Section 100.5  Applicability

 

This part shall apply to all Hearings conducted by the Division pursuant to an Applicable Act under the jurisdiction of the Director.

 

Section 100.10  Definitions

 

The following words and phrases have the meanings ascribed to them in this Section unless the context clearly requires otherwise:

 

"Applicable Act" means the Residential Mortgage License Act of 1987 [205 ILCS 635], the Student Loan Servicing Rights Act [110 ILCS 992], the Illinois Banking Act [205 ILCS 5], the Electronic Fund Transfer Act [205 ILCS 616], the Corporate Fiduciary Act [205 ILCS 620], the Illinois Bank Holding Company Act of 1957 [205 ILCS 10], the Foreign Bank Representative Office Act [205 ILCS 650], the Pawnbroker Regulation Act [205 ILCS 510], the Foreign Banking Office Act [205 ILCS 645], the Savings Bank Act [205 ILCS 205], the Illinois Credit Union Act [205 ILCS 305], the Financial Institutions Code [20 ILCS 1205], the Title Insurance Act [215 ILCS 155], the Currency Exchange Act [205 ILCS 405], the Transmitters of Money Act [205 ILCS 657], the Illinois Development Credit Corporation Act [805 ILCS 35], the Illinois Financial Services Development Act [205 ILCS 675], the Consumer Installment Loan Act [205 ILCS 670], the Payday Loan Reform Act [815 ILCS 122], the Sales Finance Agency Act [205 ILCS 660], the Debt Management Services Act [205 ILCS 665], the Debt Settlement Consumer Protection Act [225 ILCS 429], the Safety Deposit License Act [240 ILCS 5], the Interest Act [815 ILCS 205], and any other statute under the jurisdiction of the Director.

 

"Administrative Decision" means an order, fine, revocation or suspension of licensure, or other regulatory action of the Director pursuant to an Applicable Act.

 

"Administrative Law Judge" or "ALJ" means an attorney licensed to practice law in the State of Illinois who has been designated by the Director to conduct any Hearings.  For these purposes, "Administrative Law Judge" has the same meaning as "Hearing Officer."

 

"Applicant" means a Party seeking a license, charter, certificate, permit, or similar permission pursuant to an Applicable Act.

 

"Department" means the Department of Financial and Professional Regulation.

 

"Director" means the Director or Acting Director of the Division, with the authority delegated by the Secretary, or any person employed by or on behalf of the Department to whom the Director has delegated verbally or in writing authority to act on the Director's behalf.

 

"Division" means the Division of Banking or the Division of Financial Institutions within the Department, as the context indicates.

 

"Formal Hearing" means a formal proceeding that is conducted on the record before an Administrative Law Judge during which the Parties present evidence and make arguments regarding appropriate action on a contested matter.

 

"Hearing" means any hearing authorized to be held before an Administrative Law Judge, the Director, or the Secretary.

 

"Licensee" means a person or entity licensed by the Division.

 

"NMLS" shall mean the Nationwide Multistate Licensing System and Registry.

 

"Party" shall include, but not be limited to, Licensees, Applicants, and Unlicensed Persons, whether they are natural persons, corporations, partnerships, associations, cooperatives, trusts or other legal entities, and the Department.

 

"Petitioner" is a Party who, by written petition, seeks relief or licensure under an Applicable Act or an Administrative Decision of the Secretary or Director pursuant to an Applicable Act. 

 

"Preliminary Hearing" means a proceeding that before an Administrative Law Judge during which the ALJ sets a date on which all Parties expect to be prepared to proceed with their cases and the ALJ rules on any preliminary motions that are presented.

 

"Recordkeeper" means the persons or units designated by the Secretary or Director to receive filings.

 

"Secretary" means the Secretary or Acting Secretary of the Department of Financial and Professional Regulation or any person employed by or on behalf of the Department to whom the Secretary has delegated verbally or in writing authority to act on the Secretary's behalf. 

 

"Unlicensed Person" means any person who is not a Licensee and who is not an Applicant.

 

Section 100.20  Hearing Fee

 

Each Party that requests a Hearing pursuant to this Part shall pay a nonrefundable fee of $500, unless otherwise provided in an Applicable Act or in a rule adopted pursuant to an Applicable Act.  The Director may waive the fee pursuant to this Section if, in the Director's sole discretion, the financial hardship imposed on the Party would be significant.

 

Section 100.30  Petition for Hearing

 

a)         A person or entity subject to an Administrative Decision may file a Petition for Hearing when the person or entity is entitled to a Hearing under the Applicable Act.  A third-party person or entity that is not the subject of an Administrative Decision may file a Petition for Hearing when the third-party person or entity is entitled to a Hearing under the Applicable Act.

