Hamwi v. Zollar

• Decision Date: 09 October 1998
• Docket Number: No. 1-96-2972,1-96-2972
• Citation: 299 Ill.App.3d 1088,702 N.E.2d 593,234 Ill.Dec. 253
• Parties: , 234 Ill.Dec. 253 Safwan HAMWI, M.D., Petitioner-Appellant, v. Nikki M. ZOLLAR, Director of Department of Professional Regulation, State of Illinois, and Department of Professional Regulation, State of Illinois, Respondents-Appellants.
• Court: United States Appellate Court of Illinois

Page 593

702 N.E.2d 593

299 Ill.App.3d 1088, 234 Ill.Dec. 253

Safwan HAMWI, M.D., Petitioner-Appellant, v. Nikki M. ZOLLAR, Director of Department of Professional

Regulation, State of Illinois, and Department of

Professional Regulation, State of

Illinois, Respondents-Appellants.

No. 1-96-2972.

Appellate Court of Illinois,

First District, Sixth Division.

Oct. 9, 1998.

Morgen and Fox, Chicago (Perry M. Morgen, of counsel), for Petitioner-Appellant.

James E. Ryan, Attorney General, Barbara A. Preiner, Solicitor General (Karen J. Dimond, Assistant Attorney General, of counsel), for Respondents-Appellants.

Presiding Justice CAMPBELL delivered the opinion of the court:

Respondent, the Department of Professional Regulation (Department) denied the request of petitioner, Safwan Hamwi, a physician, to expunge the record of a disciplinary action against his medical license. Petitioner sought review in the circuit court of Cook County, naming as respondents the Department and the Director of the Department, Nikki Zollar (Zollar). The circuit court affirmed the decision of the Department, and denied plaintiff's complaint for administrative review. On appeal, petitioner contends that the trial court erred in affirming that the Department's denial of his request for expungement of the disciplinary action from its records. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. Petitioner is a physician licensed in good standing to practice medicine in the State of Illinois. In January 1987, petitioner, then a resident of the State of Ohio, pled guilty to misdemeanor charges of attempt forgery and attempt uttering ¹ in the Court of Common Pleas, Cuyahoga County, Ohio, and was sentenced to pay a fine of $500. In May 1987, petitioner accepted the offer of a medical internship program in Chicago, and applied to the Department for a temporary license to commence in July 1987.

Later in 1987, petitioner entered into a consent order with the Department, whereby he stipulated to his conviction, agreed to accept the disciplinary sanction of a reprimand, and waived his rights to have the pending allegations reduced to written charges; to a hearing; to contest any charges brought; to administrative review of any order resulting from a hearing; and to administrative review of the consent order. Petitioner did not receive his temporary medical license until February 1988, causing him to forfeit his internship position. Petitioner secured another internship position in July 1988.

In March 1988, pursuant to an application filed by petitioner, the State of Ohio entered a judgment of expungement in which the State sealed the official records pertaining to petitioner's conviction. However, the Ohio court order provided that upon conviction of a subsequent offense, the sealed records could be considered by the court in determining the sentence or other disposition.

In July 1990, petitioner applied to the Department for issuance of a permanent Illinois medical license. After disclosure of the Ohio expungement order and investigation by the Department, petitioner was issued a permanent medical license in December 1990.

In July 1994, petitioner applied for a medical license in the State of Kentucky. The Department reported the previous disciplinary action in Illinois to the Kentucky licensing board. Petitioner disclosed all of the facts relevant to his disciplinary reprimand and expunged conviction, and the State of Kentucky issued a medical license to petitioner in 1994.

In January 1995, petitioner filed a petition to expunge his prior disciplinary action with the Department based on the expungement of his conviction from the court records of the State of Ohio. In April 1995, petitioner submitted his own affidavit to the Department, in which he averred that at the time he agreed to the entry of the consent order, an attorney for the Department had told him that if his Ohio conviction was expunged, his Illinois disciplinary reprimand would also be expunged.

On September 8, 1995, Zollar found that petitioner failed to allege any evidence to warrant expungement of his reprimand, because the expungement of petitioner's conviction was not as the result of an error or reversal of petitioner's conviction on appeal. Zollar denied petitioner's petition to expunge his disciplinary record.

On October 12, 1995, petitioner filed a complaint in the circuit court of Cook County seeking administrative review of the findings of the Department. Therein, petitioner again alleged that the State of Ohio expunged all record of his conviction from the court records of that state, and that his conviction was the only basis for the disciplinary reprimand action taken by the State of Illinois. Petitioner further alleged that at the time he agreed to the consent order resulting in the reprimand action by the Department, he had received assurances from a Department attorney that upon expungement of his conviction in Ohio, the Department would also expunge the reprimand from its records.

