text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE McCASTER, Defendant-Appellant.
    Fifth District
    No. 5—91—0286
    Opinion filed February 1, 1993.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Justice Harrison participated in oral argument. Justice Maag was later assigned to this case in substitution for Justice Harrison, and Justice Maag has read the briefs and listened to the audiotape of oral argument.

   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Terrence McCaster, appeals from a judgment of the circuit court of St. Clair County entered on a jury verdict which found defendant guilty of unlawful delivery of a controlled substance in violation of section 401(d) of the Illinois Controlled Substances Act (111. Rev. Stat. 1989, ch. 56x/2, par. 1401(d)). Defendant was sentenced to five years in the Department of Corrections and fined $20. In this appeal, defendant raises three issues: (1) whether defense counsel rendered ineffective assistance of counsel by failing to tender jury instructions on the affirmative defense of mistake, (2) whether the trial court committed reversible error in refusing the jury’s request for a copy of the transcript of proceedings, and (3) whether defendant is entitled to a $20 credit against his fine of $20. We affirm in part and vacate in part.

The facts of this case are not in dispute. On November 18, 1990, Special Agents Clarence Banks and Herman Tolar of the Division of Criminal Investigation (DCI) were working undercover in East St. Louis. At approximately 3:30 p.m., the two were driving in the area of 16th Street and Bond Avenue. Agent Tolar was driving the car, while Agent Banks was in the passenger seat. Banks waved some money at a group of men in an effort to buy some illicit drugs. Defendant was among the group. Defendant waved Banks and Tolar over to the curb. When the agents stopped, defendant asked them if they were the police. Banks replied that they were not the police. Defendant asked the agents what they wanted, and Banks told him a 10- or 20-cent piece, referring to $10 or $20 worth of crack cocaine. Defendant told Banks that he did not sell cocaine, but he had a friend who had some cocaine, and he would get some from him. Defendant walked away from the agents’ car and back to his group of friends. A discussion ensued between members of the group as to whether Banks and Tolar were police officers. Defendant returned to the car and once again asked if they were police officers. Agent Banks replied they were not. Defendant then showed two rock-like substances to Banks. Banks chose one piece and paid defendant $20. The substance was later analyzed and was found to be .1 gram of a substance containing cocaine. Tolar and Banks drove away and notified a waiting surveillance unit that a drug transaction had occurred. Banks radioed a description of the suspect.

DCI Agent Edward Muzzey, as part of the surveillance team, helped arrest defendant. Muzzey took a Polaroid photo of defendant at the arrest scene. Shortly afterward he met with Banks and Tolar and showed them the photograph. Defendant was identified as the person who sold them cocaine.

DCI Agent Craig Koehler also participated in the arrest of defendant. Defendant told Koehler that he sold the cocaine to obtain beer money. Defendant also told Koehler that when the surveillance team arrived, he gave the money to another person who left the scene. Defendant stated he could not give a description of the person to whom he gave the money because to do so would be "committing suicide.” No money was recovered from defendant.

Defendant previously worked for DCI as a confidential source. Defendant specifically worked for Agent Banks in the past, and Banks had given defendant money to buy drugs. At the time of the instant transaction, Banks was unaware he had previously worked with defendant. The last time Banks had contact with defendant was August 2, 1989. Agent Muzzey also used defendant as a confidential source. According to Muzzey, he had contact with defendant in November 1988 and on August 8 and 9, 1989. On all three occasions, Muzzey gave defendant money for information. Muzzey did not recognize defendant at the time of the arrest. Joseph Bates, another DCI agent involved in defendant’s arrest, testified that he also knew, defendant from previous investigations in which defendant had assisted DCI as a confidential source. Bates remembers defendant telling him and Agent Koehler at the time of his arrest, “You know that I am not a dope man.” Koehler remembers no such statement. Defendant’s file as a DCI confidential source was closed in October 1990, because none of the agents were using him as a confidential source.

The defense proceeded under a theory of entrapment. Defendant testified he went up to the agents’ car and immediately asked if they were police. Banks told defendant he wanted to buy some drugs. Defendant told Banks he did not have any drugs. Banks insisted that defendant get him some drugs. Defendant went to a group of men in the area and got “two twenties” of cocaine. Agent Banks picked one rock of cocaine and gave defendant $20. The agents then drove away. Defendant testified he gave the $20 to the man from whom he got the cocaine. Defendant stated that Agent Banks saw defendant give the other man the money. Agents Bates and Tolar arrested defendant. Bates asked defendant who had the money and the drugs, but defendant could not answer him because his “life wouldn’t be worth a dime on the streets” if he did. Defendant explained that he knew the agents in the car were the police, but he did not know if they were doing undercover work or if they wanted the drugs for their own use. Defendant testified that he had worked as a confidential source for DCI in the past. Defendant specifically worked with Agent Bates in the past and told Bates at the time of his arrest that he did not sell dope. Defendant admitted he was convicted of burglary in 1981 and criminal sexual assault in 1984.

During jury deliberations, the jury sent out a note requesting a dictionary and a transcript of proceedings. The trial court denied the jury’s request. Ultimately, the jury found defendant guilty.

The first issue we are asked to address is whether defense counsel rendered ineffective assistance by failing to tender jury instructions on the affirmative defense of mistake. Defendant argues that while entrapment was a proper defense on which to proceed, the facts of this case, especially defendant’s testimony, also point to the affirmative defense of mistake. Because defense counsel failed to tender mistake instructions, he was ineffective and deprived defendant of his constitutionally protected right to effective assistance of counsel. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8.) The State replies that defense counsel’s conduct in representing defendant was more than adequate under the requirements of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and that the defense of mistake was not a viable alternative in view of the evidence presented in the testimony of defendant.

To support a charge of ineffective assistance of counsel, a defendant must prove two elements: first, that his attorney failed to perform as a reasonably competent attorney, and second, that there exists a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial would have been different, i.e., that defendant was prejudiced by the attorney’s actions. (Strickland v. Washington, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) A reasonable probability has been defined by the Supreme Court as one that is sufficient to undermine confidence in the outcome, and to make this finding, a court must consider the totality of the evidence presented to the finder of fact. (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) Under the guidelines set forth in Strickland, the focus is upon the fundamental fairness accorded the defendant at trial. Underlying this framework, however, is the strong presumption that counsel’s conduct falls within the broad realm of reasonable professional assistance, and therefore, a reviewing court will not second-guess matters which involve counsel’s judgment, discretion, trial tactics or trial strategy. People v. McKendrick (1985), 138 Ill. App. 3d 1018, 486 N.E.2d 1297.

In the present case, counsel’s decision to pursue the entrapment defense is a matter of trial strategy. The testimony presented at trial lends some credence to the entrapment theory, and we cannot say defense counsel’s choice of strategy was patently erroneous. While the record may also lend some support to a theory of mistake, we cannot say that defense counsel’s failure to tender a mistake instruction was not within the broad range of reasonable professional assistance. It is easy to second-guess defense counsel after the verdict is rendered, but the record here supports an entrapment defense as a viable defense and reveals defense counsel’s proficiency. Moreover, defendant has not convinced us that submitting mistake instructions would have made the outcome of the trial different.