 

b)         A Petition for Hearing must be filed with the Recordkeeper within the time period required under the Applicable Act after service of an Administrative Decision upon the Petitioner.  If the Applicable Act does not provide for this time period, then a Petition for Hearing must be filed with the Recordkeeper within 10 days after service of an Administrative Decision upon the Petitioner.

 

c)         In a case in which a Petitioner is contesting a fine, revocation, suspension, cease and desist, probation, refusal to renew a license or any other disciplinary action, the Petition for Hearing shall be in writing, signed by the Petitioner, and shall set forth the:

 

1)         Petitioner's license number, if applicable;

 

2)         Docket number of the Administrative Decision that resulted in discipline, if applicable; and

 

3)         Date of the contested Administrative Decision.

 

d)         In a case in which the Petitioner, as an Applicant, seeks to contest an Administrative Decision to deny an application for licensure, the Petition for Hearing will be in writing, signed by the Petitioner, and will state with specificity the particular reasons why the Petitioner believes that the decision to deny licensure was incorrect.

 

e)         Upon receipt by the Recordkeeper of a properly completed Petition for Hearing and completion of all the requirements of this Section, a case will be docketed, and notice sent to the Petitioner setting forth the date, time, and place of the Hearing.

 

Section 100.40  Joinder

 

In the interest of the efficient disposition of related cases, the Department may join cases so long as the cases involve issues of law or fact that are common to the Parties.  A Party may contest the decision to join cases by filing a motion.

 

Section 100.50  Form and Filing of Documents

 

a)         All documents filed or submitted to the Department in connection with a Hearing shall be typewritten on 8½ by 11-inch white paper or an electronic equivalent.  The first page of each document shall set forth the names of the Parties and the docket number assigned to the case by the Department.  Petitions for Hearing that are filed before a docket number is assigned shall contain a space for entry of the assigned number.

 

b)         All petitions, notices, answers, motions, responses, replies and other papers in the nature of a pleading shall be filed with and date stamped by the Recordkeeper.  A copy of any motion, response, reply, or similar document shall also be provided to the all other Parties and/or all other Parties' counsel of record or the assigned Department counsel, as applicable.

 

Section 100.60  Service

 

a)         Service of any document may be by mail or by personal delivery upon any person or entity.  Service of any document may also be made by email on a Party's counsel of record or an unrepresented Party if one or more email addresses are provided pursuant to subsections (a)(1) through (3).  Service by email to the assigned Department counsel must be addressed to the counsel's email address appearing on any pleading and any secondary Department email addresses provided on any pleading.

 

1)         At any time either before or after issuance of a Hearing notice, the Department may require a Party's counsel of record to provide one or more email addresses at which they will accept service of documents in connection with the Hearing.

 

2)         At any time either before or after issuance of a Hearing notice, the Department may request, but not require, an unrepresented Party to accept service by email of documents in connection with the Hearing by designating one or email addresses at which they will accept service.

 

3)         If any secondary email address is designated by a Party, the Department must serve the documents to both the designated primary and secondary email addresses.

 

b)         Proof of service by mail or personal delivery will be attached to the original of any document served.  Proof of service by email shall be the emailed notice to which the document is attached.  In the absence of evidence to the contrary, the date shown on the proof of service shall be deemed the date of service.  Proof of service may be verified by certification as provided for in Section 1-109 of the Code of Civil Procedure [735 ILCS 5].

 

c)         If service is by email, the Department will maintain a copy of the sent email and will verify within one business day that the transmission of the email has not failed or been rejected.  In the event of rejection or failure, absent correction of an erroneous email address, service shall be made by mail or personal delivery.

 

d)         Any Party may provide an updated mailing address and/or email address for receipt of service of documents at any point during a proceeding by sending notice of the updated mailing address and/or email address to all Parties of record.

 

e)         Documents containing information that could reasonably be deemed personal, proprietary, confidential, or trade secret information or containing any other information listed under 5 ILCS 100/10-75(b) will be served by mail, personal delivery, or a secure messaging or file transfer system approved by the Secretary.

 

Section 100.70  Notice of Preliminary Hearing

 

a)         The Notice of Preliminary Hearing shall include:

 

1)         A statement of the time, place, and nature of the Preliminary Hearing;

 

2)         A statement of the legal authority and jurisdiction under which the Preliminary Hearing is to be held;

 

3)         A reference to the particular sections of the substantive and procedural statutes and rules involved;

 

4)         Except when a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted, the consequences of a failure to respond, and the official file or other reference number.

 

5)         To the extent such information is available, the names, phone numbers, email addresses, and mailing addresses of the Administrative Law Judge or designated agency contact, Parties, and all other persons to whom the agency gives notice of the Preliminary Hearing unless otherwise confidential by law. [5 ILCS 100/10-25(a)]

 

6)         A statement that the purpose of the Preliminary Hearing is to set a date on which all Parties expect to be prepared to proceed with their cases and to rule on any preliminary motions that are presented.

