## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Lam m v. McRaith , 2012 IL App (1st) 112123

Appellate Court Caption CRAI G B. LAMM, Plaintiff-Appellant, v. MI CHAEL T. M c RA I T H
, Not Individually
, But as Direc tor of the Division of Insuranc e o f t h e Depa rtment of Financ ial and Professiona l Regulation, DefendantAppellee

.

District & N o. First District, F ifth Division
Docke t No. 1-11-2123

Rule 23 Order

filed
Rule 23 Order withdrawn Opinion filed September 7, 2012

October 10, 2012 October 19, 2012

Held (Note : Th is syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The revoc ation of p l aint iff’s I llinois insurance produce r’s license was

reve rsed, since plaintiff’s rig ht to due proce ss was violated when he was denied an administrative hearing on rema nd at which plaintiff could
appea r, and the cause was rema

nded to allow the Depa

rtment of Financ ial and Professional Regulation to conduct an additional hea ring with direc tions to impose a sanction less than revoc ation if a violation of the Insuranc e Code is found

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 09-CH-25676; the Hon. L ee Pre ston, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Alvin R. Be cker and Kather ine A. Grosh, both of Be erma n n P ri tikin Mirabelli Swerdlove , of Chicag o, for a ppellant.

L isa M ad i gan, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Carl J

. Elitz
, Assistant Attorney Ge n eral, of counsel), f

or appe llee.

Panel J USTI CE PAL MER delivered the judgme nt of the cour t, with opinion.
J ustices Gordon a

nd L ampkin concur

red in the judgment and opinion.

OP INION

¶ 1 Plaintiff Craig B. L amm appea ls from an order of the circ uit court deny ing his amended complaint for administrative revie w and af fi rm ing the decision enter ed on rema nd by the Direc tor of the Division of Insuranc e (Dire ctor) of the Depa rtment of Fin ancia l and Professional Regulation (De partment) to revoke plaintiff’s I llinois insurance produce r’s license. Pl aintiff contends that the court erre d in affir ming the D irec tor’s dec ision beca use plaintiff’s right to due proce ss was violated whe n the Director revoked his license w ithout a hea ringon rema

nd. We reve rse a

nd rema nd. ¶ 2 Plaintiff was li cense d as an insurance produce r in 1977. In 1981, he founded Magnum Insuranc e Ag ency (Magnum). On November 20, 2007, plaintiff pled guilty to f iling a false individual fede ral income tax return for the cale ndar y ear 1999 by underr eporting his taxable income in the amount of at least $76,020. Pursuant to the plea, plaintiff was sentenc ed to 30 day s’ imprisonment and 3 y ear s of probation and order ed to pay a fine of $30,100. On Fe bruar y 26, 2008, the United States District Court amende d the judgme nt ag ainst plaintiff
to confor m his sentenc e to the require ment of law that plaintiff be place d on supervised rele ase following his incar cer ation. This amende d judgme nt noted t hat pl aintiff’s criminal conduct “ ended” on October 18, 2000. ¶ 3 In the meantime, on Dec ember 11, 2007, plaintiff tender ed t o h i s at t o rney a sig ned application for rene wal of his insurance produce r’s l icense

. In the application, plaintiff disclosed hi s felony conviction for filing a false tax return. On J anuar y 16, 2008, pursuant to se ction 500-95 of the I llinois Insuranc e Code (Code) (215 I L CS 5/500-95 (West 2006) ), plaintiff’s attorne y

sent a letter

to the Direc tor, notifying him of plaintiff’s conviction. The Direc tor rec eived notice of p l ai n t i ff’ s conviction befor e the district court amende d the judgme nt on Febr

uary 26, 2008. ¶ 4 On September 11, 2008, the Direc tor enter ed an “O rd er o f R ev o ca t ion,” re voking plaintiff’s insurance produce r’s license pursuant to se ctions 500-70(a )(2) and 500-70(a)(6) of the Code (215 I L CS 5/500-70(a) (2), (a) (6) (West 2006)). The Direc tor found that plaintiff violated s ection 500-95 of the C ode (215 I L CS 5/500-95 (West 2006)) by failing to repor t

