v.
Village Square III Condominium Ass'n
2022 IL App (2d) 210098 No. 2-21-0098 Opinion filed June 21, 2022 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE VILLAGE OF DOWNERS GROVE, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee, ) ) v. ) No. 17-OV-5177 ) VILLAGE SQUARE III CONDOMINIUM ) ASSOCIATION, ) Honorable ) David E. Schwartz, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion.
OPINION
¶1 Defendant, Village Square III Condominium Association, appeals from the trial court’s judgment finding it guilty of violating the Downers Grove Fire Prevention Code (Fire Prevention
Code) (Downers Grove Municipal Code §§ 17.43 to 17.53 (amended Aug. 12, 2017)) and imposing on it an aggregate fine of $23,475, which consisted of a $75 fine for each of the 313 days
plaintiff, the Village of Downers Grove (Village), alleged the violation continued after the proceedings commenced, plus costs. Defendant contends the court erred by (1) denying its motion to dismiss, (2) finding it guilty of the violation, and (3) imposing a daily fine. We reduce the fine imposed to $23,400 and otherwise affirm the trial court’s judgment.
¶2 I. BACKGROUND
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¶3 A. The Village Square Townhomes
¶4 This matter involves a multifamily residential townhome complex located on Winthrop
Way in the Village. The townhome complex was built in 1970 or 1971 and, at the time, was in unincorporated Du Page County. The complex consists of three separate two-story buildings, two that contain 18 units and one that contains 12 units, for a total of 48 units. None of the units shares any common entrances/exits or hallways. Rather, each unit has its own separate entrance/exit at grade level.
¶5 Defendant is a condominium association organized (presumably) under the Condominium
Property Act (765 ILCS 605/1 et seq. (West 2016)). Each unit is owned by an individual or family, and each unit owner is a member of defendant. Defendant’s members elect a board of managers to manage defendant’s affairs, and at all times relevant to this matter, Preston Straub, a longtime resident of the complex, served as president of the board.
¶6 In the 1990s, defendant, with the approval of its members, replaced its then-existing fire protection system, which Straub described at trial as “antiquated.” According to Straub, he “made all the drawings and filed them with the County department to go with the permits that [defendant] obtained to put the system in.” The new system was a supervised system of fixed temperature spot heat detectors, in which heat detectors in each unit were wired to a control unit outside of each building. Inspection and testing of the system required entry into each individual unit.
¶7 In 2012, the Village annexed the townhome complex, thus subjecting it to the Downers
Grove Municipal Code.
¶8 B. The Fire Prevention Code
¶9 In 2017, the Village amended the Fire Prevention Code, adopting the 2015 edition of the International Code Council International Fire Code (2015 International Fire Code) as amended by
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section 17.45 of the Downers Grove Municipal Code. Downers Grove Municipal Code §§ 17.43, 17.45 (amended Aug. 12, 2017) (adopting 2015 Int’l Fire Code, as amended). For ease of reference, we will refer to the applicable provisions of the Fire Prevention Code by the section numbers used in the 2015 International Fire Code.
¶ 10 C. The Citations
¶ 11 On December 22, 2017, the Village issued to defendant three citations, alleging that, on
December 21, 2017, defendant failed “to provide an annual fire alarm inspection report” for each of its buildings, in violation of section 907.8 of the Fire Prevention Code (Downers Grove
Municipal Code § 17.45 (amended Aug. 12, 2017) (adopting Int’l Fire Code § 907.8 (2015), as amended)). Section 907.8 and its related provisions, which we will refer to as the annual-testing requirement, require alarm users to hire a private contractor to annually test their fire protection systems and submit a report of the results to the Village. Downers Grove Municipal Code § 17.45
(amended Aug. 12, 2017) (adopting Int’l Fire Code § 907.8 (2015), as amended; deleting and replacing Int’l Fire Code § 907.8.2 (2015)); Downers Grove Municipal Code § 17.62 (amended
Aug. 12, 2017). The Village attached to each citation an addendum that informed defendant that
the Village was requesting the court to issue a penalty between $75 and $750 for each day the violation continued. On December 27, 2017, the Village filed the citations with the circuit court clerk, thus initiating the proceedings at issue.
