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Article 25 - Administration and Enforcement

 
    (225 ILCS 411/Art. 25 heading) Article 25. Administration and Enforcement (Article scheduled to be repealed on January 1, 2021)(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑1)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑1. Denial of license or exemption from licensure. If the Department determines that an application for licensure or exemption from licensure should be denied pursuant to Section 25‑10, then the applicant shall be sent a notice of intent to deny license or exemption from licensure and the applicant shall be given the opportunity to request, within 20 days of the notice, a hearing on the denial. If the applicant requests a hearing, then the Secretary shall schedule a hearing within 30 days after the request for a hearing, unless otherwise agreed to by the parties. The Secretary shall have the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer. The hearing officer shall have full authority to conduct the hearing. The hearing shall be held at the time and place designated by the Secretary. The Secretary shall have the authority to prescribe rules for the administration of this Section.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑3)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑3. Exemption, investigation, mediation. All cemetery authorities maintaining a partial exemption must submit to the following investigation and mediation procedure by the Department in the event of a consumer complaint:
    (a) Complaints to cemetery:
        (1) the cemetery authority shall make every effort to

first resolve a consumer complaint; and

(2) if the complaint is not resolved, then the

cemetery authority shall advise the consumer of his or her right to seek investigation and mediation by the Department.

(b) Complaints to the Department:         (1) if the Department receives a complaint, the

Department shall make an initial determination as to whether the complaint has a reasonable basis and pertains to this Act;

(2) if the Department determines that the complaint

has a reasonable basis and pertains to this Act, it shall inform the cemetery authority of the complaint and give it 30 days to tender a response;

(3) upon receiving the cemetery authority's response,

or after the 30 days provided in subsection (2) of this subsection, whichever comes first, the Department shall attempt to resolve the complaint telephonically with the parties involved;

(4) if the complaint still is not resolved, then the

Department shall conduct an investigation and mediate the complaint as provided for by rule;

(5) if the Department conducts an on‑site

investigation and face‑to‑face mediation with the parties, then it may charge the cemetery authority a single investigation and mediation fee, which fee shall be set by rule and shall be calculated on an hourly basis; and

(6) if all attempts to resolve the consumer complaint

as provided for in paragraphs (1) through (5) fail, then the cemetery authority may be subject to proceedings for penalties and discipline under this Article when it is determined by the Department that the cemetery authority may have engaged in any of the following: (i) gross malpractice; (ii) dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public; (iii) gross, willful, or continued overcharging for services; (iv) incompetence; (v) unjustified failure to honor its contracts; or (vi) failure to adequately maintain its premises. The Department may issue a citation or institute disciplinary action and cause the matter to be prosecuted and may thereafter issue and enforce its final order as provided in this Act.

(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑5)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑5. Citations.
    (a) The Department may adopt rules to permit the issuance of citations for non‑frivolous complaints. The citation shall be issued to the licensee and shall contain the licensee's name and address, the licensee's license number, a brief factual statement, the Sections of the law allegedly violated, and the penalty imposed. The citation must clearly state that the licensee may choose, in lieu of accepting the citation, to request a hearing. If the licensee does not dispute the matter in the citation with the Department within 30 days after the citation is served, then the citation shall become a final order and shall constitute discipline. The penalty shall be a fine or other conditions as established by rule.
    (b) The Department shall adopt rules designating violations for which a citation may be issued. Such rules shall designate as citation violations those violations for which there is no substantial threat to the public health, safety, and welfare. Citations shall not be utilized if there was any significant consumer harm resulting from the violation.
    (c) A citation must be issued within 6 months after the reporting of a violation that is the basis for the citation.
    (d) Service of a citation may be made by personal service or certified mail to the licensee at the licensee's address of record.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑10)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑10. Grounds for disciplinary action.
    (a) The Department may refuse to issue or renew a license or may revoke, suspend, place on probation, reprimand, or take other disciplinary action as the Department may deem appropriate, including imposing fines not to exceed $10,000 for each violation, with regard to any license under this Act, for any one or combination of the following:
        (1) Material misstatement in furnishing information

to the Department.

(2) Violations of this Act, except for Section 20‑8,

or of the rules adopted under this Act.