At trial, defendant testified that he knew Agent Banks as a DCI agent because he had previously worked for him as a confidential source. When Banks drove by and waved money at him, defendant went to talk to Banks and the driver of the car, Agent Tolar. Defendant testified he also worked with other DCI agents in the past as a confidential source. On this occasion, however, there was no discussion about defendant assisting DCI. Defendant asked Banks and Tolar whether they were the police, and they denied it. Defendant even discussed whether Banks and Tolar were police officers with other persons found in the area where the drug transaction occurred. No testimony was presented by defendant or any other witness that there was either a discussion or any agreement between defendant and the agents that he would be assisting the agents in this particular instance as a confidential source. By all accounts, defendant had not had contact -with DCI since August of 1989. Defendant’s file as a DCI confidential source was closed in October 1990, because none of the agents were utilizing him at that time. Further, defendant testified that he believed Banks may have been purchasing the crack cocaine for personal use. It is clear from the testimony that there was no agreement between the parties that defendant would be assisting them as a confidential source in this particular instance.

The testimony, including defendant’s, does not convince us that the jury’s determination would have been any different even if defense counsel submitted mistake instructions. The affirmative defense of mistake relies on many of the same facts as those relating to the entrapment defense. The jury did not believe defendant had been entrapped, and defendant has not convinced us that the jury would have believed defendant acted as he did under the mistaken belief that he was a confidential source for Agents Tolar and Banks on this particular day. Agent Koehler testified defendant gave a statement to him that he had sold the cocaine to Banks and Tolar in order to obtain beer money. It is probable that the jury found defendant, who had two prior convictions, not credible, and that they instead believed the testimony of the DCI agents. Accordingly, we find that no ineffective assistance of counsel has been demonstrated.

The second issue we are asked to consider is whether the trial court committed reversible error in refusing the jury’s request for a copy of the transcript of proceedings. Defendant acknowledges that whether to grant a jury’s request to review testimony lies within the sound discretion of the trial court (People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 577) but insists here the trial court proceeded under the mistaken impression that it had no authority to entertain the jury’s request. Defendant requests that we reverse his conviction and remand for a new trial because the trial court failed to exercise its discretion to grant the jury’s request. The State replies that defendant waived this issue by failing to include this issue in his post-trial motion. The State further contends that the waiver doctrine cannot be avoided, as requested by defendant, because even if error did occur, it did not amount to plain error or deprive defendant of effective assistance of counsel. We agree.

In order to preserve an issue for appeal, both a trial objection and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The rationale for such a rule was stated in People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223:

“Failure to raise issues in the trial court denies that court the opportunity to grant a new trial, if warranted. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration of errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considers them of any importance.” 102 Ill. 2d at 31-32, 464 N.E.2d at 227.

In the instant case, defense counsel did not raise this issue in a post-trial motion; therefore, this issue is waived. Moreover, we do not believe that defense counsel’s failure to raise this issue in defendant’s post-trial motion constitutes plain error or ineffective assistance of counsel.

Defendant acknowledges it is within the discretion of the trial court to allow or refuse a jury’s request to review testimony. (People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 577.) Substitute defense counsel, present during the trial court’s discussion of its decision to deny the jury’s transcript request, asked the trial court to reconsider its decision to deny the request and to question the jury about what portions of the transcript were being requested. The trial court responded:

“Okay. I think at this point the jury has heard the evidence. The Court is not going to set a precedent for requiring transcripts to be prepared during deliberations. If the Appellate Court feels that every defendant is entitled to have daily transcripts prepared of a trial, they can impose that burden upon the trial courts. But at this point I will not do it. Objection noted.”

In our estimation, the trial court did use its discretion in this matter and determined it unnecessary to allow the jury to see a written transcript of proceedings. This trial was relatively short, lasting less than two full days, and the evidence was straightforward. We do not believe a copy of the transcript was vital to deliberations. Consequently, assuming, arguendo, that defendant did not waive this issue, we do not find that the trial court abused its discretion in denying the jury a copy of the transcript. Likewise, we do not believe that trial counsel’s failure to raise the alleged error in a post-trial motion constituted ineffective assistance of counsel under the Strickland standard previously discussed. We find that the trial court did not commit reversible error in refusing the jury’s request for a copy of the transcript.

The last issue we are asked to consider is whether defendant is entitled to a $20 credit against his fine of $20. The State concedes that defendant is entitled to a credit of $20 against his fine pursuant to section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110—14). Accordingly, we vacate defendant’s fine of $20.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed in part and vacated in part.

Affirmed in part, vacated in part.

WELCH and MAAG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH PRESIDING JUSTICE CHAPMAN,

license: Public Domain

text:
      In re MARRIAGE OF SUSAN PRIBBLE, f/k/a Wagenblast, Petitioner-Appellant, and GREG L. WAGENBLAST, Respondent-Appellee.
    Fifth District
    No. 5—91—0824
    Opinion filed January 27, 1993.
    Barbara Crowder, of Crowder & Taliana, of Edwardsville, for appellant.
    D. Kent Troné, of Edwardsville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The residential parent, petitioner, Susan Pribble, formerly-known as Susan Wagenblast, petitioned the circuit court of Madison County for leave to remove the parties’ three minor children from the State of Illinois to Ames, Iowa. The trial court denied the petition for removal, and petitioner appeals from that judgment. We reverse and remand.

Petitioner and respondent, Greg L. Wagenblast, were married on June 2, 1978. Three children were born of the marriage, Lindsay, born February 6, 1983, Amy, born February 9, 1985, and Molly, born September 6, 1987. The parties’ marriage was dissolved on November 9, 1989. On that same date, an agreement was entered whereby petitioner and respondent agreed to joint custody of the children with petitioner being the residential parent and respondent having physical control of the three children as follows:

“A. June 1st to August 15th of each year.
B. Every winter school vacation.
C. Every other weekend, beginning the weekend after the entry of this Order.
D. One evening per week to be agreed upon by the parties.
E. Alternate school holidays including Christmas and Christmas Eve.”

When respondent had physical control of the children during the summer months, petitioner was to have physical custody of the children as outlined above. The declaration making petitioner the residential parent was not to be construed as giving her any greater power than respondent in decision making regarding the children’s welfare. Both parents were to have equal rights and responsibilities.

On April 12, 1991, petitioner filed a petition for leave to remove the children from Illinois to Ames, Iowa, stating that she had remarried and that her husband, a cardiologist, had relocated to Iowa, that it would be in the best interests of the children for her to be able to move with them to Iowa, and that such a move would not substantially impair their relationship with respondent. Respondent filed a response to petitioner’s petition. The matter proceeded to hearing on June 21, 1991.

At the hearing, petitioner testified that she married Dr. Alan Pribble on March 8, 1991. She and Dr. Pribble became acquainted approximately three years earlier when both were employed at St. Anthony’s Hospital. They dated for approximately one year prior to their marriage. Dr. Pribble moved to Ames, Iowa, in November 1990, approximately AMz months prior to his marriage to petitioner. In November 1990, petitioner and the three minor children moved from Bethalto into a home owned by Dr. Pribble in Brighton. The Brighton residence is a three-bedroom brick ranch house with 2V2 baths, a finished basement, and a two-car garage. It sits on a 25-acre tract of land. Two of the girls share a bedroom there.

