2023 IL App (1st) 211513-U

No. 1-21-1513

Order filed February 14, 2023.

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

LEILA MENDEZ and ALONSO ZARAGOZA, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Cook County. ) v. ) ) CITY OF CHICAGO, a municipal corporation; ) No. 16 CH 15489 and KENNETH J. MEYER, in his official capacity ) as Commissioner of the City of Chicago Department ) of Business Affairs and Consumer Protection, ) The Honorable ) Cecilia A. Horan, Defendants-Appellees. ) Judge Presiding.

______________________________________________________________________________

PRESIDING JUSTICE LAVIN delivered the judgment of the court. Justices Hyman and Coghlan concurred in the judgment.

ORDER

¶1 Held: This court affirmed the judgment of the circuit court dismissing plaintiffs’ lawsuit challenging the City’s shared-housing ordinance due to lack of standing, ripeness, and on the merits.

No. 1-21-1513

¶2 Plaintiffs Leila Mendez and Alonso Zaragoza, both Chicago homeowners, sued the City of Chicago and the Commissioner of the Department of Business Affairs and Consumer

Protection (collectively, the City) claiming the shared housing ordinance, which was enacted in 2016, violated the Illinois Constitution. Specifically, they challenged the provisions relating to home inspections, the primary-residence rule, excessive noise, and banning single night rentals.

The circuit court granted the City’s motion to dismiss these claims, and plaintiffs now appeal.

We affirm.

¶3 BACKGROUND

¶4 We set forth only those facts pertinent to this appeal. The shared housing ordinance of the Chicago Municipal Code (Code) (Chicago Municipal Code § 4-14-010 et seq. (amended Sept. 9, 2020)) regulates the rental of homes in Chicago through websites like Airbnb and requires hosts to register and pay an annual fee to the Department of Business Affairs and Consumer

Protection.^[1] Id. § 4-14-020. A “shared housing unit” is “a dwelling unit containing 6 or fewer sleeping rooms that is rented, or any portion therein is rented, for transient occupancy by guests.”

Id. § 4-14-010. The ordinance regulates everything from what’s required on the advertised website listing to ensuring that guests have clean towels and utensils, while also mandating that

hosts notify the police of any criminal activity, egregious condition, or nuisance taking place in the shared housing unit. Id. § 4-14-040. It also prohibits guests from making excessively loud

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No. 1-21-1513 noise during the evening and early morning hours or committing illegal acts like drug trafficking and prostitution. Id. § 4-14-010; § 4-14-050. Registered homes are subject to inspection every two years; however, the building commissioner has not yet issued such rules and regulations. Id.

§ 4-16-230. Further, relevant to this appeal, the ordinance generally requires that single family homes and duplexes or row houses be the host’s “primary residence,” meaning the place where the host lives most of the year (hereinafter, the primary residence rule).2 Id. § 4-14-010; § 4-14-

060(d), (e). The Commissioner, however, may grant adjustments to the primary residence rule

where it’s an extraordinary burden to the host and the adjustment does not adversely impact the surrounding property owners or public. Id. § 4-14-060(d), (e); § 4-14-100(a). Finally, the shared housing rules ban single-night rentals. Id. § 4-14-050(e) (amended Sept. 9, 2020); see also 4-14-

050(f) (amended Sept. 9, 2020).

¶5 On November 29, 2016, plaintiffs filed a complaint against the City, raising various state

constitutional claims as to the shared housing ordinance. Among them, plaintiffs alleged the inspection provision violated their right to be free from unreasonable searches and seizures and their right to privacy because they authorized the warrantless searches of their homes (Count 1).

They also alleged the primary residence rule violated substantive due process because it was not rationally related to a legitimate governmental interest and the adjustment exception to the rule was impermissibly vague (Count 3). Finally, they alleged the noise rule violated substantive due process (Count 6) insofar as it was vague and equal protection insofar as it arbitrarily

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No. 1-21-1513 discriminated against shared housing units by subjecting them to harsher restrictions than hotels and bed-and-breakfasts (Count 7).

¶6 Plaintiff Mendez alleged that she was injured because the ordinance basically precluded her from using the Airbnb platform to rent out her home, as she was avoiding being “subject to warrantless searches and other restrictions the Ordinance places on shared housing units.”

Plaintiff Zaragoza alleged that he owns a home and a three-unit residential building in Chicago.

