{ "id": 4307095, "name": "CAROL E. GRUWELL, Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION et al., Defendants-Appellees", "name_abbreviation": "Gruwell v. Department of Financial & Professional Regulation", "decision_date": "2010-11-30", "docket_number": "No. 4\u201409\u20140495", "first_page": "283", "last_page": "300", "citations": [ { "type": "official", "cite": "406 Ill. App. 3d 283" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "809 N.E.2d 88", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" } ], "opinion_index": 0 }, { "cite": "209 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462174 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "527-28" }, { "page": "528" }, { "page": "528" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0520-01" ] }, { "cite": "718 N.E.2d 217", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "228" }, { "page": "228" }, { "page": "228" } ], "opinion_index": 0 }, { "cite": "307 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173536 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "763" }, { "page": "763" }, { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0753-01" ] }, { "cite": "785 N.E.2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "529" }, { "page": "529" } ], "opinion_index": 0 }, { "cite": "337 Ill. App. 3d 294", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 894456 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "302" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/337/0294-01" ] }, { "cite": "193 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "pin_cites": [ { "page": "773" } ], "opinion_index": 0 }, { "cite": "29 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2824851 ], "year": 1963, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0191-01" ] }, { "cite": "606 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1122" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738801 ], "year": 1992, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0076-01" ] }, { "cite": "406 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 27", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3195441 ], "year": 1980, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0027-01" ] }, { "cite": "2008 WL 924531", "category": "reporters:specialty_west", "reporter": "WL", "weight": 2, "year": 2008, "pin_cites": [ { "parenthetical": "unpublished opinion" }, { "page": "*8" } ], "opinion_index": 0 }, { "cite": "451 N.E.2d 1331", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "1337" }, { "page": "1337" } ], "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3518593 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "531" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0523-01" ] }, { "cite": "370 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "1203" } ], "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3410230 ], "year": 1977, "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0545-01" ] }, { "cite": "425 N.E.2d 1017", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "1018", "parenthetical": "interpreting the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1979, ch. 111, pars. 5701 through 5743)" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 323", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101380 ], "year": 1981, "pin_cites": [ { "page": "325", "parenthetical": "interpreting the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1979, ch. 111, pars. 5701 through 5743)" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0323-01" ] }, { "cite": "763 N.E.2d 272", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29956 ], "year": 2001, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0380-01" ] }, { "cite": "925 N.E.2d 1131", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "1143" } ], "opinion_index": 0 }, { "cite": "236 Ill. 2d 368", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3627424 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/236/0368-01" ] }, { "cite": "456 U.S. 273", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185889 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/us/456/0273-01" ] }, { "cite": "839 N.E.2d 479", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "485" }, { "page": "485" } ], "opinion_index": 0 }, { "cite": "216 Ill. 2d 569", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3827812 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "577" }, { "page": "577-78" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0569-01" ] }, { "cite": "886 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 10, "year": 2008, "pin_cites": [ { "page": "1019" }, { "page": "1018" }, { "page": "1018" }, { "page": "1018" }, { "page": "1018" }, { "page": "1019" }, { "page": "1019" }, { "page": "1020" }, { "page": "1020" }, { "page": "1021" } ], "opinion_index": 0 }, { "cite": "228 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706718 ], "weight": 10, "year": 2008, "pin_cites": [ { "page": "212" }, { "page": "210" }, { "page": "210" }, { "page": "210" }, { "page": "211" }, { "page": "212" }, { "page": "213" }, { "page": "214" }, { "page": "214" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0200-01" ] }, { "cite": "475 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "543" } ], "opinion_index": 1 }, { "cite": "105 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142129 ], "year": 1985, "pin_cites": [ { "page": "403" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/105/0389-01" ] }, { "cite": "347 F. Supp. 2d 868", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9169134 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "877" }, { "page": "879" } ], "opinion_index": 1, "case_paths": [ "/f-supp-2d/347/0868-01" ] }, { "cite": "207 N.E.2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "pin_cites": [ { "page": "156" } ], "opinion_index": 1 }, { "cite": "59 Ill. App. 2d 153", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2602576, 2602107 ], "year": 1965, "pin_cites": [ { "page": "157" } ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/59/0153-02", "/ill-app-2d/59/0153-01" ] }, { "cite": "505 N.E.2d 1104", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "1106" } ], "opinion_index": 1 }, { "cite": "153 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3608000 ], "year": 1987, "pin_cites": [ { "page": "123" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/153/0120-01" ] }, { "cite": "451 N.E.2d 1331", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "1337" } ], "opinion_index": 1 }, { "cite": "116 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3518593 ], "year": 1983, "pin_cites": [ { "page": "531" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/116/0523-01" ] } ], "analysis": { "cardinality": 1492, "char_count": 41954, "ocr_confidence": 0.789, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.31865892567481735 }, "sha256": "3be4c47e5157408fc33a5d1e107f01b277da9457915a98f4f55e5d23ca2eefc3", "simhash": "1:b735dd3bea532554", "word_count": 6625 }, "last_updated": "2023-07-14T19:33:07.786999+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CAROL E. GRUWELL, Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nIn March 2005, an administrative hearing officer found plaintiff, Carol E. Gruwell, engaged in the unlicensed practice of real estate in violation of section 20 \u2014 10 of the Real Estate License Act of 2000 (Act) (225 ILCS 454/20 \u2014 10 (West 2002)). In April 2005, defendant Real Estate Administration and Disciplinary Board (Board) of the Illinois Department of Financial and Professional Regulation (Department) found the same and recommended a fine of $25,000. In October 2005, defendant Daniel E. Bluthardt, Director of the Division of Professional Regulation of the Department (Director), denied plaintiffs motion for rehearing, adopted the Board\u2019s findings and conclusions, and imposed a $25,000 civil fine. Plaintiff sought administrative review. In June 2009, the circuit court affirmed the Director\u2019s order. Plaintiff appeals the administrative order, arguing, among other things, (1) the Director erred in finding plaintiff engaged in the unlicensed practice of real estate; (2) the $25,000 fine is excessive; and (3) the Act, as applied to plaintiff, violates the first amendment to the United States Constitution. We affirm as modified to reflect our reduction in the amount of plaintiffs fine to $7,500.\nI. BACKGROUND\nFrom September or October 2002 to October 2003, plaintiff worked as an independent contractor for Central Illinois For Sale By Owner (Central). Central\u2019s primary business was the operation of a Web site hosting classified advertisements for a flat fee. It provided a forum for homeowners to advertise their homes for sale. By prohibiting homeowners represented by real estate agents from advertising on its site, Central ensured the homes it advertised were for sale by owner. Central\u2019s Web site provided these home sellers with uniform advice on pricing, staging, and negotiating the sale of their homes and referred them to professionals who provided related services. Plaintiff received a commission for each advertisement she sold.\nIn October 2003 Central agreed to enter, and in January 2004 Central did enter, a consent order with the Department. In the order, Central admitted its activities, in the aggregate, amounted to unlicensed practice of real estate in violation of section 20 \u2014 10 of the Act (225 ILCS 454/20 \u2014 10 (West 2002)). Central agreed to undergo and complete the requirements to become a licensed corporate broker and to pay a $7,500 fine.\nIn October 2003, plaintiff discontinued working for Central. In December 2003, the Department served plaintiff with a complaint and notice of a preliminary hearing. The complaint alleged plaintiff practiced real estate without a license during her tenure with Central in violation of section 20 \u2014 10 of the Act (225 ILCS 454/20 \u2014 10 (West 2002)). Specifically, it alleged plaintiff unlawfully practiced real estate by (1) representing herself as a real estate agent in newspaper advertisements and radio appearances; (2) contracting with homeowners to assist them in marketing and selling their homes; (3) advising homeowners on selling their homes, setting the price, and negotiating with buyers; (4) assisting homeowners in marketing their homes by taking photographs of their homes and posting them to Central\u2019s Internet site; (5) assisting homeowners in holding open houses; and (6) referring homeowners to professional service providers including attorneys, home lenders, and home inspectors.\nIn August 2004, the parties presented arguments in an administrative hearing before a hearing officer and two members of the Board. The parties stipulated to admission of several evidentiary exhibits offered by the Department, which included tapes and transcripts of eight of plaintiff\u2019s regular radio appearances, newspaper advertisements plaintiff ran, pages from Central\u2019s Web site, and Central\u2019s consent order.\nIn her radio appearances, plaintiff and a radio host spoke about plaintiffs services with Central, including its real estate advertising services. Plaintiff said homeowners could advertise their homes for sale on Central\u2019s Web site for a flat fee. The fee included assistance from a representative of Central in operating the advertising software and free home photography for use in the advertisement. In one appearance, plaintiff stated, \u201cI am an Internet site and I help people sell their homes on the Internet.\u201d\nIn some, but not all, of the appearances, plaintiff included disclaimers specifying she was not a real estate agent and she did not negotiate sales. In one such disclaimer, she said, \u201c[Central is] not a real estate company[,] so there\u2019s [sic] no hidden costs or commissions.\u201d She said homeowners themselves were responsible for writing their advertisements and opening their houses to the public. In one appearance, plaintiff likened Central to \u201can extra, extra fancy newspaper where [plaintiff was] the newspaper and [homeowners were] their own editors.\u201d She corrected the radio host once when he characterized Central as a \u201creal estate service\u201d by stating, \u201c[Central is] an ad agency[,] not a real estate company.\u201d\nDuring these appearances, plaintiff spoke about homes for sale on Central\u2019s Web site, sometimes describing them in the first person. She sometimes prefaced these descriptions by asking the radio host if she could \u201cjust sneak one in.