If allowed to move, petitioner testified the girls would attend St. Cecelia’s parochial school in Ames, Iowa. If not allowed to move, petitioner testified the children would still attend another school due to their recent move from Bethalto to Brighton to live in Dr. Pribble’s home. Petitioner stated Lindsay and Amy would attend either a nonparochial school in Brighton or a parochial school in Alton. Apparently, respondent did not know anything about the change in local schools. Petitioner and respondent are both members of the Catholic Church and both attend Our Lady Queen of Peace Church in Bethalto. The girls have also been raised Catholic. Lindsay attended first and second grades at Our Lady Queen of Peace School and, at the time of the hearing, was planning on attending third grade at the same school. The school is approximately five blocks from respondent’s home. Lindsay’s progress at school was above average. Amy attended kindergarten at Toddle Town Day Care in Alton, which is approximately eight miles from respondent’s home. Amy was going to be in first grade in the fall of 1991. Respondent planned on Amy going to Our Lady Queen of Peace School and had already registered her for the 1991 school year. Molly attended Toddle Town Day Care in Alton.

Lindsay and Amy would be able to attend Our Lady Queen of Peace School even though petitioner now lives in Brighton. Our Lady Queen of Peace School consists of grades one through eight, but plans have been made to add a kindergarten beginning in the 1991-92 school year. There is no tuition, only weekly contributions to the church. The school has one class per grade. Estimates for the first grade class for 1991 were between 24 and 26 children. Amy would be in that class. Estimates for the third grade for 1991-92 were 21 to 22 children. Lindsay would be in the third grade. The school is- accredited by the State, and all teachers are certified. There is one teacher per grade, and there are teacher’s aides to assist the teachers. The school has volleyball, basketball, and soccer for both boys and girls. The school has computers in the library. Transportation is not offered. The school has a hot lunch program one day per week. The school does not teach foreign languages. The playground is paved and is used for parking for churchgoers on the weekends. There is no fixed equipment on the playground. There is a ball diamond behind the school situated on a grassy lot.

St. Cecelia’s School in Ames, Iowa, consists of grades kindergarten through sixth. The school is accredited and all teachers are certified. Tuition is required. St. Cecelia’s anticipates that 21 students will be in the first-grade class and 27 will be in the third-grade class during the 1991-92 school year. Three foreign languages are available as well as computer classes. Computers are in each classroom. St. Cecelia’s has a grassy playground with fixed equipment. There are swings, jungle gyms and large tires for the children to climb through. The school has its own transportation system, with buses picking up and taking home the children. By all accounts, the parochial school in Alton, which petitioner stated the children might attend, is comparable to Our Lady Queen of Peace School in Brighton.

Iowa State University is located in Ames. As a result, Ames has several public facilities which Brighton lacks. Petitioner has taken the children to the Ames Library. It has a special juvenile section and a small stage for puppet shows. Brighton has a public library, but it does not have a special juvenile section and is much smaller than the library in Ames.

Dr. Pribble worked in Alton approximately 41/2 years before accepting a new position in Ames, Iowa. He is now under a two-year contract, which began on November 15, 1990, at the McFarland Clinic. He has a base income of $150,000 per year and with an incentive clause is expected to earn $250,000 per year. Dr. Pribble is to work from 7:30 or 8 a.m. until 5 or 6 p.m. Monday through Friday. He also works from one-half hour to three hours on Saturday and Sunday. Dr. Pribble has been a cardiologist for approximately 20 years. Before working in Alton, he worked at the Maricopa Medical Center in Phoenix, Arizona, for approximately four years. Prior to that, he was in Honolulu, Hawaii, for approximately three years. Before that, Dr. Pribble was in Seattle, Washington, for approximately 13 years.

Petitioner testified at the hearing that she is employed at DePaul Hospital in St. Louis, Missouri. She leaves for work at approximately 7:30 a.m. on Monday, Wednesday, and Friday and returns home at approximately 6:45 p.m. on those days. On Tuesday and Thursday, she leaves home at approximately 7:30 a.m. and returns between 4 and 5 p.m. If she moves to Ames, Iowa, petitioner has no plans to work outside the home. No day care would be necessary for Molly, but petitioner might enroll Molly in a morning preschool program in order to give her the opportunity to socialize. According to petitioner, she wanted to move to Ames to be with her new husband and form a family unit. Petitioner testified she would bring her daughters back to the Brighton area to visit respondent at least once a month and on all extended holidays. The girls could also stay with respondent over the summer as was previously agreed. Petitioner wants the girls to have a continuing relationship with their father but believes this can be accomplished from Ames, Iowa. It is approximately 404 miles from Ames to Brighton and takes between 6V2 to 8 hours to make the drive between the two cities.

Dr. Pribble corroborated petitioner’s testimony. He testified he encourages the girls to have contact with their father and that he and petitioner could assure the court that the girls would be brought back for at least monthly visits and holiday visits with respondent, or even more visits if it was so ordered. Dr. Pribble had already taught the girls how to dial long distance and was willing to pay long distance telephone bills so that the girls could maintain telephone contact with their father. Dr. Pribble explained that he grew up apart from his own father and appreciated the fact that he could visit his father at will. He wants the same thing for his stepdaughters. Dr. Pribble described his relationship with the girls and his desire for them to move to Ames.

Petitioner and Dr. Pribble were in the process of negotiating for the purchase of a home in Ames. The home is a two-store frame house with approximately 4,000 square feet. It has four bedrooms, three baths, a formal dining room, a family dining room, a kitchen, a living room and a family room. It has a basement that is partially furnished and a two-car garage and sits on a five-acre tract of land. It also has an indoor swimming pool and a basketball court. Ames has a population of 46,000 people and Brighton has a population of 6,000.

Respondent testified against removal of the children to Iowa. He lives in Bethalto in the parties’ former marital residence. He is a district sales manager for GNB, Inc., in Bridgeton, Missouri, and makes approximately $39,000 per year. He expressed concern that if the children lived in another State, he would lose communication with them, and that he “wouldn’t be able to keep in touch with what they do, how they think, how they do in school, their everyday life.” Respondent has exercised his visitation regularly, except for the summer of 1989 when he kept the children for only four weeks instead of the scheduled eight weeks. He testified he was unable to keep the girls the allotted time because day care was too expensive and conflicted with his work schedule. He testified that this would not be a problem in the future because he remarried and his new wife would be able to pick up the girls from day care. Respondent married Mary Wagenblast on May 18, 1991. He and Mary dated for approximately one year prior to their marriage. His new wife had a good relationship with the girls. The girls have several friends in respondent’s neighborhood whom they like to play with during the time spent at respondent’s home.

There was some testimony on each side complaining about how the children are allowed to go to other homes instead of being with the custodial parent. For example, petitioner complained that the girls were often at the neighbor’s instead of with respondent. Respondent, on the other hand, complained that the girls spent too much time at petitioner’s mother’s home. Most of the children’s relatives live in close proximity to Bethalto. Petitioner’s mother and father live in Brighton. The children visit petitioner’s parents approximately two to three times per week. Respondent’s mother and father live in Jerseyville, and the children visit them occasionally. Aunts, uncles and cousins also live in the area, and the children enjoy frequent social gatherings with them.

Amy was interviewed by the court and indicated that she would like to go to Iowa. She gets along well with petitioner’s new husband, as well as respondent’s new wife. She said she would be “real sad” if she went to Iowa but her sisters stayed behind with their father.

Lindsay said she did not want to go to Iowa because she wants to be able to see her father. She also stated that she did not want to leave Illinois because her best friend and relatives are here and because she did not want to leave her school. Lindsay said that she had not thought about the possibility of remaining in Illinois while her sisters went to Iowa, because her mother had already told her that she would not move to Iowa unless the court allowed the girls to go. Molly was not interviewed by the court.