Petitioner requested that the circuit court reverse the decision of the Department denying the expungement of his disciplinary reprimand, and to order the Department to expunge the reprimand from its files. In the alternative, petitioner requested that the trial court either remand the matter to the Department for reconsideration, or vacate the 1987 consent order.

A hearing commenced on petitioner's complaint on July 12, 1996. On July 19, 1996 the trial court entered an order denying petitioners complaint for administrative review, finding the Department's decision neither arbitrary nor capricious nor against the manifest weight of the evidence. Petitioner filed a timely notice of appeal on August 15, 1996.

On appeal, petitioner argues that the trial court erred in affirming the Department's denial of his request for expungement of the disciplinary action from his records.

Upon administrative review, the function of both the trial court and the appellate court is limited to determining whether the findings and conclusions of the administrative agency are against the manifest weight of the evidence. Launius v. Board of Fire & Police Commissioners, 151 Ill.2d 419, 427, 177 Ill.Dec. 407, 603 N.E.2d 477 (1992). The Administrative Review Law provides that our review encompasses all questions of law and fact presented by the entire record. 735 ILCS 5/3-110 (West 1996); Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill.2d 141, 148, 227 Ill.Dec. 753, 688 N.E.2d 90 (1997); Richard's Tire Co. v. Zehnder, 295 Ill.App.3d 48, 229 Ill.Dec. 587, 692 N.E.2d 360 (1998). Only where an opposite conclusion is clearly evident from the record should an agency decision be disturbed on review. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 88, 180 Ill.Dec. 34, 606 N.E.2d 1111 (1992); Wesley v. Police Board of Chicago, 223 Ill.App.3d 1042, 166 Ill.Dec. 390, 586 N.E.2d 348 (1991). An agency's findings and conclusions on questions of fact are held to be prima facie true and correct. 735 ILCS 5/3-110 (West 1996); Chief Judge of the Circuit Court v. American Federation of State County & Municipal Employees, Council 31, 153 Ill.2d 508, 514, 180 Ill.Dec. 288, 607 N.E.2d 182 (1992). A petitioner in an administrative proceeding has the burden of proof and relief will be denied if he fails to sustain that burden. English v. Northfield, 172 Ill.App.3d 344, 348, 122 Ill.Dec. 329, 526 N.E.2d 588 (1988).

However, an administrative agency's determinations of law are not accorded the same deference as its findings of fact. Oregon Community Unit School District No. 220 v. Property Tax Appeal Board, 285 Ill.App.3d 170, 175, 220 Ill.Dec. 858, 674 N.E.2d 129 (1996), appeal granted, 172 Ill.2d 554, 223 Ill.Dec. 196, 679 N.E.2d 381 (1997). The interpretation of a statute is a question of law. Branson v. Department of Revenue, 168 Ill.2d 247, 254, 213 Ill.Dec. 615, 659 N.E.2d 961 (1995). An administrative agency's finding on a question of law or an interpretation of a statute, including a statute it is charged with administering, is not binding upon this court. Branson, 168 Ill.2d at 254, 213 Ill.Dec. 615, 659 N.E.2d 961. Our review of legal issues is de novo. Du Page County Board of Review v. Property Tax Appeal Board, 284 Ill.App.3d 649, 653, 220 Ill.Dec. 297, 672 N.E.2d 1309 (1996).

We have reviewed the record, including the transcript of the hearing and petitioner's final administrative decision. Petitioner raises one issue of law and one of fact. Accordingly, a de novo standard of review is appropriate for the first issue raised by petitioner.

Petitioner initially argues that under the U.S. Constitution and the Illinois Uniform Enforcement of Foreign Judgments Act (735 ILCS 5/12-650 et seq. (West 1996)), the Illinois courts must give full faith and credit to the Ohio court judgment of expungement and order to seal records. Petitioner thus presents a question of law.

The authority of the Department is governed by the Illinois Medical Practice Act (The Act). 225 ILCS 60/1 et seq. (West 1994). Section 22(A)(5) of the Act provides for disciplinary action as follows:

"The department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license * * * of any person issued under this Act to practice medicine * * * upon any of the following grounds:

* * *

(5) Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public." 225 ILCS 60/22(A)(5) (West 1994).

The consent order petitioner entered into with the Department provides as follows "Information has come to the attention of the Department that on or about January 14, 1987, Safwan Hamwi was convicted in the Court of Common Please of the State of Ohio, Cuyahoga County, of the misdemeanor offenses of (1) attempted...