Plaintiff Zaragoza would be injured because he rents out a room in his home as a shared housing unit that could be subjected to warrantless searches, as well as the excessive noise rules. He

further alleged that the ordinance precluded him from using the Airbnb platform to rent out the unit in his three-unit building because it is not his primary residence. The two plaintiffs finally alleged they suffered injury as Chicago taxpayers. They asked for declaratory and injunctive relief, and the award of attorney fees.

¶7 Pursuant to the City’s motion (see 735 ILCS 5/2-619.1 (West 2016)), the circuit court dismissed with prejudice Counts 1, 6, and 7.3 The court also dismissed with prejudice plaintiffs’ due process and equal protection challenges in Count 3, but denied the motion as to the primary residence rule adjustment provision in that same count.

¶8 Plaintiffs filed an amended complaint, again challenging the primary residence rule and its exception as violating the Illinois Constitution (Count 2). That also was dismissed pursuant to the City’s motion. Plaintiffs’ second-amended complaint resulted in cross-motions for summary judgment. The City prevailed after the court determined that plaintiffs lacked an injury-in-fact and, contrary to the court’s earlier finding, taxpayer standing; their claim also failed on the 211516

No. 1-21-1513 merits. Last, plaintiffs filed a third-amended complaint adding that the single-night ban violated separation of powers (Count 8) by unlawfully delegating legislative authority to administrative officials. Plaintiffs maintained they previously rented out their shared housing units for single

nights and would do so but for the ban. The circuit court granted the City’s motion to dismiss the third-amended complaint, finding that plaintiffs lacked standing based on severability principles.

¶9 This appeal followed.

¶ 10 ANALYSIS

¶ 11 This appeal arises from an order granting defendants’ combined motion to dismiss filed under section 2-619.1 of the Code of Civil Procedure. 735 ILCS 5/2-619.1 (West 2016). Section

2-619.1 of the Code allows a party to file a combined section 2-615 and section 2-619 motion to dismiss. Henderson Square Condominium Association v. LAB Townhomes, LLC, 2015 IL

118139, ¶ 32. A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint. Carr v. Koch, 2012 IL 113414, ¶ 27. In other words, a section 2-615 motion to

dismiss tests the legal sufficiency of the complaint based on defects apparent on the face of the pleading. Veazey v. Board of Education of Rich Township High School District 227, 2016 IL

App (1st) 151795, ¶ 32. The relevant inquiry is whether the allegations of the complaint, construed in the light most favorable to the plaintiff, set forth sufficient facts to establish a cause of action upon which relief may be granted. Id. In making this determination, all well-pleaded facts must be taken as true. LAB Townhomes, LLC, 2015 IL 118139, ¶ 61. A section 2-619 motion to dismiss, on the other hand, admits as true all well-pleaded facts, along with all

reasonable inferences that can be gleaned from those facts, but asserts an affirmative defense or other matter that avoids or defeats the claim. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34;

Carr, 2012 IL 113414, ¶ 27; see also Veazey v. Board of Education of Rich Township High

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School District 227, 2016 IL App (1st) 151795, ¶ 23 (noting, this encompasses standing, which is an affirmative defense). We interpret the pleadings and supporting documents in the light most

favorable to the nonmoving party. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34. We review the trial court’s granting of a motion to dismiss under sections 2-615 and 2-619, as well as its determination on standing, de novo. Illinois Association of Realtors v. Stermer, 2014 IL App

(4th) 130079, ¶ 16.

¶ 12 Here, plaintiffs have moved for declaratory judgment, and thus, are bound to establish the elements of the cause of action: (1) a plaintiff with a legally tangible interest; (2) a defendant with an opposing interest; and (3) an actual controversy between the parties as to those interests.

Beahringer v. Page, 204 Ill. 2d 363, 372 (2003). These same elements must be proven to establish standing in this context. Harris Bank of Roselle v. Village of Mettawa, 243 Ill. App. 3d

103, 109 (1993); see also Village of Chatham, 216 Ill. 2d 402, 419 (2005) (“Standing is a preliminary question in all declaratory judgment actions.”). An “actual controversy,” requires a showing that the underlying facts and issues of the case are not moot or premature, such that a

court must pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice on future events. Beahringer, 204 Ill. 2d at 374-75. Likewise, “interested parties” must possess a personal claim, status, or right which is capable of being affected, as

opposed to a mere curiosity or concern for the controversy’s outcome. Harris Bank of Roselle, 243 Ill. App. 3d at 109. Therefore, a plaintiff seeking to challenge the constitutionality of a municipal ordinance must have sustained, or be in immediate danger of sustaining, a direct injury as a result of the enforcement of the challenged ordinance. Carr, 2012 IL 113414, ¶ 28.