-2-his felony conviction to the Depa rtment within 30 day s of being convicted. The Direc tor also found that plaintiff demonstrated “u n trustworthiness, incompetenc e and financ ial irresponsibility ” in violation of section 500-70(a )(8) of the Code (215 I L CS 5/500-70(a) (8) (West 2006)). ¶ 5 On September 29, 2008, plaintiff reque sted a hear ing to challeng e the order of revoc ation pursuant to section 500-70(b) of the Code (215 IL CS 5 /500-70(b) (West 2006)). The Direc tor g rante d plaintiff’s reque st and a formal administrative hear ing was held on Fe bruar y 5, 2009. ¶ 6 At the hearing
, the Department presented a cer tified copy

of t he federa l char g e aga inst plaintiff, alleg ing he had filed an individual income tax return for the cale ndar y ear 1999 and underr eporte d his taxable income by at least $76,020. The Depa rtment al s o prese nted a

cer tified copy of the judgme nt enter ed ag ainst plaintiff on November 20, 2007, attendant to plaintiff’s plea of guilty t o filing a false tax return. The Depa rtment further prese nted a

cer tified copy

of the amended judg ment enter ed on F ebrua ry 26, 2008. ¶ 7 J o h n T h ei s , an attorney , testified on behalf of plaintiff. Theis said he knew plain t i ff profe ssionally in connec tion with the fede ral tax case filed ag ainst him by the United States
g overnme nt. Theis said that the judgme nt enter ed on November 20, 2007, was amended beca use it was not an authorized dispositi o n

. As a result, on Fe bruar y 26, 2008, the court amende d the judgme nt to confor m with sentenc ing guidelines. Theis testified that Fe bruar y 26, 2008, was the date the judgment ag ainst plaintiff bec ame f inal. ¶ 8 Geor g e San J ose testified to the positive impact plaintiff had on the Hispanic c ommunity i n t h e C h i cag o are a. San J ose opined that plaintiff, throug h Magnum, upg rade d th e employ ability

of Hispanics in Chicag o. ¶ 9 Plaintiff testified t hat t he tax return that serve d as t he b asi s of hi s guilty plea was filed in the y ear 2000. He said the return was done by his a ccounta nt a nd that he did not instruct the acc ountant on how to pr epar e the return. Plaintiff sa id when he was investigated by the Interna l Revenue Ser

vice, he terminated the acc ounting f irm that filed his tax es. ¶ 10 On cross-e x amination, plaintiff acknow ledg ed that he had been audited befor e and had made acc ounting mistakes. He also acknow ledg ed that Magnum had been investigated by the Depa rtment previously

and fine d with respec t to those investigations. ¶ 11 On Marc h 30, 2009, the administrative law judge issued a written repor t makingfinding s of fac t, conclusions of law and rec ommendations. In the repor t, the judge found that plaintiff violated s ection 500-95 of t he C ode (215 I L CS 5/500-95 (West 2006)) by failing to repor

t his conviction to the Direc tor within 30 day s afte r the entry date of the judgme nt. The judge noted that plaintiff was convicted in November 2007 and did not repor t his conviction to the Direc tor until J anuar

y 2008. The judg e a ls o noted that although the judgme nt ag ainst plaintiff

was amende d on Fe bruar y 26, 2008, plaintiff did not prese nt evidenc e at the hear ing as to when specifica lly the i ncorr ect judgment was brought to the district court’s attention so as
to excuse plaintiff’s failure to repor t the initial judgme nt to the Direc tor in a timely fashion. The judge also found that plaintiff, by filing a false tax re turn, demonstrated incompetenc e and financ ial irresponsibility in the conduct of business in violation of sections 500-70(a)(6) and 500-70(a )(8) of t h e C ode (215 I L CS 5/500-70(a) (6), (a) (8) (West 2006)). The judge

rec ommended that: (1) plaintiff’s insurance p roduce r’s li cense be revoked; (2) plaintiff be

