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Monthly Archives: August 2015

Concerning Process Serving In Illinois, Panama City VS Robert Brady

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This post concerns this Act: PROFESSIONS, OCCUPATIONS, AND BUSINESS OPERATIONS
(225 ILCS 447/) Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004.
The Act

I’m a Licensed Private Detective, not an Attorney.

The IDFPR Link
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1. Private Detective Application Based On Experience
2. Private Detective Application Based On Experience And Education

Honorable Attorney, Edward Williams, is Illinois’ foremost legal expert regarding Illinois process serving laws. His classes are well worth the admission price for interested persons who desire to be in complete compliance with all of the process serving laws in Illinois.
Attorney Edward Williams’ Introduction To Process Serving In Illinois

My post,
For those claiming unlicensed persons in Illinois may solicit and accept process service work from outside of Illinois, as an occupation, without the necessity for a valid Private Detective’s license, and operate an unlicensed process serving businesses in Illinois, the Apellate court upheld the lower court’s decision to quash Mr. Brady’s affidavit for unqualified, defective service.
The Link

Private Detective Act, PERC Application

About a year later, the Illinois Department of Financial and Professional Regulations allegedly disciplined Mr. Robert Brady, for advertising and performing the occupational duties of an Illinois Private Detective, in connection with his practice of process serving, without being properly licensed as a Private Detective or PERC employee of a licensed PI agency.

This post was not meant to disparage Mr. Brady; rather, it’s my hope that those currently engaged in the unlicensed occupation of service of process, as I was at one time as well, might become better informed by Brady’s experience so as not to share a similar outcome.

If you are a honorably discharged Military Veteran, however, you have been granted special privileges, thankfully. This exclusion wasn’t available when I started Guaranteed Process Service last century and ran afoul of IDFPR regulations, unfortunately. I received a cease and desist warning and had to obtain a PI license just to serve process in Illinois. Thank you Illinois for finally recognizing us Vets.

Unlicensed individuals may receive a one-off, special appointment from a circuit court to serve a specific case; however, it’s unlawful to operate a wildcat, motion and order, process serving business in Illinois without a PI license, unfortunately. Possessing a PERC grants no special privileges to operate a process serving business unless a PERC holder is employed by a properly licensed, 117 detective agency, and/or manages, or is employed at a licensed, PI branch office.
(735 ILCS 5/) Code of Civil Procedure.
Private Detective Branch Office Application

Caveat: with regard to the Illinois Private Detective’s Act, since there is no actual occupational title as “process server,” (except for Military Veterans,) as there are in other states, IDFPR disciplinary actions concerning unlicensed process service practices are referred to as violations of the Private Detective’s act.

The only (non-Sheriff) class of persons who may fully operate process serving businesses, without a Private Detective’s license and by special appointment, per-case, are honorably discharged, Military Veterans.

The law.

(225 ILCS 447/15-5)
“(7) A person appointed by the circuit court pursuant to the Code of Civil Procedure to make service of process in a specific case, provided that such person is not otherwise engaged in the business of serving process.

A person appointed by the circuit court pursuant to the Code of Civil Procedure who is an honorably discharged veteran of the armed forces of the United States and is self-employed as a process server.”

The disciplinary action,

“Robert Brady, Carpentersville – Permanent employee registration card revoked and fined $5,000 due to unlicensed detective practice and failure to comply with Department’s Notice of Unlicensed Practice to cease advertising and practicing unlicensed detective work.”
The Link

All IDFPR disciplinary actions are private adjudications between the department and individuals. The Department provides only a cursory overview about the outcomes on their monthly disciplinary action reports, however.
IDFPR Monthly Disciplinary Action Reports

Here are the laws concerning persons who are exempt from the Illinois, Private Detective Act.