¶ 13 We further observe that municipal ordinances are presumed constitutional. Fedanzo v. City of Chicago, 333 Ill. App. 3d 339, 346 (2002). The party challenging the constitutionality of 211518

No. 1-21-1513 an ordinance has the burden of rebutting the presumption of validity and establishing a

constitutional violation by clear and convincing evidence. Village of Chatham v. County of Sangamon, 216 Ill. 2d 402, 417 (2005); O'Donnell v. City of Chicago, 363 Ill. App. 3d 98, 105

(2005); see also Village of Chatham, 216 Ill. 2d at 417 (a court should uphold an ordinance’s validity if reasonably possible). Further, where, as here, plaintiffs challenge an ordinance as facially invalid, they must establish there are no set of circumstances where the ordinance would be valid. In re M.A., 2015 IL 118049, ¶ 39. The fact that a statute could be found unconstitutional under some circumstances does not establish its facial invalidity. Id. Consequently, a facial challenge to the constitutionality of a legislative enactment is the most difficult challenge to mount successfully. Id. We note that municipal ordinances are construed using the same rules that apply to statutes. ^[4] Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008).

¶ 14 At the outset, the City contends plaintiffs lack standing to pursue their claims, some of which are not ripe. The City additionally maintains plaintiffs’ constitutional claims fail on the merits. In other words, the City contends that the facts as pled in the complaints supplied rational bases for the ordinance provisions. We address these arguments regarding the dismissed counts each in turn.

¶ 15 Inspection Provisions (Count 1, Original Complaint)

¶ 16 Plaintiffs first contend the inspection provisions of the ordinance violate the Illinois

Constitution’s prohibition against unlawful search and seizure and are thus facially invalid.

Article 1, section 6, provides people “the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without

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No. 1-21-1513

probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” Ill. Const. 1970, art. I, § 6. Plaintiffs note that courts largely construe this section consistent with the Supreme Court’s fourth amendment jurisprudence. Fink v. Ryan, 174 Ill. 2d 302, 314 (1996). Yet, the City maintains we need not reach the merits of this claim because under the ordinance plaintiffs lack standing to raise Count 1. We agree.

¶ 17 Under the ordinance, the building commissioner can mandate inspection of any “shared

housing unit operated by a shared housing unit operator *** at a time and in [a] manner, including through third-party reviews, as provided for in rules and regulations promulgated by

the building commissioner.” 5 (Emphasis added.) Chicago Municipal Code § 4-16-230 (June 22, 2016). The ordinance defines a “Shared housing unit operator” as a “person who has registered, or who is required to register, as the shared housing host of more than one shared housing unit.”

(Emphasis added.) Id. § 4-16-100. The City points out that neither plaintiffs Mendez nor Zaragoza has alleged they operate more than one shared housing unit. Rather, plaintiff Zaragoza

rents out only one unit as a shared housing unit; plaintiff Mendez has ceased doing so due to the ordinance provisions. In short, plaintiffs are simply not currently subject to any inspection provisions. They thus lack standing to challenge the inspection provision of the ordinance

because they are not interested parties, as required. They do not have a personal claim, right or status that is capable of being affected. See Harris Bank of Roselle, 243 Ill. App. 3d at 109. They also have not sustained, and are not in immediate danger of sustaining, a direct injury as a result of the enforcement of the challenged ordinance. See Carr, 2012 IL 113414, ¶ 28; cf. City of Los

Angeles, California v. Patel, 576 U.S. 409, 413-14 (2015) (noting that in challenging a city code as facially invalid under the Fourth Amendment, the respondents-plaintiffs stipulated they had

The time frame is at least once every two years for this. 5

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No. 1-21-1513 been subjected to mandatory record inspections under the ordinance without consent or a warrant).

¶ 18 We also agree with the City that this claim is not ripe. To determine if an action is premature or unripe, courts evaluate the fitness of the issue for judicial decision during that point in time. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010). Here, the ordinance states the building commissioner can mandate inspection of a shared housing unit “as provided for in rules and regulations promulgated by the building commissioner.” Chicago Municipal

Code § 4-16-230 (June 22, 2016). Yet, the building commissioner has not promulgated any rules in connection with the inspections, making plaintiffs’ claim premature. See Beahringer, 204 Ill.

