                         No. 3--06--0500
_________________________________________________________________
Filed May 16, 2007.
                             IN THE

                      APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                                 A.D., 2007

LARRY HILAND,                 )    Appeal from the Circuit Court
                              )    of the 9th Judicial Circuit
     Plaintiff-Appellee,      )    Hancock County, Illinois
                              )
     v.                       )
                              )    04--MR--8
LARRY G. TRENT, Director,     )
Illinois State Police, and    )
the DEPARTMENT OF ILLINOIS    )
STATE POLICE,                 )    Honorable
                              )    Richard H. Gambrell
     Defendants-Appellants.   )    Judge, Presiding.
_________________________________________________________________

PRESIDING JUSTICE LYTTON delivered the Opinion of the Court:
_________________________________________________________________

     Defendant,     Department    of   Illinois    State    Police,   denied

plaintiff   Larry    Hiland’s    application      for   a   Firearm   Owners

Identification (FOID) card. Co-defendant, Larry G. Trent, Director

of the Illinois State Police, denied Hiland relief from that

decision.   Hiland filed an action for administrative review in the

circuit court. The circuit court reversed the Director’s decision.

We affirm the circuit court.

                                 BACKGROUND

     In 1988, Hiland was convicted of several federal crimes,

including multiple counts of mail fraud and one count of conspiracy

to commit mail fraud.    At the time of his convictions, Hiland was
a registered firearm owner and possessed a FOID card.

     In 1989, the Department informed Hiland that he was no longer

eligible to    possess   a   FOID   card    because   of   his   convictions.

Pursuant to the Firearm Owners Identification Card Act (Act) (430

ILCS 65/10(c) (West 1988)), Hiland requested a hearing with the

Director to seek reissuance of his FOID card.

     At the hearing, Hiland testified that he had been married for

29 years and had two grown children.              He explained that in the

early 1980s he was president of a pharmaceutical company, and part

of his job was to approve products to add to the company’s product

line.   In 1983, the executive vice president of operations for the

company suggested that he add Vitamin E I.V. to the product line.

That vice president, who was in charge of FDA regulations, and the

president of the company that manufactured the drug told him that

he did not have to obtain New Drug Approval from the FDA because

the drug was not new.    Based on that information, Hiland introduced

the drug to the market without FDA approval.           The drug was used by

neonatal centers to prevent blindness in premature babies.

     Approximately   four    months       after   introducing    the   drug   to

market, Hiland and his company were notified that the drug was

causing babies to die. Hiland immediately discontinued the sale of

the product.    The Justice Department conducted an investigation,

and determined that Hiland should have obtained New Drug Approval

from the FDA.     In 1988, Hiland was indicted for his role in


                                      2
introducing the drug to the market without FDA approval. Following

a trial, he was convicted.      He was required to pay a $65,000 fine

and spend six months in a halfway house.           He also performed over

800 hours of community service.      Hiland testified that he “feel[s]

terrible about the incident.”

     Hiland introduced several character reference letters on his

behalf at the hearing.      The authors of those letters described

Hiland as honest, reliable, caring, sensible, responsible and

possessing good judgment.       The pastor of the church that Hiland

attends stated that Hiland’s “‘character’ is beyond reproach.”             A

letter from Hiland’s former probation officer stated as follows:

     “Mr. Hiland has    made    a   very positive adjustment to

     supervision and is not perceived as being a threat to

     himself or the community.      He has no history of violence

     in his past and I can see no reason why his rights to own

     and possess a firearm should not be restored as long as

     he meets all the filing requirements of your agency.”

     Following the hearing, the hearing officer recommended that

Hiland be issued a FOID card because he “would not be likely to act

in a manner dangerous to the public safety, nor would the granting

of relief be contrary to public interest.”           The deputy director

agreed and granted Hiland a FOID card.         At that time, the deputy

director   cautioned   Hiland   that    he   was   not   relieved   of   any



                                    3
disability imposed under the Federal Gun Control Act of 1968 (18

U.S.C. §921 et seq. (1988)) and recommended that Hiland seek relief

from   the    federal     law    by    contacting    the   appropriate    federal

authorities.         Hiland did not follow up with federal authorities.

       In    1997,    Hiland’s    FOID    card    expired,   and    he   filed   an

application for a new one.            That application was granted.       In 2002,

Hiland again filed an application for a FOID card.                 The Department

informed Hiland that his application was denied because of his 1988

convictions.     Hiland requested a hearing pursuant to section 10(c)

of the Act (430 ILCS 65/10(c) (West 2002)).

       A hearing was held in 2003.               The evidence at that hearing

established that Hiland had not been charged or convicted of any

crimes since 1988. Hiland was very remorseful for his actions that

led to his criminal convictions, stating “I’m sorry for everything

that has happened.”         Hiland testified that he was seeking a FOID

card so that he could hunt on his own property.                      All of the

information and documents from Hiland’s previous hearing, including

the character reference letters, were admitted into evidence at the

2003 hearing.

