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Article 15 - Disciplinary Provisions

      (225 ILCS 441/Art. 15 heading)ARTICLE 15. DISCIPLINARY PROVISIONS

(225 ILCS 441/15‑5)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑5. Unlicensed practice; civil penalty; injunctive relief.     (a) Any person who violates Section 5‑5 of this Act shall, in addition to any other penalty provided by law, pay a civil penalty to OBRE in an amount not to exceed $10,000 for each violation as determined by the Commissioner. The civil penalty shall be assessed by the Commissioner after a hearing in accordance with the provisions of this Act.     (b) OBRE has the authority to investigate any activity that may violate this Act or the rules adopted under this Act.     (c) A civil penalty shall be paid within 60 days after the effective date of the order imposing the civil penalty. The OBRE may petition the circuit court for a judgment to enforce the collection of the penalty. Any civil penalties collected under this Act shall be made payable to the Office of Banks and Real Estate and deposited into the Home Inspector Administration Fund. In addition to or in lieu of the imposition of a civil penalty, OBRE may report a violation of this Act or the failure or refusal to comply with an order of OBRE to the Attorney General or the appropriate State's Attorney.     (d) Practicing as a home inspector without holding a valid license as required under this Act is declared to be adverse to the public welfare, to constitute a public nuisance, and to cause irreparable harm to the public welfare. The Commissioner, the Attorney General, or the State's Attorney of any county in the State may maintain an action for injunctive relief in the name of the People of the State of Illinois in any circuit court to enjoin any person from engaging in such practice.     Upon the filing of a verified petition in a circuit court, the court, if satisfied by affidavit or otherwise that a person has been engaged in the practice of home inspections without a valid license, may enter a temporary restraining order without notice or bond enjoining the defendant from further practice. The showing of non‑licensure, by affidavit or otherwise, is sufficient for the issuance of a temporary injunction. A copy of the verified complaint shall be served upon the defendant and the proceeding shall be conducted as in other civil cases except as modified by this Section. If it is established that the defendant has been or is engaged in unlawful practice, the court may enter an order or judgment perpetually enjoining the defendant from further unlawful practice. In all proceedings under this Section, the court, in its discretion, may apportion the costs among the parties interested in the action, including the cost of filing the complaint, service of process, witness fees and expenses, court reporter charges, and reasonable attorneys' fees. These injunction proceedings shall be in addition to, and not in lieu of, all penalties and other remedies provided in this Act. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑10)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑10. Grounds for disciplinary action.     (a) The Office of Banks and Real Estate may suspend, revoke, or refuse to issue or renew a license, and may reprimand, place on probation or administrative supervision, or otherwise discipline a licensee, including imposing conditions limiting the scope, nature, or extent of the home inspection practice of a licensee and may impose a civil penalty not to exceed $10,000 upon a licensee, for one or any combination of the following:         (1) Procuring or attempting to procure a license by

knowingly making a false statement, submitting false information, making any form of fraud or misrepresentation, or refusing to provide complete information in response to a question in an application for licensure.

(2) Failing to meet the minimum qualifications for

licensure as a home inspector established by this Act.

(3) Paying money, other than for the fees provided

for by this Act, or anything of value to a member of the Board or an employee of the Office of Banks and Real Estate to procure licensure under this Act.

(4) Being convicted of a felony in any state or

federal court; of any crime, an essential element of which is dishonesty, fraud, theft, or embezzlement; of obtaining money, property, or credit by false pretenses; or of any other crime that is reasonably related to the practice of home inspection.

(5) Committing an act or omission involving

dishonesty, fraud, or misrepresentation with the intent to substantially benefit the licensee or another person or with the intent to substantially injure another person.

(6) Violating a provision or standard for the

development or communication of home inspections as provided in Section 10‑5 of this Act or as defined in the rules.

(7) Failing or refusing without good cause to

exercise reasonable diligence in the development, reporting, or communication of a home inspection report, as defined by this Act or the rules.

(8) Violating a provision of this Act or the rules.         (9) Having been disciplined by another state, the

District of Columbia, a territory, a foreign nation, a governmental agency, or any other entity authorized to impose discipline if at least one of the grounds for that discipline is the same as or the equivalent of one of the grounds for which a licensee may be disciplined under this Act.

(10) Engaging in dishonorable, unethical, or

unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(11) Accepting an inspection assignment when the

employment itself is contingent upon the home inspector reporting a predetermined analysis or opinion, or when the fee to be paid is contingent upon the analysis, opinion, or conclusion reached or upon the consequences resulting from the home inspection assignment.