(3) Conviction of, or entry of a plea of guilty or

nolo contendere to, any crime within the last 10 years that is a Class X felony or is a felony involving fraud and dishonesty under the laws of the United States or any state or territory thereof.

(4) Making any misrepresentation for the purpose of

obtaining licensure or violating any provision of this Act or the rules adopted under this Act.

(5) Professional incompetence.         (6) Gross malpractice.         (7) Aiding or assisting another person in violating

any provision of this Act or rules adopted under this Act.

(8) Failing, within 10 business days, to provide

information in response to a written request made by the Department.

(9) Engaging in dishonorable, unethical, or

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

(10) Inability to practice with reasonable judgment,

skill, or safety as a result of habitual or excessive use of alcohol, narcotics, stimulants, or any other chemical agent or drug.

(11) Discipline by another state, District of

Columbia, territory, or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section.

(12) Directly or indirectly giving to or receiving

from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for professional services not actually or personally rendered.

(13) A finding by the Department that the licensee,

after having his or her license placed on probationary status, has violated the terms of probation.

(14) Willfully making or filing false records or

reports in his or her practice, including, but not limited to, false records filed with any governmental agency or department.

(15) Inability to practice the profession with

reasonable judgment, skill, or safety.

(16) Failure to file an annual report or to maintain

in effect the required bond or to comply with an order, decision, or finding of the Department made pursuant to this Act.

(17) Directly or indirectly receiving compensation

for any professional services not actually performed.

(18) Practicing under a false or, except as provided

by law, an assumed name.

(19) Fraud or misrepresentation in applying for, or

procuring, a license under this Act or in connection with applying for renewal of a license under this Act.

(20) Cheating on or attempting to subvert the

licensing examination administered under this Act.

(21) Unjustified failure to honor its contracts.         (22) Negligent supervision of a cemetery manager,

customer service employee, cemetery worker, or independent contractor.

(23) A pattern of practice or other behavior which

demonstrates incapacity or incompetence to practice under this Act.

(24) Allowing an individual who is not, but is

required to be, licensed under this Act to perform work for the cemetery authority.

(25) Allowing an individual who has not, but is

required to, submit a Worker's Statement in accordance with Section 10‑22 of this Act to perform work at the cemetery.