(225 ILCS 447/15-5)
(Section scheduled to be repealed on January 1, 2024)

Sec. 15-5. Exemptions; private detective. The provisions of this Act relating to the licensure of private detectives do not apply to any of the following:
(1) An employee of the United States, Illinois, or a political subdivision of either while the employee is engaged in the performance of his or her official duties within the scope of his or her employment. However, any such person who offers his or her services as a private detective or uses a similar title when these services are performed for compensation or other consideration, whether received directly or indirectly, is subject to this Act.
(2) A person, firm, or other entity engaged exclusively in tracing and compiling lineage or ancestry who does not hold himself or herself out to be a private detective.
(3) A person engaged exclusively in obtaining and furnishing information, including providing reports, as to the financial rating or creditworthiness of persons in connection with (i) consumer credit transactions, (ii) information for employment purposes, or (iii) information for the underwriting of consumer insurance.
(4) Insurance adjusters employed or under contract as adjusters who engage in no other investigative activities other than those directly connected with adjustment of claims against an insurance company or a self-insured entity by which they are employed or with which they have a contract. No insurance adjuster or company may use the term “investigation” or any derivative thereof, in its name or in its advertising.
(5) A person, firm, or other entity engaged in providing computer forensics services so long as the person, firm, or other entity does not hold himself or herself out to be a private detective. For the purposes of this item
(5), “computer forensics services” means a branch of forensic science pertaining to the recovery and analysis of electronically stored information.
(6) A person employed as an investigator exclusively by only one employer in connection with the exclusive activities of that employer and who does not hold himself or herself out to be a private detective.

(7) A person appointed by the circuit court pursuant to the Code of Civil Procedure to make service of process in a specific case, provided that such person is not otherwise engaged in the business of serving process.
(8) A person appointed by the circuit court pursuant to the Code of Civil Procedure who is an honorably discharged veteran of the armed forces of the United States and is self-employed as a process server.
(Source: P.A. 98-253, eff. 8-9-13.)

For Police Officers

(l) No person may be employed under this Section in any capacity if:

(1) the person, while so employed, is being paid by the United States or any political subdivision for the time so employed in addition to any payments he or she may receive from the employer; or

(2) the person wears any portion of his or her official uniform, emblem of authority, or equipment while so employed.
(m) If information is discovered affecting the registration of a person whose fingerprints were submitted under this Section, the Department shall so notify the agency that submitted the fingerprints on behalf of that person.
(n) Peace officers shall be exempt from the requirements of this Section relating to permanent employee registration cards. The agency shall remain responsible for any peace officer employed under this exemption, regardless of whether the peace officer is compensated as an employee or as an independent contractor and as further defined by rule.

The social media exchange that inspired this post.
Jan 1, 2013, From: Erika,

“Hello, I have a couple of questions regarding process serving in Illinois. Is it mandatory to have a “PERC” card to be able to serve in Illinois? I have read the Illinois rule for process serving and it’s seems to the point but lately, I’ve asked other servers (especially in Cook County) questions about serving, and the first thing they ask me is< “Do you have a PERC card?

A couple of servers said they have one because the company requires them to have it, which I understand (private investigating firms require you to have a PERC card.)

Another person I spoke to said he was getting the PERC card because he hears that other companies have their card.
He has owned his own process serving/law support business for over 10 years.

I ask him where is it written that he needs this….he said he should just get one, just be safe. He told me that some motions to appoint special process server were denied because no license number was provided for him and he lost out on some services.

Will the PERC card provide me with a license number or is there another license I should be inquiring about. Again, he really didn’t answer the question 😦

I have worked in the legal field (litigation) for 12 years and I’ve decided to start my own business for process serving and clerical legal support.

I’m familiar with Cook County, DuPage County and Lake County Courts. I just can’t seem to find the reason or answer for PERC card for process serving and was hoping someone could help me with this.

Also, would a process serving class be useful to take or should I take the Private Investigation class…or both? I’m not starting a private investigation business, yet, but should I?

Thank you and have a great day!”

On January 6th, 2013, a licensed private detective in Chicago responded to Erica in what I consider to be a very respectful and professional manner.

The Chicago Private Detective’s response to Erica.

“That is correct but it does NOT mean one can “operate a business of serving court papers”. It means that a Judge can appoint a person over the age of 18 and not a party to the suit to serve a court document on that ONE particular case. It is primarily done for people who are indigent and cannot afford to hire the sheriff or private detective to spend enormous hours trying to serve someone who is trying to avoid.

The law specifically states that one cannot advertise or solicit customers, clients to serve court documents without a private detective business. In other words if you are going to have a business of “serving court papers” you must be a licensed private detective.

