                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court


            Heabler v. Illinois Department of Financial & Professional Regulation,
                                   2013 IL App (1st) 111968


Appellate Court            FRANK HEABLER, JR., Plaintiff-Appellant, v. THE ILLINOIS
Caption                    DEPARTMENT OF FINANCIAL AND PROFESSIONAL
                           REGULATION; Daniel E. Bluthardt, Director of the Division of
                           Professional Regulation, of the Illinois Department of Financial and
                           Professional Regulation, Defendants-Appellees.


District & No.             First District, Fourth Division
                           Docket No. 1-11-1968


Rule 23 Order filed        February 14, 2013
Rule 23 Order
withdrawn                  March 13, 2013
Opinion filed              March 28, 2013


Held                       The Department of Financial and Professional Regulation’s
(Note: This syllabus       administrative decision that plaintiff, a private detective, violated the
constitutes no part of     Private Detective, Private Alarm, Private Security, Fingerprint Vendor
the opinion of the court   and Locksmith Act by engaging in unethical, unprofessional or
but has been prepared      dishonorable conduct in the course of a stop for a traffic violation was
by the Reporter of         upheld on appeal, even assuming it was not unprofessional to have six
Decisions for the          loaded weapons in his vehicle, since the testimony that he directed
convenience of the         obscenities at the officers involved and failed to immediately disclose his
reader.)
                           occupation and the weapons supported the finding that a violation
                           occurred.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-49137; the
Review                     Hon. Richard J. Billik, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Edward W. Williams, Fred Nickl, and Claire C. Kossmann, all of Edward
Appeal                     W. Williams, Ltd., of Chicago, for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Valerie Quinn, Assistant Attorney General, of
                           counsel), for appellees.


Panel                      PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
                           opinion.
                           Justices Fitzgerald Smith and Epstein concurred in the judgment and
                           opinion.



                                             OPINION

¶1          Plaintiff Frank Heabler, Jr., appeals from the trial court’s judgment affirming the
        administrative decision of the Illinois Department of Financial and Professional Regulation
        (Department), which found that he violated the Private Detective, Private Alarm, Private
        Security, Fingerprint Vendor, and Locksmith Act of 2004 (the Act) (225 ILCS 447/5-3 et
        seq. (West 2008)) by engaging in unethical, unprofessional or dishonorable conduct and
        imposed a reprimand against his private detective license. On appeal, Heabler asserts that the
        Department’s decision was not supported by expert testimony because the Department’s
        expert testified only as to his personal opinion, rather than objective professional standards.
        Heabler also argues that the reprimand violated his first amendment rights because he was
        sanctioned for protected speech. We affirm.

¶2                                        I. BACKGROUND
¶3          It is undisputed that in 2008, Heabler held a private detective license, private security
        contractor license, permanent employee registration card and firearm control card. On
        November 4, 2008, Heabler was driving when he had an encounter with Detective Ronald
        Muich and Lieutenant Paul Messina of the Village of Rosemont police department that led
        to the reprimand of Heabler’s private detective license. The Department filed a complaint
        alleging, in pertinent part, that during a traffic stop, Heabler yelled obscenities and argued
        with the officers. The complaint also alleged that Heabler provided inaccurate information
        regarding the weaponry in his car and had a YouTube video regarding rioting by Obama
        supporters that was actively running on his laptop computer that was located on the front
        passenger seat. In addition, the complaint alleged that Heabler later told police he had six
        weapons in case there was trouble on election night, referring obliquely to the
        aforementioned video. The complaint alleged that his explosive behavior, excessive use of
        unsecured weapons, misrepresentation to the police regarding the quantity of weapons he had