(b) 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 violations. A continuing violation shall be deemed to have occurred on the date when the circumstances last existed that give rise to the alleged violation. (Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑13)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑13. Independent contractors.
    (a) Notwithstanding any provision of this Act to the contrary, a cemetery authority may, in exigent circumstances only, allow an unlicensed independent contractor who otherwise would be required to become licensed, or an independent contractor that has not submitted a Worker's Statement who otherwise would be required to submit a Worker's Statement, to perform work of an emergency nature on a temporary basis to prevent an immediate threat to public safety that could not have been foreseen. The cemetery authority may only permit such independent contractor to perform such work for so long as is reasonably necessary to address the emergency, but in no case longer than 10 days unless the Secretary approves a longer period of time upon the cemetery authority's showing of good cause. The cemetery authority shall report the use of such independent contractor to the Department on forms provided by the Department and according to rules adopted by the Department.
    (b) Notwithstanding any provision of this Act to the contrary, a cemetery authority may allow an unlicensed independent contractor who otherwise would be required to become licensed, or an independent contractor that has not submitted a Worker's Statement who otherwise would be required to submit a Worker's Statement, to perform work on a special project basis, and only to perform work other than the following services: openings and closings of vaults and graves, stone settings, inurnments, interments, entombments, administrative work, handling of any official burial records, and all other work that is customarily performed by one or more cemetery workers before the effective date of the Act, including, but not limited to, the preparation of foundations for memorials and routine cemetery maintenance. For purposes of this subsection, "routine cemetery maintenance" includes those activities described in items (1), (2), (3), and (6) of Section 20‑5(a) of this Act.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑14)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑14. Mandatory reports.
    (a) If a cemetery authority receives a consumer complaint that is not resolved to the satisfaction of the consumer within 60 days of the complaint, the cemetery authority shall advise the consumer of the right to seek investigation by the Department and shall report the consumer complaint to the Department within the next 30 days. Cemetery authorities shall report to the Department within 30 days after the settlement of any liability insurance claim or cause of action, or final judgment in any cause of action, that alleges negligence, fraud, theft, misrepresentation, misappropriation, or breach of contract.
    (b) The State's Attorney of each county shall report to the Department all instances in which an individual licensed as a cemetery manager or customer service employee, or any individual listed on a licensed cemetery authority's application under this Act, is convicted or otherwise found guilty of the commission of any felony. The report shall be submitted to the Department within 60 days after conviction or finding of guilty.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑15)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑15. Cease and desist.
    (a) The Secretary may issue an order to cease and desist to any licensee or other person doing business without the required license when, in the opinion of the Secretary, the licensee or other person is violating or is about to violate any provision of this Act or any rule or requirement imposed in writing by the Department.
    (b) The Secretary may issue an order to cease and desist prior to a hearing and such order shall be in full force and effect until a final administrative order is entered.
    (c) The Secretary shall serve notice of his or her action, designated as an order to cease and desist made pursuant to this Section, including a statement of the reasons for the action, either personally or by certified mail, return receipt requested. Service by certified mail shall be deemed completed when the notice is deposited in the United States mail and sent to the address of record or, in the case of unlicensed activity, the address known to the Department.
    (d) Within 15 days after service of the order to cease and desist, the licensee or other person may request, in writing, a hearing.
    (e) The Secretary shall schedule a hearing within 30 days after the request for a hearing unless otherwise agreed to by the parties.
    (f) The Secretary shall have the authority to prescribe rules for the administration of this Section.
    (g) If, after hearing, it is determined that the Secretary has the authority to issue the order to cease and desist, he or she may issue such orders as may be reasonably necessary to correct, eliminate, or remedy such conduct.
    (h) The powers vested in the Secretary by this Section are additional to any and all other powers and remedies vested in the Secretary by law and nothing in this Section shall be construed as requiring that the Secretary shall employ the power conferred in this Section instead of or as a condition precedent to the exercise of any other power or remedy vested in the Secretary.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑25)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑25. Investigations, notice, hearings.
    (a) The Department may at any time investigate the actions of any applicant or of any person or persons rendering or offering to render services as a cemetery authority, cemetery manager, or customer service employee of or any person holding or claiming to hold a license as a licensed cemetery authority, cemetery manager, or customer service employee. If it appears to the Department that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by this Act, then the Department may: (1) require that person to file on such terms as the Department prescribes a statement or report in writing, under oath or otherwise, containing all information the Department may consider necessary to ascertain whether a licensee is in compliance with this Act, or whether an unlicensed person is engaging in activities for which a license is required; (2) examine under oath any individual in connection with the books and records pertaining to or having an impact upon the operation of a cemetery or trust funds required to be maintained pursuant to this Act; (3) examine any books and records of the licensee, trustee, or investment advisor that the Department may consider necessary to ascertain compliance with this Act; and (4) require the production of a copy of any record, book, document, account, or paper that is produced in accordance with this Act and retain it in his or her possession until the completion of all proceedings in connection with which it is produced.
    (b) The Secretary may, after 10 days notice by certified mail with return receipt requested to the licensee at the address of record or to the last known address of any other person stating the contemplated action and in general the grounds therefor, fine such licensee an amount not exceeding $10,000 per violation or revoke, suspend, refuse to renew, place on probation, or reprimand any license issued under this Act if he or she finds that:
        (1) the licensee has failed to comply with any

provision of this Act or any order, decision, finding, rule, regulation, or direction of the Secretary lawfully made pursuant to the authority of this Act; or

(2) any fact or condition exists which, if it had

existed at the time of the original application for the license, clearly would have warranted the Secretary in refusing to issue the license.