\u201d She gave the houses\u2019 locations and asking prices, details about their layouts and amenities, and information about their neighborhoods. She told the radio host to visit one home before it sold. She invited a dentist\u2019s clients to visit his open house. In one appearance, she said Central \u201csold a half a million last week.\u201d\nIn the newspaper advertisements, plaintiff aggregated advertisements for several homes on one page with Central and plaintiff\u2019s names and plaintiff\u2019s phone number. The advertisements did not provide contact information for the homeowners whose houses were advertised. Some, but not all, of these advertisements included disclaimers specifying plaintiff and Central were not acting as a real estate agent or company. All the advertisements taken into evidence included copy advertising plaintiff or Central\u2019s services specifically. One stated, \u201c9 Million in Homes Sold since Jan. \u201903,\u201d and another, \u201c12 Million Dollars Worth of Homes Listed, approx 4 Million Sold As of Jan. 2003.\u201d One stated, \u201cIf you want to see your house SOLD,\u201d call plaintiff.\nAmong the pages from Central\u2019s Web site were a disclaimer page, a page giving contact information for Central and its representatives, pages describing Central\u2019s services, pages giving advice to home sellers, and pages of advertisements. The disclaimer stated Central\u2019s Web site was \u201cstrictly an advertisement venue\u201d that was not \u201ca real estate organization\u201d and did not offer \u201cprofessional real estate[-]related assistance.\u201d The contact page listed plaintiff as the \u201clocal contact\u201d for Springfield, Illinois, and the surrounding area. One page stated Central \u201cwill not advertise any particular item listed on this Web site.\u201d\nThe parties also stipulated to several of plaintiffs exhibits, which included copies of several Web sites that plaintiff alleged were similar to Central\u2019s and offered similar services; a letter from the Illinois Attorney General\u2019s office to plaintiff stating it received no complaints about Central from January 2000 until March 2004; and a written and signed disclaimer from plaintiff, addressed to a client, stating she was not providing brokerage services.\nPlaintiff testified, although she had been a licensed real estate salesperson from 1986 to 1991, when she allowed her real estate license to lapse, she did not act as a real estate broker for Central but merely as an advertiser. She asserted she never received a brokerage commission, and her compensation never depended on the home\u2019s sale. She asserted other Internet companies provided the same services and she was singled out for prosecution because some licensed real estate professionals disliked her. In closing arguments, the Department argued plaintiff knowingly practiced real estate without a license and requested the Director order plaintiff to pay a $7,500 fine. Plaintiff argued she merely provided advertising services and asserted, \u201cThis is the future [of the industry], like it or not.\u201d\nIn March 2005, the hearing officer found the Department had sufficiently shown plaintiff engaged in the unlicensed practice of real estate. In April 2005, the Board concluded plaintiff knowingly and repeatedly violated section 20 \u2014 10 of the Act (225 ILCS 454/20 \u2014 10 (West 2002)) and recommended a $25,000 civil penalty. Plaintiff moved for a rehearing, arguing the Board erred in finding she practiced real estate without a license and in requesting an excessive fine. In October 2005, the Director denied plaintiffs motion for rehearing and adopted the Board\u2019s findings of fact and conclusions of law and imposed a $25,000 fine.\nIn November 2005, plaintiff sought administrative review in the circuit court. In March 2009, plaintiff moved for judgment, arguing (1) she did not act as a \u201cbroker\u201d as defined in the Act (225 ILCS 454/ 1 \u2014 10 (West 2002)) or, alternatively, she qualified for exemptions under sections 5 \u2014 20(7) and (9) (225 ILCS 454/5 \u2014 20(7), (9) (West 2002)); and (2) the fine was excessive. In June 2009, the court affirmed the Director\u2019s conclusions and the fine. This appeal followed.\nII. ANALYSIS\nOn appeal, plaintiff argues (1) she did not act as a \u201cbroker\u201d under the Act; (2) the fine was excessive; and (3) as applied to her case, the Act violates the first amendment to the United States Constitution (U.S. Const., amend. I). We disagree with plaintiffs arguments regarding her violation of the Act, and we find she forfeited her constitutional argument. We agree with plaintiff the fine imposed was excessive and affirm as modified.\nA. Standard of Review\nOn appeal, we review the Board\u2019s decision, not the circuit court\u2019s. See Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212, 886 N.E.2d 1011, 1019 (2008). The scope of judicial review of administrative decisions \u201cextend[s] to all questions of law and fact presented by the entire record before the court.\u201d 735 ILCS 5/3 \u2014 110 (West 2008). A court may encounter three types of questions on administrative review of an agency decision: questions of fact, questions of law, and mixed questions of law and fact. Cinkus, 228 Ill. 2d at 210, 886 N.E.2d at 1018. Because an administrative agency\u2019s findings of fact are presumed true, \u201ca reviewing court is limited to ascertaining whether such findings of fact are against the manifest weight of the evidence.\u201d Cinkus, 228 Ill. 2d at 210, 886 N.E.2d at 1018; see also 735 ILCS 5/3 \u2014 110 (West 2008) (\u201cThe findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct\u201d). \u201cIn contrast, an agency\u2019s decision on a question of law is not binding on a reviewing court,\u201d and we review such a decision de novo. Cinkus, 228 Ill. 2d at 210, 886 N.E.2d at 1018.\nMixed questions of law and fact \u201care \u2018questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is *** whether the rule of law as applied to the established facts is or is not violated.\u2019 \u201d American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577, 839 N.E.2d 479, 485 (2005), quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790 n.19 (1982). Decisions of mixed questions of law and fact are reversible only if they are clearly erroneous. Cinkus, 228 Ill. 2d at 211, 886 N.E.2d at 1018. The clearly erroneous standard is \u201c \u2018significantly deferential.