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     and his proffered reason for having those weapons constituted unethical, unprofessional and
     dishonorable conduct warranting discipline (225 ILCS 447/40-10(a)(3) (West 2008)).
¶4       At a hearing before Administrative Law Judge (ALJ) John M. Lagattuta, Heabler testified
     that he had contracted to provide American Taxi with security services. At about 1 p.m. on
     the day in question, he left a cab lot and drove north on Mannheim Road to meet a client. At
     that time, he had six loaded weapons in his car, including a Beretta, a Magnum Smith &
     Wesson, a rifle, a revolver and a stun gun. Heabler would have secured his weapons when
     he reached his destination but the weapons were in his control. In addition, his weapons were
     neither locked nor required to be. He carried a rifle because he occasionally carried large
     sums of money for American Taxi. When asked why he was carrying six guns, he blithely
     testified, “Just [a] routine day at work, ma’am.” In addition, Heabler testified that his laptop
     computer was closed and denied that a video was on his laptop regarding potential rioting
     in the event of Obama’s election. He explained that a radio program had been discussing a
     YouTube video regarding a police officer pushing a person at a rally for Obama and an
     ensuing riot, so he had searched for the video on his laptop but he closed the laptop before
     leaving the cab lot.
¶5       On the way to his meeting, Heabler stopped to check on two American Taxi vehicles that
     were parked on a service road. Heabler admitted backing out of the service road but denied
     almost hitting the Rosemont officers’ car. Instead, he merely pulled onto the shoulder of the
     road to allow the unmarked car to pass. The two officers used their air horn and flashed their
     lights, and the officer in the passenger seat, Lieutenant Messina, swore at Heabler. Heabler
     testified that at that time, he did not know that the men were officers. Following the initial
     encounter, Heabler stopped at a traffic light and looked in the general direction of the
     unmarked car. Heabler said nothing at that time, but the officers in the car rolled down a
     window and swore at him. He testified that one of the officers actually asked if Heabler was
     “eyefucking” him. When Heabler asked what the officer’s problem was, both officers yelled
     at him. The officers pulled Heabler over, continued to swear at him and asked whether he
     wanted a ticket. When asked whether he had a gun, Heabler volunteered all information
     regarding the weapons within his possession. Although Heabler was not initially given the
     chance to say anything, at the first opportunity, he identified himself as a private detective
     to Detective Muich. Heabler was ultimately handcuffed and placed in a squad car. At the
     police station, Heabler did not say that he was carrying weapons to be ready for any trouble
     on election night.
¶6       On cross-examination, Heabler testified that he conducted many activities from his car
     and stored his equipment there because he could receive call-outs as a private detective or
     private security contractor at any time. At the stop light, Heabler saw that the officers were
     in Rosemont uniforms. The officers yelled at him about backing out on to Mannheim Road.
     Heabler asked what he was suppose to have done but was not yelling or being argumentative.
     When the officers continued to berate Heabler, he responded, “[i]f you were so concerned,
     why didn’t you stop and let me out?” After Detective Muich took Heabler’s license to the
     police car, he asked Heabler whether he had been arrested for unlawful use of a weapon
     (UUW) in 1987. Heabler answered yes and said he was a private detective. The officers
     patted him down and searched his car. He was released from jail at about 3:30 p.m. the next

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       day with only a citation for improper backing.
¶7          Detective Muich testified that on the day in question, he was driving his unmarked car
       while Lieutenant Messina sat in the passenger seat. Lieutenant Messina was in uniform but
       Detective Muich was not. When Detective Muich saw a car backing into his lane from a
       service road, he swerved and used his air horn. Heabler pulled to the left of the police car,
       waved his arms and appeared to be irate. After they rolled their respective windows down
       and Detective Muich identified himself as an officer, Heabler yelled a string of obscenities
       and Detective Muich pulled Heabler’s car over. Detective Muich told Heabler that he almost
       hit their police car and observed that an open laptop in Heabler’s car displayed a YouTube
       video regarding candidate Barack Obama.
¶8          Detective Muich then learned through dispatch that Heabler had a prior UUW charge.
       Upon inquiry, Heabler stated that he had a gun next to him. Accordingly, Detective Muich
       had Heabler exit the car and put him in handcuffs. At some point before being placed in the
       police car, Heabler said he was a private detective. When Detective Muich asked Heabler if
       he had more guns in the car, Heabler said he did not. Detective Muich later acknowledged
       on cross-examination, however, that he had testified in traffic court that Heabler “kept telling
       us he had more guns in the car.” The officers recovered several more weapons as well as an
       expired private detective license card. Because it was election day, the officers were unable
       to verify the status of Heabler’s license with the Department. He was held in custody for 22
       hours as a result. When Detective Muich asked Heabler at the police station why he had
       those weapons, Heabler said that he was authorized to carry them as a private detective.
       When asked whether carrying six weapons was excessive, Heabler said that he wanted to be
       prepared in case there was trouble on election night. Heabler also said that the video was
       displayed on his laptop because he had heard on the radio that there had been rioting and
       wanted to look into it.
¶9          Lieutenant Messina testified that he was in uniform and sitting in the passenger seat of
       Detective Muich’s car when another car backed out of a construction driveway. Detective
       Muich took evasive action to avoid a collision and the officers subsequently saw the other
       driver, Heabler, gesturing and yelling through the window while at the stop light. Detective
       Muich identified himself as a police officer when talking to Heabler through the window and
       did so a second time after pulling him over. Heabler was boisterous and asked why the
       officers used their air horn. On cross-examination, Lieutenant Messina testified that at some
       point during the encounter, Heabler told Detective Muich that he should have stopped traffic
       for Heabler to back up. Lieutenant Messina also testified that Detective Muich was in plain
       clothes with his side arm and a badge visible.
¶ 10        Harry Brown, who the parties stipulated was an expert private detective, testified that he
       was familiar with industry standards regarding a private detective’s conduct in a traffic stop.
       When one of his investigators is confronted by law enforcement, the investigator, for the
       safety of the officers and himself, is to immediately identify himself as a private detective
       and notify the officer if the investigator is carrying a firearm. This was their duty according
       to industry standards and the failure to do so would be unethical and unprofessional.
       Specifically, a private detective’s failure to take those measures presents a risk of harm to the
       officer and the public because someone may make a wrong decision if a firearm is exposed