(c) The Secretary may fine, revoke, suspend, refuse to renew, place on probation, reprimand, or take any other disciplinary action as to the particular license with respect to which grounds for the fine, revocation, suspension, refuse to renew, probation, or reprimand, or other disciplinary action occur or exist, but if the Secretary finds that grounds for revocation are of general application to all offices or to more than one office of the licensee, the Secretary shall fine, revoke, suspend, refuse to renew, place on probation, reprimand, or otherwise discipline every license to which such grounds apply.     (d) In every case in which a license is revoked, suspended, placed on probation, reprimanded, or otherwise disciplined, the Secretary shall serve the licensee with notice of his or her action, including a statement of the reasons for his or her actions, either personally or by certified mail, return receipt requested. Service by certified mail shall be deemed completed when the notice is deposited in the United States mail and sent to the address of record.     (e) An order assessing a fine, an order revoking, suspending, placing on probation, or reprimanding a license or, an order denying renewal of a license shall take effect upon service of the order unless the licensee requests, in writing, within 20 days after the date of service, a hearing. In the event a hearing is requested, an order issued under this Section shall be stayed until a final administrative order is entered.     (f) If the licensee requests a hearing, then the Secretary shall schedule a hearing within 30 days after the request for a hearing unless otherwise agreed to by the parties. The Secretary shall have the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer in any disciplinary action with regard to a license. The hearing officer shall have full authority to conduct the hearing.     (g) The hearing shall be held at the time and place designated by the Secretary.     (h) The Secretary shall have the authority to prescribe rules for the administration of this Section.     (i) Fines imposed and any costs assessed shall be paid within 60 days. (Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑30)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑30. Consent order. At any point in any investigation or disciplinary proceeding provided for in this Act, both parties may agree to a negotiated consent order. The consent order shall be final upon signature of the Secretary.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑35)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑35. Record of proceedings; transcript. The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case. Any notice, all documents in the nature of pleadings, written motions filed in the proceedings, the transcripts of testimony, and orders of the Department shall be in the record of the proceeding.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑40)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑40. Subpoenas; depositions; oaths.
    (a) The Department has the power to subpoena documents, books, records, or other materials and to bring before it any individual and to take testimony either orally or by deposition, or both, with the same fees and mileage and in the same manner as prescribed in civil cases in the courts of this State.
    (b) The Secretary and the designated hearing officer have the power to administer oaths to witnesses at any hearing that the Department is authorized to conduct and any other oaths authorized in any Act administered by the Department.
    (c) Every individual having taken an oath or affirmation in any proceeding or matter wherein an oath is required by this Act, who shall swear willfully, corruptly, and falsely in a matter material to the issue or point in question, or shall suborn any other individual to swear as aforesaid, shall be guilty of perjury or subornation of perjury, as the case may be and shall be punished as provided by State law relative to perjury and subornation of perjury.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑45)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑45. Compelling testimony. Any circuit court, upon application of the Department or designated hearing officer may enter an order requiring the attendance of witnesses and their testimony, and the production of documents, papers, files, books, and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑50)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑50. Findings and recommendations.
    (a) At the conclusion of the hearing, the hearing officer shall present to the Secretary a written report of its findings of fact, conclusions of law, and recommendations. The report shall contain a finding whether the accused person violated this Act or its rules or failed to comply with the conditions required in this Act or its rules. The hearing officer shall specify the nature of any violations or failure to comply and shall make his or her recommendations to the Secretary. In making recommendations for any disciplinary actions, the hearing officer may take into consideration all facts and circumstances bearing upon the reasonableness of the conduct of the accused and the potential for future harm to the public, including, but not limited to, previous discipline of the accused by the Department, intent, degree of harm to the public and likelihood of harm in the future, any restitution made by the accused, and whether the incident or incidents contained in the complaint appear to be isolated or represent a continuing pattern of conduct. In making its recommendations for discipline, the hearing officer shall endeavor to ensure that the severity of the discipline recommended is reasonably related to the severity of the violation.
    (b) The report of findings of fact, conclusions of law, and recommendation of the hearing officer shall be the basis for the Department's final order refusing to issue, restore, or renew a license, or otherwise disciplining a licensee. If the Secretary disagrees with the recommendations of the hearing officer, the Secretary may issue an order in contravention of the hearing officer's recommendations. The finding is not admissible in evidence against the person in a criminal prosecution brought for a violation of this Act, but the hearing and finding are not a bar to a criminal prosecution brought for a violation of this Act.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑55)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑55. Rehearing. At the conclusion of the hearing, a copy of the hearing officer's report shall be served upon the applicant, licensee, or unlicensed person by the Department, either personally or as provided in this Act. Within 20 days after service, the applicant or licensee may present to the Department a motion in writing for a rehearing, which shall specify the particular grounds for rehearing. The Department may respond to the motion for rehearing within 20 days after its service on the Department. If no motion for rehearing is filed, then upon the expiration of the time specified for filing such a motion, or if a motion for rehearing is denied, then upon denial, the Secretary may enter a final order in accordance with recommendations of the hearing officer except as provided in Section 25‑60 of this Act. If the applicant, licensee, or unlicensed person orders from the reporting service and pays for a transcript of the record within the time for filing a motion for rehearing, the 20‑day period within which a motion may be filed shall commence upon the delivery of the transcript to the applicant or licensee.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑60)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑60. Secretary; rehearing. Whenever the Secretary believes that substantial justice has not been done in the revocation, suspension, or refusal to issue, restore, or renew a license, or other discipline of an applicant or licensee, he or she may order a rehearing by the same or other hearing officers.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑65)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑65. Order or certified copy; prima facie proof. An order or certified copy thereof, over the seal of the Department and purporting to be signed by the Secretary, is prima facie proof that:
        (1) the signature is the genuine signature of the

