investigation complied with the investigation and eighteen months later were served with notice of preliminary determination stating that they were potentially wobble for a one point six million dollars fine for alleged missed plastic ation of their employees a couple of weeks later they they received a notice of a second investigation which could subject them to criminal penalties we file the original complaint in march of two thousand and ten alleging the unconstitutional test on personal knowledge to all of the elements of the act but the sub contractor plaintiffs then tested to the remaining problem requirements that the act that with that was within their personal knowledge these and but the affidavits were also candid to the motion for summary judgment the department did not deny any of the allegations in their answer and and those allegations are are part of our  original act yes and here again and again there is a that is an issue whether those procedures can be applied retroactively that and to cause my clients to be subject to administrative proceeding after they've already been through all that were raised in on this complaint and so in the case would have that the statute the previous statute would have the previous claim would have to be moved in order for the new procedures to apply and all of that is addressed in my reply brief and and i was limited time unable to and i didn't see the actual statute that was inadequate at the time but i think there are serious questions with the idea of retroactive application as to my clients because of their vested rights that is that i've taken that have been  secured in this litigation ok we're going to go as a facial challenge and we didn't waver as applied remedies and it was persists pacifically preserved in the order and the department did not weigh did not question the allegations of the complaint that alleged compliance with all of the requirements of the act they didn't deny those allegations they haven't provided in they had severe access to all of the evidence and they could have said hey you know this is an as applied challenge because you're saying you complied with everything  and the illinois supreme court is limited that supposed to manage concerns but the united states supreme court has said that any constitutionally protected conduct could be considered on a vagueness challenge and we've got some constitutionally protected conduct alleging the fundamental right to work in the to that protection as native citizens and so that presume that that just a since the native citizens have this right and so that the right that that ryan told and eric martin are asserting and that is relevant to the vagueness challenge but even if the court was not to consider the constitutionally protected conduct as part of the biggest challenge that the statute is still on constitutional on procedures are just not not there and and the vagueness primate the text because there's no standard the violation is governed by the content conduct of other people  and and there's no fair notice because it prohibits construction sub contractors when when the statutory language provides factors that suggest that if you comply with all these requirements you can hire subcontractors and so that provide that makes their a failure of their notice but did the department says the purpose of this act is to prevent employers from treating defacto employees as independent contractors and denying them benefits and and and the plaintiffs that never question that that's a that's that's something that that that the legislature can certainly address the their concern there is a concern that we need to address that ever that nobody ever wants to talk about and that's the right of a legislature to regulate a business any way it wants to regulate a business unless it violates the constitution and that's that's what the case is the disavowal rottener said and we don't want to go anywhere close to lochner and the way to avoid going anywhere close to lochner is to let i think for purposes of where we are at this point litigation i to just not talk about rational basis at this point and that's that's the end of certainly if the statute lacks rational basis it's unconstitutional and it would probably be ok or from a locker standpoint but we don't want to go there are none of the cases that there's not there are any cases that go there and we don't want to go there we want to talk about whether strict liability is is necessary in this case and you don't even have to go there because the statute is about effective and all of says that well for instance there's a contractor is held liable for or if a sub contractor lacks sufficient capital sufficient capital is not defined so  your your statement about that being begged and surely that certainly that's a concern but but the main thing is that it's the sub contractors lack of sufficient capital for which the key contractor is held responsible that's the viable constitutional constructions to the statute under consideration and and which statute which of the two viable constructions to apply in this case there's really only one construction of this statute and it was it sets forth in the early arguments from the from the department and that's the department's construction was consistent with the language of the statute have with regard to that that the department's position and statement that that preventing employed that the purpose of the act is to prevent employers from treating defacto employees as independent contractors and in nine and benefits nothing in the law requires a sanction that the plaintiffs in this case are doing that and they're denying that they're doing that and this a bit and we contractors as a whole  and in fact director is entitled to judgment even if there were no presumption of constitutionality even if this court had no duty to construe the statutes the statutory scheme here is constitutional if it's reasonable to do so and it is eminently reasonable to do so to start with the due process aspect the there has to be under the current of the current statute before january first of fourteen there is a department  significantly rewrite the statute to say that with the board does is of no consequence based on what we've just been talking about absolutely not because i mean the department itself cannot gad to put money for say a p that it is such as and by assessing what it does is it says this this contractor for example this contractor has we've talked to them many times they keep doing the same thing we're going to remember the penalties are not to exceed penalties so so for example a contractor who one willingly treats an employee is an independent contractor might get might be assessed no penalty and therefore you know maybe the department wouldn't even go to enforce it to a circuit court proceeding because there would be really maybe no reason to cracked i mean that's yes exactly because due process remember to price you need process if you're depriving somebody of a rifle or body property and if you're not to private anybody have something you don't need know this and hearing all that happens here it's just like the way jack it's just like you know the environmental control act and so on they say for the first step is investigation and what they do is they go in and they say we've