(12) Developing home inspection opinions or

conclusions based on the race, color, religion, sex, national origin, ancestry, age, marital status, family status, physical or mental handicap, or unfavorable military discharge, as defined under the Illinois Human Rights Act, of the prospective or present owners or occupants of the area or property under home inspection.

(13) Being adjudicated liable in a civil proceeding

on grounds of fraud, misrepresentation, or deceit. In a disciplinary proceeding based upon a finding of civil liability, the home inspector shall be afforded an opportunity to present mitigating and extenuating circumstances, but may not collaterally attack the civil adjudication.

(14) Being adjudicated liable in a civil proceeding

for violation of a State or federal fair housing law.

(15) Engaging in misleading or untruthful

advertising or using a trade name or insignia of membership in a home inspection organization of which the licensee is not a member.

(16) Failing to fully cooperate with an OBRE

investigation by knowingly making a false statement, submitting false or misleading information, or refusing to provide complete information in response to written interrogatories or a written request for documentation within 30 days of the request.

(17) Failing to include within the home inspection

report the home inspector's license number and the date of expiration of the license. All home inspectors providing significant contribution to the development and reporting of a home inspection must be disclosed in the home inspection report. It is a violation of this Act for a home inspector to sign a home inspection report knowing that a person providing a significant contribution to the report has not been disclosed in the home inspection report.

(18) Advising a client as to whether the client

should or should not engage in a transaction regarding the residential real property that is the subject of the home inspection.

(19) Performing a home inspection in a manner that

damages or alters the residential real property that is the subject of the home inspection without the consent of the owner.

(20) Performing a home inspection when the home

inspector is providing or may also provide other services in connection with the residential real property or transaction, or has an interest in the residential real property, without providing prior written notice of the potential or actual conflict and obtaining the prior consent of the client as provided by rule.

(b) The Office of Banks and Real Estate may suspend, revoke, or refuse to issue or renew an education provider's license, may reprimand, place on probation, or otherwise discipline an education provider licensee, and may suspend or revoke the course approval of any course offered by an education provider, for any of the following:         (1) Procuring or attempting to procure licensure by

knowingly making a false statement, submitting false information, making any form of fraud or misrepresentation, or refusing to provide complete information in response to a question in an application for licensure.

(2) Failing to comply with the covenants certified

to on the application for licensure as an education provider.

(3) Committing an act or omission involving

dishonesty, fraud, or misrepresentation or allowing any such act or omission by any employee or contractor under the control of the education provider.

(4) Engaging in misleading or untruthful advertising.         (5) Failing to retain competent instructors in

accordance with rules adopted under this Act.

(6) Failing to meet the topic or time requirements

for course approval as the provider of a pre‑license curriculum course or a continuing education course.

(7) Failing to administer an approved course using

the course materials, syllabus, and examinations submitted as the basis of the course approval.

(8) Failing to provide an appropriate classroom

environment for presentation of courses, with consideration for student comfort, acoustics, lighting, seating, workspace, and visual aid material.

(9) Failing to maintain student records in

compliance with the rules adopted under this Act.

(10) Failing to provide a certificate, transcript,

or other student record to OBRE or to a student as may be required by rule.

(11) Failing to fully cooperate with an OBRE

investigation by knowingly making a false statement, submitting false or misleading information, or refusing to provide complete information in response to written interrogatories or a written request for documentation within 30 days of the request.