-3-assessed a civil forfe iture in the amount of $5,000; and ( 3) plaintiff be asse ssed the cost of the proc eeding s. ¶ 12 The Direc tor issued a final administrativ e d ec i s i o n on April 14, 2009. The Dire ctor adopted the finding s of fac t, conclusions of law and rec ommendations of the administrative law judg e. Plaintiff filed a motion for rehe aring , which the Dir ector denied. ¶ 13 On J uly 27, 2009, plaintiff filed a complaint for administrative revie w in the circ uit c ourt, alleg ing that the Dire ctor’s de cision to revoke his lice nse wa s excessive and unrea sonable. Plaintiff arg

ued that the Direc t o r ignor ed evidenc e in the rec ord that compelled a more lenient sanction and require d reve rsal of the revoc ation order

. Specifica lly
, plaintiff pointed
out that his criminal conduct–the filing of a false tax return–tha t formed the basis of his
guilty plea ended near ly nine y ear s befor e the revoc ation order was enter ed and was unrelated
to the conduct of his insurancebusiness. Plainti ff c laimed that he is fully reha bilitated and posed no risk to Magnum’s clients or the public at larg e. ¶ 14 After full briefing and oral argument, the circ uit court enter ed a written order on May 6, 2010. In the order
, the court identified two specific err ors of law made by the Direc tor. The
court also identified an additi o n al i s s u e that was unsettled by the rec ord. First, the court found that the Direc tor err ed as a matter of law by misint erpr eting section 500-70(b) of the Code (215 I L CS 5/500-70(b) (West 2006)) and by not considering the time elapse d since the end of plaintiff’s criminal conduct–the filing of the tax return in 2000. The court noted that the Director considered only the t ime elapse d since plainti ff’ s 2007 conviction but n o t the time that had passed since the completion of plaintiff’s crime as re qu i re d by section 500- 70(b). Second, the court found that the Direc tor err ed as a matter of law by concluding that plaintiff’s persona l income tax return could form the basis for revoking plaintiff’s insurance produce r’s li cense

. The court noted t hat s ection 500-70(a)(8 ) p rovi des for revoc ation only wher e the plaintiff uses “fr audulent, coer cive, or dishonest prac tices, or demonstrat[es] incompetenc e, untrustwort h i ness or financ ial irresponsibility in the conduct of business .” (Emphasis adde d.) 215 I L CS 5/ 500-70(a )(8) (West 2006). ¶ 15 Finally
, the court found t h at the rec ord did not clea rly establish that plaintiff violated section 500-95 of the Code by failing to timely inform the Direc tor of his felony conviction. The court n o t ed t hat it was “lef t with a cloudy impression of the evidenc e” reg arding plaintiff’ s violation of section 500-95 wher e the rec ord shows that plaintiff signe d an application for the rene wal of his license disclosing his felony conviction on Dec ember 11, 2007, within 30 day s of the conviction, but that plaintiff’s attorney did not send the application until J anuar

y 16, 2008. Given this, the court found that “the question of whether [pl aintiff] actually

violated [s] ection 500-95 doe s not appea r complete ly

settled.” ¶ 16 The circ uit c ourt, relying on its powe r to reve rse and rema nd an ag ency decision and to “s tate the questions requiring further hear ing or proce eding s and to g ive such o t h er instructions as may be proper ” (735 I L CS 5/3-111(a) (6) (West 2006)), rema nded the matter. In doing so, the court noted:
“The question of whethe r to rema nd a ca se to an a dminist rative tribuna l for fur ther hear ing is a matter which lies within the di scre tion of t he trial court. [ Citation.] As the question o f [ p laintiff’s] violation of Section 500-95 is unsettled by the rec ord, and