2d at 372, 374-75; see also Drayson v. Wolff, 277 Ill. App. 3d 975, 979 (1996) (“Where a matter is contingent or uncertain, a court will not declare the rights of the parties to that matter.”).

Contrary to plaintiffs’ contention otherwise, and as the City concedes, this clearly means there can be no inspections until there are implementing rules. The ordinance as written has no effect.

As such, there is no actual controversy regarding the inspections, and also we decline to render an advisory opinion. Cf. Miles Kimball Co. v. Anderson, 128 Ill. App. 3d 805, 807 (1984)

(finding an actual controversy where the defendant sought $150,000 from the plaintiff and referred to their contractual business dispute as a controversy).

¶ 19 We further observe that the fourth amendment permits “administrative searches” of hotel

records, provided there are appropriate safeguards in place. See Patel, 576 U.S. 409, 420 (“The Court has held that absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.”). Yet, whether the 211521

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administrative search exception to the fourth amendment applies in the shared housing context or whether the ordinance is facially valid must be left for another day.

¶ 20 In reaching this conclusion, we reject plaintiffs’ contention that the absence of implementing rules for the ordinance warrants an injunction. Notably, after filing their complaint plaintiffs withdrew their motion for a preliminary injunction as to Count 1 because the City represented that it would not conduct the complained-of inspections absent the aforementioned

rules. On appeal, the City concedes that the ordinance as written precludes inspections, and plaintiffs have not pointed to any violations in that regard by city officials, thereby obviating any need for an injunction. Plaintiffs also insist their claim is ripe, citing Rush v. Obledo, 756 F. 2d

713, 721-22 (9th Cir. 1985). That case did not address ripeness, but rather, whether a California statute providing for warrantless administrative searches of family day care homes at any time was over broad for fourth amendment purposes. Rush is inapposite because the statute itself provided some guidance, whereas the ordinance at issue here does not yet do so. And, as the City notes, plaintiffs do not dispute that an agency’s rules can properly limit the scope of a broadly worded ordinance.

¶ 21 The Primary Residence Rule Exception (Count 2, Amended Complaint)

¶ 22 Plaintiffs next contend the adjustment exception to the primary residence rule violates

substantive due process, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” See Ill.

Const. 1970, art. I, § 2. Here, sections 4-14-060(d) and (e) generally prohibit shared housing hosts of single family homes and duplexes or row houses from utilizing airbnb unless it is their primary residence. The ordinance lists several exceptions, such as for individuals on active military duty, and those that qualify for the commissioner’s adjustment under section 4-14-