\u2019 \u201d Provena Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 387, 925 N.E.2d 1131, 1143 (2010); see also Provena Covenant Medical Center, 236 Ill. 2d at 387 n.9, 925 N.E.2d at 1143 n.9 (courts accord deference to administrative decisions \u201cin recognition of the fact that agencies make informed judgments on the issues based upon their experience and expertise and serve as an informed source for ascertaining the legislature\u2019s intent\u201d). \u201cA decision is \u2018clearly erroneous\u2019 when the reviewing court is left with the definite and firm conviction that a mistake has been committed.\u201d American Federation of State, County & Municipal Employees, 216 Ill. 2d at 577-78, 839 N.E.2d at 485, citing AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395, 763 N.E.2d 272, 282 (2001).\nB. Unlicensed Practice of Real Estate\nPlaintiff contends the Director erred by finding she violated section 20 \u2014 10 of the Act (225 ILCS 454/20 \u2014 10 (West 2002)). Section 20 \u2014 10 provides a civil penalty against \u201c[a]ny person who practices, offers to practice, attempts to practice, or holds oneself out to practice as a real estate broker[ or] real estate salesperson *** without being licensed under this Act.\u201d 225 ILCS 454/20 \u2014 10 (West 2002). In turn, section 1 \u2014 10 defines a \u201csalesperson,\u201d in pertinent part, as \u201cany individual, *** who is employed by a real estate broker or is associated by written agreement with a real estate broker as an independent contractor and participates in any activity described in the definition of \u2018broker.\u2019 \u201d 225 ILCS 454/1 \u2014 10 (West 2002). Because plaintiff undisputedly worked as an independent contractor for Central, which admitted in its consent order to practicing as a real estate broker, the only question remaining under section 20 \u2014 10 is whether plaintiff acted as, or held herself out to be, a broker.\nSection 1 \u2014 10 of the Act defines \u201cbroker,\u201d in pertinent part, as:\n\u201can individual *** who for another and for compensation, or with the intention or expectation of receiving compensation, either directly or indirectly:\n(1) Sells, exchanges, purchases, rents, or leases real estate.\n(2) Offers to sell, exchange, purchase, rent, or lease real estate.\n(3) Negotiates! or] offers, attempts, or agrees to negotiate the sale, exchange, purchase, rental, or leasing of real estate.\n(4) Lists! or] offers, attempts, or agrees to list real estate for sale, lease, or exchange.\n$ $ ^\n(7) Advertises or represents himself or herself as being engaged in the business of buying, selling, exchanging, renting, or leasing real estate.\n(8) Assists or directs in procuring or referring of prospects, intended to result in the sale, exchange, lease, or rental of real estate.\n(9) Assists or directs in the negotiation of any transaction intended to result in the sale, exchange, lease, or rental of real estate.\n(10) Opens real estate to the public for marketing purposes.\u201d 225 ILCS 454/1 \u2014 10 (West 2002).\nProviding a convenient shorthand, the Act defines \u201clicensed activities\u201d as \u201cthose activities listed in the definition of \u2018broker.\u2019 \u201d 225 ILCS 454/1 \u2014 10 (West 2002).\nAs an initial matter, plaintiff asserts this argument presents a question of fact, as to which our review is under the most deferential, manifest-weight-of-the-evidence standard. We disagree. Plaintiff does not dispute the Director\u2019s findings regarding what her conduct was. Instead, she argues the Director erred in finding her conduct conformed to the Act\u2019s prohibitions. This presents a mixed question of law and fact, which we review for clear error.\nIn addressing plaintiff\u2019s argument, we must interpret specific language in the Act. Courts addressing the Act\u2019s predecessor held, \u201c[T]he Act is not a penal measure, to be strictly construed against the State, but a broad statutory system which is remedial and therefore should be liberally construed.\u201d White v. Chicago Title & Trust Co., 99 Ill. App. 3d 323, 325, 425 N.E.2d 1017, 1018 (1981) (interpreting the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1979, ch. 111, pars. 5701 through 5743)). These courts relied on the General Assembly\u2019s statement of intent contained in the earlier act: \u201cThe intent of the legislature in enacting this statute is to evaluate the competency of persons engaged in the real estate business for the protection of the public.\u201d Ill. Rev. Stat. 1979, ch. 111, par. 5701. From this language, they concluded the purpose of the act was to prevent \u201cinjury to the public by assuring that the occupation will be practiced with honesty and integrity, excluding from the profession those who are incompetent or unworthy.\u201d Ranquist v. Stockier, 55 Ill. App. 3d 545, 551, 370 N.E.2d 1198, 1203 (1977). The terms of the predecessor act prohibiting unlicensed practice of real estate were thus construed broadly to deter the circumvention of licensing requirements. See, e.g., Rabin v. Premier, 116 Ill. App. 3d 523, 531, 451 N.E.2d 1331, 1337 (1983).\nThe legislative statement of intent remains substantially the same in the Act as in its predecessor. Compare Ill. Rev. Stat. 1979, ch. 111, par. 5701 (quoted above), with 225 ILCS 454/1 \u2014 5 (West 2002) (\u201cThe intent of the General Assembly in enacting this statute is to evaluate the competency of persons engaged in the real estate business and to regulate this business for the protection of the public\u201d). Therefore, we find the principles regarding construction of the Real Estate Brokers and Salesmen License Act apply to the current Act as well.\nPlaintiffs argument consists of three fundamental contentions: (1) plaintiff did not perform any \u201clicensed activities\u201d under the Act; (2) plaintiff did not act \u201cfor another\u201d under the Act; and (3) plaintiff did not act \u201cfor compensation\u201d under the Act. While defendants argue plaintiff forfeited the latter two arguments by failing to raise them at her administrative hearing, plaintiff contended throughout the proceedings in this matter she did not act as a real estate agent. While our review in administrative-review cases is limited, we decline defendants\u2019 invitation to find plaintiff forfeited these arguments by failing to utter the specific words used in the statute. We consider each argument in turn.