Petitioner told the court that she would not move the girls without the court’s permission. Dr. Pribble stated that he did not know what he would do if petitioner and the girls did not move to Iowa. He did not plan to make any decisions until he knew the outcome of the hearing.

On July 25, 1991, the trial court ruled that it would not be in the children’s best interest to be removed from their present environment, and it denied petitioner’s petition for leave to remove. On August 23, 1991, petitioner filed a motion for reconsideration, which was also denied.

The issue we are asked to consider is whether the trial court erred in denying the petition for removal. Petitioner contends that she has met her burden of showing that removal of her daughters would be in their best interest and that, by denying her petition, the trial court created a manifest injustice, unnecessarily chaining her to Illinois. Respondent replies that the trial court did consider the children’s best interests. He contends that the trial court’s determination is supported by the evidence and is not against the manifest weight of the evidence, nor has the trial court allowed a manifest injustice to occur. We disagree.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides:

“§609. Leave to Remove Children, (a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” (Ill. Rev. Stat. 1989, ch. 40, par. 609.)

In removal cases, the most important question is whether the move is in the best interests of the child, and the burden of proof of whether the move is in the child’s best interests is in the party seeking removal. Quirin v. Quirin (1977), 50 Ill. App. 3d 785, 365 N.E.2d 226.

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, found that there was no bright-line test for determining what was in the children’s best interests; instead, our supreme court found that removal depends on the facts and circumstances of each case. (119 Ill. 2d at 326, 518 N.E.2d at 1045.) To assist trial courts in determining whether removal is in the children’s best interests, the Eckert court suggested consideration of the following factors: (1) the likelihood that the move will enhance the quality of life and general welfare of both the custodial parent and the children; (2) the custodial parent’s motive in seeking removal — is it legitimate or merely a ruse intended to defeat or frustrate visitation; (3) the motives of the noncustodial parent in resisting removal; (4) whether a realistic and reasonable visitation schedule can be reached if removal is allowed; and (5) if the move is to a distant jurisdiction, the harm to the child which may result by the move. (119 Ill. 2d at 326-28, 518 N.E.2d at 1045-46.) The Eckert court went on to note that “[a] trial court’s determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred.” 119 Ill. 2d at 328, 518 N.E.2d at 1046.

The present case is refreshing in that no question has been raised that the motive of either parent is anything other than honorable. Both parents are concerned and conscientious parents. But we believe the evidence presented shows that the move is likely to enhance the general quality of life of the children as well as their mother. For example, Ames is a university town with much to offer in terms of culture. The town has museums and special juvenile programs at the library. The school that the girls would attend in Ames has an outstanding curriculum, covering a wide variety of subjects. Computers are available in every classroom, the playgrounds are grassy with several pieces of fixed equipment, and transportation is available to and from school. Moreover, both petitioner and her new husband testified that if the children were allowed to be removed to Ames, petitioner would not work outside the home; thus, there would be no need for day care, except preschool for Molly.

While at first blush it might appear that moving 404 miles to Ames would mean that the children would lose the benefit of their father’s guidance, upon closer scrutiny we find that this need not be the case. Petitioner’s new husband, Dr. Pribble, was not raised in the same home as his father but very much appreciated the fact that he was able to maintain close contact with his father. Dr. Pribble has the means necessary to ensure that his stepchildren maintain close contact with their father. He assured the court that he would be willing to pay for long distance telephone calls so that the children could talk frequently with their father back in Illinois.

We believe realistic and reasonable visitation is possible in this case. Ames, Iowa, is 404 miles from respondent’s home in Illinois, not 4,004. At least one weekend visit per month is possible. Petitioner was also willing to bring the girls home for long holiday weekends. Respondent would be allowed to have the girls from June 1 to August 15. He is now remarried and his new wife, Mary, would be able to pick up the girls from day care, thus allowing him to take full advantage of his summer visitation. Both petitioner and Dr. Pribble seem sincere in their desire to make sure the girls have a continuing relationship with their father, and both seem willing to do whatever is necessary to ensure this.

We believe the instant case is similar to In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780, although the distance between Illinois and the area where the custodial parent desired to move was much greater in Zamarripa-Gesundheit. In that case, the custodial mother wanted to remove the children to Seattle, Washington, where her new husband had been transferred. The mother had located a school in Seattle comparable to that attended by the child in Chicago. She had also found a suitable synagogue and pediatrician. She believed her prospects for finding comparable employment in Seattle were also good. The mother agreed to allow the noncustodial father liberal visitation, including weekly telephone calls at the mother’s expense. Although the father was allowed liberal visitation with the child while in Chicago and was extremely involved in the child’s life, the ZamarripaGesundheit court reversed the trial court and held that the best interests of the custodial parent and child supported granting the removal petition. The court stated that the move to Seattle would greatly enhance the quality of life for the custodial mother and, therefore, indirectly, the quality of life for the child. (See also In re Marriage of Carlson (1991), 216 Ill. App. 3d 1077, 1081-82, 576 N.E.2d 578, 580-81 (where it was noted that the mother’s improved quality of life in a successful marriage relationship indirectly benefits the children).) The Zamarripa-Gesundheit court also found that although the noncustodial father’s visitation rights would change against his wishes, the liberal visitation proposed by the mother would provide the noncustodial father the opportunity to foster his relationship to the child. Specifically, the court there stated:

“On balance, we do not think that the interests of the custodial mother should be subordinated to those of the noncustodial father. *** Although [the father] would prefer consistent day-to-day contact with [the child], this preference is insufficient to chain [the mother] to the State of Illinois.” Zamarripa-Gesundheit, 175 Ill. App. 3d at 190, 529 N.E.2d at 783.

Here, we believe petitioner met her burden of showing that removal would be in the best interests of the children. This is not to say there are no detriments caused by such a move. We realize the children will move away not only from respondent but also from other relatives who have played major roles in their lives. The girls will have to adjust to a new school and a new neighborhood and make new friends. However, on the whole, we believe the move would be in the children’s best interests. Even the trial court seemed to recognize that petitioner had met her burden. After hearing the motion to reconsider, the trial court stated:

“If all the facts were fed into the computer it would probably come out that the move should be allowed, but the Court has to consider other factors other than just the facts that you would tend to feed into a computer.”

The trial court went on to list Lindsay’s unwillingness to move and respondent’s deprivation of time spent with his daughters as the major factors for denying petitioner’s petition. We disagree with the trial court that these two factors are enough to justify denying the petition. We believe Lindsay’s unwillingness to move is natural at her age but is not sufficient to deny justifying petitioner’s petition, especially in light of the fact that at least one other child was excited about such a move. Moreover, as previously explained in Zamarripa-Gesundheit, the noncustodial parent’s preference for consistent day-to-day contact is insufficient to keep the mother in Illinois.

We believe the trial court’s denial of the petition for removal is against the manifest weight of the evidence, and it appears to us that a manifest injustice has occurred.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion, specifically to grant the petition for removal and establish a new visitation schedule allowing respondent as liberal visitation as possible under the circumstances.

Reversed and remanded with directions.

WELCH, J., concurs.