 

b)         Except as otherwise provided by law, the Petitioner will be given at least 20 days' notice prior to the first date set for the Preliminary Hearing or status call.  Once notice is given, it will thereafter be the responsibility of the Petitioner to know subsequent Hearing or status call dates.

 

c)         Nothing in this Section shall prevent the Department from scheduling a Formal Hearing without a Preliminary Hearing and with less than 20 days’ notice when the Secretary or Director summarily or temporarily suspends or revokes any license under the Applicable Act, issues a temporary order, or when necessary to comply with applicable law.

 

d)         Any contention that improper notice was given will be deemed waived unless it is raised by the Petitioner prior to argument on any other motion or, if no other motions are presented, prior to the commencement of opening statements.

 

Section 100.80  Negotiations and Agreed Dispositions

 

a)         The Department and the Petitioner may stipulate to facts and that stipulation may be used or otherwise admitted at the Hearing.

 

b)         The Department and the Petitioner may enter into a written agreement providing for disciplinary or non-disciplinary action against the Petitioner or the granting or restoration of a license as a settlement and disposition of the petition by stipulation, agreed settlement, or consent order. If the Secretary or Director approves the written agreement, it shall be entered in the same manner as an Administrative Decision of the Secretary or Director and shall constitute a final decision.  If the Secretary or Director rejects the written agreement, the Petitioner shall then be entitled to a Hearing on the merits.  A proposed written agreement not accepted by all Parties or rejected by the Secretary or Director shall be deemed confidential as an unsuccessful attempt to settle and shall not be referenced or included in any future pleading or proceeding.

 

c)         Statements made during informal conferences are confidential, including proposed dispositions, and shall not be used or admitted in any proceeding regarding the allegations.

 

Section 100.90  Representation

 

a)         A Party may be represented by an attorney who is licensed in Illinois or by an attorney otherwise permitted by law to practice in the State.  Attorneys who appear in a representative capacity must file a written notice of appearance setting forth:

 

1)         The name, address, email address, telephone number, and Supreme Court registration number of the attorney;

 

2)         The name, address, and email address of the Party represented; and

 

3)         An affirmative statement indicating that the attorney is licensed in Illinois or is appearing pro hac vice.

 

b)         An attorney may withdraw his or her appearance as a representative only upon written notice to the Department and the Party represented stating the specific reasons for the withdrawal.

 

c)         A law student licensed under Illinois Supreme Court Rule 711 may appear on behalf of any Party as permitted by Illinois Supreme Court Rule 711 and shall be subject to the same requirements as an attorney.

 

d)         Attorneys admitted to practice in states or jurisdictions other than the State of Illinois may appear and be heard in a specific Hearing pro hac vice as authorized and in compliance with Illinois Supreme Court Rule 707.  The attorney's appearance shall include documentation as to his or her eligibility or qualification under Illinois Supreme Court Rule 707.

 

e)         Any individual may appear on his or her own behalf.

 

f)         A corporation, limited liability company, professional limited liability company, or partnership must appear by legal counsel, licensed to practice in the State of Illinois or appearing pro hac vice.

 

g)         Once an appearance is filed, a copy of all future filings shall be served upon the counsel of record, unless that counsel has withdrawn.  In addition to that service, a copy may be served on the Party represented. 

 

h)         The standard of conduct shall be the same as before the Courts of Illinois. Attorneys appearing before the Department shall conform their conduct to the Illinois Rules of Professional Conduct.  Any failure to behave in a manner consistent with those standards of conduct or this Part will authorize an ALJ to take the following actions:

 

1)         Limitation of evidence;

 

2)         Substitution of written argument in place of oral argument; or

 

3)         If warranted, report of an attorney's misbehavior to the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court.

 

i)          If any of the actions authorized by subsection (h) are taken by the ALJ, it shall be done as a matter of record, and the ALJ shall state for the record the specific reasons for the action.

 

j)          A Party sanctioned under this Section may request the decision be reviewed by the Director.

 

Section 100.100  Failure to Appear

 

Failure of the Petitioner to appear at the time and place set for the Formal Hearing may be deemed a waiver of the right to present evidence or provide grounds for dismissal of the Petition for Hearing, as reflected by order of the Administrative Law Judge.  After presentation by the Department of proof that the Petitioner was given proper notice and the Department has been given an opportunity to present evidence, the ALJ shall make their recommendation.  If the Petition for Hearing is dismissed, the contested Administrative Decision shall become final.