I would encourage you to seek the advice of legal counsel or to call the agency that regulates the profession, IL Dept of Prof Regulation for an exact clarification of the law if you feel that you can operate a business of serving court papers without a detective license in Illinois.”

Attorney, Ed Williams’ website

“PRIVATE DETECTIVE LICENSE ELIGIBILITY REQUIREMENTS
License applicants should first review the following requirements to determine whether you will meet the eligibility requirements for the particular license for which you are applying. If you clearly meet the eligibility requirements, complete and pay for the online application at Continental Testing Services. Then, register for our exam prep seminar and you will receive a confirmation email from our office within a day or so.

If you are not sure whether you meet the requirements, feel free to call us to discuss.

All the following must be true:

Minimum 21 years of age.
No felony convictions in the last 10 years.
Not currently suffering from alcohol or substance abuse.
Possess good moral character.
Not been dishonorably discharged from the military.
Additionally, a Private Detective applicant needs to accumulate 3 years of qualifying eligibility out of the previous 5 years. Any combination of qualifying experience that totals 3 years will allow an applicant to sit for the examination. The following experience will count toward the Private Detective eligibility requirement:

Baccalaureate degree, or higher, in law enforcement or a related field or a business degree from an accredited college or university will count for 2 years. An associate degree will count as 1 year.
Working as a full-time employee (PERC) for a licensed private detective agency.
An investigator for a licensed attorney, a state, federal or local law enforcement agency, a state’s attorney’s office or a public defender’s office.
In-house investigative unit for a corporation having 100 or more employees.
An investigator for any of the armed forces of the United States.”
Attorney, Ed Williams’ website

End

The information contained in this publication is provided solely for educational purposes and does not constitute and should not be relied upon as legal advice. You are responsible for your own compliance with the law and you need to understand that the tools and product offerings described herein do not guarantee compliance. Accordingly, you need to consult with your own independent legal counsel regarding the topics addressed herein and how best you can comply with the law.

Every effort has been made to make this content as accurate as possible at the time of publication. However, there may be typographical and/or content errors. Therefore, this publication should serve only as a general guide and not as the ultimate source of subject information.

Feel free to post comments or add criticism in the comment section below. If any portion of this post is incorrect, I will gladly edit it.

 
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Posted by on August 24, 2015 in Investigations

 

Illinois Long Arm Statutes

Chapter 735. Civil Procedure

Act 5.  Code of Civil Procedure (Refs & Annos)

Article II.  Civil Practice (Refs & Annos)

Part 2.  Process (Refs & Annos)

5/2-209. Act submitting to jurisdiction–Process

§  2-209. Act submitting to jurisdiction–Process.  (a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in this State;

(4) Contracting to insure any person, property or risk located within this State at the time of contracting;

(5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action;

(6) With respect to actions brought under the Illinois Parentage Act of 1984, as now or hereafter amended, [FN1] the performance of an act of sexual intercourse within this State during the possible period of conception;

(7) The making or performance of any contract or promise substantially connected with this State;

(8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State;

(9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State;

(10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired;

(11) The breach of any fiduciary duty within this State;

(12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State;

(13) The ownership of an interest in any trust administered within this State;  or

(14) The exercise of powers granted under the authority of this State as a fiduciary.

(b) A court may exercise jurisdiction in any action arising within or without this State against any person who:

(1) Is a natural person present within this State when served;

(2) Is a natural person domiciled or resident within this State when the cause of action arose, the action was commenced, or process was served;

(3) Is a corporation organized under the laws of this State;  or

(4) Is a natural person or corporation doing business within this State.

(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.

(d) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.

(e) Service of process upon any person who resides or whose business address is outside the United States and who is subject to the jurisdiction of the courts of this State, as provided in this Section, in any action based upon product liability may be made by serving a copy of the summons with a copy of the complaint attached upon the Secretary of State.  The summons shall be accompanied by a $5 fee payable to the Secretary of State.  The plaintiff shall forthwith mail a copy of the summons, upon which the date of service upon the Secretary is clearly shown, together with a copy of the complaint to the defendant at his or her last known place of residence or business address. Plaintiff shall file with the circuit clerk an affidavit of the plaintiff or his or her attorney stating the last known place of residence or the last known business address of the defendant and a certificate of mailing a copy of the summons and complaint to the defendant at such address as required by this subsection (e).  The certificate of mailing shall be prima facie evidence that the plaintiff or his or her attorney mailed a copy of the summons and complaint to the defendant as required.  Service of the summons shall be deemed to have been made upon the defendant on the date it is served upon the Secretary and shall have the same force and effect as though summons had been personally served upon the defendant within this State.