(c) In appropriate cases, OBRE may resolve a complaint against a licensee through the issuance of a Consent to Administrative Supervision order. A licensee subject to a Consent to Administrative Supervision order shall be considered by OBRE as an active licensee in good standing. This order shall not be reported as or considered by OBRE to be a discipline of the licensee. The records regarding an investigation and a Consent to Administrative Supervision order shall be considered confidential and shall not be released by OBRE except as mandated by law. The complainant shall be notified that his or her complaint has been resolved by a Consent to Administrative Supervision order. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑15)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑15. Investigation; notice; hearing.     (a) Upon the request of the Office of Banks and Real Estate or the Board, or upon a complaint in writing of a person setting forth facts that, if proven, would constitute grounds for suspension, revocation, or other disciplinary action against a licensee or applicant for licensure, the Office of Banks and Real Estate shall investigate the actions of the licensee or applicant so accused.     (b) Formal disciplinary proceedings shall commence upon the issuance of a written complaint detailing the charges that are the basis of the disciplinary action and delivery of the detailed complaint to the address of record of the licensee or applicant. OBRE shall notify the licensee or applicant to file a verified written answer within 20 days after the service of the notice and complaint. The notification shall inform the licensee or applicant that he or she has a right to be heard in person or by legal counsel; that the hearing will be afforded not sooner than 30 days after receipt of the answer to the specific charges; that failure to file an answer will result in a default being entered against the licensee or applicant; and that the license may be suspended, revoked, or placed on probationary status and other disciplinary action may be taken pursuant to this Act, including limiting the scope, nature, or extent of the licensee's practice. If the licensee or applicant fails to file an answer after receiving notice, his or her license may, at the discretion of the Office of Banks and Real Estate, be suspended, revoked, or placed on probationary status and the Office of Banks and Real Estate may take whatever disciplinary action it deems proper, including limiting the scope, nature, or extent of the person's practice, without a hearing.     (c) At the time and place fixed in the notice, the Board shall conduct a hearing of the charges, providing both the accused person and the complainant ample opportunity to present in person or by counsel such statements, testimony, evidence, and arguments as may be pertinent to the charges or to any defense thereto.     (d) The Board shall present to the Commissioner a written report of its findings and recommendations. A copy of the report shall be served upon the licensee or applicant, either personally or by certified mail. Within 20 days after the service, the licensee or applicant may present the Commissioner with a motion in writing for either a rehearing, a proposed finding of fact, a conclusion of law, or an alternative sanction, and shall specify the particular grounds for the request. If the accused shall order and pay for a transcript of the record as provided in this Act, the time elapsing thereafter and before the transcript is ready for delivery to the accused shall not be counted as part of the 20 days. If the Commissioner is not satisfied that substantial justice has been done, the Commissioner may order a rehearing by the Board or other special committee appointed by the Commissioner, may remand the matter to the Board for their reconsideration of the matter based on the pleadings and evidence presented to the Board, or may enter a final order in contravention of the Board's recommendation. In all instances, under this Act, in which the Board has rendered a recommendation to the Commissioner with respect to a particular licensee or applicant, the Commissioner, if he or she disagrees with the recommendation of the Board, shall file with the Board and provide to the licensee or applicant the Commissioner's specific written reasons for disagreement with the Board. The reasons shall be filed within 60 days of the Board's recommendation to the Commissioner and prior to any contrary action. At the expiration of the time specified for filing a motion for a rehearing, the Commissioner shall have the right to take any of the actions specified in this paragraph. Upon the suspension or revocation of a license, the licensee shall be required to surrender his or her license to OBRE, and upon failure or refusal to do so, OBRE shall have the right to seize the license.     (e) The Office of Banks and Real Estate has the power to issue subpoenas and subpoenas duces tecum to bring before it any person in this State, to take testimony, or to require production of any records relevant to an inquiry or hearing by the Board in the same manner as prescribed by law in judicial proceedings in the courts of this State. In a case of refusal of a witness to attend, testify, or to produce books or papers concerning a matter upon which he or she might be lawfully examined, the circuit court of the county where the hearing is held, upon application of the Office of Banks and Real Estate or any party to the proceeding, may compel obedience by proceedings as for contempt of court.     (f) Any license that is suspended indefinitely or revoked may not be restored for a minimum period of 2 years. After the 2 year period, OBRE may restore the license without examination, upon the written recommendation of the Board. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑20)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑20. Administrative Review Law; certification fees; Illinois Administrative Procedure Act.     (a) All final administrative decisions of the Commissioner under this Act are subject to judicial review pursuant to the provisions of the Administrative Review Law and the rules adopted pursuant thereto. The term "administrative decision" has the meaning ascribed to it in Section 3‑101 of the Administrative Review Law.     (b) OBRE shall not be required to certify any record, file any answer, or otherwise appear unless the party filing the administrative review complaint pays the certification fee to OBRE as provided by rule. Failure on the part of the plaintiff to make such a deposit shall be grounds for dismissal of the action.     (c) The Illinois Administrative Procedure Act is hereby expressly adopted and incorporated herein. In the event of a conflict between this Act and the Illinois Administrative Procedure Act, this Act shall control. (Source: P.A. 92‑239, eff. 8‑3‑01; 92‑651, eff. 7‑11‑02.)

