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Lincoln Manor, Inc. v. Department of Public Health
State: Illinois
Court: 4th District Appellate
Docket No: 4-04-0544 Rel
Case Date: 07/14/2005

 

NO. 4-04-0544

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

LINCOLN MANOR, INC.,
                        Plaintiff-Appellee,
                        v.
THE DEPARTMENT OF PUBLIC HEALTH,
STATE OF ILLINOIS,
                        Defendant-Appellant.
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Appeal from
Circuit Court of
Macon County
No. 03MR54

Honorable
Thomas E. Little,
Judge Presiding.


PRESIDING JUSTICE COOK delivered the opinion of the court:

In February 2004, plaintiff, Lincoln Manor, Inc., filed a complaint for administrative review in the Macon County circuit court, arguing the order of the designee of the Director of the Department of Public Health (Department) upholding the recommended findings of an administrative law judge (ALJ) was void because it was not issued within the time allowed by section 3-707 of the Nursing Home Care Act (Act) (210 ILCS 45/3-707 (West 2002)). In May 2004, the circuit court agreed and found the order void. The Department appealed. We affirm.

I. BACKGROUND

In September 2001, a resident of Lincoln Manor Nursing Home exited the nursing home without the knowledge of the nursing home staff and fractured her hip in a fall. As a result of the resident's elopement from the nursing home and subsequent injury, a health facilities surveillance nurse inspected the nursing home for the Department. After the inspection, the Department issued Lincoln Manor a notice of violations of the Act and other Department regulations. The Department later issued a second notice to Lincoln Manor for violation of a federal regulatory provision. Both notices imposed fines on Lincoln Manor.

Lincoln Manor requested an administrative hearing. On September 23, 2002, the hearing concluded. On January 22, 2003, the Deputy Director, as the designee of the Department's Director, entered a final order adopting the ALJ's findings of fact, conclusions of law, and recommendations. The Deputy Director agreed with the ALJ that Lincoln Manor had committed the alleged state and federal violations.

On February 5, 2003, Lincoln Manor filed a complaint for administrative review in circuit court, arguing the Department's decision was void because it was not entered within the 120-day deadline set by section 3-707 of the Act (210 ILCS 45/3-707 (West 2002)). The court agreed. This appeal followed.

II. ANALYSIS

The Department argues the language in section 3-707 of the Act (210 ILCS 45/3-707 (West 2002)), imposing a 120-day deadline for the Director's decision, is directory and not mandatory. We disagree.

A. Standard of Review

In cases involving questions of statutory construction, we apply a de novo standard of review. Swavely v. Freeway Ford Truck Sales, Inc., 298 Ill. App. 3d 969, 976, 700 N.E.2d 181, 187 (1998).

B. Construction of Statute

Section 3-707 of the Act states in part as follows:

"The Director or hearing officer shall make findings of fact in such hearing, and the Director shall render his decision within 30 days after the termination of the hearing, unless additional time not to exceed 90 days is required by him for a proper disposition of the matter." 210 ILCS 45/3-707 (West 2002).

Our supreme court has stated that "[t]he primary rule of statutory construction is to ascertain and give effect to the intention of the legislature, and that inquiry appropriately begins with the language of the statute." People v. Woodard, 175 Ill. 2d 435, 443, 677 N.E.2d 935, 939 (1997). If the language of a statute is clear and unambiguous, we do not resort to other aids of statutory construction. Woodard, 175 Ill. 2d at 443, 677 N.E.2d at 939.

"Generally, the use of the word 'shall' in a statute is regarded as indicating a mandatory rather than a directory intent. The rule is not, however, an inflexible one; the statute may be interpreted as permissive, depending upon the context of the provision and the intent of the drafters." Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940.

Normally, if a statute specifies a time for the performance of an official duty, the statute only will be considered directory if the rights of the parties cannot be injuriously affected by failure to act within the time indicated in the statute. Carrigan v. Illinois Liquor Control Comm'n, 19 Ill. 2d 230, 233, 166 N.E.2d 574, 576 (1960). "However, where such statute contains negative words, denying the exercise of the power after the time named, or where a disregard of its provisions would injuriously affect public interests or private rights, it is not directory but mandatory." Carrigan, 19 Ill. 2d at 233, 166 N.E.2d at 576.

According to Sutherland Statutory Construction:

"Negative words in a grant of power should never be construed as directory. Where an affirmative direction is followed by a negative or limiting provision, it becomes mandatory. Negative words do not always compel an imperative construction nor does their absence compel directory construction. However, the absence of negative words may be considered in support of directory construction." 3 N. Singer, Sutherland Statutory Construction

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