                                                   SIXTH DIVISION
                                                   June 22, 2007


No. 1-05-1717

JACK V. RODRIQUEZ,                       )    Appeal from the
                                         )    Circuit Court of
          Plaintiff-Appellant,           )    Cook County
                                         )
     v.                                  )
                                         )
THE DEPARTMENT OF FINANCIAL AND          )
PROFESSIONAL REGULATION, Division        )
of Professional Regulation,              )    Honorable
                                         )    Richard A. Siebel,
          Defendant-Appellee.            )    Judge Presiding


     JUSTICE McNULTY delivered the opinion of the court:

     In June 2003 the Department of Financial and Professional

Regulation charged Dr. Jack Rodriquez with improper treatment of

a patient and with failure to document adequately that patient's

medical condition.   In discovery Rodriquez sought to depose five

persons the Department listed as potential witnesses.   The

Department refused to issue subpoenas for discovery depositions.

     Rodriquez then brought this lawsuit for a judgment declaring

that section 2105-105 of the Department of Professional

Regulation Law (Department Law) (20 ILCS 2105/2105-105 (West

2004)) gave Rodriquez a right to issuance of the subpoenas.    The

trial court dismissed the lawsuit.   Rodriquez now appeals.

     The Department argues that section 2105-150 of the

Department Law (20 ILCS 2105/2105-150 (West 2004)) makes section

2105-105 inapplicable to the proceedings on the charges against

Rodriquez. Section 2105-150 of the Department Law provides:
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            "Notwithstanding any of the provisions of Section

     2105-5, 2105-15, 2105-100, 2105-105, 2105-110, 2105-

     115, 2105-120, 2105-125, 2105-175, 2105-200, or 2105-

     325 of this Law, for violations of Section 22 of the

     Medical Practice Act of 1987 [(the Act) 225 ILCS 60/1

     et seq. (West 2004)], the Department shall suspend,

     revoke, place on probationary status, or take other

     disciplinary action as it deems proper with regard to

     licenses issued under that Act only in accordance with

     Sections 7 and 36 through 46 of that Act."    (Emphasis

     added.) 20 ILCS 2105/2105-150 (West 2004).

     In the underlying case the Department charges Rodriquez with

violations of section 22 of the Act.    Thus, section 2105-150

applies to the charges against Rodriquez.    Section 2105-150

establishes that the Department shall take disciplinary action

against Rodriquez only in accordance with the specified sections

of the Act, notwithstanding any provisions of section 2105-105 of

the Department Law.

     In his brief on appeal Rodriquez suggests five reasons for

finding that the Department retains the subpoena powers of

section 2105-105 for the proceedings on the charges against him:

(1) waiver, (2) past Department practice, (3) our decision in

Sharma v. Zollar, 265 Ill. App. 3d 1022 (1994), (4) limitation of


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section 2105-150 solely to disciplinary actions, and (5) a

proposed harmonization of section 2105-150 with section 2105-105.

In a motion filed a week before oral argument, Rodriquez added an

argument asking us to declare section 2105-150 invalid.    We

denied the untimely motion without prejudice to Rodriquez's right

to raise the issue in a separate proceeding.

       First Rodriquez argues that the Department waived the

argument concerning section 2105-150 by failing to raise it in

the trial court.    We may affirm the trial court's decision on any

basis that finds adequate support in the record.    City of Chicago

v. Holland, 206 Ill. 2d 480, 492 (2003).    As the Department's

argument relies solely on the interpretation of statutes, and not

at all on any facts, we choose to address the argument on its

merits.

       Next, Rodriquez points to the subpoenas the Department

issued him in this case.    He argues that sections 36 through 46

of the Act include no authorization for such pretrial subpoenas.

Thus, the Department in this case (and, according to Rodriquez's

counsel, in numerous past cases) exercised powers beyond those

permitted under the Department's interpretation of section 2105-

150.    Rodriquez's argument shows only that the Department may

have misconstrued its powers in the past.

       Rodriquez does not expressly argue that the Department's


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past practice estops it from denying his request for subpoenas.

If he had made such an argument, it would have failed because he

could not show detrimental reliance on the Department's past

practice.   See Baldwin v. Wolff, 294 Ill. App. 3d 373, 378

(1998).   Rodriquez claims that he responded to a subpoena when

the Department interviewed him, but the subpoena does not appear

in the record.   The Department answers that it interviewed

Rodriquez pursuant to its investigatory powers under section 36

of the Act.   225 ILCS 60/36 (West 2004).   The response to such an

investigation does not show detrimental reliance on the

Department's past use of its subpoena power.