- 10 - No. 1-21-1513 100(a). Chicago Municipal Code § 4-14-010; § 4-14-060(d), (e) (amended November 9, 2016). Section 4-14-100(a), in turn, states “[s]uch an adjustment may be approved only if, based on a review of relevant factors, the commissioner concludes that such an adjustment would eliminate an extraordinary burden on the applicant in light of unique or unusual circumstances and would not detrimentally impact the health, safety, or general welfare of surrounding property owners or the general public.” Id. § 4-14-100(a). It then lists the factors as including “by way of example and not limitation” geography, population density, and the legal nature and history of the applicant, etc. Id. ¶ 23 Plaintiffs now argue the ordinance provides the commissioner with unconstrained authority to make exceptions to the primary residence rule without providing any objective guidance. They thus maintain the criteria is vague and contend the ordinance is facially invalid. The City responds that plaintiffs have no standing to challenge this exception because it is severable from the remainder of the ordinance. In other words, even if we struck the exception as unconstitutional, the rule requiring that single family homes and duplexes or row houses be the host’s “primary residence” would still stand. Chicago Municipal Code §§ 4-14-010; 4-14-060(d), (e) (June 22, 2016). Plaintiffs counter that the City failed to raise this particular standing challenge in the court below (although they cite no legal authority in support of this counterargument). See Lebron, 237 Ill. 2d at 252-53 (a lack of standing is an affirmative defense, which the defendant forfeits if he does not timely plead it); see also Ill. S. Ct. R. 341(h)(7) (eff. Oct. ^[1], 2020) (an appellant’s argument must contain the contentions of the appellant and reasons therefor with citation to the authorities relied on). ¶ 24 We observe that the City challenged standing on other grounds in its motion to dismiss the complaint. However, as the City notes, plaintiff Mendez does not allege that the primary - 11 - No. 1-21-1513 residence rule or the commissioner’s adjustment precludes her from renting her home. She thus has no injury at all. While plaintiff Zaragoza alleged the primary residence rule precluded him from renting out a unit, on appeal he abandons that argument and challenges only the commissioner’s adjustment exception. The fact that plaintiff Zaragoza challenged both provisions together before the circuit court arguably explains why the City did not raise severability at that time. ¶ 25 Regardless, we emphasize that forfeiture is a limitation on the parties, not on the court, and we may exercise our discretion to review an otherwise forfeited issue. Deutsche Bank National Trust for Argent Securities Inc., 2017 IL App (1st) 161466, ¶ 12; In re Estate of Henry, 396 Ill. App. 3d 88, 94 (2009) (same). Likewise, we will not consider a constitutional question unless it is essential to the disposition of a case, i.e., where the case cannot be determined on other grounds. Given the record before us, we proceed in our review of plaintiff Zaragoza’s standing. See Henry, 396 Ill. App. 3d at 94. ¶ 26 We first observe that the Code has a general severability clause: “If any part, section, sentence, clause or application of this Code shall be adjudged invalid, void and of no effect for any reason, such decision shall not affect the validity of the remaining portions of the titles, chapters, sections or other provisions of this Code, or their application to other circumstances.” Chicago Municipal Code § 1-4-200 (June 27, 1990). While not conclusive, such clauses establish a presumption that the legislature, or in this case city council, intended for an invalid ordinance provision to be severable. Northern Illinois Home Builders Association, Inc. v. County of Du Page, 165 Ill. 2d 25, 48 (1995). This presumption will be overcome and the entire ordinance held unconstitutional if the legislative body would not have passed the ordinance with the invalid portion eliminated. Id. We consider whether the legislative purpose or object in passing the - 12 - No. 1-21-1513 ordinance is significantly undercut or altered by the elimination of the invalid provisions. Rivera v. Bank of New York Mellon, 2021 IL App (1st) 192188, ¶ 28. The issue of severability thus involves a question of ordinance construction, in that we must ascertain and give effect to the legislative body’s intent. See People ex rel. Chicago Bar Association v. State Board of Elections, 136 Ill. 2d 513, 534 (1990). ¶ 27 In this case, the legislative intent is clear from the plain language of the ordinance, when read in context, and legislative commentary. First, the primary residence rule and details of the narrow exception appear in separate sections of the ordinance, thus supporting severability. Second, plaintiffs do not challenge the court’s findings below that the City has a legitimate interest in local neighborhood preservation, continuity and stability (see Nordlinger v. Hahn, 505 U.S. ^[1], 12 (1992)), and that the primary residence rule is rationally related to protecting that interest, including safeguarding residential neighborhoods in particular. As noted during the city council’s committee meeting prior to the September 2020 ordinance amendment, the primary residence rule was intended to curb investor rentals in residential neighborhoods with single- family homes and townhouse walk-ups; as a matter of common sense, those residing in and more closely watching their homes a majority of the year have a greater stake in renting them to well- behaved and legally-compliant guests. Virtual Committee on License and Consumer Protection (August 25, 2020). As one alderman observed, it’s rare to hear about out-of-control parties at bed and breakfasts. Id. All this leads us to conclude that the primary residence rule takes primacy over its narrow, discretionary