-4-beca use the court has identified sever al err ors of law, the administrative decision in this

case should be reve rsed and rema nded for re- examination of the rec ord under the corr ect interpre tation of applica

ble statutes and f

or re -eva luation of the pena lty imposed.” The c ourt then conc luded: “[Pl aintiff’s] Complaint for A d min is tra ti v e Re v ie w is gr a

n ted. [The] Direc tor[’s] *** Administrative Dec ision to revoke [pl aintiff’s] license is, hereby
, reve rsed and this case is remande d to the Direc tor for r e-e x amination and re -eva luation.” ¶ 17 On rema

nd, the administrative law judge
, without conducting an administrative hea ring
, enter ed new finding s of fac t and conclusions of law. In a written order
, the judge found that
p l ai n t i ff failed to disclose hi s conviction t o the Director in a ti mely fashion as require d by section 500-95 of the Code and failed to prese nt evidenc e of reha bilitation following h i s conviction. The judge conclude d that either plaintiff’s untimely repor ting of his conviction
to the Direc tor or plaintiff’s lack of reha bilitation was sufficie nt independe nt ground for the Direc tor to revoke plaintiff’s insurance produce r’s license. The judge rec ommended that: (1) plaintiff’s insurance produce r’s license be revoke d; (2) plaintiff be assessed a civil forf eiture in the amount of $5,000; and (3) plaintiff be a ssessed the c ost of the proc eeding s. ¶ 18 The Direc tor issued a final administrative decision on September 21, 2010. The Dire ctor ag ain adopted the finding s of fac t, conclusions of l aw and rec ommendations of the administrative law judge

. Plaintiff f iled a motion for rehe aring
, arguing that the revoc ation of his insurance produce r’s license without a hear ing on rema nd amounted to a denial of his constitutional rig ht to due proce ss of law. Plaintiff claimed that he was entitled to notice of and an opportunity to participate in the rema nd proce eding ag ainst him. The Direc tor denied the motion, finding that the c ircuit court’ s remand or der did not re quire a nother he aring

. ¶ 19 Plaintiff filed an amende d complaint fo r ad m i n istrative revie w in the circ uit court on J anuar y 14, 2011. Plaintiff raised the same due proce ss argument he raised in his motion for rehe aring

. Plaintiff sought r ever sal of the Dire ctor’s or der and that the matter be rema nded for a nother he aringbefor e a dif fer ent administrative law judg e. ¶ 20 The circ uit court denied plaintiff’s amende d complaint an d af fi rm ed t h e Direc tor’s decision. In a written order
, the court found that plaintiff failed to es t ablish that he was entitled to an additional hear ing on rema nd or that “the lack of one violate[d] his right to due
proce ss.” The court noted that the rema nd order included instructions to r e e x amine the rec ord under the corr ect interpre tation of applicable statutes and to ree valuate the penalty imposed but did not specific ally

instruct the Depa

rtment to conduct a

nother he aring . The c ourt also noted that “the task char g ed to [t he] Direc tor *** on rema nd was simply to apply the corr ect interpre tation of the applicable statutes to the exis ting rec ord.” The court found that the Direc tor had complied with that task and that the rec ord showed: (1) plaintiff failed to g ive timely notice to the Direc tor of his November 2 0 0 7 fe lony conviction; and (2) the district court’s amendment of the judgme nt on Fe bruar y 26, 2008, did not excuse plaintiff’s failure to give notice sooner

. ¶ 21 Plaintiff appea ls, contending that pursuant to the circ ui t co u rt’s May 6, 2010, rema nd order
, he was entitled to a n ew administrative hear ing on rema nd and an opportunity to appea r throug h counsel at t h at h earing