\n1. \u201cLicensed Activities\u201d\nPlaintiff argues the Director erred in finding she performed, or held herself out as performing, licensed activities. The gist of plaintiff\u2019s argument appears to be she did nothing more than provide a forum for homeowners to advertise their real estate for sale. In arguing plaintiff did not represent herself to be a broker, plaintiff relies extensively on disclaimers she made in several of her many newspaper and radio advertisements to the effect she was not, and did not work for, a real estate broker. Defendants argue the evidence at the hearing provided a sufficient basis for the Director\u2019s findings and conclusions. We agree with defendants.\nThe Board \u2014 and the Director, by adoption \u2014 found plaintiff violated section 20 \u2014 10 by (1) holding herself out as a broker in newspaper advertisements; (2) listing homes for sale in newspaper advertisements; (3) selling homes in advertisements; (4) holding herself out as a broker in radio advertisements; (5) acting, in effect, as a spokesperson for the homeowners in radio advertisements; (6) referring homeowners to Central\u2019s Web site which, in turn, gave homeowners tips on selling and marketing their homes, interacting with buyers, setting and negotiating price, and finding related service providers such as real estate appraisers and attorneys; (7) assisting in marketing real estate by taking photographs of properties and uploading them to Central\u2019s Web site; (8) assisting in marketing real estate by providing clients with for-sale-by-owner signs and updating the signs with respect to the status of the home sale; and (9) referring prospective buyers and thereby assisting in negotiations of sales. Plaintiff fails to point to evidence or law in contradiction of these conclusions.\nPlaintiff asserts, with respect to the newspaper and radio advertisements, she never stated she was a real estate agent and, moreover, often stated she was not a real estate agent. Similarly, she asserts she never used the words \u201cclosing\u201d or \u201ccommission.\u201d The Board specifically concluded, \u201cThe statements in the ads that [plaintiff] was not a real estate agent did not change the active role [plaintiff] played, both in the ads and in servicing the clients outside the ads\u201d (emphasis in original). The Board found plaintiffs disclaimers essentially disingenuous and misleading in light of her other representations and actions. For example, plaintiffs statement she was not a real estate agent is irreconcilable with her on-air statements \u201cwe go ahead and put the house up on the market\u201d and \u201cwe sold a half a million [dollars\u2019 worth of real estate] last week.\u201d Testimony of the radio host with whom plaintiff advertised showed plaintiff\u2019s advertisements resembled those of licensed brokers. Plaintiff described specific properties, sometimes in the first person, giving rise to the conclusion she was acting as a real estate agent on behalf of the homeowners. This conclusion was further engendered by plaintiffs failure in the same radio advertisements to provide contact information for the homeowners. Although plaintiff contends a reasonable listener would know to visit Central\u2019s Web site for homeowners\u2019 contact information, we decline to find the Board clearly erred in finding plaintiff was holding herself out as an intermediary between the seller and prospective buyers.\nMoreover, many of plaintiffs disclaimers served the mere purpose of emphasizing the relative inexpensiveness of Central\u2019s services compared to a licensed broker\u2019s, while simultaneously suggesting the services were equivalent. For example, in one of her radio appearances, plaintiff stated, \u201c[Central is] not a real estate company[,] so there\u2019s [sic] no hidden costs or commissions.\u201d The Board decided plaintiff\u2019s representations and actions carried more force than her characterization of her activities, within an advertising context, as outside the scope of practicing real estate. We do not find this determination clearly erroneous.\nPlaintiff further asserts plaintiff\u2019s \u201cpassive knowledge\u201d of the contents of Central\u2019s Web site is insufficient to find plaintiff violated the Act. The Act, however, imposes a penalty for directly or indirectly providing licensed activities. Thus, even though plaintiff was not responsible for the information on Central\u2019s Web site, her referral of clients to the Web site for advice on marketing and selling their homes constituted licensed activity \u2014 specifically, assisting or directing in the negotiation of any transaction intended to result in the sale of real estate. Central itself admitted its Web content constituted unlicensed practice of real estate. Plaintiffs active advice to homeowners, not her passive knowledge of language on Central\u2019s Web site, supports the Board\u2019s finding. We do not find the Board\u2019s application of the Act in this respect clearly erroneous.\nPlaintiff summarily says she \u201cdid not list anything.\u201d She asserts the homeowners themselves put their houses on the market. However, this contradicts plaintiffs on-air comment to the effect she and Central \u201cgo ahead and put the house on the market.\u201d At a minimum, plaintiff held herself out as listing homes for sale.\nBecause our evaluation of the law and facts under the clearly erroneous standard on these issues sufficiently supports the Board\u2019s findings and conclusions, we decline to address each of plaintiff\u2019s remaining contentions on this argument.\n2. \u201cFor Another\u201d\nPlaintiff argues next her conduct was not \u201cfor another\u201d and, therefore, was not a licensed activity for which she could be fined under section 20 \u2014 10 of the Act (225 ILCS 454/20 \u2014 10 (West 2002)). Plaintiffs argument relies on a federal district court\u2019s unpublished opinion in which the court interpreted the language \u201cfor another\u201d in the context of New Hampshire\u2019s statutes regulating real estate practice. See Skynet Corp. v. Slattery, No. 06\u2014cv\u2014218\u2014JM, 2008 WL 924531 (D.N.H. March 31, 2008) (unpublished opinion). That court concluded \u201cfor another\u201d within New Hampshire\u2019s statutory scheme \u201cconnotes more of an agency relationship than merely a conduit service.