PRESIDING JUSTICE CHAPMAN,

dissenting:

Even though the majority’s result might be the one I would have reached had I been the trial judge, I dissent because my review of the record does not convince me that the trial court’s decision was against the manifest weight of the evidence. As the majority indicates, this is a difficult case that is not made easier by the fact that the parties are possessed of pure motives and are sincerely concerned about their children. I disagree with the majority, not because of the result it reaches, but because in reaching that result, it has substituted its weighing of the evidence on the Eckert factors for that of the trial court.


author: JUSTICE KNECHT

text:
    SPRINGWOOD ASSOCIATES, d/b/a Maplewood Health Care Center, Plaintiff-Appellant, v. JOHN R. LUMPKIN, Director of the Department of Public Health, Defendant-Appellee.
    Fourth District
    No. 4—92—0325
    Opinion filed December 30, 1992.

      Daniel Maher, of Stratton, Dobbs & Nardulli, of Springfield, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Springwood Associates (Springwood) owns and operates the Maplewood Health Care Center (Maplewood), a private nursing home licensed and regulated by the Department of Public Health (Department) pursuant to the Nursing Home Care Act (Act) (Ill. Rev. Stat. 1989, ch. 111½, par. 4151—101 et seq.). During the course of an annual inspection, the Department made findings that Springwood failed to meet the minimum standards prescribed by the Department. On review of the findings, the Department issued two Type B violations (see 77 Ill. Adm. Code §300.274(b)(2), at 2697 (1991)) and eight administrative warnings (see 77 Ill. Adm. Code §300.277, at 2699 (1991)). Springwood contested the issuance of one of the Type B violations dealing with the availability of water in excess of 110 degrees Fahrenheit at shower, bathing and handwashing facilities. (77 Ill. Adm. Code §330.3130(c)(4), at 2817 (1991) (eff. Mar. 24, 1989).) A hearing officer found the Type B violation was appropriate. Associate Director Bell adopted the finding of the hearing officer. Springwood sought administrative review in the circuit court of Sangamon County, which affirmed the decision of the Department.

Springwood appeals, raising two arguments: (1) the Department of Public Health cannot issue a violation against a nursing home for a violation of the Act, absent negligent conduct on the part of the facility (Ill. Rev. Stat. 1989, ch. 111½, par. 4151—117); and (2) the Department violated its own regulations because Springwood was not afforded the opportunity to review a proposed order and submit written exceptions and a brief before the Associate Director, who had reviewed the record, issued a final decision. Both arguments are unpersuasive in light of applicable statutes, regulations, and case law. We affirm the circuit court.

The Act provides private nursing homes must be licensed by the Department. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—102.) The Department is authorized to develop a comprehensive system of licensure of nursing homes (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—101), required to provide minimum standards for nursing homes (111. Rev. Stat. 1989, ch. 111½, par. 4153—202), and empowered to adopt rules and regulations in order to carry out the purposes of the Act (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—801).

The Department is required to conduct annual inspections of nursing homes to ensure compliance with applicable licensure requirements and standards. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—212(a).) The inspections are conducted by Department sanitarians. When the sanitarian discovers failures on the part of a nursing home to comply with applicable requirements and standards, he or she makes notations of the failures in a report. Upon completion of each inspection, the sanitarian must submit a copy of the report to the nursing home and the original to the Department. The nursing home may, within 10 days, provide comments or documentation refuting findings in the report, explaining extenuating circumstances which the nursing home could not have prevented, or indicating methods and timetables for correction of deficiencies described in the report. 111. Rev. Stat. 1989, ch. 111½, par. 4153—212(c).

The Department must then determine whether the report’s findings constitute a violation of which the facility must be given notice. This determination is based upon a list of criteria, set forth in both the Act and the regulations. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—212(c); 77 Ill. Adm. Code. §300.272(c), at 2696 (1991).) If the issuance of a violation is warranted, the next step is to determine the level of the violation. 77 Ill. Adm. Code §300.274, at 2696-98 (1991).

There are two levels of violations defined by the Act. (See Ill. Rev. Stat. 1989, ch. 111½, pars. 4151—129, 4151—130; see also 77 Ill. Adm. Code §300.274(b), at 2697 (1991).) A “Type A violation” is a more serious violation than a “Type B violation.” In determining the level of the violation, the Department must consider (1) the designated level of the violation in the regulation, (2) the degree of danger posed by it, and (3) the directness and imminence of the danger to the residents. (77 Ill. Adm. Code §300.274(c), at 2697 (1991).) The degree of danger and its directness and imminence to residents are determined by applying a list of criteria set forth in the regulations. 77 Ill. Adm. Code §§300.274(c)(2), (c)(3), at 2697-98 (1991).

• 2 After the level of the violation is determined, the nursing home must be provided with a notice of violation. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—301.) If the nursing home wishes to contest any Department action, it must send a written request for a hearing to the Department within 10 days of receipt of the contested action. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—303(e).) Upon receipt for a request for a hearing, the Director or hearing officer must conduct a hearing to review the action. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—704(a).) After the hearing, the Director or hearing officer must make findings of fact. When the hearing has been conducted by a hearing officer, the Director must review the record and findings of fact before rendering a decision. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—707.) If the Director does not either preside at the hearing or review the record, and the decision is adverse to any party other than the Department, the Director must provide all parties with a copy of the proposed decision and the party which will be adversely affected must be afforded an opportunity to file written exceptions and a brief. (77 Ill. Adm. Code §§100.14(c), 100.15, at 2347-48 (1991).) “Director” is defined by both the Act and the regulations as the named Director of the Department, or his designee. 111. Rev. Stat. 1989, ch. 111½, par. 4151-110; 77 Ill. Adm. Code §100.2, at 2337 (1991).

In the present case the annual inspection of Maplewood was conducted on September 6 and 7, 1990, by Department sanitarians Pat Fisher and Stephen Mott. Fisher and Mott made findings of 10 failures to comply with applicable standards and regulations. One of the findings resulted from Fisher’s discovery of water temperatures in excess of 110 degrees Fahrenheit in five locations on September 6 and three locations on September 7.

Fisher testified that, on September 6, she discovered water temperatures ranging from 124 to 128 degrees. She notified the maintenance supervisor, Melvin Grover, that the water temperatures were too high. Fisher further testified that when she took the water temperatures again on the morning of September 7, she discovered water temperatures of 132 degrees in two locations and a temperature of 115 degrees in one location. Fisher notified Lisa Hernadez, the administrator, and informed her the water needed to be turned off until the problem could be fixed.

Mott testified he was with Fisher when she discovered the high temperatures. Both Fisher and Mott testified the locations of the excessive water temperatures were in heavily trafficked areas of the nursing home; additionally, the residents were ambulatory and appeared confused. Fisher and Mott heard no announcements warning of the hot water; no signs were posted and the access to the areas was not restricted. Both Fisher and Mott testified the problem had been fixed or the system shut down, before they left on September 7. The sanitarians testified they could not have left the facility if the water temperatures continued to exceed 130 degrees. Fisher additionally testified she had informed both Hernandez and Grover that the sanitarians could not leave until the problem had been addressed.

Grover testified he worked five days a week at Maplewood, taking and recording the temperatures throughout the nursing home on the days he worked. Grover testified he checked the water temperatures on the mornings of September 6 and 7, and the temperatures were not in excess of 110 degrees. Grover accompanied Fisher and Mott on September 6 and was present when Fisher discovered the excessive temperatures in several locations. Grover checked the temperatures after Fisher, and his thermometer also registered excessive temperatures. Grover testified he made adjustments to the water heater in Fisher’s and Mott’s presence, and 15 minutes later both he and Fisher rechecked the temperatures, which had fallen to 104 degrees. Fisher and Mott have no recollection of witnessing adjustments to the water heater or rechecking temperatures on September 6. Grover additionally testified that on September 7, he shut off the water when instructed to do so by the sanitarian or administrator and placed a sign on the door.