. Plaintiff claims that his rig ht to due proce ss was

-5-violated when the Direc tor revoke d his insurance produce r’s license without a hear ing on

rema nd. Plaintiff also claims that the Di re ct or’s decision on rema nd ignor ed the circ uit court’s dire ctive to re evaluate the sanc tion impos ed. ¶ 22 T h e Depa

rtment responds that the circ uit court’s rema nd order did not requir e a n ew administrative hear ing and that the Direc tor complied with the circ uit court’s instructions to

ree valuate and ree x amine the case. T h e Depa rtment asser

ts that plaintiff did not have a constitutional due proce ss rig ht to a new a dminist rative he aring on rema nd. ¶ 23 The Code provides that all final administrative decisions of the Depa rtment are subject
to revie w under the Administrative Review L aw (see 735 I L CS 5/3-101 et seq. (West 2006)). 215 I L CS 5/407 (West 2006). Pursuant to administrative revie w law
, we re v i ew the administrative ag ency ’s decision, not the circ uit court’s deter mination. Anderson v. Departme nt of Professional Regulation
, 348 I ll. App. 3d 554, 560 (2004). Wher e, as he re, the issue involves a question of law, whether plaintiff’s rig ht to due proce ss was violated, we apply a de novo standard of

revie w. See Anderson , 348 I ll. App. 3d at 560. ¶ 24 Be fore addre ssing plaintiff’s due process argument, we first consider whether plaintiff

was en t i t l ed to a new administrative hear ing pursuant to the court’s May 6, 2010, rema nd order

. After car efully revie wing that order
, we believe he was. In the ord er , the court identified two specific err ors of law made by the Direc tor and found that the rec ord did not clea rly establish that plaintiff violated section 500-95 of the Code by failing to timely inform the Direc tor of his felony conviction. In relation to this latter issue, the court noted that it was “lef t with a cloudy impression of the evidenc e” reg arding plaintiff’s violation of section 500- 95. In reve rsingand re mandingthe Dire ctor’s de cision, the court noted:
“The question of whethe r to rema nd a case to a

n administrative tribunal for further hearing is a matter whic h lies within the discr etion of the trial c ourt. [C itation.] As the
qu estion of [pl aintiff’s] violation of Section 500-95 is unsettled by the rec ord, an d beca use the court has identified sever al err ors of law, the administrative decision in this

case should be reve rsed and rema nded for re- examination of the rec ord under the corr ect interpre tation of applicable statutes and for re- evaluation of the pen al t y i m posed.” (Emphasis adde d.) Although the court did not specific ally instruct the Depa rtment to conduct another hear ing,

we do not see how in the absenc e of another hear ing the Depa rtment was able to clar ify the “cloudy impression of the evidenc e” conce rning plaintiff’s violation of section 500-95 or to

ree valuate the penalty imposed without first clea ring up the cloudy impression. Acc ording ly
, we believe the circ uit cour t ’s o rd er entitled plaintiff to a new administrative hear ing on

rema nd and that the Direc tor err ed in revoking plaintiff’s insurance p ro du ce r’s license without an additional hear ing. ¶ 25 Even wer e we to conclude that the court’s rema nd order did not instruct the Depa rtment to conduct another hear ing, we would still find th at p l ai ntiff’s rig ht to due proce ss was violated when the Direc tor revoke d his insurance produce r’s license without a hear ing on

rema nd. ¶ 26 In a proce eding wher e a per son’s rig ht or interest in life, liber ty or prope rty is a ffe cted, due proce ss require s that that person be serve d with notice and an opportunity to defe nd that

-6-interest in a fair and impartial hear ing. In re Abandonment of W ells Located in Illinois
, 343 I ll. App. 3d 3 0 3
, 3 0 5 (2003). “[D]ue proce ss of law extends to ever y g overnme ntal
proce eding that may interfe re with persona l or prope rt y ri ghts or interests, whether that
proce ss is executive, leg islative, judicial, or administrative.” Abandonment of W ells
, 343 I ll. App. 3d at 306. “An administrative hea ringmust be conducte d in acc ordanc e with the due
proce ss require ments under the fourtee nth amendment to the United States Constitution and article I , section 2, of the I llinois Constitution.” Abandonment of W ells , 343 I ll. App. 3d at 306. ¶ 27 I n I l l i n o i s , du e proce ss protec tion extends to profe ssional licenses. Peterse n v. Plan Co mm’n
, 302 I ll. App. 3d 461, 467 (1998). An administrative proce eding satis fi es du e proce ss when the involved party has the “ ‘opportunity to be hear d in an order ly proce eding which is adap t ed to the nature and circ umstances of the dispute.’ ” Gene ral Servic e Employe es Union, Local 73 v. Illinois Educational Labor Relations Board
, 285 I ll. App. 3d 507, 515 (1996) (quoting Obasi v. Departme nt of Professional Regulation
, 266 I ll. App. 3d 6 9 3
, 702 (1994))