(f) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon subsection (a).

(g) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.

 
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Posted by on August 20, 2015 in Investigations

 

Concerning Process Serving In Illinois, Motion To Quash For Not Possessing A Valid Detective’s License

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Posted by on August 19, 2015 in Investigations

 

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Concerning Process Serving In Illinois, Appellate Court, Johnson V IDFPR

JOHNSON v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION

Appellate Court of Illinois,Fourth District.

Susan JOHNSON, Plaintiff-Appellant, v. The ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION and Leonard Sherman, Director, Defendants-Appellees (Lea Powell, Plaintiff-Appellant, v. The Illinois Department of Professional Regulation and Leonard Sherman, Director, Defendants-Appellees).

No. 4-98-0962.

    Decided: November 8, 1999

Mark D. Johnson (argued), Johnson Law Office, Ltd., Bloomington, for Susan Johnson. James E. Ryan, Attorney General, Joel O.Bertocchi, Solicitor General, ElizabethSchenkier, Assistant Attorney General (argued), Chicago, for Department of Professional Regulation.Plaintiffs applied to defendant, Illinois Department of Professional Regulation (Department), for licensing as private detectives.   The Department rejected the applications because plaintiffs failed to satisfy statutory qualifications required of private detectives.   The circuit court of McLean County affirmed the decision of the Department.   Plaintiffs appeal.   We reverse and remand.

On January 1, 1998, plaintiff Susan Johnson was employed as a full-time investigator with the Johnson law office.   Johnson, who had a baccalaureate degree in psychology, had been employed at the law office for 19 months.   She previously had been employed as an investigator with the McLean County public defender’s office.   Johnson’s law office employment included interviewing witnesses, taking statements, preparing witnesses for trial, reviewing police reports, serving subpoenas, summons, and other legal documents, and tracking down witnesses.

On January 1, 1998, plaintiff Lea Powell was employed as a full-time investigator with the McLean County public defender’s office.   She had previously done work in a private law office.   Powell had a baccalaureate degree in criminal justice and had been employed in the public defender’s office for 30 months.   Powell’s employment with the public defender’s office included photographing and surveying crime scenes, taking and verifying statements from witnesses, conducting jail interviews, preparing cases for trial, and serving subpoenas.

Plaintiffs’ activities appear to violate the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 (1993 Act) (225 ILCS 446/75(a)(6) (West 1996)).   A private detective’s license is required of anyone who by any means makes investigations, for a fee, of (1) crimes;  (2) the identity, conduct, credibility, et cetera, “of any person, firm, association, or corporation”;  (3) lost or stolen property;  (4) the cause or responsibility for fires, accidents, or injuries;  or (5) “[t]he truth or falsity of any statement”;  or (6) leading to “[s]ecuring evidence to be used before any court,” board, or committee.   225 ILCS 446/5 (West 1996).   A private detective’s license is also required of anyone who engages in bodyguard functions or serves process in criminal or civil proceedings without court order.   225 ILCS 446/5 (West 1996).   The 1993 Act is very broadly written.   Every employee who investigates anything in the course of his or her employment, without a private detective’s license, arguably violates the Act.   The Act is seldom, if ever, enforced, but its constitutionality cannot be sustained on that basis.

Because the 1993 Act is so broad, its constitutionality depends on its many exceptions.   Without exceptions to the 1993 Act, attorneys would need a private detective’s license to seek out and interview witnesses, bank employees would need a private detective’s license to determine the creditworthiness of loan applicants, and insurance adjusters would need to be licensed as private detectives.   Statutory exceptions cover these areas (225 ILCS 446/30(2) through (7) (West 1996)) but other problem areas remain.   A department store manager who is concerned whether employees are punching each others’ time cards, taking home merchandise, or sexually harassing each other may need a private detective’s license before making any inquiries.   Attorneys may look for and talk to witnesses without a private detective’s license (225 ILCS 446/30(2) (West 1996)) but it appears their paralegals may not.