talked to people got a complaint we tried to people we looked at your documents and mr contractor we we believe from everything that we've come across that you that these people are really your employees because for example you tell them what you do every day they have to do everything you say that they do they don't get any promise they don't have any advice and sues you know whatever the criteria are and so but you don't and you could be liable as as happened here will make a preliminary so you know they say that we didn't dispute for example the facts that they allege about compliance but there are a couple problems with that first of all what we said was we don't have enough information to really answer the complaint to a preliminary findings investigative findings were here we believe that you hired this guy and this stayed at this job and for these reasons because you did all the scheduling because you do need to call the credit because you did all of those things we believe that he is not intended contractor he was in fact your employee and i'm but first we're scheduling a hearing for you and then ministry of caring for you and then the administrative process and you know i in the ministry of hearing with all the you know the panoply of of you know retroactive application there are new procedures put in place right that the board doesn't contest that they didn't comply with three right so what does that do because what could happen is that the department starting january first could give them a notice saying we believe that you violated the act in the ways that we've already told you and we're fine this matter for a hearing deference which should be given to the department well under well if they all shake comes up with a final administrative decision that's a breach of review under the administrative review law then it would get the same amount of  you point to anything in the act now which indicates that the department must be in circuit court to enforce a violation finding penalties or fees yes it says that but it says that in i think it's interaction control is how does the work at the site how does it get a schedule how does a bit schedule is there a quota and none of the plaintiffs have attested to that and those are very straightforward requirements you know you can tell who is doing the assigning who says go to this job go to that job who says do this job first do that job second i mean you know either you have control of those things or you jobs and those are there certainly it can be a contractor knows if if he's the one to be saying you do this job first and i don't is very longstanding in illinois people understand what it means substantial investment criterion comes from kabul and this court's decision in a private land that it's one of the one of the indicators for whether you are  your contractor or whether you're really just a laborer and this you know and for you know for a while yet a contractor in a certain field it might be more for another like device for example for a problem or because you have to have a lot of heavy equipment you have to have your supplies you have to have something so you would have a larger investment maybe than you know that a guy who does tile work only because you don't have to have as many surprise because you know for various reasons but still you have to have some kind of investment other than your work you know your car and your tools and this you know there might be close question somebody might say well you know it's thousand you know we know that a million dollars this is substantial investment we know that one dollar is not a substantial investment contractor leslie i see i'm almost out of time i want to if i may move to the equal protection that again this is a facial challenge and in the appellate courts the plaintiff or the plaintiffs said there no need to decide whether this is a strict scrutiny so they cannot raise it now you know in this court for the first time the rational basis test is very deferential to use for economic regulation like this there are you know you're not an employee you're not protected by workers comp you not protected by the a d l you're not protected by title seven you're not protected by a whole panoply of employee rights and in addition with regard to the equal protection claim  off because they say that three for three point four million employees were misclassified in fact that's only fifteen percent of the misclassified people so when you really do the math it is pretty much my because because it appear to mean that the opening brief tried to adopt the appellate court briefs and that and that's not permitted and bad the thank you thank you and we  throughout this process and i didn't have i didn't have a lot of pages to address that but it i believe it was preserved even if it was a footnote and a strict scrutiny argument was preserved throughout this process i don't believe i've forfeited  directional control in the regulations so they didn't say directional control in their affidavits but there is there are ten or twelve elements in the regulations that defining direction and control and those now i believe he's right that that this that the complaint would have to be five hundred twenty days after the notice is given in the procedures would have to follow a time line and those procedures were not allah and so the applying the new act arguably would would not and indicates that if the legislature included the title it would be part of legislation and and the website the legislative website includes the titles but that isn't really all that important because the body of the statute says that it's the duty  the department to enforce the statute so i don't know why that's even a question with regard to the half of pride issue as applied became became an issue because of the way the department has proceeded in this case this that  e that it was started as well of course if you're going to you know of course is the facial challenge but but the responding to the what they've how they've proceeded in the case has brought as a pride issues to the that there are cases where a facial challenge is brought and and the court decides to grant has applied really and then because of the way it was presented where they changed the the construction of the statute midstream and the appellate court actually allowed them for the first time on appeal to adopt a new construction of the statute and we're even listening to it here that's as applied that's been as applied problem and and that's where i mean that that needs to be addressed and and so so so it's just a different animal it's not like we recreate did a very careful record in the trial court and we did that on purpose and that issue came up to this court immediately in may of two thousand and ten and they wanted to bring this issue then and i said no we need a record in the trial court before we can do that and you said yes and so that we created a record in the trial court and and and then then that record was was not but that's that's behind us on the appeal because they change the construction that they're that they're applying and there are a whole bunch of new issues now that that need to be addressed and there's as applied relief on the table and we we  request requests that that our clients have their constitutional rights protected