 

Section 100.110  Amendment and Withdrawal

 

a)         An Administrative Decision of the Secretary or Director may be withdrawn without prejudice or amended at any time, except in the course of the Formal Hearing, without leave or approval of the Administrative Law Judge.  If an amended Administrative Decision is filed during the course of the Formal Hearing, it shall also be presented to the ALJ.  A continuance shall be granted whenever the amendment materially alters the Administrative Decision and when the Petitioner demonstrates that they would otherwise be unable to properly prepare an Answer to the amended Administrative Decision or prepare the Petitioner's case.

 

b)         A Petition for Hearing may be withdrawn at any time prior to the Formal Hearing by the Party who initiated it and the Administrative Decision of the Department will become final.  After a Hearing has begun, a Petition may be withdrawn only with leave of the ALJ.

 

Section 100.120  Requirement of an Answer; Default

 

a)         In contested cases, the Petitioner shall file an Answer to the Notice of Preliminary Hearing at least five days prior to the date of the Preliminary Hearing, unless otherwise provided by law.  The Answer shall be in writing, signed by the Petitioner or his or her representative, and shall contain a specific response to each allegation in the Administrative Decision.  The response shall either admit or deny the allegation, or shall state that the Petitioner has insufficient information to admit or deny the allegation.  Any Answer not conforming to the requirements of this Section may be stricken.

 

b)         Any Answer that states that the Petitioner has insufficient information to admit or deny the allegation shall be accompanied by an affidavit attesting to the truth of this assertion.

 

c)         If the Petitioner does not file an Answer conforming with the requirements of this Section or otherwise does not file a responsive pleading, on motion by the Department, the Administrative Law Judge will cause to be issued a Notice to Plead or Be Held in Default.  If, within 15 days after issuance of that notice, the Petitioner does not file an Answer conforming with the requirements of this Section or otherwise file a responsive pleading, the Petitioner will be held in default and the allegations of the Administrative Decision will be deemed to have been admitted.  In a like manner, if a Petitioner fails to appear for any scheduled Hearing or proceeding without cause, the Petitioner may be held in default and the allegations of the Administrative Decision will be deemed to have been admitted.

 

Section 100.130  Discovery

 

a)         Discovery shall not be the subject of motions presented to the ALJ, except when a motion is made alleging failure to comply with this provision and requesting appropriate relief.

 

b)         Upon a written request served on the opposing Party, or by order of the ALJ, a Party shall be entitled to:

 

1)         The name and address of any witness who may be called to testify, including identification of any witness to be offered as an expert;

 

2)         Copies of any document that may be offered as evidence;

 

3)         A description of any other evidence that may be offered;

 

4)         With respect to a request from the Petitioner of sufficient particularity to identify the evidence sought, nonprivileged and nonconfidential evidence in the Department's possession that tends to support the Petitioner's position or to demonstrate a potential conflict of interest of a Department witness; and

 

5)         With respect to a request from the Petitioner, a copy of any nonprivileged and nonconfidential Division investigative report that purports to be a memorandum of interview of the Petitioner.

 

c)         The information listed in subsection (b) shall be provided within 30 days after service of a request or as otherwise directed by an ALJ.  In the event that the Division withholds any evidence asserted to be privileged or confidential (see subsections (b)(4) and (b)(5)), the Division shall give notice to the other Party that it is doing so and provide a general description of the evidence withheld.  Notwithstanding any provision of this Section, the other Party may file a motion regarding the Division’s withholding of evidence asserted to be privileged or confidential.

 

d)         Upon a written request served on the Petitioner, at any time after a Petition for Hearing is filed, or at any stage of the Hearing, the Petitioner will be required to produce documents, books, records, or other evidence that relate directly or indirectly to the Petitioner's conduct at issue in the contested Administrative Decision; provided, however, that nothing in this Section shall limit the Secretary's or Director’s powers to request, demand, or subpoena information or testimony under applicable law.

 

e)         Nothing in this Section shall prevent the Parties in a contested case from agreeing to a mutual exchange of information that is more extensive than what is provided for in this Section.

 

f)         This provision will be construed to impose a continuing obligation upon the Parties to exchange new information as it becomes available.

 

g)         No depositions will be taken, interrogatories proposed, or other discovery mechanism used without the mutual agreement of the Parties.  However, subject to privilege as applied in civil cases in the circuit courts of this State and to grants of confidentiality under applicable law, a Party may serve on any other Party a written request for the admission of genuineness of any relevant document.  The request shall be served and responded to in the manner set forth by Illinois Supreme Court Rule 216.  The ALJ may provide additional time to respond for good cause.

 

h)         Service of notice upon a Party's officers, directors or equivalent, employees, or agents of the Division’s intention to take the Party’s testimony at a Formal Hearing is sufficient to require the Party's attendance at the Formal Hearing at the Party's own cost.

 

i)          No file of a Division examiner, investigator, attorney, or any other employee shall be subject to discovery, except as provided in subsection (b).

