Johnson v. Department of Professional Regulation

JUSTICE GARMAN, dissenting:

I respectfully dissent. The statute is constitutional, and no unregulated monopoly in the private detective field has been created.

Legislation enjoys a presumption of constitutionality, and a party challenging a statute bears the burden of establishing its invalidity. People v. Lantz, 186 Ill. 2d 243, 254 , 712 N.E.2d 314, 319 (1999). The regulation of licenses is within the State’s police power when such regulation is necessary and related to the protection of the public. Scully v. Hallihan, 365 Ill. 185, 191 , 6 N.E.2d 176, 180 (1936). Thus, we must determine whether the 1993 Act’s requirements bear a reasonable relationship to protecting the public from poorly trained private detectives. See Johnson, 68 Ill. 2d at 446, 369 N.E.2d at 901.

The majority relies on Church, 164 Ill. 2d 153 , 646 N.E.2d 572 , where the supreme court struck down the portion of the 1993 Act requiring licensing for private alarm contractors. The court, in applying the two-part test from Johnson, held that the statute granted the private alarm contractors monopolistic control over those who wished to enter the field and the record failed to establish that the statutory requirements were calculated to enhance the expertise of prospective licenses. Church, 164 Ill. 2d at 170 , 646 N.E.2d at 581 .

If we apply the same test to these facts, we find that an applicant can qualify for a private detective license by working as an “investigator in a law enforcement agency of a federal or State political subdivision.” 225 ILCS 446/75(a)(6) (West 1996). The Administrative Code defines “investigator” as “a sworn peace officer who serves in the capacity of a full[-]time detective/investigator or above rank.” 68 Ill. Adm. Code § 1240.10(b)(3) (1996). Thus, plaintiffs can satisfy the statutory requirements without working for a licensed private detective. An individual’s access to a license in the field is not limited to a sole avenue of entry, as it was with the alarm contractors.

Section 75(a)(6) of the 1993 Act is also structured to enhance the training and expertise of newly licensed private detectives. Both a registered private detective employee and a sworn peace officer (1) are subject to background checks and (2) must complete extensive training before obtaining their position. See 68 Ill. Adm. Code §§ 1240.20, 1240.35 (1996) (a registered private detective employee must complete a minimum of 20 hours of training). Additionally, applicants receive credit toward the work experience requirements for earning a bachelor or associate’s degree in a related field.

The legislature could reasonably conclude that such safety measures and training courses are necessary because, unlike a private alarm contractor, a private detective’s actions may have a greater effect on the public. As section 5 of the 1993 Act provides, a private detective may (1) investigate crimes, people, or the veracity of any statement or representation; (2) secure evidence to be used before a court; (3) act as a bodyguard; and (4) serve process in criminal and civil proceedings. 225 ILCS 446/5 (West 1996). Thus, a significant level of training and expertise is necessary before becoming a private detective.

Moreover, the legislature’s acceptance of experience gained as a sworn peace officer as an alternative to working for a licensed private detective is not illusory. In Johnson, the supreme court considered the Illinois Plumbing License Law (Ill. Rev. Stat. 1973, ch. IIIV2, par. 116.36 et seq.), which allowed plumbers to be licensed if they (1) had five years’ experience as a registered apprentice or (2) completed an approved course of instruction from a trade school, college, or university. The court found the second alternative illusory because the statute allowed the Director of Public Health to prescribe what constituted an approved course of instruction; thus, the practical utility of the educational alternative was destroyed. See Johnson, 68 Ill. 2d at 449, 369 N.E.2d at 902-03.

Here, however, a sworn police officer’s experience provides him with training that is at least equivalent to that obtained by a registered employee of a licensed private detective. Further, this experience may be obtained without working in the private detective field. Thus, an applicant may gain the necessary experience requirements by two separate means.

The private detective industry does not have the monopolistic power to control who will obtain a private detective’s license. One can obtain the requisite work experience by working in the private detective business or via equivalent experience as a law enforcement officer. Therefore, I would uphold the constitutionality of the statute and affirm the circuit court and the Department.