. A due proce ss analy sis require s revie wing courts to consider t h re e elements: (1) the mag nitude of the private interest aff ecte d; (2) the degree of risk of an unjust deprivation of such interest throug h the proce dures used, and the estimated value, if any , of additional or substitut e proce dural safe guards; and (3) the g overnme nt’s interest, including the function involved and the burdens of conduc t i n g additional or alternative proce dural actions. Matthews v. Eldridge , 424 U.S. 319, 334-35 (1976). ¶ 28 Her e, the proce dures em p l o y ed b y t h e De p artment on rema nd failed to satisfy

the require ments of due proce ss. A lthough administrative ag encie s are not r equire d to c onduct

an additional hear ing eac h time the y revisit a decision on rema nd, in this case plaintiff was entitled to a hear ing as a matter of due proce ss. First, neither party disputes that the
mag nitude of the private interest aff ecte d is signific ant as it constitutes plaintiff’s livelihood. Second, contra

ry to the Depa

rtment’s argument, we believe that there is a high degree of risk that, g iven the “cloudy” evidenc e of plaintiff’s violation of section 500-95, he was unjustly deprive d of his interest by the proce dures employed on rema nd. As mentioned, we do not see how in the absenc e of another hear ing the Dep ar t m ent was able to clar ify the evidenc e. Additionally
, there were no substitut e procedura l safe guards employ ed by the Department in lieu of a hear ing to ensure that plaintiff was not unjustly deprive d of his interest. Finally
, we cannot s ay that t h e b u rden of conducting another hear ing in this case would have been particula rly signific ant g iven the nature of the case and the limit ed number o f wi tnesses prese nted at the initial hear ing. ¶ 29 In rea ching this conclusion, we are unpersua ded by the Depa rtment’s argument that even if plainti ff were entitled to an opportunity to rea rgue his case on rema

nd, his rehe aring motion cure d the defe ct. A motion for rehe aring does not amount to an “ ‘opportunity to be hear d in an o rd erly proce eding which is adapte d to the nature and circ umstances of the dispute.’ ” Gene ral Se rviceEmploye es Union , 285 I ll. App. 3d at 515 (quoting Obasi , 266 I ll. App. 3d at 702). ¶ 30 Finally
, we note that the court’s rema nd order instructed t h e Director to ree valuate the penalty imposed in light of the fac t that the only violation plaintiff may

have c ommitt ed is failure to timely repor

t his conviction. Even if, afte r the rec ord is clar ified, plaintiff is found

-7-to have violated that section, we f ind revoc ation of his license ove rly harsh. ¶ 31 The Direc tor’s disciplinary decision will amount to an abuse of discretion if it is either: “ ‘(1) overly harsh in view of the mitigating circ umstances or (2) unrela ted to the purpose of the statute.’ ” R ed

d y v. Departme nt of Professional Regulation
, 336 I ll. App. 3d 350, 354 (2002) (quoting Siddiqui v. Departme nt of Professional Regulation
, 3 0 7 I l l

. App. 3d 753, 763 (1999))

