your honour's sometimes a and appeal comes along where once you get into proving your case turns out to be something different than you think it is and this is one such case where we were briefing this case on the merits after the hearing close in reliance on this court's decision and lincoln banner third district decision francis house we wanted to bring this issue to the court's attention or the acting deputy director either and i think that the reason that it wasn't recognized at the department of all is because this is such an aberration francis house was authority to find the language here only thing to do it by the i would like to address the statutory construction issue the amount of fines the department can levy section three three or five of the act  violations of the act the nursing home should get a conditional license and that hurt meant how can i find a facility based on two different formulas oh the court can use a resident every day formula for a violation that continues or a fine of not less ten thousand dollars whichever is once department finds a violation continues for six months that the fine there would be over six thousand dollars well if we consider that the department had regardless of their formula decided that the type of violation would not warrant more than a six thousand dollars fine or five thousand dollars fine and obviously the per resident per day figure would be greater they on the fly out five and i don't think that the circuit considered that there there would be situations where that could happen and so we believe that what the circuit court did by saying that the department could fight only ten thousand dollars was makes her dollars and the whichever greater language would be to act in that situation and the circuit court's decision means that there would could never be a situation where the formula amount as long as it was not less than ten thousand you could always peg it to an amount greater than the d m rate turned out to be and again depending on the produce him is is based on the number of residen be greater than a fine that otherwise hadn't been corrected right away what have been less in the form well what why is that why i don't understand why you're saying that because if you look at the language the way you're saying it should be interrupted as long as the fine wasn't less than ten thousand the department could assess it take take both methodology look at what the could be and find came to let's say it came to one hundred fifty flat rate five zero on what it has find other facilities the history of this facility of the diligence and correcting violations and that kind of thing if it came up well and the example i and i think that as long as there's any example that would give meaning to all of the language in the statute then the circuit court was wrong to find that there could never be a situation where the formula would be than the last three five was the department required to issue regulations i'm sorry was the department required to issue regulations that would support the issuance of a fine greater than ten thousand there question to you is what regulations required to be an active and a down to guy the department's decision to issue a fine more than ten thousand because it seems to me you didn't challenge their portion of the court's order and b the problem was with the twenty twenty thousand dollars schedule that the department was using first of all there were no regulation and second of all i don't know that the statute  would have ordered that each and every case starts with a twenty thousand dollar fine the statute says start with ten thousand dollars as long as it's not less than ten thousand dollars and then the statute gives the agency factors to determine what an appropriate fine for this facility is so we're not saying that there would that there needs to be a great deal ation that says we can assess a twenty department should consider in determining what the fine should be and i think if we look at those factors there need not be a regulation that why didn't you challenge that portion of the court's order they found their way because violates the statue and so it wasn't it wasn't that you know that there should be a regulation that said it was twenty thousand dollars it was a the department was using a policy th are first of all wasn't promulgated as a law and second of all wasn't allowed b didn't adopt a written policy that expressed to the world this is what they were going to be doing well i think that there's a difference between a discretionary decision by the department that looks at each syllabi on an individual basis and the department saying in each case for going to final salute twenty thousand dollars i think that there's a big difference between those two and the latter is what we were dealing with in the circuit court and the circuit court said that was a policy making process is affectively his lawyer from review by these courts by the courts you know if we raise issues in a ministry of procedure which the department says well wait a minute maybe they have something  they can simply wait one hundred twenty days and say you don't have the opportunity nursing home to raise those issues in the trial court or get review in this court why you care mr mom or if the end result is that your case your client you're representing goes away why is that important to you these are so that is judge i have thirteen nursing homes in the rosewood chain and i've got other cases where they're fighting the above the ten thousand dollars statutory  and you can take it administrative a year from both if they issue their decision time look at preview of the issue but the issues are not going to change judge and i think that's why the issue here is now whether or not the orders boy or whether the in this case we have a decision on the merits we took it up on another straight summons was issued the whole nine yards was the whole administrative procedures act which fall  we came up on this appeal