 

Section 100.140  Subpoenas

 

a)         The Chief Administrative Law Judge, or their designated ALJ, will issue subpoenas for the attendance of witnesses or production of books, records, documents or other evidence; provided, however, that nothing in this Section shall limit the Secretary's or Director's powers to request, demand or, subpoena information or testimony under applicable law.

 

b)         Any Petitioner seeking issuance of a subpoena shall submit a request in writing to the Chief Administrative Law Judge.  A proposed subpoena shall be attached to the request.

 

c)         The request shall set forth facts to demonstrate that the documents or testimony sought are relevant to the case pending before the Division and are not otherwise excludable by law or by rule.

 

d)         A request for subpoena may be denied if insufficient information is provided in the request to make such a determination.

 

e)         Except for Division investigators and examiners who participated in the investigation of the case, the Chief Administrative Law Judge shall not generally issue subpoenas for the testimony of Department or Division officers or employees.

 

f)         Upon refusal by an ALJ to issue any subpoena, the Petitioner will be entitled to a Hearing before another ALJ, to be conducted as a matter of record.

 

g)         Service of subpoenas pursuant to this Section shall be done, and payment of witness fees and expenses after the appearance of the witness shall be calculated, in the same manner as prescribed by law in judicial proceedings in civil cases in circuit courts of this State.

 

Section 100.150  Prehearings

 

a)         After a case is instituted, upon the written motion of any Party, or on the Administrative Law Judge's own motion, the ALJ may direct the Parties to attend a prehearing.

 

b)         Upon the request of any Party, the prehearing will be conducted as a matter of record.  Participation by an ALJ will not affect his or her right to participate in a subsequent Hearing on the matter.  The requesting Party shall be responsible for the court reporter's attendance and costs.

 

c)         The purposes of the prehearing include:

 

1)         Simplification of issues;

 

2)         Limitation of issues;

 

3)         Negotiating admissions or stipulations;

 

4)         Limitation of witnesses or evidence;

 

5)         Exchange of exhibits;

 

6)         Discussion of any other matter that may aid in efficient disposition of the case; or

 

7)         Agreed dispositions.

 

d)         The Parties shall be fully prepared to participate in a prehearing, which shall include:

 

1)         Presentation of any prehearing motions;

 

2)         Witness and exhibit lists that list only those witnesses the Party in good faith intends to call;

 

3)         Disclosure of expert witnesses; and

 

4)         Any other materials directed by an ALJ.

 

Section 100.160  Remote Proceedings

 

a)         Preliminary Hearings may be conducted remotely, either by teleconference or videoconference, provided that the Notice of Preliminary Hearing includes notice that the Preliminary Hearing will be conducted remotely and includes instructions for accessing the teleconference or videoconference system at the date and time set forth in the Notice of Preliminary Hearing.

 

b)         By order of the Administrative Law Judge, any status hearing or prehearing may be conducted remotely, either by teleconference or videoconference.  The Parties shall be provided instructions for accessing the teleconference or videoconference system for the date and time of the scheduled status hearing or prehearing.

 

c)         Upon motion of any Party, the ALJ may determine whether the pending matter may be suitable for a Formal Hearing by teleconference or videoconference in whole or in part as an alternative to in-person proceedings.

 

d)         The Parties may agree that the Formal Hearing will be conducted in its entirety by teleconference or videoconference or that a part or parts of the Formal Hearing will be conducted by teleconference or videoconference, including the testimony of a particular witness or witnesses.  These agreements are subject to the approval of the ALJ by entry of an order.

 

e)         In the absence of any such agreement of the Parties, the ALJ may determine whether the Formal Hearing will be conducted in its entirety by teleconference or videoconference or that a part or parts of the Formal Hearing will be conducted by teleconference or videoconference, including the testimony of a particular witness or witnesses, or whether the proceedings or any part thereof shall remain in-person.  This determination shall be made by order of the ALJ.  In making this determination, the ALJ may consider factors including but not limited to the following:

 

1)         Preference of the Parties;

 

2)         Capabilities of participants to participate via video or telephone;

 

3)         Whether the selected method is accessible for persons with health risks or disabilities;

 

4)         Whether the participants have access to the Internet;

 

5)         Number of witnesses;

 

6)         Volume of documents offered as exhibits;

 

7)         Complexity of the Petition;

 

8)         Expected duration of the Formal Hearing;

 

9)         Extent to which the credibility of any witness will be at issue;

 

10)        Extent to which exhibits will be used to examine any witness; and

 

11)        Any other consideration which will impede or aid in the fair and efficient administration of the Formal Hearing process.

 

Section 100.170  Hearings

 

The sequence to be followed for all contested cases is as follows:

 

a)         Status Calls and Preliminary Hearings.  The purpose is to set a date on which all Parties expect to be prepared to proceed with their cases and to rule on any preliminary motions that are presented.