On January 21, 1998, Johnson and Powell each submitted an application to the Department for a private detective’s license.   In February 1998, Continental Testing Services, Inc. (Continental), the company assigned to administer the private detective test, rejected plaintiffs’ applications because plaintiffs failed to satisfy the statutory requirements to become a private detective.

The 1993 Act requires that applicants for a license to be a private detective meet the following requirements:  (1) three years’ experience during the last five years “working full-time for a licensed private detective agency as a registered private detective employee,” or (2) three years’ experience during the last five years “employed as a full-time investigator in a law enforcement agency of a federal or State political subdivision, approved by the [Illinois Private Detective, Private Alarm, Private Security and Locksmith] Board [ (Board) ] and the Department.”   225 ILCS 446/75(a)(6) (West 1996).   Applicants with a baccalaureate degree in police science or a related field, or a business degree, shall be given credit for two of the three years’ required experience.   Applicants with associate’s degrees in those fields shall be given credit for one of the three years’ required experience.   225 ILCS 446/75(a)(6) (West 1996).   Continental denied Johnson’s application because her education was in an unrelated field and her work experience was inadequate and denied Powell’s application because her work experience was inadequate.

Is it really true that criminal defense attorneys must rely on former police officers to seek out and interview defense witnesses?   Section 14(a)(7) of the Private Detective, Private Alarm, and Private Security Act of 1983 (1983 Act) (see 225 ILCS 445/14(a)(7) (1992)) allowed an applicant to receive a private detective’s license based on three years’ experience working as an attorney’s investigator.   However, section 14(a)(7) was not included when the 1993 Act was adopted.

Plaintiffs appealed Continental’s decision to the Board.   After a hearing in March 1998, the Board recommended plaintiffs’ applications be denied for failure to satisfy the statutory requirements.   The Department accepted the Board’s recommendation and denied plaintiffs’ applications.   Plaintiffs then filed a complaint for administrative review in the circuit court of McLean County.   In October 1998, the circuit court affirmed the Department’s decision.   This appeal followed.

The State, pursuant to its inherent police powers, may regulate businesses for the protection of the public health, safety and welfare.   The fact that the legislature has invoked its police power to regulate a particular trade, however, is not conclusive that such power was lawfully exercised.  Church v. State, 164 Ill.2d 153, 164-65, 207 Ill.Dec. 6, 646 N.E.2d 572, 578-79 (1995).   A statute that gave master plumbers monopolistic control over the avenues of entry into the plumbing business was held unconstitutional in People v. Brown, 407 Ill. 565, 585, 95 N.E.2d 888, 899 (1950).   The legislature may reasonably require an applicant to have practical experience, such as an apprenticeship, as a prerequisite to licensure.   The supreme court has established a two-part test to determine whether an apprenticeship provision is constitutionally valid:  (1) the provision must not have the effect, when implemented, of conferring on members of the trade a monopolistic right to instruct, and (2) it must be structured in such a way that the apprenticeship it requires is calculated to enhance the expertise of prospective licensees.  People v. Johnson, 68 Ill.2d 441, 447, 12 Ill.Dec. 191, 369 N.E.2d 898, 901 (1977).

Applying this two-part test, the portion of the 1993 Act requiring licensing for private alarm contractors was recently held unconstitutional in Church, 164 Ill.2d at 167-68, 207 Ill.Dec. 6, 646 N.E.2d at 580.  “No matter how well qualified a person may be by instruction, training[,] or prior experience, he or she can never of his or her own free will become a licensed private alarm contractor unless a member of the regulated industry is willing to hire him or her on a full-time basis for the requisite time period in a particular capacity.”  Church, 164 Ill.2d at 168, 207 Ill.Dec. 6, 646 N.E.2d at 580.   The supreme court distinguished People ex rel. Chicago Dental Society v. A.A.A. Dental Laboratories, Inc., 8 Ill.2d 330, 134 N.E.2d 285 (1956), and Illinois Polygraph Society v. Pellicano, 83 Ill.2d 130, 46 Ill.Dec. 574, 414 N.E.2d 458 (1980), as cases where “any person” could obtain a license.  Church, 164 Ill.2d at 168-70, 207 Ill.Dec. 6, 646 N.E.2d at 580-81.   The private alarm contractor licensing scheme also violated the second part of the Johnson test because nothing suggested that the necessary expertise could “be provided only by full-time employment as a private alarm contractor for three years in a supervisory capacity.”  Church, 164 Ill.2d at 171-72, 207 Ill.Dec. 6, 646 N.E.2d at 582.