Secretary;

(2) the Secretary is duly appointed and qualified; and         (3) the hearing officer is qualified to act. (Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑70)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑70. Receivership. In the event a cemetery authority license is suspended or revoked or where an unlicensed person has conducted activities requiring cemetery authority licensure under this Act, the Department, through the Attorney General, may petition the circuit courts of this State for appointment of a receiver to administer the care funds of such licensee or unlicensed person or to operate the cemetery.
    (a) The court shall appoint a receiver if the court determines that a receivership is necessary or advisable:
        (1) to ensure the orderly and proper conduct of a

licensee's professional business and affairs during or in the aftermath of the administrative proceeding to revoke or suspend the cemetery authority's license;

(2) for the protection of the public's interest and

rights in the business, premises, or activities of the person sought to be placed in receivership;

(3) upon a showing of actual or constructive

abandonment of premises or business licensed or which was not but should have been licensed under this Act;

(4) upon a showing of serious and repeated violations

of this Act demonstrating an inability or unwillingness of a licensee to comply with the requirements of this Act;

(5) to prevent loss, wasting, dissipation, theft, or

conversion of assets that should be marshaled and held available for the honoring of obligations under this Act; or

(6) upon proof of other grounds that the court deems

good and sufficient for instituting receivership action concerning the respondent sought to be placed in receivership.

(b) A receivership under this Section may be temporary, or for the winding up and dissolution of the business, as the Department may request and the court determines to be necessary or advisable in the circumstances. Venue of receivership proceedings may be, at the Department's election, in Cook County or the county where the subject of the receivership is located. The appointed receiver shall be the Department or such person as the Department may nominate and the court shall approve.     (c) The Department may adopt rules for the implementation of this Section. (Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑75)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑75. Cemetery Relief Fund.
    (a) A special income‑earning fund is hereby created in the State treasury, known as the Cemetery Relief Fund.
    (b) Beginning on July 1, 2011, and occurring on an annual basis every year thereafter, three percent of the moneys in the Cemetery Oversight Licensing and Disciplinary Fund shall be deposited into the Cemetery Relief Fund.
    (c) All monies deposited into the fund together with all accumulated undistributed income thereon shall be held as a special fund in the State treasury. The fund shall be used solely for the purpose of providing grants to units of local government and not‑for‑profit organizations, including, but not limited to, not‑for‑profit cemetery authorities, to clean up cemeteries that have been abandoned, neglected, or are otherwise in need of additional care.
    (d) The grant program shall be administered by the Department.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑80)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 25‑80. Surrender of license. Upon the revocation or suspension of a license under this Act, the licensee shall immediately surrender his or her license to the Department. If the licensee fails to do so, the Department has the right to seize the license.
(Source: P.A. 96‑863, eff. 3‑1‑10.)

    (225 ILCS 411/25‑85)
    (Section scheduled to be repea

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