dissenting:
It is well established in the law that the word “shall” may be deemed directive where a statutory section is designed to secure an orderly system in an administrative proceeding. People v. Tomlinson, 295 Ill. App. 3d 193, 692 N.E.2d 1207 (1998). “Shall” may be interpreted as a directive word particularly when no consequences are provided for failure to comply with a particular provision. In re Estate of Wallis, 276 Ill. App. 3d 1053, 659 N.E.2d 423 (1995). Further, an administrative procedure will be sustained so long as it furthers the purpose of the statute and is not arbitrary, unreasonable or capricious. See Board of Trustees of the University of Illinois v. Illinois Educational Labor Relations Board, 274 Ill. App. 3d 145, 653 N.E.2d 882 (1995).
In this case, section 16 of the Act is clearly designed to set up an orderly system for license revocation. There is nothing in section 16, or anywhere else in the Act, that establishes a consequence if section 16 is not complied with exactly. These two points lead me to the conclusion that the word “shall” as used in section 16 of the Act is directive, not mandatory.
Having determined that the statutory language of section 16 is directive, the question then becomes whether the Department’s regulations sufficiently implement the statute. The regulations provide that before a licensee’s license may be revoked, the licensee will receive notice that a hearing will be scheduled if he requests one within 10 days of receipt of the notice. 77 Ill. Adm. Code § 100.7 (2000). The notice includes the specific allegations which form the basis for the action. Furthermore, the notice informs the licensee, in capital, bold-faced type, that failure to request a hearing within 10 days of receipt of the notice will result in a waiver of the licensee’s right to a hearing. This procedure provides a licensee with all the rights afforded under the statute and is not arbitrary or capricious. Therefore, I would hold that the Department’s procedure is proper and does not violate the statute.
Lastly, it is persuasive to me that Cole does not allege that the allegations in the notice of intent to revoke his license are false. Nor does he allege that he had any reason for not requesting a hearing, and he never requested a rehearing to which he was entitled under the statute (225 ILCS 345/19 (West 2000)). All of these circumstances confirm my belief that he was afforded all due process required by the statute. Thus, I think we should be affirming and not reversing and remanding for the completion of a useless act.