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SIXTH DIVISION

OCTOBER 9, 1998

No. 1-96-2972

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Respondent, the Department of Professional Regulation (Department) denied therequest 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 ofCook 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, petitionercontends that the trial court erred in affirming that the Department's denial of hisrequest for expungement of the disciplinary action from its records. For the followingreasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. Petitioner is a physicianlicensed 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 ofattempt forgery and attempt uttering⁽¹⁾ in the Court of Common Pleas, CuyahogaCounty, Ohio, and was sentenced to pay a fine of $500. In May 1987, petitioneraccepted the offer of a medical internship program in Chicago, and applied to theDepartment 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 areprimand, and waived his rights to have the pending allegations reduced to writtencharges; to a hearing; to contest any charges brought; to administrative review of anyorder resulting from a hearing; and to administrative review of the consent order. Petitioner did not receive his temporary medical license until February 1988, causinghim to forfeit his internship position. Petitioner secured another internship position inJuly 1988.

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

In July 1990, petitioner applied to the Department for issuance of a permanentIllinois 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 Kentuckylicensing board. Petitioner disclosed all of the facts relevant to his disciplinary reprimand and expunged conviction, and the State of Kentucky issued a medical license topetitioner in 1994.

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

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

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

Petitioner requested that the circuit court reverse the decision of the Departmentdenying the expungement of his disciplinary reprimand, and to order the Department toexpunge the reprimand from its files. In the alternative, petitioner requested that thetrial court either remand the matter to the Department for reconsideration, or vacate the1987 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 administrativereview, finding the Department's decision neither arbitrary nor capricious nor againstthe manifest weight of the evidence. Petitioner filed a timely notice of appeal onAugust 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 hisrecords.

Upon administrative review, the function of both the trial court and the appellatecourt 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, 603 N.E.2d 477 (1992). TheAdministrative Review Law provides that our review encompasses all questions of lawand fact presented by the entire record. 735 ILCS 5/3-110 (West 1996); Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill.2d 141, 148, 688 N.E.2d 90 (1997);

Richard's Tire Co. v. Zehnder, No. 2-96-1406 (2d District 1998), 1998 WL 97845. Only where an opposite conclusion is clearly evident from the record should an agencydecision be disturbed on review. Abrahamson v. Illinois Department of ProfessionalRegulation, 153 Ill. 2d 76, 88 (1992); Wesley v. Police Board of Chicago, 223 Ill.App. 3d 1042, 586 N.E.2d 348 (1991). An agency's findings and conclusions onquestions of fact are held to be prima facie true and correct. 735 ILCS 5/3-110 (West1996); Chief Judge of the Circuit Court v. American Federation of State County &Municipal Employees, Council 31, 153 Ill. 2d 508, 514, 607 N.E.2d 182 (1992). Apetitioner in an administrative proceeding has the burden of proof and relief will bedenied if he fails to sustain that burden. English v. Northfield, 172 Ill. App. 3d 344,348, 526 N.E.2d 588 (1988).

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

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

Petitioner initially argues that under the U. S. Constitution and the IllinoisUniform Enforcement of Foreign Judgments Act (735 ILCS 5/12-650 (West 1996), theIllinois 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 et. seq. (West 1994). Section 22 (A)(5) of the Act providesfor 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 unprofessionalconduct of a character likely to deceive, defraud or harm thepublic." 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 Departmentthat on or about January 14, 1987, Safwan Hamwi wasconvicted in the Court of Common Please of the State ofOhio, Cuyahoga County, of the misdemeanor offenses of (1)attempted forgery; and (2) attempted uttering. As a result ofsaid convictions, Applicant was sentenced to pay a fine of$500.00. No other sanction(s) were imposed.

"The underlying acts, if proven to be true, would constitutegrounds for denying Applicant issuance of a license on theauthority of Public Act 85-004 (1987), Section 22(5).

"Applicant acknowledges the truth and accuracy of theDepartment's information supra."

Petitioner does not dispute the fact of his criminal conviction.

The full faith and credit clause of the United States Constitution (U.S. Const.,art. IV,