\u201d Skynet, 2008 WL 924531, at *8. Admittedly, the New Hampshire act strikingly resembles the Illinois Act. However, because we find \u201cfor another\u201d in the Act to be unambiguous, we decline to look to another jurisdiction \u2014 let alone another jurisdiction\u2019s unpublished opinion \u2014 for aid in interpreting it.\nThe purpose of the Act, by analogy to its predecessor, is to protect the public by imposing on real estate brokers and salespeople minimum competency and character requirements. See Rabin, 116 Ill. App. 3d at 531, 451 N.E.2d at 1337. Like its predecessor, the Act includes protective measures intended to prohibit \u201csharp, dishonest, or fraudulent practices,\u201d which may prejudice parties to a real estate transaction. Moy v. Department of Registration & Education, 85 Ill. App. 3d 27, 29, 406 N.E.2d 191, 194 (1980). Insofar as it limits application of the term \u201cbroker\u201d under the Act and, thereby, frustrates prosecution of unlicensed practice that would promote the Act\u2019s protective purpose, we interpret the clause \u201cfor another\u201d narrowly.\nKeeping this in mind, we conclude \u201cfor another\u201d as used in the definition of \u201cbroker\u201d is the Act\u2019s mechanism whereby it exempts parties to real estate transactions from licensing requirements when acting in their own behalf. Thus, for example, a homeowner may sell or lease his own home, or open it to the public for marketing purposes, or negotiate for the purpose of selling it, where he would otherwise violate section 20 \u2014 10. Under this narrow interpretation, it is unnecessary to ascribe a nebulous agency requirement where we find none in the language of the Act. Because plaintiff acted for another, merely as opposed to acting for herself, she was not exempt from the Act\u2019s licensing requirements by virtue of this clause in the definition of \u201cbroker.\u201d\n3. \u201cFor Compensation\u201d\nSimilarly, plaintiff argues her actions were not \u201cfor compensation, or with the intention or expectation of receiving compensation.\u201d 225 ILCS 454/1 \u2014 10 (West 2002). Plaintiff again relies on Skynet to argue this language in the Act requires a nexus between an agency relationship and the compensation received in exchange for performing brokerage services. We reject plaintiffs argument.\nAgain, we construe the statute broadly. The Act defines \u201ccompensation\u201d as \u201cthe valuable consideration given by one person or entity to another person or entity in exchange for the performance of some activity or service.\u201d 225 ILCS 454/1 \u2014 10 (West 2002). The Act does not explicitly require \u201ccompensation\u201d to be given within the context of an agency relationship. It is sufficient the Board found plaintiff received a commission for each advertisement she sold, in connection with which she performed licensed activities.\nIndeed, the Board characterized plaintiff\u2019s compensation as \u201cdiscounted brokerage,\u201d and this conclusion is not clearly erroneous. Essentially, the Board acknowledges plaintiff did not perform every possible activity of a real estate broker; rather, she and Central accepted less than full brokerage compensation and, in exchange, performed less than full brokerage. The Act does not exempt \u201cminor\u201d violations, wherein an unlicensed broker does not see a sale to its conclusion. Similarly, the Act does not make exception for compensation amounting to less than full-blown brokerage commission and fees.\nC. Fine\nPlaintiff argues her $25,000 fine is excessive and urges us to vacate it. Although defendants argue plaintiff forfeited this issue, we find plaintiff preserved the argument by raising it in her motion for rehearing before the Director and renewing it in her brief and oral argument before the circuit court. In the alternative, defendants argue the amount of the fine does not constitute error. We agree with plaintiff her fine is excessive and reduce it to $7,500.\nWhen considering an administrative sanction, a reviewing court \u201cdefers to the administrative agency\u2019s expertise and experience in determining what sanction is appropriate to protect the public interest.\u201d Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 99, 606 N.E.2d 1111, 1122 (1992). Our deference in this respect \u201cdoes not mean, however, *** that all administrative decisions are sacred and not within reach of the courts.\u201d Dorfman v. Gerber, 29 Ill. 2d 191, 196, 193 N.E.2d 770, 773 (1963). We will reverse a sanction if it is arbitrary or capricious or amounts to an abuse of discretion. See Deen v. Lustig, 337 Ill. App. 3d 294, 302, 785 N.E.2d 521, 529 (2003); Siddiqui v. Department of Professional Regulation, 307 Ill. App. 3d 753, 763, 718 N.E.2d 217, 228 (1999).\n\u201c \u2018Agency action is arbitrary and capricious only if the agency contravenes the legislature\u2019s intent, fails to consider a crucial aspect of the problem, or offers an explanation which is so implausible that it runs contrary to agency expertise.\u2019 [Citation.] An abuse of discretion is found when a decision is reached without employing conscientious judgment or when the decision is clearly against logic.\u201d Deen, 337 Ill. App. 3d at 302, 785 N.E.2d at 529.\nIn the specific context of administrative fines, an administrative agency abuses its discretion when it \u201cimposes a sanction that is (1) overly harsh in view of the mitigating circumstances or (2) unrelated to the purpose of the statute.\u201d Siddiqui, 307 Ill. App. 3d at 763, 718 N.E.2d at 228. An agency may consider sanctions imposed in similar cases to develop uniformity in disciplinary proceedings. Siddiqui, 307 Ill. App. 3d at 764, 718 N.E.2d at 228.