we raised issues before the administrative body got a ruling for them they can be isolated from their conduct they can use that as a sort of against me when i've raised issues and i should be allowed to take these issues up to court presumably and again presumably i could file some sort of mandamus action and say you're acting outside your authority under the statute as i read this course decision because the nursing home care act has a requirement that any decision they may be reviewed under the administrative review act i can do that i don't believe under the under agency authority the right to maybe take every case to trial where they find us of off ten thousand dollars what happens in the next states we have the same arguments it's a fifty thousand dollars case we have the same arguments and i'm back in circuit court arguing the same thing and i spent another point two thousand dollars bringing the case to west property decided this was the amount of fight in this case and quite frankly i think that's what happened when they when they decided that they would have an enhanced system of fun if you mr siegel's testimony if you look at a legislative history that deals with slightly less than ten thousand whichever is greater i did i could find a watch a slate of history when the nursing home care act was first passed i know it's based off of the new york say it's a six month for example i just may i say wait a minute it should only be thirty day and here's my prison why should only be thirty days you know you say it's a medication error medication errors or continue here's my thirty days i brought a pharmacist and professionals and we're in service for people and we've got medications the right way i can make that argument to the party and presumably i can make this argument for the reviewing court saying they prior to two thousand and six when they decided to implement a system of finance fines their procedures or their policy was only to five five five and ten thousand dollars so they were considered three done the discretion to start imposing fines without more rules and regulations and i think again judge i read the brief as a me have these maximums so they can better protect the residents well i will stay here today and i'll tell you based on my reading the statute and i think every nursing home operator roots fracture we all understand that the nursing home care act was always done they find us five and ten thousand dollars for five months mr siegel and his testimony indicated that that was the one of the things that i find most bothersome of pop this case i think and say well wait we waited on hundred twenty days so we don't jurisdiction but we  as you know and as you pointed out we did not challenge the circuit court's decision regarding the practice and policy of finding the celebes twenty thousand dollars or twenty so i don't know why mr m talking about that issue we did not challenge them we did not challenge the attorney's fees that world war two what did happen was when we discovered the length of time that the department took to issue it decision we raised that issue before the court and argue that based on lincoln manner and francis house if that is the president and the decision is for you and mr marker talks about his right under against its clients and although he has the right to bring administrative review action to raise that issue which is what happened in francis house and manner that didn't happen here and so there couldn't see review i mean that that isn't that isn't right certainly whenever the department issued its decision the administrative review law gave him the right to to go into circuit court at that point that has his right to seek review has and regarding the department's discretion to assess finds the legislature has given their department they have discretion when it said in the statute that it shall a fine of not less than ten thousand dollars it did not say ten thousand dollars it did not say only ten thousand dollars no more than ten thousand it said not less than ten thousand dollars when you read wage with the language in section three three or six which lists factors two for the department to consider when deciding whether to assess by and fixing the five in determining how much the fine should be assessed that reads together and shows that the department has the authority to find a facility more than ten thousand dollars certainly the department of precede it i think it's best read when you look at the plain language they are that the department has two ways to assess five on the formula or the flat rate and the flat rate breaks down two subcategories five thousand dollars or ten thousand dollars depending on the type of violation it is and in each case five thousand dollars or ten thousand and again of the type of violation that would warrant the ten thousand dollar part of the statute again the department has the authority to determine the five based on the formula or not less ten thousand dollars and i think that that's is how best to use all of the language of the structure and also give it back to the factors three three zero six i think and just just one more thing i started to say that this is not unique the department of public health has authority and the discretion to determine an appropriate fine based on the the pertinent facts of the case  department of professional regulation also has discretion to it when they find that a doctor for example has violated the medical practice act trying to terminate what that fine is and certainly we have been involved in cases upholding fines and arguing that the fine was not arbitrary because it was based on factors such as the severe of the of the violation had the doctor violated the act in the past and those sorts of things and those are the same types of factors that would be involved in the next case that comes along when the department determines to find a facility not less than ten thousand dollars we would guess that you if you determine that lincoln