The Department argues that the 1993 Act is different from the statutes struck down in Church and Johnson, because the private detective business does not hold monopolistic control over licenses.   An applicant can qualify for a private detective license by working as “a full-time investigator in a law enforcement agency of a federal or State political subdivision.”   225 ILCS 446/75(a)(6) (West 1996).   It cannot be said, however, that expanding the experience requirement to include police officers has made it possible for “any person” who possesses the necessary abilities to become a licensed private detective.   See Chicago Dental Society, 8 Ill.2d at 337, 134 N.E.2d at 290;  Illinois Polygraph Society, 83 Ill.2d at 143-45, 46 Ill.Dec. 574, 414 N.E.2d at 465-66.   Not many people, no matter how well qualified, can become police officers.

The legislature cannot avoid the charge of “monopolistic right to instruct” by adding to the members of the business a few individuals who may not be interested in participating in the business anyway.   The evil here is monopoly power, whether that power is exercised by a single group or by one group in connection with another.   The Department has not attempted to show that allowing experience as police officers has, in practice, reduced the monopoly power of the private detective business.   There is also a contradiction in requiring full-time employment in a certain field as a precondition for full-time employment in some other field.   There is no logical progression from full-time police officer to private detective.   A police officer will have to either retire or become dissatisfied with the police force to be a candidate for a private detective’s license.   Work as a full-time investigator in a law enforcement agency cannot be described as an apprenticeship toward being a private detective.   No justification appears for limiting work in the broad areas covered in section 75(a)(6) of the 1993 Act to retired police officers and those selected by the private detective business.

Nor can it be said that the necessary expertise to become a private detective could “be provided only by full-time employment as a [police officer] for three years.”  (Emphasis added.)  Church, 164 Ill.2d at 171-72, 207 Ill.Dec. 6, 646 N.E.2d at 582.   Police officers have some experience that is useful in performing some of the functions listed in section 5 of the 1993 Act (225 ILCS 446/5 (West 1996)) but so do many other individuals in different trades and professions.   Given the breadth of section 5 of the 1993 Act, some covered investigations require experience and training in fields other than police work.   For example, accountants and those who have worked in accountants’ offices would likely have more proficiency in examining financial statements and documents for fraud and evidence of wrongdoing than would the typical police investigator.   The same can be said of automobile mechanics, firefighters, bankers, building contractors, photographers, and scores of other trades and professions.   The necessary expertise to perform “investigations” in those fields can be, and frequently is, provided by others than police officers.

The Department argues that Powell may be allowed to continue her employment as a full-time investigator with the McLean County public defender’s office because the legislature exempted the State and its political subdivisions from compliance with the 1993 Act.   225 ILCS 446/30(1) (West 1996).   That exemption, however, only serves to illustrate the irrationality of the 1993 Act.   Why should paralegals in the public defender’s office be allowed to seek out and interview witnesses, while paralegals in private law offices, in this case paralegals with public defender experience, are not?   If the legislature has a legitimate interest in regulating those who may be employed in law offices, serving under the direction of licensed attorneys, it may promote that interest by listing qualifications that those employees must meet, but not by limiting law office employment to retired police officers and those chosen by the private detective business.

Similar to the court’s ruling on the 1983 Act in Church, we conclude that the 1993 Act, as interpreted by the Department, violates both prongs of the Johnson test and is invalid.   We reverse the decision of the circuit court, set aside the decision of the Department, and remand this cause to the Department with directions that plaintiffs shall be allowed to sit for the licensing examination.

Reversed and remanded with directions.

I respectfully dissent.   The statute is constitutional, and no unregulated monopoly in the private detective field has been created.