 

b)         Prehearings – Optional.  The purposes are set forth in Section 100.150.

 

c)         Formal Hearings

 

1)         Preliminary Matters – Motions, attempts to narrow issues or limit evidence.

 

2)         Opening Statements – The Party bearing the burden of proof proceeds first.

 

3)         Case in Chief – Evidence is presented by the Party bearing the burden of proof.

 

4)         Defense – Evidence may be presented by the opposing Party.

 

5)         Closing Statements – The Party bearing the burden of proof proceeds first, then the opposing Party, then a final word by the Party bearing the burden of proof.

 

Section 100.180  Administrative Law Judges

 

a)         In any contested case, the Secretary or Director shall appoint and employ an attorney, licensed to practice in Illinois, to serve as Administrative Law Judge.  The ALJ shall be empowered to conduct the Hearing, question witnesses, make rulings on motions and objections, and submit Findings of Fact, Conclusions of Law, and prepare a recommendation to the Secretary or Director at the conclusion of the case.

 

b)         It shall not be a bar to employment as an ALJ that the attorney is also a Department employee.

 

Section 100.185  Disqualification of Administrative Law Judges

 

a)         An Administrative Law Judge may, on their own motion, recuse themselves from presiding over a matter due to conflict of interest or bias.

 

b)         At any time prior to the issuance of the ALJ's final decision or recommendation, a Party may file a motion to disqualify the ALJ for bias or conflict of interest.  An adverse ruling made by an ALJ, in and of itself, shall not constitute bias or conflict of interest.  The motion shall set forth the alleged grounds of bias or conflict of interest and shall include supporting affidavits.  A different ALJ shall have 7 days after the motion was filed to enter a written ruling, which shall be served on all Parties.  An adverse ruling or rulings rendered against the Party or its representative in any previous matter shall not, in and of themselves, constitute sufficient grounds for disqualification under this Section.

 

c)         If the motion to disqualify is denied, the moving Party may request the decision be reviewed by the Secretary or Director.

 

Section 100.190  Examination by Administrative Law Judge

 

a)         Any Administrative Law Judge may examine any witness.

 

b)         Any Party may object to specific questions asked by the ALJ.

 

Section 100.200  Burden of Proof

 

a)         The burden of proof rests with the Department in all cases except as provided in subsection (b) or as otherwise provided by law.

 

b)         The burden of proof rests with the Petitioner in the following circumstances, unless otherwise provided by law:

 

1)         When an Applicant, if permitted to do so under the Applicable Act, files a Petition for Hearing after they have been denied a license, charter, certificate, permit, or similar permission pursuant to an Applicable Act;

 

2)         When a third-party person or entity that is not the subject of an Administrative Decision of the Secretary or Director, if permitted to do so under the Applicable Act, files a Petition for Hearing related to such Administrative Decision.

 

Section 100.210  Documents

 

a)         Business records shall be admissible to the same extent they are admissible under Illinois law.

 

b)         Any Party may prove the admissibility of business records by presentation of a sworn statement by an individual responsible for making or keeping those records.

 

c)         Any Party seeking introduction of a document will be allowed to offer a mechanical reproduction or photocopy of the original without any showing that the original is unavailable, upon representation of the Party or attorney that the copy is a fair and accurate copy of the original.

 

Section 100.220  Motions

 

a)         Motions will be made in writing, unless otherwise allowed by the Administrative Law Judge prior to or during the course of a Hearing.  Written motions are limited to the following:

 

1)         To request dismissal of an Administrative Decision for failure to state facts that, if true, would form a sufficient basis for discipline.

 

2)         To request sanctions in accordance with Section 100.90 (Representation).

 

3)         To request sanctions in accordance with Section 100.130 (Discovery).

 

4)         To request dismissal of a Petition for Hearing, for failure to comply with Section 100.30 (Petition for Hearing).

 

5)         To request dismissal when the Party bearing the burden of proof has concluded their case without presenting sufficient evidence

 

6)         To request a continuance or extension of time to comply with any provision of this Part.

 

7)         To request that an Order entered by the ALJ be vacated or modified.

 

8)         To request a prehearing.

 

9)         To request separation of cases joined by the Department.

 

10)        To request disqualification of an ALJ in accordance with Section 100.175 (Hearings).

 

11)        To request a protective order to prevent exposure in the public domain of records or other information that is of a sensitive or confidential nature or to seal the record in accordance with Sections 100.230(f) (Evidence and Standard of Proof) and 100.255 (Confidentiality).

 

12)        To request that a Notice to Plead or Be Held in Default be issued upon failure to file a complete Petition for Hearing, Answer, or other responsive pleading in accordance with Section 100.120 (Requirement of and Answer; Default).

