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SECOND DIVISION
NOVEMBER 26, 2002

JUSTICE CERDA delivered the opinion of the court:

This case involves a challenge by plaintiffs, South 51Development Corporation, d/b/a Cash Express of Southern Illinois,Midwest Title Loans, Inc., Cottonwood Financial, Ltd., AdvancedAmerica, Cash Advance Centers of Illinois, L.L.C., d/b/a NationalCash Advance, Check Into Cash of Illinois, LLC, and Check 'n Goof Illinois, Inc.⁽¹⁾, to the validity of legislation amending theConsumer Installment Loan Act (the Loan Act) (205 ILCS 670/1et seq. (West 2000)), and certain short-term lending rulespromulgated pursuant to the amendatory legislation by defendant,Sarah Vega, as Director of the Illinois Department of FinancialInstitutions (Department). Upon the Director's motion, thecircuit court dismissed plaintiffs' lawsuit. Plaintiffs nowappeal and, upon leave from this court, several amici briefs werefiled in support of each party's respective positions. For thereasons that follow, we affirm.

The Department is the Illinois agency responsible forregulating the practices of certain financial lendinginstitutions conducting business in this state. Lendersspecifically engaged in the business of extending loans inprincipal amounts not exceeding $25,000, and charging a rate ofinterest greater than that permitted by State usury laws, areregulated by the Department under the Loan Act and departmentalregulations promulgated in accordance with the Loan Act'sstatutory scheme. One type of lender falling within theDepartment's oversight includes so-called "short-term lenders,"which are generally characterized by the small dollar amount andshort duration of their loans.

In mid-1990, the Department was commissioned by our GeneralAssembly to conduct a study of the short-term lending industry inIllinois. The Department's findings and analysis were publishedin a formal report, entitled Illinois Department of FinancialInstitutions Short Term Lending Final Report (hereinafter, theReport), issued in September 1999.

According to the Report, the number of short-term lendersoperating in Illinois has increased dramatically over the pasttwo decades. The State's industry is generally comprised of twotypes of lenders: payday lenders and title-loan companies. Payday lenders are individually licensed offices that lendrelatively small amounts of money to the consuming public forterms not usually exceeding two weeks, to coincide with theborrower's pay cycle. A general lack of preloan proceduresallows borrowers to obtain cash quickly and easily. The borrowersecures her loan by providing the lender a postdated check,covering the amount financed plus a finance charge, which is helduntil either the loan is satisfied or the check is cashed. Onaverage, payday lenders charge $20 per $100 borrowed for thetypical two-week period. Computed over a one-year period, thelender's fee translates to an annual percentage rate (APR) of521.43%.

Title-loan companies are also individually licensed officesoffering single-payment loans, usually for a term of 30 days,that are secured by the customer's automobile title. Like paydaylenders, title lenders provide consumers ready access to cash andcharge annual interest rates well in excess of 100%.

While acknowledging that short-term lenders fill a creditvoid for a segment of the borrowing public, much of the reporthighlights the pitfalls encountered by borrowers in using short-term loans. Citing the ease and expediency in which cash can beobtained, the Report found consumers are willing to incur higherborrowing costs in exchange for the convenience offered by short-term loans. Contrary to industry claims that the market isprimarily comprised of individuals who, due to some unforeseencircumstances, need immediate access to cash until their nextpayday, the Department found that the typical customer, whoaccording to a Department survey earns just over $24,000 a year,is not a one-time borrower occasioned by some unexpectedfinancial obligation. According to the Report, customers"rarely" borrow a single time and, in many cases, are repeatborrowers. The Department's survey found that the typicalborrower remains a customer for at least six months followingconsummation of the original loan and has an average of nearly 11loan contracts with a single short-term lender. The explosivegrowth and financial success within the industry, the Reportexplains, are largely attributed to the repeat business ofborrowers.

Most customers, the Department found, do not, or cannot,repay their loans when they become due. As a result, manycustomers are required to refinance their original loan by either(1) extending the initial period of the loan (referred to as"rolling over"), or (2) securing a new loan to cover the amountof the original sum. In both instances, the cost of the originalloan increase to the borrower.