exception that plaintiffs now attack on appeal. See Village of Chatham, 216 Ill. 2d at 417 (we must uphold an ordinance’s validity if reasonably possible); cf. Commercial National Bank of Chicago v. City of Chicago, 89 Ill. 2d 45, 75-76 (1982) - 13 - No. 1-21-1513 (severability will not be found if it broadens the scope of the ordinance or alters it in a manner contrary to the legislative intent). ¶ 28 Therefore, the primary residence rule and its narrow exception are not so mutually connected or interdependent on each other that the city wouldn’t have passed the former without the latter. See Northern Illinois Home Builders Association, Inc. v. County of Du Page, 165 Ill. 2d 25, 48-49 (1995); Rivera, 2021 IL App (1st) 192188, ¶ 28. In short, they are severable. Thus, even if plaintiff Zaragoza established the exception as invalid, the primary residence rule — which he does not challenge on appeal — remains valid and still prevents him from obtaining relief. Village of Chatham, 216 Ill. 2d at 423 (fundamentally, a court will not determine the constitutionality of an ordinance provision that does not affect the parties to the cause under consideration). ¶ 29 Even severability aside, we note that it is plaintiff Zaragoza’s burden as the appellant to affirmatively establish the errors on review. See Healy v. Bearco Management, Inc., 216 Ill. App. 3d 945, 958 (1991); see also First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976) (the burden of persuasion remains with the appellant despite the appellee’s failure to file a brief). Likewise, he must establish a direct injury as a result of enforcing the challenged ordinance. Carr, 2012 IL 113414, ¶ 28. Yet, in his opening brief plaintiff Zaragoza failed to argue that invalidating the exception to the rule also invalidates the rule. Therefore, he has not sustained his burden on appeal or established an injury leading to recovery. See LAB Townhomes, LLC, 2015 IL 118139, ¶ 61; see also In re M.I., 2013 IL 113776, ¶ 32 (a party must be directly affected by the attacked provision and in danger of sustaining an injury as a result of the enforced provision); Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 493 - 14 - No. 1-21-1513 (2008) (noting, we must affirm the circuit court’s order where it appears that plaintiffs can prove no set of facts that would entitle them to recovery). For that reason, alone, his claim fails. ¶ 30 Additionally, regarding plaintiff Zaragoza’s vagueness challenge to the ordinance, our supreme court has made clear that a plaintiff has standing to challenge the constitutionality of an ordinance on its face only if the challenged language implicates first amendment rights. Owens v. Department of Human Rights, 403 Ill. App. 3d 899, 927 (2010), citing People v. Jihan, 127 Ill. 2d 379, 385-86 (1989); see also People v. Izzo, 195 Ill. 2d 109, 112 (2001) (same). This ordinance section does not implicate first amendment rights. As such, plaintiff Zaragoza can only argue the ordinance is vague as applied to himself. See id.; O'Donnell v. City of Chicago, 363 Ill. App. 3d at 105. Yet, he has not done so, and nor can he since he has not exhausted the relevant administrative remedies. The City noted this much in its motion to dismiss the complaint. ¶ 31 “Where an agency is vested by the legislature with the authority to administer the statute, declaratory relief is not available; judicial interference must be withheld until the administrative process has run its course.” Beahringer, 204 Ill. 2d at 375. Courts apply the exhaustion doctrine to declaratory judgment actions, and moreover, this doctrine applies even when the grievance involves a constitutional violation. Id. at 374-75. In this case, the City via its home-sharing ordinance vested the Department of Business Affairs and Consumer Protection and its commissioner with the authority of determining whether an applicant qualifies for the adjustment exception to the primary residence rule. Chicago Municipal Code § 4-14-100 (amended Sept. 9, 2020); see also Chicago Municipal Code § 2-14-010 (February 15, 2012) (establishing the City’s department of administrative hearings). If the commissioner denies the adjustment application, the applicant can request an evidentiary hearing that is then subject to judicial review. Id. § 4-14- 100(c). Yet, there is no evidence that plaintiff Zaragoza has fully availed himself of that - 15 - No. 1-21-1513 administrative remedy, and he has not adequately pled the exhaustion of administrative remedies. ^[6] Thus, plaintiff Zaragoza’s claim is not legally cognizable. ¶ 32 The Single-Night Rental Ban (Count 8, Third-Amended Complaint) ¶ 33 Plaintiffs next contend that the ban against single-night rentals violates separation of powers, thereby violating the Illinois Constitution (Ill. Const. 1970, art. IV, § 1), because the ordinance improperly delegates to the commissioner and police superintendent the public-policy decision of whether, when and under what conditions the single-night rental of shared housing units will be lawful in Chicago. Plaintiffs maintain that this gives the commissioner and police superintendent arbitrary authority and unguided discretion. Plaintiffs argue they previously rented out shared housing units for single nights and would do so now but for the ban. ¶ 34 The City maintains, as it did below, that plaintiffs lack standing based on severability principles. The single-night rental ban specifically provides: “It shall be unlawful for any shared housing host to rent any shared housing unit, or any portion thereof, for any period of less than two consecutive nights until such time that the commissioner and superintendent of police determine that such rentals can be conducted safely under conditions set forth in rules jointly and duly promulgated by the commissioner and superintendent.” § 4-14-050(e) (amended Sept. 9, 2020); see also 4-14-050(f) (amended Sept. 9, 2020).