     The Department actually issued some of the subpoenas

Rodriquez sought, and he benefitted from those subpoenas by

gaining access to information otherwise unavailable.    Without any

detrimental reliance, the Department's past practice provides no

grounds for ignoring the express directive of section 2105-150.

     Next, Rodriquez contends that this court, in Sharma, 265

Ill. App. 3d at 1030-31, decided that the predecessor of section

2105-105 applied to proceedings on alleged violations of section

22 of the Act.   However, in that case neither party directed our

attention to the predecessor of section 2105-150 and we had no

occasion to discuss the effect of that statute on the

Department's procedures.   See Ill. Rev. Stat. 1987, ch. 127, par.


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60m.

       Rodriquez suggests that section 2105-150 of the Department

Law limits only the kinds of disciplinary dispositions the

Department can make in cases under the Act, and that it has no

effect on the procedures for reaching those dispositions.       The

proposed interpretation makes most of the specifications in

section 2105-150 meaningless.    The section lists several

procedural sections and expressly states that those sections do

not apply to cases under the Act.      Sections 2105-105, 2105-110,

2105-115, and 2105-120, all specifically rendered inapplicable to

cases under the Act, pertain strictly to Department procedures

for attendance of witnesses, administration of oaths, and

preparation of transcripts and reports.     Under Rodriquez's

proposed interpretation of section 2105-150, the reference in

that section to section 2105-105, 2105-110, 2105-115 and 2105-120

has no meaning.    We presume that the legislature intended some

consequence to follow from the express reference to section 2105-

105 in section 2105-150.    See McNamee v. Federated Equipment &

Supply Co., 181 Ill. 2d 415, 423 (1998).

       Section 2105-150 also specifies several purely procedural

sections of the Act that, according to section 2105-150, govern

cases brought under the Act.    See 225 ILCS 60/38, 39, 45 (West

2004).    Rodriquez's proposed interpretation would read the


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specifications of those sections out of section 2105-150.

     Rodriquez presents the specter of a parade of horrible

consequences that will follow if the Department applies section

2105-150 of the Department Law, and stops using, in proceedings

under the Act, the sections of the Department Law enumerated in

section 2105-150.   For example, he claims that without section

2105-105 of the Department Law (20 ILCS 2105/2105-105 (West

2004)), the Department will lack authority to "take evidence ***

[or] administer oaths *** at hearing."   Section 38 expressly

provides the power to administer oaths and take evidence in

proceedings on alleged violations of section 22 of the Act.     225

ILCS 60/38 (West 2004).   Rodriquez claims that without section

2105-115 of the Department Law (20 ILCS 2105/2105-115 (West

2004)), the Department will lack "authority to use stenographers

at hearing for the purpose of creating a record."   Section 39 of

the Act, expressly referenced in section 2105-150 of the

Department Law, requires the Department to provide a stenographer

for all proceedings for violations of the Act.   225 ILCS 60/39

(West 2004).

     Rodriquez also claims that without section 2105-120 (20 ILCS

2105/2105-120 (West 2004)), the Disciplinary Board will lack

authority to make findings and recommendations, but section 40 of

the Act establishes just such authority.   225 ILCS 60/40 (West


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1-05-1717

2004).   Rodriquez argues that without section 2105-125 (20 ILCS

2105/2105-125 (West 2004)), the Department will lack authority to

restore licenses, but section 43 of the Act provides exactly that

authority.   225 ILCS 60/43 (West 2004).   A detailed comparison of

the Act with the sections rendered inapplicable under section

2105-150 demonstrates the legislature's intention to restrict all

proceedings on complaints under section 22 of the Act to the

procedures established in the Act.

     Finally, Rodriquez contends that we should harmonize section

2105-105 of the Department Law with section 2105-150 by finding

that the Department has all the subpoena powers granted by

section 38 of the Act as well as all of the subpoena powers

granted by section 2105-105.   The proposal does not seem to

reconcile the sections as much as it nullifies the specification

in section 2105-150 that the Department shall act on these

charges only in accordance with the subpoena powers granted in

section 38 of the Act.

     Because section 2105-150 of the Department Law expressly

makes section 2105-105 of the Department Law inapplicable to the

proceedings under the Act against Rodriquez, the Department has

for this case only the subpoena powers listed in section 38 of

the Act and not the broader powers provided in section 2105-105

of the Department Law.   Section 38 of the Act does not authorize


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the subpoenas for discovery depositions that Rodriquez seeks in

his action for a declaratory judgment.   See Smith v. Department

of Registration & Education, 170 Ill. App. 3d 40, 44-45 (1988).

Accordingly we affirm the judgment dismissing Rodriquez's

complaint.

     Affirmed.

     FITZGERALD SMITH, P.J., and O'MALLEY, J., concur.




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