(225 ILCS 441/15‑25)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑25. Temporary suspension. The Commissioner may temporarily suspend the license of a licensee without a hearing, while instituting a proceeding for a hearing as provided for in Section 15‑15 of this Act, if the Commissioner finds that the evidence indicates that the public interest, safety, or welfare imperatively requires emergency action. In the event that the Commissioner temporarily suspends the license without a hearing before the Board, a hearing shall be held within 30 days after the suspension has occurred. The suspended licensee may seek a continuance of the hearing during which the suspension shall remain in effect. The proceeding shall be concluded without appreciable delay. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑30)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑30. Statute of limitations. No action may be taken under this Act against a person licensed under this Act unless the action is commenced within 5 years after the occurrence of the alleged violation. A continuing violation is deemed to have occurred on the date when the circumstances last existed that gave rise to the alleged continuing violation. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑35)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑35. Signature of the Commissioner. An order of revocation or suspension or a certified copy of the order, bearing the seal of OBRE and purporting to be signed by the Commissioner, shall be prima facie proof that:         (1) the signature is the genuine signature of the

Commissioner;

(2) the Commissioner is duly appointed and

qualified; and

(3) the Board and its members are qualified. This proof may be rebutted. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑40)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑40. Violation of tax Acts. OBRE may refuse to issue or renew or may suspend the license of any person who fails to file a return, pay the tax, penalty, or interest shown in a filed return, or pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until such time as the requirements of that tax Act are satisfied. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑45)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑45. Disciplinary action for educational loan defaults. OBRE shall deny a license or renewal authorized by this Act to a person who has defaulted on an educational loan or scholarship provided or guaranteed by the Illinois Student Assistance Commission or any governmental agency of this State. OBRE may issue a license or renewal if the person has established a satisfactory repayment record as determined by the Illinois Student Assistance Commission or other appropriate governmental agency of this State. Additionally, a license issued by OBRE may be suspended or revoked if the Commissioner, after the opportunity for a hearing under this Act, finds that the licensee has failed to make satisfactory repayment to the Illinois Student Assistance Commission for a delinquent or defaulted loan. (Source: P.A. 92‑239, eff. 8‑3‑01.)

    (225 ILCS 441/15‑50)
    (Section scheduled to be repealed on January 1, 2012)
    Sec. 15‑50. Nonpayment of child support. In cases where the Department of Healthcare and Family Services (formerly Department of Public Aid) has previously determined that a licensee or a potential licensee is more than 30 days delinquent in the payment of child support and has subsequently certified the delinquency to OBRE, OBRE may refuse to issue or renew or may revoke or suspend that person's license or may take other disciplinary action against that person based solely upon the certification of delinquency made by the Department of Healthcare and Family Services (formerly Department of Public Aid). Redetermination of the delinquency by OBRE shall not be required. In cases regarding the renewal of a license, OBRE shall not renew any license if the Department of Healthcare and Family Services (formerly Department of Public Aid) has certified the licensee to be more than 30 days delinquent in the payment of child support unless the licensee has arranged for payment of past and current child support obligations in a manner satisfactory to the Department of Healthcare and Family Services (formerly Department of Public Aid). OBRE may impose conditions, restrictions, or disciplinary action upon that renewal.
(Source: P.A. 95‑331, eff. 8‑21‑07.)

(225 ILCS 441/15‑55)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑55. Returned checks; penalty fee; termination. A person who delivers a check or other payment to OBRE that is returned to OBRE unpaid by the financial institution upon which it was drawn shall pay to OBRE, in addition to the amount already owed, a penalty fee of $50. OBRE shall notify the person, by certified mail return receipt requested, that his or her check or payment was returned and that the person shall pay to OBRE by certified check or money order the amount of the returned check plus a $50 penalty fee within 30 calendar days after the date of the notification. If, after the expiration of 30 calendar days of the notification, the person has failed to remit the necessary funds and penalty, OBRE shall automatically terminate the license or deny the application without hearing. If the returned check or other payment was for issuance of a license under this Act and that person practices as a home inspector, that person may be subject to discipline for unlicensed practice as provided in this Act. If, after termination or denial, the person seeks a license, he or she shall petition OBRE for restoration and he or she may be subject to additional discipline or fines. The Commissioner may waive the penalties or fines due under this Section in individual cases where the Commissioner finds that the penalties or fines would be unreasonable or unnecessarily burdensome. (Source: P.A. 92‑239, eff. 8‑3‑01.)

(225 ILCS 441/15‑60)     (Section scheduled to be repealed on January 1, 2012)     Sec. 15‑60. Cease and desist orders. OBRE may issue, cease and desist orders to persons who engage in activities prohibited by this Act. Any person in violation of a cease and desist order issued by OBRE is subject to all of the penalties provided by law. (Source: P.A. 92‑239, eff. 8‑3‑01.)