Hank Koolanki, a supervisor at Capes and Son, testified an electrician from Capes replaced the mixing valve on a water heater at the nursing home on September 7, 1990. Koolanki testified it is impossible to know in advance that a mixing valve is going to break. The first sign of a problem is fluctuation in water temperature.

Fisher and Mott provided Lisa Hernandez, the administrator, with a copy of their findings before leaving Maplewood. Hernandez provided comments to the Department. Mott made additional comments and recommended a Type B violation be issued. All of the information was then sent to Springfield, where it ultimately went to the Department’s quality assurance division.

George Madden testified he worked in the Department’s quality assurance division. Madden testified he reviewed the findings and other material, and in accordance with the procedures outlined in the regulations, determined there was a violation and the violation was a Type B violation.

Notice of violation was sent to Springwood, along with notices of violations and administrative warnings regarding nine other findings. Springwood filed a request for a hearing. Originally Springwood contested all of the violations and administrative warnings; however, prior to the hearing, Springwood withdrew its request for a hearing on all issues except the Type B violation issued for the availability of water in excess of 110 degrees. Hearing Officer Margaret O’Grady presided over the hearing and issued a recommended decision finding the Type B violation was appropriate. After reviewing the record, Associate Director William Bell adopted the findings and recommendations of the hearing officer. Springwood sought review in the circuit court of Sangamon County. The circuit court affirmed the decision of the Department. This appeal followed.

Springwood argues it cannot be issued a violation for its failure to meet the minimum standards promulgated under the Act unless the Department shows Springwood’s failure to meet the minimum standards was negligent. In support of its position, Springwood cites two tort cases in which a resident of a nursing home filed suit against the facility alleging negligence on the part of the facility. Springwood’s reliance on these cases is misplaced as they deal with a negligence cause of action, rather than a nursing home’s failure to meet the minimum standards promulgated by the regulatory agency. We are unaware of any authority for the extension of the negligence analysis to violations of the regulations of a regulatory agency. Moreover, examination of the Act and regulations reveal no intent to implement a negligence analysis in the case of regulatory violations. Hence, we reject Springwood’s argument and affirm the decision of the circuit court.

The Act was enacted as a result of concerns over reports of “inadequate, improper and degrading treatment of patients in nursing homes.” (81st Ill. Gen. Assem., Senate Debates, May 14, 1979, at 184 (statement of Senator Karl Berning).) The purpose of the Act is to provide protection for nursing home residents. (Moon Lake Convalescent Center v. Margolis (1989), 180 Ill. App. 3d 245, 255, 535 N.E.2d 956, 963.) The Act provides two methods of implementing this goal. First, private nursing homes must be licensed and regulated by the Department. Second, nursing home residents are granted a private right of action against nursing homes for violations of the residents’ rights (Ill. Rev. Stat. 1989, ch. 111½, pars. 4152—101.1 through 4152—113) under the Act (Ill. Rev. Stat. 1989, ch. 111½, pars. 4153—601 through 4153-604).

Pursuant to the licensure and regulations provisions, a private nursing home must be licensed by the Department, and must meet the minimum standards set forth by the Department. If the Department makes findings that the facility has failed to comply with the minimum standards, the facility is subject to administrative warnings or violations bearing civil penalties, and possibly license revocation. (Ill. Rev. Stat. 1989, ch. 111½, pars. 4153—301 through 4153—316, 4153—317.) Intentional failure to correct violations within a specified period of time may result in criminal penalties. See Ill. Rev. Stat. 1989, ch. 111½, par. 4153-318(c).

The Act additionally provides residents with a private right of action against the nursing home. The private right of action is a recognition of the concept of a “private attorney general.” The legislature realized the Department cannot daily police every nursing home and detect every violation of the Act. Nursing home residents themselves are in the best position to know of and seek redress for violations. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 369, 489 N.E.2d 1374, 1382.) Thus, the nursing home residents are granted a statutory action against nursing homes for violations of their rights (Ill. Rev. Stat. 1989, ch. 111½, pars. 4153—602 through 4153—604), and the ability to seek treble damages (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—602), as an incentive to the residents to seek legal redress.

The two cases cited by plaintiff do not involve regulatory violations by a nursing home; rather, they are negligence actions filed by residents against the nursing homes where they resided. Owens v. Manor Health Care Corp. (1987), 159 Ill. App. 3d 684, 512 N.E.2d 820, was apparently a common law negligence action, and Harris was an action filed under the provisions of the Act providing a private right of action to residents.

In Owens, plaintiff filed a tort claim against the nursing home where he resided for failure to provide adequate supervision and care. The issue before the appellate court was whether this case was a healing art malpractice case. The court determined it was not. Since the plaintiff alleged acts of negligence on the part of the nursing home, the cause of action was one sounding in ordinary negligence. Owens, 159 Ill. App. 3d at 689, 512 N.E.2d at 823-24.

In Harris, plaintiff filed a claim, under the private right of action provisions of the Act, against the nursing home, for injuries received due to the nursing home’s neglect while she was a resident. The issue before the court was whether the provision permitting plaintiffs to recover treble damages was a violation of due process, because it permitted the recovery of treble damages for negligent conduct. The court concluded the Act did allow for treble damages for negligent conduct, because neglect is defined as the failure to provide adequate care, and adequate care is the standard of care used in a negligence analysis. (Harris, 111 Ill. 2d at 367, 489 N.E.2d at 1381.) However, the court did not find there to be a violation of due process. Harris, 111 Ill. 2d at 370, 489 N.E.2d at 1383.

Plaintiff alleges that Owens and Harris define the standard of care owed by the nursing home to its residents as one of ordinary care. Thus, plaintiff alleges, the Department cannot issue a violation to the nursing home unless the Department finds negligence on the part of the nursing home. Plaintiff’s argument fails to recognize the distinction between a regulatory violation and a tort action. Moreover, negligence is implicit in the causes of action set forth in Owens and Harris. In Owens, plaintiff alleged negligence; in Harris plaintiff alleged neglect, and, as the court determined, negligence is inherent in the definition of neglect. In the present case, Springwood has not been sued for negligence or neglect, nor has Springwood been issued a violation for negligent or neglectful conduct. Springwood has been issued a regulatory violation due to its failure to meet the minimum standards, not related to negligent conduct, promulgated by the Department.

Unlike the causes of action in Owens and Harris, negligence is not inherent in the regulation violated by Springwood. As defendant correctly asserts, neither the Act nor the regulations require the Department prove the nursing home negligently violated the regulations. The Act provides the Department is to prescribe minimum standards (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—202), and must inspect the facility not less than annually to determine whether the facility is in compliance with the minimum standards (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—212(a)). A failure of the nursing home to comply with the minimum standards is noted in a report; whether the failures constitute violations is determined, not under a tort analysis, but under a specified list of criteria. (Ill. Rev. Stat. 1989, ch. 111½, par. 4153—212(c); 77 Ill. Adm. Code §300.272, at 2695-96 (1991).) Furthermore, the regulation which Springwood violated provided “[h]ot water available to residents at shower, bathing and handwashing facilities shall not exceed [110] degrees Fahrenheit.” (77 Ill. Adm. Code §300.3130(c)(4), at 2817 (1991); see 13 Ill. Reg. 4684, 4903 (eff. Mar. 24, 1989).) Notably the regulation does not provide the nursing home must use “adequate care” to ensure water temperatures do not exceed 110 degrees. Rather, the regulation provides the water temperatures “shall not” exceed 110 degrees. Thus, negligence is not an element of the regulation violated by Springwood.