¶ 12 D. Defendant’s Motion to Dismiss
¶ 13 Defendant moved to dismiss the citations under section 114-1(a)(6) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/114-1(a)(6) (West 2018)), contending the trial court lacked jurisdiction. Defendant argued the court had the inherent authority to dismiss the citations because the Village had clearly denied its due-process rights by “fail[ing] to allow [d]efendant its right to
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2022 IL App (2d) 210098 file a notice of appeal with the building official and with the [Building] Board of Appeals.” On that point, defendant alleged that, on January 22, 2018, it appealed to the Downers Grove Building
Board of Appeals (Building Board of Appeals), as permitted by the Fire Prevention Code, but the Building Board of Appeals denied defendant the opportunity to pursue the appeal, “stating that as
this matter was already proceeding before [the court], Defendant could not proceed with the administrative remedies as provided in the Downers Grove Municipal Code.” Thus, defendant maintained, the Village had violated its due-process rights by prohibiting it from “exercising [its] statutory appeal rights” and to allow the matter to proceed would result in “a miscarriage of justice” because it would “validate the Village’s actions of violating Defendant’s administrative remedies.”
Additionally, relying on Camara v. Municipal Court of the City & County of San Francisco, 387
U.S. 523 (1967), defendant contended the ordinance was “contrary to the Fourth Amendment in that it authorize[d] municipal officials to enter a private dwelling without a search warrant and without probable cause to believe that a violation of the *** Fire Prevention Code exist[ed], thereby violating Defendant’s right to be secure from intrusion into personal privacy.” (It is not clear how either basis for dismissal affected the court’s jurisdiction. See 725 ILCS 5/114-1(a)(6)
(West 2018) (allowing dismissal when trial court lacks jurisdiction).)
¶ 14 The court denied defendant’s motion. [1] Preliminarily, the court noted there was a dispute as to whether the motion was brought under the proper statute. Defendant brought its motion under section 114-1(a)(6) of the Code of Criminal Procedure of 1963 (id.). The Village asserted the 210101
2022 IL App (2d) 210098 motion should have been brought under the Code of Civil Procedure (735 ILCS 5/1-101 et seq.
(West 2018)), because, pursuant to Illinois Supreme Court Rule 571 (eff. Dec. 7, 2011), the Code
of Civil Procedure applied to the proceedings. However, the court determined it could consider the motion regardless of which code defendant cited, because defendant’s asserted basis for dismissal—the purported lack of jurisdiction—was a delineated basis for dismissal under both codes (725 ILCS 5/114-1(a)(6) (West 2018); 735 ILCS 5/2-619(a)(1) (West 2018)).
¶ 15 On the merits, the court noted that, in Camara, the United States Supreme Court “ruled that the defendant *** had a constitutional right to insist that the inspectors obtain a warrant to search and that the defendant [could] not constitutionally be convicted for refusing to consent to the inspection.” It distinguished Camara, however, on the basis that defendant was “charged with
Failing to Maintain Fire Protection System and not for refusing to permit an inspection.”
(Emphasis in original.) Further, the court noted, it was not aware of any case law that permitted dismissal of charges based on a fourth-amendment violation. With respect to defendant’s due- process argument, the court reasoned that defendant had not pointed to any code section that required the Village to first issue a warning or an administrative decision before filing an ordinance-violation proceeding in court. Therefore, the court determined, it did not lack jurisdiction. Further, it found the failure to permit defendant to first proceed administratively did not deprive defendant of its due-process rights, because defendant was “going to have due process by having [its] trial heard if [it] so wishe[d],” where it could assert defenses to the citations.
¶ 16 Defendant moved to reconsider the ruling, reiterating its due-process argument and arguing the court misconstrued Camara. The court denied the motion.
¶ 17 E. Bench Trial
¶ 18 1. The Village’s Case: Deputy Fire Chief Christopher Hull
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¶ 19 Deputy Fire Chief Christopher Hull testified he was ultimately responsible for the inspection of existing buildings and the maintenance of fire protection systems throughout the Village. He explained the Fire Prevention Code required annual inspections “[t]o verify that [a fire protection system is] functioning properly according to the way that [it is] designed and installed.”
The Village does not conduct these inspections. Rather, each building owner or representative is
responsible for hiring a state-licensed inspector to conduct the inspection. Once testing is complete, the inspector submits an inspection report to the Village through a third-party reporting system, and the Village then ensures that any deficiency identified in the report is corrected.