 

13)        To compel discovery.

 

b)         When any motion is filed, the ALJ may allow oral argument if this is deemed necessary for a fuller understanding of the issues presented.  When facts that are not part of the record in the case are alleged as a basis for the request, an affidavit will be attached to the motion setting forth those facts.  Facts outside of the Administrative Decision cannot be used to support a motion to dismiss for failure to state facts that, if true, would form a sufficient basis for the Administrative Decision.

 

c)         Motions and any responses or replies shall be filed in accordance with Sections 100.50 and 100.60 with copies to the ALJ and other Parties or their counsel.  Unless otherwise directed by an ALJ, a Party shall have 20 days from the date of service to respond to a motion and 10 days from date of service to reply to a response.

 

Section 100.230  Evidence and Standard of Proof

 

a)         Irrelevant, immaterial, or unduly repetitious evidence shall be excluded.  The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed.  Evidence not admissible under those rules of evidence may be admitted, however, except when precluded by statute, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.  Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a Hearing will be expedited and the interests of the Parties will not be prejudiced, any part of the evidence may be received in written form. [5 ILCS 100/10-40(a)]

 

b)         Testimony shall be taken only on oath or affirmation.  Subject to the evidentiary requirements of this Section, a Party may conduct cross-examination required for a full and fair disclosure of the facts.  [5 ILCS 100/10-40(b)]

 

c)         All exhibits for any Party shall be clearly marked for identification.  A sufficient

number of copies shall be made prior to the commencement of the Hearing and when admitted into evidence by the ALJ.

 

d)         Official notice may be taken of past Hearings and of any matter of which the

Circuit Courts of Illinois may take judicial notice.  In addition, official notice may be taken of generally recognized technical or scientific facts within the Department's specialized knowledge.  Parties shall be notified either before or during the Hearing, or by reference in preliminary reports or otherwise, of the material noticed, including staff memoranda and data, and they shall be afforded an opportunity to contest the material so noticed.  The Department's and the ALJ's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.

 

e)         If a person appears for a Hearing and refuses to testify on the grounds that any

answer may tend to incriminate themself, the ALJ may take an adverse inference from the refusal to testify and shall consider the adverse inference in addition to other evidence.  If a person appears and refuses to testify without asserting the right against self-incrimination, the ALJ shall enter any appropriate order as is required by the evidence and this Part.

 

f)         The ALJ may, on their own initiative or at the request of any Party or

witness, enter a protective order to prevent exposure in the public domain of records or other information that is of a sensitive or confidential nature.

 

g)         Unless otherwise required by law, the standard of proof in any contested case Hearing conducted by the Department will be the preponderance of the evidence.

 

Section 100.240  Adverse Witness

 

a)         Any Party or witness may be called as an adverse witness.  In such a case, examination of the witness will be allowed as if under cross-examination.

 

b)         Upon a showing that a witness was called in good faith, and that the Party calling the witness is surprised by the witness' testimony, examination of the witness may proceed as if under cross-examination, and the testimony of the witness may be impeached by prior statements, or otherwise.

 

Section 100.250  Administrative Law Judge Reports and Orders of the Director

 

a)         In every contested case, except for defaults, the ALJ will file a written Report and Recommendation that contains Findings of Fact and Conclusions of Law with respect to the allegations contained in the Administrative Decision or Notice of Preliminary Hearing, unless the Parties reach an agreed disposition.

 

b)         When the recommendation is for discipline, the ALJ will include their specific recommendation as to type, duration, and/or amount.

 

c)         After the ALJ forwards the report to the Secretary or Director, as applicable, all Parties will receive a copy of the ALJ's report.  Within 20 days after the ALJ's report is sent to the Parties, either Party may request that a rehearing, or additional Hearings, be ordered by the Secretary or Director, as applicable.  A rehearing shall be ordered by the Secretary or Director, as applicable, when the Secretary or Director determines that substantial justice has not been done.

 

d)         When a rehearing or an additional Hearing is requested, the request shall be in the form of a motion and shall state with specificity the reasons for the request.  If it is alleged that new evidence is available that was not available at the time of the Hearing, the affidavit shall describe the new evidence and reasons why it was not available for use at the Hearing.  Any opposing Party may file a response, which shall be filed within 20 days after the date the motion is filed, and, if it does so, the requesting Party may reply, which shall be filed within 10 days after the responding Party filing its response.

 

e)         After a motion for rehearing has been filed and a response and reply has been filed or the time therefor has passed, the Secretary or Director, as applicable, shall enter an Order ruling on any motion for rehearing.  If the motion is denied, the Secretary or Director, as applicable, in the same Order, shall further adopt, reject or modify the Findings of Fact and Conclusions of Law of the ALJ, adopt or reject the recommendation of the ALJ, and enter a decision.

