. That was the only sensible thing to do. It was clear that the promise made on September 8, 1992, in the sheet that accompanied the license renewal forms, was not going to be kept.\nWe believe principles of basic fairness require that Dr. Bass be given the post-denial interview he was promised by the Department.\nWe remand Dr. Bass\u2019 case to the circuit court. The trial court is to direct the Department to provide Dr. Bass a post-denial interview within a reasonable time. For that purpose, we vacate the trial court\u2019s order that affirmed the Department\u2019s denial of a waiver of CE requirements.\nAfter the post-denial interview takes place, the trial court will review any administrative decision the Department makes concerning Dr. Bass\u2019 request for a waiver. We make no comment at this time as to what that interview should consist of or what the outcome should be.\nBecause of our disposition of this issue, we do not reach the question of whether the Department\u2019s regulations, which do not provide for a post-denial interview, violate due process.\nTHE OTHER PLAINTIFFS\u2019 DECLARATORY JUDGMENT ACTION\nIn the declaratory judgment action, Dr. Bass and 20 other optometrists challenged certain Department regulations. The trial court found there was no actual controversy concerning the 20 others. We agree.\nIn addition, the 20 other optometrists make no specific legal argument about the regulations in their briefs in this court. There is no issue for us to resolve. (See 134 Ill. 2d R. 341(e)(7); In re Marriage of Winton (1991); 216 Ill. App. 3d 1084, 576 N.E.2d 856.) Instead, they seek to champion Dr. Bass\u2019 cause. They have no standing to do that.\nThe trial court\u2019s order dismissing the declaratory judgment action is affirmed.\nCONCLUSION\nWe vacate the trial court\u2019s order affirming the Department\u2019s denial of Dr. Bass\u2019 request for a waiver of continuing education requirements. We remand the administrative review cause to the trial court for the purpose of directing the Department to grant Dr. Bass a post-denial interview and to review the final decision of the Department. We affirm the order dismissing the declaratory judgment action.\nAffirmed in part; vacated and remanded in part, with directions.\nBUCKLEY and S. O\u2019BRIEN, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE WOLFSON"
      }
    ],
    "attorneys": [
      "Cyrus Bass, of Chicago, appellant pro se.",
      "Edward A. Berman, P.C., of Chicago, for other appellants.",
      "Roland W. Burris, Attorney General, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Jacqueline M. Zydeck, Assistant Attorney General, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "CYRUS BASS et al., Plaintiffs-Appellants, v. NIKKI ZOLLAR, Director of the Department of Professional Regulation, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201493\u20142340\nOpinion filed July 24, 1995.\nCyrus Bass, of Chicago, appellant pro se.\nEdward A. Berman, P.C., of Chicago, for other appellants.\nRoland W. Burris, Attorney General, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Jacqueline M. Zydeck, Assistant Attorney General, of counsel), for appellee."
  },
  "file_name": "0140-01",
  "first_page_order": 158,
  "last_page_order": 163
}