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       and the officer is unaware of the private detective’s identity. In addition, according to
       industry standards, if an armed private detective were to lie to the police about the weapons
       he had, it would be unprofessional and create a risk of harm to the officer and the public
       because a weapon in an unsecured position may discharge during a search. Brown also
       opined that Heabler’s conduct in having six loaded weapons in the car presented a risk of
       harm to the officers, and possibly the public, and was inappropriate under industry standards
       because the guns would be too hard to control. Brown further testified that carrying six guns
       out of fear that there would be rioting does not constitute performance of duties as a private
       detective. It would also be unprofessional and unethical for Heabler to yell obscenities,
       display out-of-control behavior and argue with Detective Muich but it would not be
       unprofessional conduct for weapons being transported in a car not to be in the detective’s
       immediate control, secured or broken down.
¶ 11       Following Brown’s testimony on direct examination, his testimony during cross-
       examination, redirect and re-cross-examination, oscillated between stating that his testimony
       was his opinion based on industry standards and that his testimony was merely personal
       opinion because there are no industry standards. Similarly, he testified both that Heabler was
       and was not acting as a private detective, as opposed to a private security contractor, at the
       time of the offense. Brown also testified that no private detective training exists, Brown’s
       best practices and personal standards had been accumulated from what he had observed and
       personally been trained to do and that the only standards that regulate the private detective
       industry are found in the Act or the rules that accompany the Act. Brown added that his
       personal opinions were based on, among other things, “industry standards” and that none of
       his opinion applied if Heabler was acting as a security contractor during the incident.
¶ 12       Heabler presented the testimony of Glen Crick, who the parties stipulated was an expert
       private detective. The ALJ also found Crick was qualified to provide expert testimony as a
       lawyer. Crick testified that no formal education was required to become a private detective,
       no organization imposed standards of professional conduct and that the Act itself provided
       no guidance on how many weapons a detective could possess. He opined that if a detective
       is not violating criminal law, there was no ethical violation. On cross-examination, he
       testified that the profession of private detectives was “inherently not real ethical” and that
       it was not unprofessional for a private detective to lie. Whether a detective’s failure to
       cooperate with police was unprofessional depended on the circumstances.
¶ 13       Heabler also presented the testimony of Joel Ostrander, whom the ALJ qualified as an
       expert private detective and firearm instructor. Ostrander testified that there were no
       professional standards applicable to the private detective industry, no educational
       requirements and no ethics regulations promulgated by the Department. Accordingly, a
       private detective was under no obligations other than those that apply to a private citizen. It
       would not be unethical for a private detective to inaccurately respond to an officer’s question
       as to whether any other weapons were in the car or display out of control behavior toward
       an officer during a traffic stop. In addition, nothing in the Act or rules constrains the number
       of weapons a private detective may carry. As a result, carrying six weapons did not violate
       any standard. Ostrander further testified that if five guns are in reach, they are under control
       and secure because the detective has immediate possession of them and there is no threat to