Plaintiff also seeks support for his argument in the Department regulations providing that whether the violation is a Type A or Type B violation involves consideration of a list of factors, one of which is whether the condition resulted from the negligence or engagement in ultrahazardous activities on the part of the facility. Plaintiff argues this demonstrates the Department’s own regulations indicate it may not issue a violation to a nursing home unless the facility has been negligent. This argument is also unpersuasive.

First, the consideration of whether the facility was negligent is not a factor in determining whether a violation has occurred. After the Department has determined a violation exists, the Department then considers the negligence or lack of negligence of the facility in determining the level of a violation. Since the negligence inquiry does not occur until after it has been determined that a violation exists, it cannot be a prerequisite to a finding of a violation. Second, a finding of negligence is not a necessary finding at any part of the process; rather, the existence or lack of negligence on the part of the nursing home is merely one factor, among several, which may be used to determine whether the nursing home has committed a Type B violation, or the more severe Type A violation. Had Springwood been issued a Type A violation, it could have argued its alleged lack of negligence weighed in favor of assessing a Type B violation rather than a Type A violation. Such an argument is unnecessary in the present case, as Springwood was issued the less severe, Type B violation.

Plaintiffs innovative argument aside, the issue before this court is essentially whether the Department properly determined a violation existed, and whether that violation was properly classified as a Type B violation.

On administrative review, the findings of fact made by the administrative agency are prima facie true, and they will not be disturbed unless they are against the manifest weight of the evidence. (Ill. Rev. Stat. 1991, ch. 110, par. 3—110.) In the present case the circuit court affirmed the decision of the agency. The question before this court is whether the circuit court erred by not finding the Department’s decision was against the manifest weight of the evidence. In the hearing conducted by the Department, evidence was taken regarding the uncontroverted facts that the temperatures were in excess of 110 degrees on September 6 and 7, Springwood’s history of excessive temperatures, and Springwood’s remedial efforts.

The Department introduced evidence at the administrative hearing demonstrating the application of the regulations to the facts of this case indicated a violation occurred. The determination of whether the nursing home’s failure to comply with the minimum standards set forth in the Act and regulations constitutes a violation does not involve a negligence analysis. Rather, both the Act and the regulations provide a list of criteria to be used in determining whether a violation exists. According to the Act and the regulations, this determination is based on the severity of the finding, the danger posed to the resident’s health and safety, the comments and documentation provided by the nursing home, the diligence and efforts to correct deficiencies, correction of the reported deficiencies, the frequency and duration of similar findings in previous reports, and the nursing home’s general inspection history. Ill. Rev. Stat. 1989, ch. 111½, par. 4153—212(c); 77 Ill. Adm. Code §300.272(c), at 2696 (1991).

In the present case, the Department considered the criteria set forth in determining whether a violation had occurred. The record reflects the Department has conducted research and has determined water temperatures in excess of 110 degrees pose a danger to residents of nursing homes, who, due to their age, have thin epidermal layers and are more susceptible to thermal burns. Additionally, the recovery process from burns is longer in the case of elderly people. Madden, the Department member who reviewed the findings, considered the level of the temperature and the fact that no one was actually injured. In determining the danger posed to the residents, Madden considered the residents’ access to the area and the fact they were ambulatory and confused. Madden did not remember whether Springwood submitted comments in this case; however, if the comments were submitted, Madden testified he would have considered them. Madden additionally testified he considered the history of the facility noting that the Department made findings of temperatures in excess of 110 degrees at Maplewood on March 1, and August 1, 1989. Based on this criteria, Madden determined a violation should be issued.

The evidence introduced at the administrative hearing also indicated an application of the regulations to the facts of this case demonstrated the violation was a Type B violation. A “Type A violation” is a violation which creates a condition or occurrence relating to the operation and maintenance of a nursing home presenting a substantial probability that death or serious mental or physical harm to a resident •will result. (Ill. Rev. Stat. 1989, ch. 111½, par. 4151—129; 77 Ill. Adm. Code §300.274(b)(1), at 2697 (1991).) A “Type B violation” is a violation which creates a condition or occurrence relating to the operation and maintenance of a nursing home directly threatening to the health, safety or welfare of a resident. (Ill. Rev. Stat. 1989, ch. 111½, par. 4151-130; 77 Ill. Adm. Code §300.274(b)(2), at 2697 (1991).) In determining the level of the violation, the Department must consider the designated level of the violation in the regulation, the degree of danger to the residents, and the directness and imminence of the danger to the residents. 77 Ill. Adm. Code §300.274(c), at 2697-98 (1991).

The degree of danger is determined by assessing the residents’ ability to recognize the danger and take self-protective measures, the accessibility of the area of the nursing home where the condition exists, including whether the nursing home erected barriers, notices, or otherwise restricted resident access to the area, whether the condition or occurrence was the result of inherently dangerous activities or negligence by the facility, and whether the facility notified the residents of the condition. 77 Ill. Adm. Code §300.274(c)(2), at 2697-98 (1991).

The directness and imminence of the danger is determined upon consideration of whether actual harm occurred, whether statistics and records from similar facilities indicate direct and imminent danger has resulted from similar conditions or occurrences and the frequency of such danger, whether professional opinions and findings indicate direct and imminent danger will result from the condition or occurrence, whether the condition or occurrence was limited to a specific area, including whether the facility took steps to limit or reduce the scope of the area affected, and whether the physical, mental, or emotional state of the residents subject to the danger would facilitate or hinder harm actually resulting from the condition or occurrence. 77 Ill. Adm. Code §300.274(c)(3), at 2698 (1991).

In the present case, Madden testified he used regulation 300.274 to determine the level of the violation. (77 Ill. Adm. Code §300.274, at 2694-96 (1991).) The regulations indicate a violation of the provision regarding hot water temperatures may be either a Type A or Type B violation. See 77 Ill. Adm. Code §300.3130, at 2818 (1991). -

In determining the degree of danger, Madden considered that due to the residents’ confusion and the lack of warnings regarding the hot water, the residents were unable to recognize the danger and take self-protective measures. Additionally, the residents had access to the area where the water temperatures were in excess of 110 degrees. Madden concluded the facility was negligent because the violation existed for two days, and at the time when the sanitarian found the excessive water temperatures on the second day, the facility still had not restricted access to the area. Finally, the residents were not notified of the condition.

In determining the directness and imminence of the danger, Madden considered the fact that no injury had occurred, and statistics from other facilities indicating there had been other Type B violations issued under similar circumstances. Madden additionally testified he relied on the opinions of the sanitarians as professional opinions. Finally, Madden testified he found the problem to be fairly localized. Based upon these criteria, Madden determined a Type B violation was appropriate.