\nAlthough section 20 \u2014 10 of the Act allows the Director to impose a civil fine of up to $25,000 for each violation (225 ILCS 454/20 \u2014 10 (West 2002)), and although plaintiff violated the Act numerous times, we nevertheless find the Director\u2019s imposition of a $25,000 fine in this case constitutes error. We note, significantly, the Department imposed a $7,500 fine upon Central pursuant to its consent order. While plaintiff\u2019s violations were numerous and reprehensible, we find no justification in logic or conscientious judgment to impose a fine 233% greater against her than against Central, which also committed multiple violations of the Act.\nPlaintiff contends her fine contravenes the Act\u2019s purposes of evaluating the competency of persons involved in the real estate business and protecting the public against fraudulent practices. See 225 ILCS 454/1 \u2014 5 (West 2000). While we disagree with plaintiff\u2019s contention insofar as she neglects her violations obstructed the evaluation of her competency to practice real estate and constituted a fraud against the public, we find the amount of the fine is not commensurate with the legislative purposes of the Act. Rather, it is overly harsh in light of plaintiffs violations and the Department\u2019s treatment of Central under similar circumstances. We find reduction of the amount of plaintiffs fine from $25,000 to $7,500 is necessary to meet the ends of justice.\nWe find it unnecessary to remand for the Director to adjust the amount of the fine. Instead, we find it is within our appellate powers to vacate the $25,000 fine and impose a $7,500 fine. In a case under the Administrative Review Law (735 ILCS 5/3 \u2014 101 through 3 \u2014 113 (West 2008)), the circuit court may, \u201cin case of affirmance or partial affirmance of an administrative decision which requires the payment of money, *** enter judgment for the amount justified by the record.\u201d 735 ILCS 5/3 \u2014 111(a)(8) (West 2008). In turn, the circuit court\u2019s decision \u201cis reviewable by appeal as in other civil cases.\u201d 735 ILCS 5/3\u2014 112 (West 2008). In an appeal from a civil judgment, Supreme Court Rule 366(a)(5) empowers this court to \u201center any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief[ ] *** that the case may require.\u201d 155 Ill. 2d R. 366(a)(5). Accordingly, we modify the amount of plaintiffs fine to $7,500 in accordance with our powers under Rule 366(a)(5).\nD. First Amendment\nPlaintiff argues the Act, as applied to her, violates the first amendment to the United States Constitution. Defendants argue plaintiff forfeited this argument by failing to raise it at the administrative hearing and on administrative review. We agree with defendants.\nIn general, \u201cif an argument, issue, or defense is not presented in an administrative hearing, it is procedurally defaulted and may not be raised for the first time before the circuit court on administrative review.\u201d Cinkus, 228 Ill. 2d at 212, 886 N.E.2d at 1019. \u201cThe rule of procedural default specifically requires first raising an issue before the administrative tribunal rendering a decision from which an appeal is taken to the courts.\u201d Cinkus, 228 Ill. 2d at 213, 886 N.E.2d at 1019. Even though \u201can administrative agency lacks the authority to declare a statute unconstitutional, or even to question its validity,\u201d a litigant must present its constitutional argument on the record at the administrative stage. Cinkus, 228 Ill. 2d at 214, 886 N.E.2d at 1020. \u201cSuch a practice avoids piecemeal litigation and, more importantly, allows opposing parties a full opportunity to refute the constitutional challenge.\u201d Cinkus, 228 Ill. 2d at 214, 886 N.E.2d at 1020.\nHere, plaintiff mentioned her first-amendment claim briefly at her administrative hearing and in proceedings before the circuit court. In her testimony at the hearing, plaintiff stated, \u201cIf I want to talk \u2014 I would think freedom of speech would be a \u2014 denied if you\u2019re telling me that I have to be a realtor before I can talk about an ad that\u2019s placed on my Internet.\u201d This comment does not rise to the level of an argument, and plaintiff failed to obtain a ruling from the agency on this alleged issue. In her motion for judgment before the circuit court, plaintiff complained, \u201cEssentially, the Department wants to cap [fjreedom of [sjpeech in violation of the United States\u2019 [szc] Constitution for the sake of making an example out of [plaintiff].\u201d To conclude the argument in plaintiffs reply brief in support of her motion for judgment, plaintiffs counsel stated, \u201cFurther, [plaintiff] has asked that it be found that *** her [f]irst[-a]mendment rights have been infringed.\u201d However, none of these utterances was sufficient to preserve the argument for review. Plaintiff failed to cite any legal authority, and the Department, defendants, and the court never had occasion to reply to plaintiffs assertions because they did not present sufficiently cogent analysis or argument. Therefore, we hold plaintiff procedurally defaulted her first-amendment argument.\nNevertheless, plaintiff\n\u201cinvokes the principle that procedural default is a limitation on the parties rather than on this court\u2019s jurisdiction, and that the doctrine of procedural default may be relaxed when necessary to maintain a uniform body of precedent or where the interests of justice so require.\u201d Cinkus, 228 Ill. 2d at 215, 886 N.E.2d at 1021.\nCourts have made an exception to the general procedural-default rule for challenges to the facial validity of a statute. See Arvia v. Madigan, 209 Ill. 2d 520, 527-28, 809 N.E.2d 88, 94 (2004). Such a case \u201cpresents an entirely legal question that does not require fact-finding by the agency or application of the agency\u2019s particular expertise.\u201d Arvia, 209 Ill. 2d at 528, 809 N.E.2d at 94. In contrast, a challenge to a statute as applied to a litigant relies upon certain factual bases. Thus, when a litigant presents an as-applied challenge, \u201can evidentiary record is indispensable because administrative review is confined to the record created before the agency.\u201d Arvia, 209 Ill. 2d at 528, 809 N.E.2d at 94. In such a case, the rule of procedural default \u201callows opposing parties a full opportunity to present evidence to refute the constitutional challenge.\u201d Arvia, 209 Ill. 2d at 528, 809 N.E.2d at 94. In this case, plaintiff deprived defendants of such an opportunity by failing to form her comments into a constitutional claim until this appeal. The exception to the rule of procedural default does not apply in this case. Therefore, we decline to address plaintiffs first-amendment argument.