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       the public. Although private citizens with a firearm owners identification card must have
       their firearms broken down, not immediately accessible or unloaded and closed in a case,
       private detectives are not subject to that requirement. On cross-examination, Ostrander
       testified that in traffic stops, he does not inform the police that he is armed and that if an
       officer asked whether Ostrander had firearms, he would respond, “I don’t care to talk about
       it.”
¶ 14        The ALJ found, in pertinent part, that the Department proved by clear and convincing
       evidence that Heabler violated the Act with respect to his private detective license by
       engaging in dishonorable, unethical or unprofessional conduct of a character likely to
       deceive, defraud or harm the public (225 ILCS 447/40-10(a)(3) (West 2008)). The ALJ found
       Brown to be credible, in contrast to Crick and Ostrander. The ALJ rejected Heabler’s
       suggestion that he was acting as a private security contractor, rather than a private detective,
       at the time of the incident because (1) Heabler testified that he received call-outs from clients
       at any time and, thus, needed to carry his guns in his car; and (2) Heabler identified himself
       as a private detective to Detective Muich. The ALJ also rejected Heabler’s argument that the
       Department cannot discipline him for unprofessional behavior where the Department has not
       promulgated rules defining that term because the term provided fair noticed to licensed
       professionals and it was impossible to catalogue every possible instance of violative conduct.
       In addition, the ALJ found that Heabler, after a near collision with a police vehicle, yelled
       obscenities at police officers and failed at the traffic stop to immediately inform them that
       he was a private detective and was armed with six weapons. The ALJ found that this conduct
       in initiating an altercation with officers in the middle of the afternoon on a busy road posed
       potential harm to the police officers and the general public. The ALJ recommended that his
       private detective license be reprimanded and that he be ordered to pay a $5,000 fine.
¶ 15        The Private Detective, Private Alarm, Private Security, Fingerprint Vendor and
       Locksmith Board (the Board) of the Division of Professional Regulation of the Department
       (Division) adopted the ALJ’s factual findings but rejected his conclusion that the Department
       had shown a violation. The Board recommended that no disciplinary action be taken. The
       Division’s Director subsequently found the evidence was sufficient, rejected the Board’s
       recommendation and reprimanded Heabler’s private detective license. The trial court then
       denied his complaint for administrative review.

¶ 16                                       II. ANALYSIS
¶ 17        On appeal, Heabler asserts that the Director’s decision was not supported by the evidence
       because the Department’s only expert witness, Brown, testified to his personal opinion
       regarding Heabler’s conduct rather than providing an opinion based on industry standards.
       We disagree. In administrative cases, we review the agency’s decision. Wade v. City of North
       Chicago Police Pension Board, 226 Ill. 2d 485, 504 (2007). Factual rulings will be reversed
       only if against the manifest weight of the evidence. Id. The Director, as trier of fact, evaluates
       all evidence, judges the witnesses’ credibility, resolves conflicts and draws inferences from
       the facts. Anderson v. Department of Professional Regulation, 348 Ill. App. 3d 554, 561
       (2004). Nonetheless, in the absence of expert testimony, an agency’s decision lacks sufficient


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       evidence. Obasi v. Department of Professional Regulation, 266 Ill. App. 3d 693, 699 (1994).
       Thus, an agency may use its expertise to evaluate conflicting testimony presented by experts
       but the agency cannot substitute its special knowledge for expert testimony. Chase v.
       Department of Professional Regulation, 242 Ill. App. 3d 279, 288 (1993). Furthermore, a
       mixed question of law and fact will be reversed only if clearly erroneous. Wade, 226 Ill. 2d
       at 505. Accordingly, we review the Department’s underlying factual findings under the
       manifest weight of the evidence standard and review the mixed question of whether
       Heabler’s conduct violated the Act under the clearly erroneous standard. See Walk v.
       Department of Children & Family Services, 399 Ill. App. 3d 1174, 1187 (2010).
¶ 18       As a threshold matter, we reject Heabler’s suggestion that the evidence was insufficient
       to support the Director’s decision because he was acting only as a private citizen at the time
       of the encounter. Both Heabler and Detective Muich testified that Heabler identified himself
       as a private detective during their encounter. In addition, Heabler testified that he stored
       weapons in his car to be prepared for call-outs as a private detective. See 225 ILCS 447/35-
       35(b) (West 2008) (“This Act permits [private detectives] to carry firearms while actually
       engaged in the performance of their duties or while commuting directly to or from their
       places of employment ***.”). It was reasonable for the Director to rely on Heabler’s own
       representations.
¶ 19       We also find the evidence was sufficient to support the Director’s finding that a violation
       occurred. Here, the Department presented the testimony of Brown, stipulated by Heabler to
       be an expert in the private detective industry. Although his testimony could have been more
       articulate and clearer, the Director was not required to find that Brown’s testimony was based
       solely on personal opinion. Morgan v. Department of Financial & Professional Regulation,
       388 Ill. App. 3d 633, 658 (2009) (“[t]he Director may accept or reject as much or as little of
       a witness’s testimony as he pleases”). Brown appeared to struggle with concept of “industry
       standards” but the record suggests that he understood this term to refer only to written
       industry standards. Heabler has cited no law supporting the suggestion that all industry
       standards must be memorialized in writing. When read as a whole, however, Brown’s
       testimony indicates that his opinion was based on the custom and practice in the industry,
       regardless of whether certain deviations in practice may exist among some private detectives.
       Moreover, section 40-10(a)(3) of the Act itself sets forth a broad standard for the industry,
       that private detectives not engage in “dishonorable, unethical, or unprofessional conduct of
       a character likely to deceive, defraud, or harm the public.” 225 ILCS 447/40-10(a)(3) (West
       2008). Although the legislature has not defined the terms “dishonorable,” “unethical” and
       “unprofessional” with more specificity, it was not required to. Homeward Bound Services,
       Inc. v. Department of Insurance, 365 Ill. App. 3d 267, 273 (2006) (the legislature is not
       required to define every term within a statute). Similarly, not all policies of an agency must
       be announced in published rules (id.) and administrative agencies may establish standards
       of conduct through adjudication (Maun v. Department of Professional Regulation, 299 Ill.
       App. 3d 388, 401 (1998)).
¶ 20       Heabler also contends that his allegedly violative conduct in yelling obscenities at police
       officers and failing to immediately inform them that he was an armed detective cannot
       possibly be encompassed in the terms “dishonorable,” “unethical,” or “unprofessional”

