dissenting:
There have been problems with the Private Detective Act over the years.
In 1995, the supreme court held unconstitutional the portion of the Private Detective Act requiring licensing for private alarm contractors. Church v. State, 164 Ill. 2d 153, 168, 646 N.E.2d 572, 580 (1995) (“No matter how well qualified a person may be by instruction, training[,] or prior experience, he or she can never of his or her own free will become a licensed private alarm contractor unless a member of the regulated industry is willing to hire him or her on a full-time basis for the requisite time period in a particular capacity” (emphases added)). In 1999, this court held unconstitutional the portion of the Private Detective Act dealing with the licensing of private detectives that required three years’ experience during the last five years working full-time for a licensed private detective agency or as a full-time investigator in a law enforcement agency. Johnson, 308 Ill. App. 3d at 513, 720 N.E.2d at 358 (“No justification appears for limiting work in the broad areas covered in section 75(a)(6) of the [Private Detective] Act to retired police officers and those selected by the private detective business”).
The history of the Private Detective Act has been one of adding to its many exceptions whenever a challenge is made. The Department sought to appeal our decision in Johnson, and leave to appeal was granted by the supreme court. The Department then chose to withdraw its appeal, and the statute was amended to allow prospective licensees to meet the experience requirement by working as a full-time investigator “for a licensed attorney” or for “a State’s Attorney’s office or a [p]ublic [defender’s office.” Pub. Act 91 — 815, § 5, eff. June 13, 2000 (2000 Ill. Laws 1409, 1412). The amendment was narrowly tailored to eliminate the plaintiffs in Johnson as potential litigants. The question now before us is whether the amendment solves the constitutional problems of the Private Detective Act.
As an aside, although work as a full-time investigator for a licensed attorney now suffices to meet the experience requirement, the Private Detective Act was not amended to allow the employees of attorneys to work as investigators. See Johnson, 308 Ill. App. 3d at 511, 720 N.E.2d at 356 (“Attorneys may look for and talk to witnesses without a private detective’s license (225 ILCS 446/30(2) (West 1996)) but it appears their paralegals may not”). Employees of law enforcement agencies may perform investigations without violating the Private Detective Act. 225 ILCS 446/30(a)(l) (West 2000). Employees of insurance adjusters may perform investigations without violating the Private Detective Act. 225 ILCS 446/30(a)(4) (West 2000). The statute contains no such exemption for employees of attorneys, only for “[a]n attorney-at-law licensed to practice in Illinois while engaging in the practice of law.” 225 ILCS 446/30(a)(2) (West 2000).
Should the private detective business be the exclusive domain of retired police officers and those they choose to employ? The definition of “private detective” is a very broad one. A private detective’s license is required of anyone who by any means makes investigations, for a fee, of (1) crimes; (2) the identity, conduct, credibility et cetera, “of any person, firm, association, or corporation”; (3) lost or stolen property; (4) the cause or responsibility for fires, accidents, or injuries; (5) “[t]he truth or falsity of any statement”; or (6) leading to “[s]ecuring evidence to be used before any court,” board, or committee. 225 ILCS 446/5 (West 2000). Under that definition almost everybody is a private detective. “Every employee who investigates anything in the course of his or her employment, without a private detective’s license, arguably violates the [Private Detective] Act.” Johnson, 308 Ill. App. 3d at 511, 720 N.E.2d at 356.
Under the above definition, Weipert, as an insurance adjuster, has been acting as a private detective for the past 10 years. Insurance adjusters make investigations of crimes, the identity and credibility of persons, lost or stolen property, the cause of and responsibility for accidents, the truth or falsity of statements, and to secure evidence. The Private Detective Act itself recognizes that insurance adjusters perform the work of private detectives. The Private Detective Act resolves that problem by exempting insurance adjusters from its coverage. 225 ILCS 446/30(a)(4) (West 2000). The majority tells us that “[d]rawing the line in deciding what type of investigative experience qualifies is a matter for legislative, rather than judicial, consideration.” 337 Ill. App. 3d at 288. The legislature did draw the line. The legislature, by exempting insurance adjusters from the requirements of the Private Detective Act, recognized that insurance adjusters perform and are capable of performing the work of private detectives.
Weipert could do any of the things private detectives do, while he was acting as an insurance adjuster. What sense does it make to prohibit Weipert from doing the same things he has done for the last 10 years if he is no longer employed by an insurance company? “Given the breadth of section 5 of the [Private Detective] Act, some covered investigations require experience and training in fields other than police work.” Johnson, 308 Ill. App. 3d at 514, 720 N.E.2d at 358. It is difficult to understand how a retired policeman is better qualified than a former insurance adjuster to investigate “[t]he cause, origin, or responsibility for fires, accidents, or injuries to real or personal property.” 225 ILCS 446/5(4) (West 2000) (definition of “private detective”).
The supreme court was critical of a licensing scheme where a qualified person “can never of his or her own free will become a licensed private alarm contractor unless a member of the regulated industry is willing to hire him or her on a full-time basis for the requisite time period in a particular capacity.” (Emphases added.) Church, 164 Ill. 2d at 168, 646 N.E.2d at 580. The majority would define the phrase “regulated industry” narrowly: “The issue is whether section 75(a)(6) confers on the private detective business a monopolistic right to instruct.” (Emphasis in original.) 337 Ill. App. 3d at 288. Under the majority’s view, the private detective business does not have a monopoly because work as an “investigator in a law enforcement agency” suffices; applicants can satisfy the statutory requirements without working for a licensed private detective. I suggest that Johnson rejects that argument. The Private Detective Act essentially makes the private detective business the exclusive domain of retired police officers and those they choose to employ. Allowing retired police officers to become licensed private detectives does not provide an independent alternate route to a license; it is the very monopolistic practice which was criticized in Johnson.
According to the majority, the constitutional problems we found in Johnson no longer exist because the legislature “has since expanded the types of qualifying work experience by amending section 75(a)(6).” 337 Ill. App. 3d at 287. If it is conceded that Johnson was correctly decided and there was a constitutional problem before the amendment (the Department does not so concede), it is difficult to accept that the very limited amendment which was made solves that problem. There would seem to be a large population of insurance adjusters (and others) who could not readily qualify as private detectives by working full-time for a licensed attorney or a State’s Attorney’s office or a public defender’s office. The majority recognizes that, under Church, a scheme where a person can “never” become licensed without industry approval is unconstitutional. The majority would distinguish a scheme where the person can “hardly ever” become licensed without industry approval. I suggest that formalistic approach is contrary to the substance of the holding in Church.
Section 75(a)(6) of the Private Detective Act is unconstitutional. The Private Detective Act, as amended, affords monopolistic control over the private detective business to retired police officers and those they employ as private detectives. There is no rational distinction between Weipert and retired police officers insofar as protection of the general public is concerned. I would reverse the decision of the circuit court.