The Report identifies two types of borrowers who areparticularly susceptible to experience problems with short-termloans. The Report deems these individuals "captive borrowers"and describes the first type of borrower as one who, due tolimited financial resources and availability to other creditoptions, has no choice but to borrow from short-term lenders. Due to their financial circumstances, these borrowers areconsidered a high risk to lenders which, in turn, charge higherfees than those usually charged in other loan transactions. Notbeing constrained by any sort of rate cap, lenders typicallyseize the opportunity to maximize revenues by setting ratesgreater than the actual risk assumed.

The other type of borrower identified is one who getsentrapped in a cycle of debt caused by an inability to pay offthe original loan due to excessive costs. These borrowers,according to the Report, "consider the use of *** [short-term]loans to be a cash-flow decision rather than a loan or creditdecision." Unable to timely satisfy their original obligations,these individuals frequently renew their loans, incurring addedcosts. Further unable to pay each renewal when they become due,these individuals become stuck in a cycle of unmanageable debt.

The Report recognizes short-term borrowing may prove moreeconomical for consumers than accessing cash or credit fromtraditional financial institutions like banks and credit cardissuers. The Report, however, feared most consumers are notfinancially astute and, consequently, are unable to trulyunderstand the costs associated with their borrowing activities. Given the short maturation periods of the loans, borrowersprincipally concern themselves with the periodic fee charged bythe lender and pay scant, if any, attention to the loan's APR. The Report posits that since most consumers fail to satisfy theirinitial obligations when they become due, borrowers would bebetter served if they concentrated more on the APR and its effectover the life of the loan.

When utilized properly and responsibly, short-term lenders,the Report recognizes, provide a needed and beneficial service tocertain segments of the borrowing population, especially to those"people with questionable credit or those that have incurredunexpected expenses." Only when borrowers use short-term loansfor extended periods of time or for reasons other than financialhardship do problems arise.

While cognizant of borrower misuse and imprudence, theReport does not exculpate short-term lenders for the illsassociated with the industry. Suggesting short-term lenders holdthe upper hand in many of their loan transactions, the Reportindicates lenders foster borrower irresponsibility in order tomaximize revenues, most notably by allowing financially strappedconsumers to roll over their existing obligations. The Reportexpressly notes that departmental regulations have provedineffective "in stopping people from converting a short term loaninto a long term headache" and suggests actions aimed at curbinglender profits generated from rollovers so as to ensure thefinancial stability of consumers. Stating previous legislativechanges to the Loan Act have been inadequate to address the ever-changing nature of the short-term lending industry, the Reportspecifically recommended enactment of a short-term lendingstatute to confront the issues and concerns raised by short-termlending practices and, in particular, the customer's ability torollover their loan obligations.

In response to the Department's study, Senator PatrickO'Malley introduced Senate Bill 1275 (SB 1275) (91^st Ill. Gen.Assem., Senate Bill 1275, 1999-2000 Sess), which proposed theenactment of a short-term lending statute. The proposed billrepresented new legislation, separate and apart from the LoanAct, and sought, among other things: to impose a maximum $500 capon the principal amount on a loan secured by a postdated checkand a $2,000 cap on the principal amount of any other short-termloan; to restrict a customer's ability to refinance a loan to atotal of two times and only when the loan's previous outstandingbalance has been reduced by 25%; and to set forth a 30-daywaiting period between the time a customer satisfied one loan andapplied for a new loan. SB 1275 ultimately failed to pass musterin the Senate.

A subsequent bill, Senate Bill 355 (SB 355) (91^st Ill. Gen.Assem., Senate Bill 355, 2000 Sess), was sponsored by SenatorO'Malley that proposed amending section 22 of the Loan Act tobroaden the Department's rulemaking powers in protectingconsumers. SB 355 was overwhelmingly approved by the GeneralAssembly and was enacted in Public Act 91-698 (the Amendment)(Pub. Act 91-698, eff. May 6, 2000). With the Amendment, section22 of statute now provides:

"The Department may make and enforce suchreasonable rules, regulations, directions,orders, decisions, and findings as theexecution and enforcement of the provisionsof this Act require, and as are notinconsistent therewith. In addition, theDepartment may promulgate rules in connectionwith the activities of licensees that arenecessary and appropriate for the protectionof consumers in this State. All rules,regulations and directions of a generalcharacter shall be printed and copies thereofmailed to all licensees." (Emphasis added tohighlight amendatory language.) 205 ILCS670/22 (West 2000).