                                                -7-
       conduct because they in no way reflect on his ability to practice his profession as a private
       detective. As a private detective, Heabler will undoubtedly encounter law enforcement
       officials while driving in the course of his employment and while other drivers are present
       on the road. In addition, Heabler uses his car and firearms as tools of his trade. See 720 ILCS
       5/24-2(a)(5) (West 2008) (providing that licensed private detectives are exempt from the
       UUW statute). It is clearly relevant to his ability to perform his duties as a private detective
       that while possessing these tools, he does nothing to escalate matters with police officers by
       causing them to experience distrust and make potentially deadly split-second decisions upon
       seeing an unexplained weapon or accidentally discharge a loaded weapon. As Brown
       testified, this possibility poses a risk to the officer and the public. Even assuming that it was
       not unprofessional for Heabler to possess six loaded weapons in this instance, his other
       conduct, directing obscenities at the officers and failing to immediately disclose his
       occupation and weapons, supports the Department’s finding that a violation occurred.
¶ 21        Thus, considering Brown’s testimony as a whole, as well as section 40-10(a)(3), the
       Department reasonably could have found that Brown provided expert testimony based on
       industry standards that Heabler engaged in dishonorable, unprofessional or unethical
       conduct. Cf. Obasi, 266 Ill. App. 3d at 700-01 (the Department’s expert opined that doctor
       did not abandon his patient). This is not an instance where the Department presented no
       expert testimony. Cf. Farney v. Anderson, 56 Ill. App. 3d 677, 680-81 (1978); see also
       Anderson, 348 Ill. App. 3d at 561. In addition, Heabler had ample opportunity to cross-
       examine Brown’s expert testimony and we are sufficiently able to comprehend his testimony
       on appeal. Accordingly, the purposes of requiring expert testimony have been satisfied. See
       Farney, 56 Ill. App. 3d at 681-82. We further note that Brown’s testimony regarding
       Heabler’s conduct in this case is not highly technical in nature, requiring less assistance for
       the reviewing court to understand the matter. See Chase, 242 Ill. App. 3d at 285 (“where an
       administrative agency makes factual determinations involving technical concepts unique to
       its expertise, expert testimony must be introduced into the record supporting the agency’s
       position” (emphasis omitted)).
¶ 22        Finally, Heabler asserts that the Department’s reprimand violated his first amendment
       rights by sanctioning protected free speech. A party may forfeit his right to challenge the
       constitutionality of a statute, however, by failing to raise it before the administrative agency,
       even though the agency lacks the authority to invalidate a statute. Weipert v. Department of
       Professional Regulation, 337 Ill. App. 3d 282, 286 (2003).
¶ 23        Here, Heabler has forfeited this constitutional challenge by failing to raise it before the
       Department. Although he urges us to overlook this deficiency, we decline to do so,
       particularly where, as here, Heabler has cited only to criminal case law in support of his
       position. City of Houston v. Hill, 482 U.S. 451 (1987); Lewis v. City of New Orleans, 415
       U.S. 130 (1974).
¶ 24        For the foregoing reasons, we affirm the Department’s judgment.

¶ 25       Affirmed.



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