       After the 2003 hearing, the administrative law judge concluded

that Hiland had not committed a forcible felony within 20 years and

that Hiland’s criminal history and reputation were such that he was

not likely to act in a dangerous manner.               However, the ALJ found

that granting Hiland a FOID card “would be contrary to the public

                                           4
interest as Section 8(n) of the FOID Card Act (430 ILCS 65/8(n))

prohibits the issuance of a FOID Card to an individual who is

prohibited from possessing firearms or ammunition under federal

law.”    The Director adopted the ALJ’s findings and recommendations

and denied Hiland’s application for a FOID card.

        Hiland appealed the Director’s decision to the circuit court.

The circuit court reversed the denial, holding that the Director

abused his discretion by denying Hiland’s FOID card application.

                                  ANALYSIS

        On appeal, defendants argue that the Director properly denied

Hiland a FOID card because Hiland’s federal criminal convictions

prevented him from possessing a firearm under federal law.

        The Director’s decision to deny Hiland a FOID card will be

reviewed for an abuse of discretion.            See Rawlings v. Illinois

Department of Law Enforcement, 73 Ill. App. 3d 267, 391 N.E.2d 758

(1979).     An abuse of discretion will be found where a decision is

“fanciful,    arbitrary,   or    unreasonable    to   the   degree     that   no

reasonable person would agree with it.”         People v. Ortega, 309 Ill.

2d 354, 808 N.E.2d 496 (2004).           Where a decision is based on a

misinterpretation     of   the   applicable   law,    it    is   an   abuse   of

discretion.      See Mid-America Television Co. v. Peoria Housing

Authority, 93 Ill. App. 3d 314, 417 N.E.2d 210 (1981).

        Pursuant to section 8 of the Act, the Department has authority

to deny an application for a FOID card if the Department finds,

                                     5
among other things, that the applicant is prohibited from acquiring

or possessing a firearm by state or federal law.                430 ILCS 65/8(n)

(West 2002).      Section 10 of the Act allows an applicant who has

been denied a FOID card pursuant to section 8 to apply to the

Director for relief.       430 ILCS 65/10(c) (West 2002).            The Director

may grant a FOID card to the applicant if he establishes that (1)

he has not been convicted of a forcible felony within 20 years, (2)

the circumstances surrounding his criminal conviction, criminal

history and reputation are such that he will not be likely to act

in a manner dangerous to public safety, and (3) granting relief

would not be contrary to the public interest.                 430 ILCS 65/10(c)

(West   2002).     Read    together,      sections   8    and   10   “indicate    a

legislative      intent    that    the    Department     have    authority,      in

extraordinary     cases,    to    grant   a   license    to   persons   who   have

established their fitness to possess a gun, even though belonging

to one of the enumerated classes.”             Rawlings, 73 Ill. App. 3d at

276, 391 N.E.2d at 764.

     In denying Hiland relief, the Director found that Hiland had

satisfied the first two conditions of section 10(c). Nevertheless,

he found that Hiland had not satisfied the public interest prong of

the Act because section 8(n) “prohibits the issuance of a FOID Card

to an individual who is prohibited from possessing firearms or




                                          6
ammunition under federal law.”1

     However, section 8(n) does not “prohibit” the Department from

issuing a FOID card to an individual precluded from possessing

firearms under federal law; it only gives the Department the

authority to deny an application for that reason.     See 430 ILCS

65/8(n) (West 2004).   As we have previously stated, section 8 must

be read together with section 10(c), which allows the Director to

grant FOID cards “to persons who have established their fitness to

possess a gun, even though belonging to one of the enumerated

classes.”   Rawlings, 73 Ill. App. 3d at 276, 391 N.E.2d at 764.

     Here, the Director found that it would be contrary to public

policy to grant Hiland a FOID card solely because he belonged to

one of the classes enumerated in section 8, i.e., those prohibited

from possessing firearms under federal law.   By not exercising the

discretion granted to him in section 10(c), the Director ignored



     1
      Section 922(g)(1) of the Federal Gun Control Act of 1968
makes it unlawful, under federal law, for a convicted felon to
possess a firearm. 18 U.S.C. §922(g)(1) (2004). Mail fraud and
conspiracy to commit mail fraud are felonies that preclude gun
ownership under section 922(g)(1) of the Federal Gun Control Act.
See Dreher v. United States, 115 F. 2d 330, 334 (5th Cir. 1997).
Section 925(c) of the Federal Gun Control Act permits individuals
who are prohibited from gun ownership under section 922(g)(1) to
apply to the Secretary of Treasury for relief. 18 U.S.C. §925(c)
(2000). However, Congress has suspended funding to review
individual requests filed pursuant to section 925(c). See United
States v. McGill, 74 F.3d 64, 67 (5th Cir. 1996). Thus, an
individual disqualified from gun ownership under section
922(g)(1) of the Federal Gun Control Act has no avenue for relief
from that disqualification. See McGill, 74 F.2d at 67.

                                  7
the overwhelming evidence establishing that defendant Hiland has

been a law-abiding citizen and productive member of his community

since his convictions.        Based on the evidence, we agree with the

trial   court    that   the    Director’s    decision     to   deny    Hiland’s

application was an abuse of discretion.

     The    judgment    of   the   circuit   court   of   Hancock     County   is

affirmed.

     Affirmed.

     CARTER and HOLDRIDGE, JJ., concurring.




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