¶ 20 According to Hull, the 1967 Du Page County Building Code applied to the construction of the townhomes and, at the time, required each building constructed to have a fire alarm system that protected the whole building. However, the Fire Prevention Code (i.e., the 2015 International
Fire Code, as amended) governed the ongoing testing and maintenance of the system after the Village annexed the townhomes. The Fire Prevention Code required annual testing of 100% of the devices at the townhome complex.
¶ 21 The relevant annual inspection report for the townhomes was due in March 2017.
Defendant, however, failed to submit the report. When the report was 37 days overdue, defendant received an automatic notice from the third-party reporting system. Typically, after an automatic
notice is issued to a party, the Village issues a notice of violation and, after the Village’s notice, the Village issues a citation. Hull testified defendant should have received a notice of violation but he would have to check the fire department’s records. By July 2017, defendant still had not
submitted the report. Thus, in July 2017, the Village issued tickets, but to the wrong party. In December 2017, it reissued the tickets to defendant.
¶ 22 Hull also testified that he was aware the Fire Prevention Code contained a provision that
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2022 IL App (2d) 210098 allowed an aggrieved party to administratively appeal an adverse decision to the Downers Grove
Building Board of Appeals before a citation was issued. He confirmed defendant “had the right to go before the *** Building Board of Appeals to appeal [the notice of violation].” He also agreed that defendant attempted to initiate an administrative appeal but the Building Board of Appeals
did not consider the appeal because defendant was “already involved in the court system at the time when [it] applied to be before the Board of Appeals.”
¶ 23 Defense counsel asked Hull how the townhomes were classified for purposes of Chapter 9 of the Fire Prevention Code. Hull testified the townhomes were not classified as “Residential
Group R-2” but, rather, fit more closely with “Residential Group R-3.” Hull also testified that firewalls separated each unit.
¶ 24 2. Defendant’s Case: Straub
¶ 25 Straub testified that defendant’s position was that it was exempt from the annual-testing requirement, which was one of the reasons it did not submit the required report. Additionally, it had previously had difficulty obtaining permission to access each unit for the inspection. Straub explained defendant did not have a master key that allowed access to each unit. Therefore, each unit owner had to approve entry into his or her unit.
¶ 26 In 2016, the Village issued to defendant citations (docketed as case No. 16-OV-3324).
Straub did not know whether those citations were based on defendant’s failure to submit the report but recalled that, in 2016, defendant’s chosen inspector could not gain access to six of the units.
(After the parties rested, during a discussion with the court, Straub stated it “was a big headache” to obtain the unit owners’ permission to enter the units.) Additionally, some of the unit owners had painted over the heat detectors, so those had to be replaced. Defendant was ultimately found guilty and fined for the 2016 violations.
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¶ 27 3. The Parties’ Arguments
¶ 28 The Village argued section 907.8.2 of the Fire Prevention Code required that fire alarm systems be tested annually and that each of defendant’s three buildings had fire alarm systems that were installed when the buildings were constructed, in accord with the 1967 National Building
Code, as adopted and amended by the Du Page County Board. The Village asserted that, because
defendant’s buildings had approved fire alarm systems, they were required to comply with the annual-testing requirement. The Village also asserted defendant failed to prove it was exempt from the annual-reporting requirement. It argued section 907.2 of the Fire Prevention Code (Downers
Grove Municipal Code § 17.45 (amended Aug. 12, 2017) (adopting Int’l Fire Code § 907.2 (2015), as amended)), on which defendant relied to establish its exemption, was inapplicable to defendant’s buildings, because it applied only to new buildings. The Village maintained that, even though defendant’s fire alarm system did not meet the building standards of the 2015 International
Fire Code, it did not have to upgrade its system, because the system was “grandfathered.”
However, the Village asserted, defendant also could not downgrade its system. Nevertheless, defendant was required to submit its fire alarm systems to annual tests because the annual-testing requirement was applicable to existing structures.
¶ 29 Defendant argued that it was not required to have a fire alarm system. Defendant maintained its buildings were classified as “Residential Group R-2” structures and, because each unit was separated by a firewall and had its own exit at grade level, it was exempt, under the Fire
Prevention Code, from having any fire alarm system. Further, because it was exempt from having a fire alarm system, it was also exempt from annually inspecting its existing system. Defendant also reiterated the fourth amendment and due-process clause arguments it made in its motion to dismiss.