 

f)         An Order of the Secretary or Director granting a rehearing is not a final order as defined by the Administrative Review Law [735 ILCS 5/Art. III].  An Order of the Secretary or Director denying a motion for rehearing and entering a decision on the merits of the case is a final Order as defined by the Administrative Review Law and is subject to judicial review.

 

g)         The Secretary or Director, as applicable, will not consider motions to reconsider or modify a final decision made or Order entered.  The proper avenue of relief is to file a complaint under the Administrative Review Law.

 

Section 100.255  Confidentiality

 

a)         Any Party may use initials or other identifiers to refer to any individual in any filing in place of that person's name.  The Party so doing shall provide to the opposing Party and that Party's counsel and to the Administrative Law Judge a document identifying by name that person.  The document shall not be a part of the official record of the proceeding and shall not be subject to disclosure to any non-Parties or subject to disclosure under the Freedom of Information Act [5 ILCS 140].

 

b)         Any portion of the record including, but not limited to, pleadings, evidence, transcripts of the proceedings, an ALJ's Findings of Fact, Conclusions of Law, and Recommendation, and the Secretary's or Director's Order, is protected from disclosure under any federal or State law, including, but not limited to, the Freedom of Information Act [5 ILCS 140], shall be sealed from public view.  Any portion so sealed shall not be subject to disclosure to any non-Parties or subject to disclosure under the FIOA Act.

 

c)         Nothing in this Part shall supersede, limit, or subject to variance the applicability of, or authority of the Secretary pursuant to, any provisions regarding disclosure of privileged or confidential information under any Applicable Act or the rules promulgated thereunder, including, but not limited to, the following provisions, as amended: Section 48.3 of the Illinois Banking Act [205 ILCS 5]; Section 9012 of the Savings Bank Act [205 ILCS 205]; Sections 1-4(ii), 4-2(e), 4-8.1, and 4-8.1A of the Residential Mortgage License Act of 1987 [205 ILCS 635]; Section 5(d) of the Pawnbroker Regulation Act [205 ILCS 510]; Sections 20-15(e), 20-45, and 20-50 of the Student Loan Servicing Rights Act [110 ILCS 992]; Section 9.1 of the Illinois Credit Union Act [205 ILCS 305]; Section 2-15 of the Payday Loan Reform Act [815 ILCS 122]; Section 17.5 of the Consumer Installment Loan Act [205 ILCS 670]; Section 70 of the Transmitter of Money Act [205 ILCS 657]; Section 16 of the Currency Exchange Act [205 ILCS 405]; 38 Ill. Adm. Code Part 110, Sections 110.290 and 110.420; 38 Ill. Adm. Code Part 200, Section 200.280; 38 Ill. Adm. Code Part 325; 38 Ill. Adm. Code Part 1075, Subpart Q; and 50 Ill. Adm. Code Part 8100, Section 8100.3000.

 

Section 100.256  Record of Hearings

 

a)         The record of the Hearing in a contested case shall include:

 

1)         All pleadings presented before the Administrative Law Judge (including petitions, answers, all prehearing and Hearing notices, and responses, admissions, stipulations of fact, motions and rulings on these issuances);

 

2)         All documentary evidence received;

 

3)         A transcript of the proceedings;

 

4)         The Findings of Fact, Conclusions of Law, and Recommendation of the ALJ;

 

5)         Any motions and responses filed in response to the ALJ's report pursuant to Section 100.240; and

 

6)         The Order of the Secretary or Director, which shall constitute a final Administrative Decision within the provisions of the Administrative Review Law.

 

b)         The record shall be copied and assembled by the Department and certified by the Secretary or Director upon any complaint for administrative review.  The plaintiff in the administrative review shall pay a copying fee of $1 per page and a certification fee of $1.  An index of the record, with each page of the record numbered in sequence, shall be prepared by the Department.

 

Section 100.257  Costs of Hearing

 

Petitioner shall pay any applicable Hearing fee and costs authorized by this Part, and all expenses required by applicable law, including the cost of court reporting and a transcript of proceedings.  All other Hearing expenses shall be paid pro rata by the Petitioner and the Division.  If permitted by law, the Director in their sole discretion may waive a portion or all of the fees, costs, or expenses upon a showing of significant financial hardship by the Party.

 

Section 100.260  Severability

 

If any Section, subdivision, sentence, or clause of this Part shall be held by a court of competent jurisdiction to be invalid, such holding shall not affect the remaining parts thereof.

 

Section 100.270  Variances

 

The Secretary or Director may grant variances from this Part in individual cases in which they find that:

 

a)         The provision from which the variance is granted is not statutorily mandated.

 

b)         No Party will be injured by the granting of the variance.

 

c)         The rule from which the variance is granted would, in the particular case, be unreasonable or unnecessarily burdensome.