The Department, pursuant to the authority granted by theAmendment, issued "Short-Term Lending Rules" (the Rules) (38 Ill.Adm. Code 110.300 through 110.410 (2002)), which, after somecontestation that will be discussed later in this opinion, becameeffective August 1, 2001.

By their lawsuit, plaintiffs, each an owner and operator oflicensed short-term lending businesses in Illinois, seek todeclare the Amendment unconstitutional and the Rules void or,alternatively, invalid. Plaintiffs assert the Amendment,authorizing the Department to promulgate rules that are"necessary and appropriate for the protection of consumers," isso broad and devoid of any meaningful standards to guide theDepartment's rulemaking authority that the Amendment constitutesan unlawful delegation of legislative power. This improperdelegation, plaintiffs further contend, renders the Amendmentunconstitutionally vague. Plaintiffs additionally argue that theDepartment, in promulgating the Rules, assumed a legislativefunction, impermissibly usurping the role of our General Assemblyand thereby rendering the Rules void. Alternatively, plaintiffsclaim the Rules are invalid since they (1) conflict with andexceed the scope of the Loan Act and (2) were adopted inviolation of the Illinois Administrative Procedure Act (theProcedure Act) (5 ILCS 100/1-1 et seq. (West 2000)).

In moving to dismiss plaintiffs' complaints pursuant tosection 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2000)), the Director argues the Amendment clearlybridles the Department's discretion in promulgating rules forconsumer protection and, thus, constitutes a proper delegation oflegislative authority. For the same reason, the Directorasserts, the Amendment is not impermissibly vague. The Directoradditionally asserts the Rules were promulgated within theDepartment's statutory grant of authority and are furtherconsistent with the purpose and substantive provisions of theenabling legislation. The Director finally maintains the Ruleswere adopted in accord with the Procedure Act's rule-adoptionmandates.

A motion to dismiss under section 2-619(a)(9) acknowledgesthe plaintiff's cause of action but presents affirmative mattersthat avoid the legal effect of the claim. Golden v. Mullen, 295Ill. App. 3d 865, 869, 693 N.E.2d 385, 389 (1997). All pleadingsand supporting documents must be construed in a light mostfavorable to the nonmoving party, and the motion should begranted only where no material facts are in dispute and thedefendant is entitled to dismissal as a matter of law. Mayfieldv. ACME Barrel Co., 258 Ill. App. 3d 32, 34, 629 N.E.2d 690, 693(1994). The relevant inquiry on appeal is "whether the existenceof a genuine issue of material fact should have precluded thedismissal or, absent such an issue of fact, whether dismissal isproper as a matter of law." Kedzie & 103rd Currency Exchange,Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732, 735(1993). Appellate review of a dismissal pursuant to section 2-619 is conducted de novo. Spillyards v. Abboud, 278 Ill. App. 3d663, 668, 662 N.E.2d 1358, 1361-62 (1996).

We first address whether the Amendment represents animproper delegation of legislative authority to the Department. Statutes are presumed constitutional (East St. Louis Federationof Teachers, Local 1220, 178 Ill. 2d 399, 412, 687 N.E.2d 1050,1058-59 (1997)), and we have a duty to sustain legislationwhenever reasonably possible. In re R.C., 195 Ill. 2d 291, 296,745 N.E.2d 1233, 1237 (2001); Allen v. Illinois Community CollegeBoard, 315 Ill. App. 3d 837, 843, 734 N.E.2d 926, 931 (2000). Aparty challenging a statute's validity bears a heavy burden ofclearly establishing that the subject legislation isunconstitutional. Allen, 315 Ill. App. 3d at 843, 734 N.E.2d at931. The constitutionality of a statute presents a question oflaw that we review de novo. People v. Kolzow, 319 Ill. App. 3d673, 675, 746 N.E.2d 27, 29 (2001).

The principle of separation of powers is embodied in articleII, section 1, of the Illinois Constitution of 1970: "Thelegislative, executive and judicial branches are separate. Nobranch shall exercise powers properly belonging to another." Ill. Const. 1970, art. II,