No. 3--01--0197

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE SLATER delivered the opinion of the court:

The water well and pump installation contractor's license ofplaintiff, Raymond J. Cole, Sr. (Cole), was revoked by theIllinois Department of Public Health (Department). The circuitcourt affirmed the revocation. Cole now appeals, arguing thatthe Department failed to comply with the mandates of the WaterWell and Pump Installation Contractor's License Act (Act) (225ILCS 345/16 (West 2000)).

The record reveals the following facts. On July 10, 2000,the Department served Cole with a notice of intent to revoke hiswater well and pump installation contractor's license. Thenotice alleged that on May 28, 1997, Cole, doing business as J. &R. Well Drilling, had directed an unlicensed employee toconstruct a private water well and install a water well pumpwithout personally supervising the unlicensed employee. Thenotice further alleged that the well was improperly constructed. Lastly, the notice alleged that on June 18, 1997, Cole submittedan inaccurate water well construction report to the Departmentregarding the well constructed on May 28, 1997.

The notice provided that Cole had an opportunity undersection 16 of the Act to be heard by an administrative law judge. In order to exercise this right, Cole had to request a hearingwithin 10 days of receiving the notice. The notice stated inbold-faced type that "FAILURE TO REQUEST THE HEARING AS SPECIFIEDHEREIN SHALL CONSTITUTE A WAIVER OF THE RIGHT TO SUCH HEARING."

Cole did not request a hearing. So, on July 25, 2000, theDepartment issued a final order revoking Cole's license withoutholding an evidentiary hearing. This order indicated that it wassubject to judicial review pursuant to the Administrative ReviewLaw (735 ILCS 5/3--101 et seq. (West 2000)).

On August 28, 2000, Cole filed a request for judicial reviewof the Department's decision to revoke his license. He arguedthat the Department failed to follow the provisions of the Act byfailing to inform him of the date, time and place of theevidentiary hearing in its original notice and by failing to holdan evidentiary hearing.

The trial court upheld the Department's revocation of Cole'slicense. In doing so, the court found that the procedure usedcomplied with section 16 of the Act. Cole appealed.

Section 16 of the Act provides that before revocation of alicense:

"The Department shall, *** at least 10days prior to the date set for the hearing,notify in writing the applicant for or holderof a license, hereinafter called therespondent, that a hearing will be held onthe date designated to determine whether therespondent is privileged to hold suchlicense, and shall afford the respondent anopportunity to be heard in person or bycounsel with reference thereto." 225 ILCS345/16 (West 2000).

The section further states:

"At the time and place fixed in thenotice, the Department shall proceed to hearthe charges and both the respondent and thecomplainant shall be accorded ampleopportunity to present in person or bycounsel such statements, testimony, evidenceand argument as may be pertinent to thecharges or to any defense thereto." 225 ILCS345/16 (West 2000).

Cole argues that by using the word "shall," the legislaturemandated that before a license can be revoked by the Department,the Department is required to send a notice which includes thedate, time and place of the hearing. According to Cole, theDepartment's procedure violates the statute because he was neverinformed of the date, time and place of his hearing. Further,Cole argues that even if the respondent does not request anevidentiary hearing, the Department is statutorily required tohold one. Since the Department did not comply with the statute,he asserts that his license revocation was improper.

An administrative agency's interpretation of a statute issubject to de novo review. Branson v. Department of Revenue, 168Ill. 2d 247, 659 N.E.2d 961 (1995). The primary rule ofstatutory construction is to ascertain and give effect to theintent of the legislature. In re D.D., 196 Ill. 2d 405, 752N.E.2d 1112 (2001). Where the legislative intent can beascertained from the language of the statute, it will be giveneffect without resorting to other aids for construction. Peoplev. Lemons, 191 Ill. 2d 155, 729 N.E.2d 489 (2000). After carefulexamination of the statutory language, it is clear thelegislature intended to require the Department to schedule ahearing before revoking a license. See 225 ILCS 345/16 (West2000). The statute contains no language placing the burden onthe licensee to request a hearing. See 225 ILCS 345/16 (West2000). The Department's failure to schedule a hearing prior torevocation of the license was contrary to the plain meaning ofthe statute.