. As mentioned, we find the penalty of re v o ca t i o n overly harsh under the circ umstances prese nted in this case and need not consider whether the penalty imposed was unrelated to the purpose of the statute. In rea ching this c onclusion, we note that neither the parties nor our rese arc h has provided case s with fac ts simil ar to those here
, i.e.
, involving the

revoc ation o f an i n s u rance produce r’s license. As a result, we look for guidance in case s involving the r evocation of other prof essional license s. ¶ 32 For example, in K a f i n v. Di vi s i o n of Professional Regulation of the Departme nt of Financial & Professional Regulation
, 2012 I L App (1st) 111875, ¶¶ 40-50, we found t he

revoc ati o n o f the plaintiff’s medical license was overly harsh despite the fac t that the
p laintiff, a 58-year -old doctor, enter ed into a persona l and sexual relationship with his patient, who was then 20 year s old, g ave her samples of presc ription m ed ications, a fake identificat i on car d, alcohol and marijuana
, and took her on his medical rounds under the prete nses that she was his intern. In Reddy
, 336 I ll. App. 3d at 352-55, the Four th District of this court aff

irmed the six -m o n t h s u s pension of the plaintiff’s medical license wher e the evidenc e sho we d t h e plaintiff suffe red from a mental illness, profe ssed his love for his patient duringa psychiatric treatment session, moved her into the home he share d with his wife and children, divorce d his wife and proce eded to m ar ry his patient. In Knop v. Departme nt of Registration & Education , 96 I ll. App. 3d 1067 ( 1981), the Fifth District of this court found that the revoc ation of the responde nt’s pharma cist’s license as a pharma cy appre ntice and the 10-day suspension of the co-r espondent’s license as a regi s t er ed pharma cist did not amount to an abuse of discretion by the State Boa rd of Pharmac y wher e the responde nts mistakenly filled a presc ription with a streng th five times more potent than that presc ribed by the phy sician to the seven- y ear -old patient. Although the ab o v e case s involve medical licenses, the conduct in these case s is far more egreg ious than plaintiff’s alleg ed failure to timely notify the Direc tor of his felony conviction and yet did not war rant a pena lty as har sh as re vocation. ¶ 33 Also instructive is In re Scott
, 98 I ll. 2d 9 (1983), cited by plaintiff. In Scott
, the attorne y responde nt was suspended from the prac tice of law for three y ear s following his conviction for filing a fal s e fe d eral income tax return for the y ear 1972. Scott
, 98 I ll. 2d at 12. Respondent appea led and our supreme court found that althoug h responde nt’s conviction

war rante d a suspension, that conclusion had to be balanc ed ag ainst the mitigating evidenc e prese nted, i.e.
, responde nt was elec ted Attorney Gene ral of I llinois four times; he serve d one term as State Tre asure r; and 11 witnesse s testified on responde nt’s behalf and to his moral qualifications that made him f it to prac tice law. Scott
, 98 I ll. 2d at 18-19. After conducting this balanc ing, the court conclude d that “[t] he mitigating evidenc e clea rly demonstrates that the purpose of the dis ciplinary proce ss in this case is fulfilled wit hout a suspension l ong er than that alre ady

serve d.” Scott , 98 I ll. 2d at 19. ¶ 34 Acc ordin gl y , ev en if on rema nd the Direc tor finds plaintiff failed to timely repor t his

-8-felony conviction and thus violated section 500-95 of the Code, we direc t that a penalty less

than revoc ation be imposed. In coming to the conclusion that revoc ation is overly harsh, we take into acc ount sever al mitigating fac tors. First, althoug h the rec ord i s cloudy as to notification, it is undisputed that within 30 day s of his conviction, plaintiff signe d a license

rene wal application that disclosed his conviction and then tender ed it to his attorney for filing with the Depa

rtment. It is also undisputed that n o t i fi ca t i o n was then made on J anuar y 16, 2008, less than 60 day s afte r his conviction. Second, the criminal conduct here
, the filing of

a fa l s e t ax return unrela

ted to his business activities, ended in 2000, 12 y ear s ag o. L astly
, plaintiff prese nted testimony that his business h as h ad a positive impact on the Hispanic community

in the Chicag oland ar ea. ¶ 35 Fo r t h e rea sons stated, we reve rse the revoc ation of plaintif f’ s I l l i n o i s i n s u ra n ce produce r’s license and rema nd with instructions for the Depa rtment to conduct an additional hear ing and, in the event plain t i ff i s ag ain found to be in violation of the Code, impose a sanction less than re vocation.

¶ 36 Reverse d and re manded.

-9-