Legislation enjoys a presumption of constitutionality, and a party challenging a statute bears the burden of establishing its invalidity.  People v. Lantz, 186 Ill.2d 243, 254, 238 Ill.Dec. 592, 712 N.E.2d 314, 319 (1999).   The regulation of licenses is within the State’s police power when such regulation is necessary and related to the protection of the public.   Scully v. Hallihan, 365 Ill. 185, 191, 6 N.E.2d 176, 180 (1936).   Thus, we must determine whether the 1993 Act’s requirements bear a reasonable relationship to protecting the public from poorly trained private detectives.   See Johnson, 68 Ill.2d at 446, 12 Ill.Dec. 191, 369 N.E.2d at 901.

The majority relies on Church, 164 Ill.2d 153, 207 Ill.Dec. 6, 646 N.E.2d 572, where the supreme court struck down the portion of the 1993 Act requiring licensing for private alarm contractors.   The court, in applying the two-part test from Johnson, held that the statute granted the private alarm contractors monopolistic control over those who wished to enter the field and the record failed to establish that the statutory requirements were calculated to enhance the expertise of prospective licenses.  Church, 164 Ill.2d at 170, 207 Ill.Dec. 6, 646 N.E.2d at 581.

If we apply the same test to these facts, we find that an applicant can qualify for a private detective license by working as an “investigator in a law enforcement agency of a federal or State political subdivision.”   225 ILCS 446/75(a)(6) (West 1996).   The Administrative Code defines “investigator” as “a sworn peace officer who serves in the capacity of a full[-]time detective/investigator or above rank.”   68 Ill. Adm.Code § 1240.10(b)(3) (1996).   Thus, plaintiffs can satisfy the statutory requirements without working for a licensed private detective.   An individual’s access to a license in the field is not limited to a sole avenue of entry, as it was with the alarm contractors.

Section 75(a)(6) of the 1993 Act is also structured to enhance the training and expertise of newly licensed private detectives.   Both a registered private detective employee and a sworn peace officer (1) are subject to background checks and (2) must complete extensive training before obtaining their position.   See 68 Ill. Adm.Code §§ 1240.20, 1240.35 (1996) (a registered private detective employee must complete a minimum of 20 hours of training).   Additionally, applicants receive credit toward the work experience requirements for earning a bachelor or associate’s degree in a related field.

The legislature could reasonably conclude that such safety measures and training courses are necessary because, unlike a private alarm contractor, a private detective’s actions may have a greater effect on the public.   As section 5 of the 1993 Act provides, a private detective may (1) investigate crimes, people, or the veracity of any statement or representation;  (2) secure evidence to be used before a court;  (3) act as a bodyguard;  and (4) serve process in criminal and civil proceedings.  225 ILCS 446/5 (West 1996).   Thus, a significant level of training and expertise is necessary before becoming a private detective.

Moreover, the legislature’s acceptance of experience gained as a sworn peace officer as an alternative to working for a licensed private detective is not illusory.   In Johnson, the supreme court considered the Illinois Plumbing License Law (Ill.Rev.Stat.1973, ch. 111 1/212, par. 116.36 et seq.), which allowed plumbers to be licensed if they (1) had five years’ experience as a registered apprentice or (2) completed an approved course of instruction from a trade school, college, or university.   The court found the second alternative illusory because the statute allowed the Director of Public Health to prescribe what constituted an approved course of instruction;  thus, the practical utility of the educational alternative was destroyed.   See Johnson, 68 Ill.2d at 449, 12 Ill.Dec. 191, 369 N.E.2d at 902-03.

Here, however, a sworn police officer’s experience provides him with training that is at least equivalent to that obtained by a registered employee of a licensed private detective.   Further, this experience may be obtained without working in the private detective field.   Thus, an applicant may gain the necessary experience requirements by two separate means.

The private detective industry does not have the monopolistic power to control who will obtain a private detective’s license.   One can obtain the requisite work experience by working in the private detective business or via equivalent experience as a law enforcement officer.   Therefore, I would uphold the constitutionality of the statute and affirm the circuit court and the Department.

Justice COOK delivered the opinion of the court:

MYERSCOUGH, J., concurs.GARMAN, J., dissents.

Johnson VS IDFPR

 

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