Every 10 years, all licensing statutes automatically repeal themselves (called a Sunset) and must undergo a rewrite. The 10-year Sunset for the Detective, Security, Alarm, Locksmith and Fingerprint Vendors Act (Act) was January 1, 2014.
Although the industry, as represented by the Illinois Electronic Security Alarm Association (IESA), the Associated Detectives and Security Agencies of Illinois (ADSAI), and the Associated Guard and Patrol Agencies (AGPA), had worked together the entire Fall of 2013 to pursue a “clean rewrite bill” that would preserve the Home Rule Exemption, thereby ensuring a quick passage through the legislature, the Department at the 11th hour submitted to the industry 68 pages of proposed changes that they intended to introduce.
Some of the Department suggested changes were industry killers while many others were merely extremely oppressive. With very little time available, the industry was able to negotiate out some of the most egregious changes to the Act suggested by the Department.
Here is a listing of some of the most significant changes to the Act with a few comments where applicable to help understand why the change would be significant:
|Audit or Inspection||The requirement of 24 hours notice before a Department investigator can arrive to audit your agency has been removed.|
|Compelled Examination or Evaluation||“Upon a showing of a possible violation”, any licensee or PERC registrant may be compelled to undergo a mental health, substance abuse or sex offender evaluation.A “showing of a possible violation” is not a legal standard found anywhere in Western jurisprudence.|
|Compelled Examination or Evaluation||Once you have been compelled to undergo any testing or evaluation, no privilege or confidentiality will apply and the Department is entitled to present any and all records of the evaluator in a formal (public) hearing.|
|Compelled Examination or Evaluation||Failure to submit to the examination will result in an automatic indefinite suspension, with no right to a hearing or other due process whatsoever, and as a practical matter cannot be appealed.Accordingly, the hammer over one’s head in these circumstances is immense.|
|Formal Complaints||The Department stripped out the right of a licensee to receive a Complaint with “facts that are the basis of the charge with enough specificity to enable the licensee to prepare an intelligent defense.”|
|Formal Complaints||Now, the Department only has to send a Complaint and Notice of a Hearing to a licensee by regular mail to the “address of record.”Note that “address of record” was recently defined to mean only whatever address is in the Department’s computer, regardless of whether it is correct or not and regardless if a licensee made a proper notification of change of address but the Department failed to properly enter it.|
|Formal Complaints||If the Secretary of the Department disagrees with the Board’s findings, the Secretary no longer needs to explain or inform the Board why he/she disagreed.In practice, the Secretary usually disagrees with the Board whenever the Board finds no violation of the Act has occurred.|
|Formal Complaints||The Act now states that, “[a]ny complaint against a licensee filed with the Department and information collected to investigate any such complaint, shall be maintained for the confidential use of the Department and shall not be disclosed.”The Department now wants to overturn several Appellate court decisions from the 1980’s and over 25 years of discovery practice that has forced the Department to turn over its investigative records as part of the very limited discovery process available to a licensee. With this change, there is almost no discovery process left.|
|Record Keeping||In lieu of getting a copy of the PERC card into the employee file, a copy of the IDFPR Lookup screen demonstrating that the employee has an Active PERC will be sufficient.|
|Weapons||The one (1) hour commuting to and from home restriction was dropped from the Act. However, this change is very misleading. The corresponding section in the Criminal Code was NOT changed. Therefore, although taking more than 1 hour to or from home with a weapon will no longer be a violation of the new Act, one will still be arrested for it by the police.Upon conviction for UUW for exceeding the 1 hour commuting UUW exemption, there is absolutely no doubt that the Department will prosecute you for the conviction.|
|Weapons||FCC card holders are now prohibited from having in their “immediate possession” more firearms than “they can reasonably exercise control over.”Anyone who can clarify either ‘immediate possession’ or ‘reasonable control’, please call me and I will publish it. These are abstract terms that the Department will define however they wish.|
|Badges and Patches||The use of the terms “Law” or “Enforcement” now prohibited.|
|Badges and Patches||The use of the “State Seal” is now prohibited|
|Failure to Return Agency Equipment||This section has now been criminalized. The failure to return any agency owned property is now a Class A Misdemeanor.|
|Sex Offenders||Anyone classified as a Sex Offender is now excluded from PERC registration or licensure.|
|Costs||Anyone who loses a formal hearing may be liable for court reporter, transcript and witness fees.|
|Judgments||Any settlement or judgment in excess of $10,000 in which the subject of the action was some agency service, must be reported to the Department.|