\nIII. CONCLUSION\nFor the reasons stated, we affirm the circuit court\u2019s decision affirming the Director\u2019s order as modified to reflect the reduction in plaintiffs fine from $25,000 to $7,500.\nAffirmed as modified.\nTURNER, J., concurs.", "type": "majority", "author": "JUSTICE KNECHT" }, { "text": "JUSTICE APPLETON,\ndissenting:\nWhile I concur with the majority\u2019s decision that the fine imposed upon plaintiff should be reduced, I disagree that plaintiff is subject to any penalty at all by reason of her commercial activities.\nThe Act (225 ILCS 454/1 \u2014 1 through 999 \u2014 99 (West 2002)), under which these proceedings were brought, provides a comprehensive scheme for the licensing and discipline of brokers and sellers of real estate in Illinois. Exemptions from the licensing requirements imposed on professionals engaged in the real estate business are set forth in section 5 \u2014 20 (225 ILCS 454/5 \u2014 20 (West 2002)). Two of those exemptions have application here:\n\u201c(7) Any multiple listing service or other information exchange that is engaged in the collection and dissemination of information concerning real estate available for sale, purchase, lease, or exchange along which no other licensed activities are provided.\n*$\u00a1C\u00cd\u00a1C\n(9) Any medium of advertising in the routine course of selling or publishing advertising along with which no other licensed activities are provided.\u201d 225 ILCS 454/5 \u2014 20(7), (9) (West 2008).\nI would find that plaintiffs real estate advertising activities complained of here easily fit within these exemptions.\nI am not unmindful of the comments plaintiff made on the Sam Madonia radio program to the effect that she had \u201csold\u201d a certain volume of real estate or that she had a very pretty house \u201cfor sale.\u201d Such comments may make her a blabbermouth but not a realtor. It is clear, in the context of the entirety of her remarks, that she was engaged in the business of taking pictures of houses for sale by owner (FSBO) and developing a grouping of FSBO properties for newspaper advertising.\nThe essence of the real estate profession is the activity of bringing buyers and sellers together. Rabin, 116 Ill. App. 3d at 531, 451 N.E.2d at 1337. Plaintiff\u2019s activities stand in stark contrast to that definition. Realtors, whether brokers or licensed salespersons, actively solicit sales and/or purchases of real estate, advise their clients as to market value and sales strategies, and assist in the closing of real estate sales. Such activities stand in stark contrast to the business of FSBO, for which plaintiff is an agent. That business plan is to solicit and place advertising for persons who want to sell their own property. FSBO\u2019s involvement in the sale is taking a picture of the subject property, grouping the pictures in an advertisement with other properties for sale, and providing a yard sign with the owner\u2019s telephone number on it.\nA realtor is a fiduciary to his or her client. See Jeffrey Allen Industries, Inc. v. Sheldon F. Good & Co., 153 Ill. App. 3d 120, 123, 505 N.E.2d 1104, 1106 (1987); Pawlowic v. Pearce, 59 Ill. App. 2d 153, 157, 207 N.E.2d 155, 156 (1965). Plaintiffs activities can in no way be construed as involving a fiduciary relationship. The record is devoid of any evidence that she performed a market analysis, suggested a sale price, or brought willing buyers and sellers together. Realtors are compensated by a percentage of the sale price. Plaintiff, by contrast, was paid a per-property price of $50 to take pictures and place advertisements.\nI would also find that plaintiffs activities are protected speech by the first amendment to the United States Constitution. U.S. Const., amend. I. In Forsalebyowner.com Corp. v. Zinnemann, 347 F. Supp. 2d 868 (E.D. Cal. 2004), the California licensing authorities sought to stop the exact same activities performed by the plaintiff here. The United States district court found that the real estate licensing laws could not do so as they constituted unconstitutional content and media-based regulation. Zinnemann, 347 F. Supp. 2d at 877.\nThe complaint against Forsalebyowner by the California licensing authorities was that Forsalebyowner advertised properties for sale on the Internet. Yet realtors advertised properties for sale in newspapers and on the Internet. The district court held:\n\u201cBecause FSBO unquestionably has a speech interest in disseminating real estate information through its Web site, and because [defendants have not shown any compelling state interest in requiring a real estate broker\u2019s license for FSBO\u2019s Web site but not for virtually identical newspaper Web sites, the presumption of unconstitutionality triggered by this disparity of treatment has not been overcome. Section 10026 [of the California Business and Professions Code] accordingly fails constitutional muster on that basis.\u201d Zinnemann, 347 F. Supp. 2d at 879.\nWhile it is certainly true that commercial speech is more susceptible to regulations than other forms of expression, the State has the burden of justifying a restriction on commercial speech. Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton, 105 Ill. 2d 389, 403, 475 N.E.2d 536, 543 (1985). The State has not done so here.", "type": "dissent", "author": "JUSTICE APPLETON," } ], "attorneys": [ "Steven R. Merican (argued), of Steven R. Merican, P.C., of Woodridge, for appellant.", "Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Mary E. Welsh (argued), Assistant Attorney General, of counsel), for appellee." ], "corrections": "", "head_matter": "CAROL E. GRUWELL, Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION et al., Defendants-Appellees.\nFourth District\nNo. 4\u201409\u20140495\nArgued September 15, 2010.\nOpinion filed November 30, 2010.\nAPPLETON, J., dissenting.\nSteven R. Merican (argued), of Steven R. Merican, P.C., of Woodridge, for appellant.\nLisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Mary E. Welsh (argued), Assistant Attorney General, of counsel), for appellee." }, "file_name": "0283-01", "first_page_order": 299, "last_page_order": 316 }