The hearing officer made findings of fact at the conclusion of the evidence. The hearing officer found on both September 6 and 7, there were locations where the water temperature was in excess of 110 degrees. Although the maintenance supervisor or the administrator was notified on each of the occasions, the areas remained accessible to the residents. No announcements were made and no notices were posted. On September 6, the maintenance supervisor, after being notified of the excessive temperatures, made an adjustment to the water heater. The hearing officer concluded the Department proved Springwood violated the rules and regulations prohibiting water temperatures in excess of 110 degrees, and under the criteria set forth in the regulations, the violation was appropriately determined to be a Type B violation. The Associate Director adopted the findings and recommendations of the hearing officer.

In the context of its negligence argument, plaintiff contends the issuance of a violation was inappropriate because the nursing home maintained daily temperature logs, which indicated there had been no temperatures in excess of 110 degrees in the three months prior to the inspection. Plaintiff additionally states that Springwood took immediáte action once the excessive temperatures were discovered during the inspection. The maintenance supervisor made an adjustment to the water heater. On the second day of the inspection, when higher water temperatures were recorded, Springwood, at the Department’s direction, shut down the hot water system until an electrician could arrive to perforin needed repairs. A similar argument was rejected by the appellate court in Moon Lake (180 Ill. App. 3d at 262, 535 N.E.2d at 967), in the case of a similar regulation.

In Moon Lake, the nursing home was issued a violation for failure to comply with a regulation requiring nursing homes to implement preventative measures to ensure water temperatures do not exceed 110 degrees. On appeal, Moon Lake argued a violation was inappropriate because the water temperatures were checked daily, an adjustment was made when the Department discovered excessive temperatures, and the water heater had a mixing valve. The appellate court rejected Moon Lake’s argument, finding that the fact the water temperatures exceeded 110 degrees on the day of the inspection was compelling evidence that Moon Lake did not “ensure” temperatures would not exceed 110 degrees. (Moon Lake, 180 Ill. App. 3d at 262, 535 N.E.2d at 967.) The dictionary defines “ensure” as “to make certain or sure.” American Heritage Dictionary 456 (2d ed. 1982).

Although the regulations in Moon Lake and the present case utilize distinct language, their effect is the same. The regulation in Moon Lake required nursing homes to make certain that water temperatures do not exceed 110 degrees and the regulation in the present case provided the water temperature shall not exceed 110 degrees. Both regulations obligate the nursing homes to' provide only water which does not exceed the temperature of 110 degrees. The similarity of the regulations in both cases, and the appellate court’s rejection of similar arguments in Moon Lake, lends additional support to our rejection of Springwood’s argument that a violation is inappropriate in this case because it took preventive or remedial measures.

The preventative or remedial measures undertaken by the nursing home do not per se prevent the issuance of a violation. Rather, they are factors to be considered in determining whether a violation should be issued, and, if so, the level of the violation. In the present case the hearing officer heard testimony regarding Springwood’s preventative and remedial measures. The hearing officer also heard testimony regarding Springwood’s failure to restrict access to the area, or notify the residents of the danger. Testimony was additionally offered regarding the history of excessive temperatures at Maplewood. The hearing officer was in the best position to judge the demeanor and credibility of the -witnesses and weigh these competing factors. Therefore, we find the Department’s determination was not against the manifest weight of the evidence, and affirm the decision of the circuit court.

Springwood next argues the Department violated its own regulations because it was not provided with a copy of the proposed decision and an opportunity to file written exceptions and a brief before the Associate Director issued the Department’s final decision.

The administrative rules promulgated pursuant to the Act provide that if the Director has not presided at the hearing or has not read the record of the proceeding and his final decision would be adverse to any party other than the Department, prior to the entry of a final order a proposed decision must be served on all parties to the proceeding and parties adversely affected must be afforded an opportunity to file written exceptions. (77 Ill. Adm. Code §§100.15(a),(c), at 2348 (1991).) There is no dispute that Director John R. Lumpkin did not preside at the hearing. Plaintiff alleges that since Associate Director William Bell issued the final decision after a review of the record, there is no evidence Director Lumpkin reviewed the record, thus plaintiff should have been provided with a copy of the proposed order and afforded an opportunity to file written exceptions and a brief. The resolution of this issue turns on the interpretation of the term “Director.”

The Act defines “Director” as “the Director of Public Health or his designee.” (Ill. Rev. Stat. 1989, ch. 111½, par. 4151—110.) Similarly, the administrative rules, promulgated under the Act, define “Director” as “the Director or the designee of the Director of the Department of Public Health.” (77 Ill. Adm. Code §100.2, at 2337 (1991).) The appellate court has stated the inclusion of “or his designee” in the definition of “Director” is a legislative recognition that the Director of an agency cannot possibly perform all of the functions of the agency. (Moon Lake, 180 Ill. App. 3d at 254, 535 N.E.2d at 962.) It is common practice for the Director of an agency to delegate specific responsibilities to a subordinate, during periods of unavailability of the director or for ongoing periods. Hoardwood, Inc. v. Department of Public Aid (1988), 175 Ill. App. 3d 432, 435, 529 N.E.2d 1009, 1012.

Construing the meaning of the word “Director” under the Act, the appellate court has noted, “[i]t is a fundamental rule of statutory construction that when an act defines its own terms, those terms must be construed according to the definitions given to them in the act.” (Beecher Medical Center, Inc. v. Turnock (1990), 207 Ill. App. 3d 751, 754, 566 N.E.2d 445, 447.) Thus, the court determined that the definition of the term “Director” includes any designee of the named Director, regardless of whether the designee is an employee or non-employee of the Department. Beecher, 207 Ill. App. 3d at 754, 566 N.E.2d at 447-48; see also Moon Lake, 180 Ill. App. 3d at 254, 535 N.E.2d at 962.

Moreover, even in the absence of a statutory definition of the word “Director,” the appellate court has interpreted “Director” to refer to the named Director of a department or his designee. In Hoardwood (175 111. App. 3d 432, 529 N.E.2d 1009), the appellate court determined that a statutory provision requiring the “Director” of the Department of Public Aid to make a final decision was satisfied where the final decision was made by the Executive Deputy Director. The court stated it would have been preferable for the legislature to define “Director” as “Director or his designee,” with respect to the Director of the Department of Public Aid, as it had defined Director in such terms with respect to the Director of the Department of Public Health. However, the court concluded that even in the absence of a statutory definition, to define “Director” as meaning only the named Director of the Department would be contrary to the intent of the legislature. The court noted that the legislature had vested the authority to terminate or suspend the eligibility of a Medicaid provider with the Department of Public Aid generally, not specifically with the named Director. Thus, the court concluded, where a final decision by the “Director” was required, a decision by the designee of the Director was appropriate. Hoardwood, 175 111. App. 3d at 436, 529 N.E.2d at 1012.

Based upon the statutory definition of “Director,” as well as the definition of “Director” appearing in the regulation, and the interpretive case law, it is clear the named Director or the designee of the named Director may make the final decision. The record is silent on whether Associate Director Bell was the designee of Director Lumpkin, and plaintiff does not present any argument that Bell was not Lumpkin’s designee. The actions of an administrative agency are presumed to be correct unless evidence is introduced to the contrary. Thus, in the absence of evidence to the contrary, we presume Bell to be the designee of Lumpkin. Since the designee reviewed the record prior to issuing the final decision, the Department was not required to provide plaintiff with a copy of the proposed order and an opportunity to file exceptions and a brief. Therefore, we reject plaintiff’s argument that the Department violated its own regulations, and affirm the decision of the circuit court.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.