Ill. Admin. Code tit. 38, § 140.120 - Hearing Procedures

Current through Register Vol. 46, No. 15, April 8, 2022

a) Hearings

After receipt of a written request for a hearing, the Director shall send to the respondent requesting the hearing, by certified mail, at least 10 days prior to the date set for such hearing, a Notice of Hearing. The Notice shall include the date and the time and place of the hearing to review the propriety of any administrative actions made pursuant to the Act.

b) The Director may designate, in writing, a Hearing Officer who shall have the minimum qualifications of being licensed to practice law in Illinois. A Hearing Officer may be disqualified based on bias or conflicts of interest. The Hearing Officer shall have the authority to:

1) Examine or permit examination of any witness under oath;

2) Determine the order of appearance of all parties;

3) Receive all evidence and testimony and rule on its admissibility as well as require the production of any relevant document or witness;

4) Rule on objections to evidence;

5) Make a written report with recommendations to the Director that shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed; and

6) Require any party or his attorney to provide proposed findings of fact or conclusions of law for consideration in his report.

c) General Provisions

1) Delivery of notice shall be deemed complete when the Notice is deposited in the U.S. mail.

2) Continuances

A) A continuance shall be granted for good cause by the Hearing Officer, which shall be:

i) In writing and signed by the respondent or his attorney and shall state the reasons for the request.

ii) Delivered to the Hearing Officer at least three days prior to the scheduled hearing.

B) For the purposes of this subsection (c)(2), good cause shall require the respondent to demonstrate real and compelling need for additional time. It shall include, but not be limited to, illness, service in the armed forces, etc.

3) The respondent shall bear any and all costs of the hearing.

4) A court reporter will be present and considered as part of the costs of the hearing.

d) Conduct of Hearings

1) The Hearing Officer shall open the hearing by presenting for the record his letter of authorization from the Director.

2) The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed. The Hearing Officer may admit evidence not admissible under such rules if the evidence may be relevant to the case.

3) The Hearing Officer may, on his or her own motion or the motion of one of the parties, take notice of matters of which the circuit courts of this State may take judicial notice. Notice may be taken of generally recognized technical or scientific facts within the Division's specialized knowledge if parties are notified, before or during the hearing, and shall be afforded an opportunity to contest the material so noticed. The burden of opposing any material admitted upon notice shall be upon the party so opposing.

4) Failure to attend the hearing shall result in the dismissal of the respondent's petition and an entry of a default against the respondent. Within 30 days from dismissal of the respondent's petition, the respondent may petition the Hearing Officer for reconsideration if the respondent can establish that his failure to attend was caused by events beyond his control and he exercised due diligence to attend or seek a continuance.

5) The record of any hearing shall include:

A) All pleadings, and evidence received whether admitted or excluded;

B) A statement of all matters officially noticed;

C) All offers of proof, objections and rulings thereon;

D) All proposed findings and exceptions;

E) Any decision, opinion, or report by the Hearing Officer;

F) Any evidence excluded by the Hearing Officer, even though the evidence is not used in the determination of the decision;

G) A proceeding transcript that shall be recorded by such means as to adequately ensure the preservation of the testimony.

6) Within 60 days after the hearing or the receipt of all necessary documents, the Hearing Officer shall report to the Director.

7) Within 30 days after receiving the report of the Hearing Officer, the Director shall issue his or her decision, which shall be served on the respondent by registered or certified mail, return receipt requested. Copies of the Hearing Officer's report to the Director are available upon written request.

e) Petition to Reconsider

1) Within 30 days after receipt of the Director's decision, the respondent may petition the Director for reconsideration based upon a verified petition. An affidavit shall accompany the petition stating that the decision was against the preponderance of the evidence, was contrary to law, or was arbitrary or capricious, or is affected by newly discovered evidence not in existence at the time of the initial hearing or that could not have been discovered using due diligence at that time.

2) The Director shall determine within 15 days whether to reconsider the case. If the Director determines, after reading the affidavit, that one or more of the findings listed in subsection (e)(1) exists, a hearing may be held and shall be limited to only those issues raised in the petition to reconsider. If reconsideration is denied, the Director's initial decision shall be the final administrative decision of the Division subject to judicial review under the Administrative Review Law [735 ILCS 5 /Art. III].

Notes

Ill. Admin. Code tit. 38, § 140.120

Amended at 35 Ill. Reg. 6350, effective March 29, 2011