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¶ 30 4. The Court’s Findings
¶ 31 On June 26, 2019, the trial court found defendant guilty of the violation. The court determined the record established defendant’s buildings had appropriate firewalls, there were no common areas, and each unit had its own exits and, because defendant had an existing, approved fire alarm system, it was not required to install a new system that complied with the current Fire
Prevention Code. Regardless, because it had an existing, approved system, it was obligated to comply with the annual-testing requirement.
¶ 32 The court stayed the imposition of any fine or penalty for the violation for 120 days, to
allow defendant to complete an inspection and file a report. In the event defendant complied in that timeframe, the court would waive any fines and costs.
¶ 33 F. Subsequent Proceedings
¶ 34 Defendant moved to reconsider, contending the Village failed to “prove [defendant] guilty of the charges *** beyond all reasonable doubt.” Specifically, defendant argued the evidence presented at trial demonstrated, and the court found, its buildings were not required to have fire protection systems under the Fire Prevention Code. It noted that, under section 901.6 of the Fire
Prevention Code (Downers Grove Municipal Code § 17.45 (amended Aug. 12, 2017) (adopting
Int’l Fire Code § 901.6 (2015), as amended)), nonrequired fire protection systems must be either
“inspected, tested and maintained or removed.” Defendant nevertheless argued that inspections were required only on required fire protection systems. Further, defendant maintained it was not only exempt from having any fire alarm systems, but also it could remove its existing system.
¶ 35 On August 28, 2019, the court denied the motion, stating it “still read the [Fire Prevention
Code] the same way, [i.e.,] that once there’s a fire protection system in place, the Village is entitled to have the annual inspections.” The written order entered that day stated, “Compliance to be
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¶ 36 On September 26, 2019, defendant filed a notice of appeal but later moved in this court to voluntarily dismiss the appeal, recognizing, in part, the order it appealed from, i.e., the August
2019 order denying its motion to reconsider, was not a final order. On July 6, 2020, we granted the motion.
¶ 37 In the meantime, on October 30, 2019, while defendant’s appeal was pending in this court, the trial court held a status hearing on the issue of defendant’s compliance with the annual-testing requirement. (The record contains no report of proceedings from the hearing.) The court entered a written order, imposing an aggregate $1500 fine ($500 fine for each count), plus costs. The order also stated payment was stayed pending the appeal and set a status date of April 22, 2020.
¶ 38 On November 27, 2019, the Village moved to reconsider or clarify the order. It contended the Fire Prevention Code and the Downers Grove Municipal Code required the court to enter a
fine for each day the violation continued after the citations were issued. According to the Village, 313 days elapsed between the date the citations were issued (December 21, 2017) and the date
defendant was found guilty (October 29, 2018). (Our calculation shows it was only 312 days.) The Village also sought clarification of the court’s order regarding compliance with the annual-testing requirement. It asserted the court, in its June 26, 2019, order, ordered defendant to come into compliance with the annual-testing requirement and asked that it be permitted to enforce that order while the appeal was pending.
¶ 39 Defendant responded that the Fire Prevention Code and the Downers Grove Municipal
Code did not require the court to enter a daily fine. Rather, it contended, the codes permitted the Village “to file numerous complaints or tickets against a defendant for each and every day the defendant is allegedly in violation of the Downers Grove Municipal Code, which the Village ***
- 10 - 2022 IL App (2d) 210098 did not do in this matter against Defendant.” And without separate notices for each day, defendant argued, the court lacked the authority to impose a daily fine. As to compliance, defendant argued the court did not have the authority to compel its compliance with the annual-testing requirement. ¶ 40 At the February 26, 2020, hearing on the Village’s motion, the court vacated its October 30, 2019, order (imposing the aggregate fine of $1500, plus costs) and placed the matter on inactive status due to defendant’s pending appeal. ¶ 41 In July 2020, this court having issued its mandate following the voluntary dismissal of plaintiff’s appeal, the matter reconvened for a status hearing on August 5, 2020. The trial court ultimately continued the matter to November 18, 2020, for “sentencing.” ¶ 42 At the November 18, 2020, hearing, the trial court noted it had vacated its October 30, 2019, order because it believed it lost jurisdiction over the matter when defendant appealed. [2] The court ultimately found it was required to assess a daily fine and imposed an aggregate fine of $23,475, which consisted of $75 per day for each of the 313 days between December 21, 2017,