In examining a statute, it must be read as a whole and allrelevant parts should be considered. People v. Reed, 177 Ill. 2d389, 686 N.E.2d 584 (1997). Section 19 of the Act gives furthersupport to our interpretation. It specifically makes referenceto a scheduled hearing prior to suspension or revocation of alicense and sets forth the Department's subsequent procedures. See 225 ILCS 345/19 (West 2000). There is no language suggestingthat a hearing may not be scheduled.

The Department contends it should not be required toschedule and plan a hearing for each licensee under the Actbecause the legislature could not have intended such a result. The Department claims it absurd that it should undertakeextensive preparations only to have the licensee fail to appear.Yet this is exactly what the legislature appears to haveconsidered and addressed in section 19 of the Act, whereprocedures are set forth for "after the hearing, or, if therespondent failed to appear, on the date set for the hearing."225 ILCS 345/19 (West 2000).

The Department claims the word "shall" in section 16 has adirective meaning and would only acquire a mandatory meaning whenthe licensee requests a hearing. Use of the word "shall,"appearing in a statute, ordinarily imposes an imperative duty. Citizens Organizing Project v. Department of Natural Resources,189 Ill. 2d 593, 727 N.E.2d 195 (2000). It does not, however,have an exclusive, fixed, or inviolate connotation. People v.Singleton, 103 Ill. 2d 339, 469 N.E.2d 200 (1984). Its meaningin particular cases must be determined primarily from the intentof the legislature as shown by the context in which the word isused. People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997). The word "shall" in a statute will not be given a permissivemeaning when it is used with reference to any right or benefit toanyone, and the right or benefit depends upon giving a mandatorymeaning to the word. Newkirk v. Bigard, 109 Ill. 2d 28, 485N.E.2d 321 (1985).

There is no reason to stray from the standard usage of theword "shall" in the instant case. The Department's procedure isdirectly at odds with the apparent intent of the legislature.

This case is markedly different from Ferguson v. Ryan, 251Ill. App. 3d 1042, 623 N.E.2d 1004 (1993), where we affirmed thedecision of a township election board to accept the results froma caucus that did not conform precisely to the requirements ofthe Township Law of 1874 (60 ILCS 5/1--1 et seq. (West 1992)). In finding that the requirements were merely directory, we notedthat the general purpose of election laws is to ensure fair andhonest elections and to obtain a correct expression of thevoters' intent. Accordingly, minor and technical violations ofthe statute that did not affect the overall fairness of thecaucus did not invalidate the results. Thus in Ferguson, unlikehere, failing to adhere to statutory requirements did not depriveanyone of a right or benefit. For the foregoing reasons, thejudgment of the circuit court of McDonough County is reversed.

Reversed.

HOLDRIDGE, J., concurs.

BRESLIN, J., dissents.

JUSTICE BRESLIN dissenting:

It is well established in the law that the word "shall" maybe deemed directive where a statutory section is designed tosecure an orderly system in an administrative proceeding. Peoplev. Tomlinson, 295 Ill. App. 3d 193, 692 N.E.2d 1207 (1998). "Shall" may be interpreted as a directive word particularly whenno consequences are provided for failure to comply with aparticular provision. In re Estate of Wallis, 276 Ill. App. 3d1053, 659 N.E.2d 423 (1995). Further, an administrativeprocedure will be sustained so long as it furthers the purpose ofthe statute and is not arbitrary, unreasonable or capricious. See Board of Trustees of the University of Illinois v. IllinoisEducational Labor Relations Board, 274 Ill. App. 3d 145, 653N.E.2d 882 (1995).

In this case, section 16 of the Act is clearly designed toset up an orderly system for license revocation. There isnothing in section 16, or anywhere else in the Act, thatestablishes a consequence if section 16 is not complied withexactly. These two points lead me to the conclusion that theword "shall" as used in section 16 of the Act is directive, notmandatory.

Having determined that the statutory language of section 16is directive, the question then becomes whether the Department'sregulations sufficiently implement the statute. The regulationsprovide that before a licensee's license may be revoked, thelicensee will receive notice that a hearing will be scheduled ifhe requests one within 10 days of receipt of the notice. 77 Ill.Adm. Code