Wortham v. The City of Chicago Department of Administrative Hearings ( 2015 )

Illinois Official Reports
Appellate Court
Wortham v. City of Chicago Department of Administrative Hearings,
2015 IL App (1st) 131735
Appellate Court CHARLETTE WORTHAM, Plaintiff-Appellant, v. THE CITY OF
Caption CHICAGO DEPARTMENT OF ADMINISTRATIVE HEARINGS,
and CHICAGO ANIMAL CARE AND CONTROL, Defendants-
Appellees.
District & No. First District, Fifth Division
Docket No. 1-13-1735
Filed May 1, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 12-M1-450418;
Review the Hon. Mark Ballard, Judge, presiding.
Judgment Affirmed.
Counsel on Law Offices of Tracy McGonigle, of Woodstock (Tracy McGonigle,
Appeal of counsel), for appellant.
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kasper, and Julian N. Henriques, Jr.,
Assistant Corporation Counsel, of counsel), for appellees.
Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Justices McBride and Reyes concurred in the judgment and opinion.
OPINION
¶1 This is an administrative review action. Following a hearing, the City of Chicago
department of administrative hearings (the Department) found that three Rottweilers owned by
plaintiff, Charlette Wortham, were “dangerous animals” under section 7-12-020 of the
Municipal Code of Chicago (the Code) (Chicago Municipal Code § 7-12-020 (amended Nov.
19, 2008)). Under that section, a dangerous animal is “any animal which bites, inflicts injury
on, kills or otherwise attacks a human being or domestic animal without provocation on any
public or private property.” Id. Plaintiff sought administrative review in the circuit court of
Cook County, which affirmed the Department’s judgment. Plaintiff now appeals.
¶2 Following an incident between her three Rottweilers and a pit bull owned by John Young
on January 11, 2012, plaintiff received a letter of determination from the executive director of
the City’s department of animal care and control (DACC) that her dogs were “dangerous
animals.” On June 26, 2012, the Department held a hearing regarding that determination
before an administrative law judge (ALJ). Plaintiff appeared at the hearing pro se. The
following evidence was presented at that hearing.
¶3 John Young testified that on January 11, 2012, he was in an unfenced portion of his yard
with his unleashed pit bull, Brandy. Young saw plaintiff walking four leashed Rottweilers
down the street and shortly thereafter he noticed that three of those dogs had broken away from
plaintiff and were dragging their leashes on the ground. The three Rottweilers ran into his yard
and attacked Brandy by biting her tail and body. Young’s daughter then came out of the house
and helped him pull the Rottweilers off of Brandy. Brandy’s tail was almost bitten off and she
had bite marks on her upper thigh. Young took Brandy to a veterinarian and spent over $2,500
for treatment. Young’s daughter, Cashara, testified that she saw the Rottweilers attacking
Brandy after she came out of the house and she assisted in pulling the Rottweilers off of
Brandy.
¶4 J. Franklin executed an affidavit that was admitted into evidence without objection.
Franklin stated in his affidavit that he drove by the Young residence and saw three Rottweilers
who were being walked by a woman break away from the woman, run into Young’s yard, and
attack a pit bull.
¶5 Chicago police officer Ruben Orta testified that he went to the Young residence on January
11, 2012, after he was assigned to investigate the above dog-biting incident. Officer Orta spoke
to Young, who told him that plaintiff’s dogs were on the leash when Brandy “ran up to” the
Rottweilers on the sidewalk in front of Young’s property. The dogs then got into a fight.
Officer Orta also testified that he did not think plaintiff was able to control all four of her
leashed dogs because of their massive size, but he acknowledged that plaintiff’s dogs were
under control after the incident during Officer Orta’s conversation with plaintiff.
¶6 Vanessa Thigpen testified about a prior dog-bite incident involving her Pomeranian mix,
King, and one of plaintiff’s Rottweilers. Specifically, Thigpen testified that on July 31, 2011,
she drove with her dog and two passengers to a friend’s house. After she parked the vehicle,
one of her passengers opened the rear door on the passenger side, whereupon the biggest of the
four Rottweilers, Hugo, ran over and bit King. Plaintiff had Hugo on the leash when Thigpen
first saw Hugo, but Hugo was able to break free from the leash. Thigpen also testified that King
had three teeth bites in him according to the examination conducted by his veterinarian.
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¶7 Alan Holcomb, an investigator with the DACC, investigated plaintiff’s case and made the
determination that plaintiff’s Rottweilers Hugo, Moo Moo, and Thumbelina were dangerous
animals. In investigating the incident, Holcomb spoke with plaintiff, Young, Young’s
daughter, J. Franklin, and Officer Orta. Holcomb acknowledged that he did not speak with
Officer Orta until after he determined that plaintiff’s dogs were dangerous animals. Officer
Orta told Holcomb that he had spoken with Young and that Young said it was “his fault” and
that his “dog was off the leash.” Holcomb further testified that he learned about the incident
involving King and Hugo during his investigation of the Brandy incident.
¶8 John Wood testified that, on January 11, 2012, he witnessed the incident between the
Rottweilers and the pit bull from his front porch. Wood’s house is across the street and three
houses down from Young’s house. According to Wood, plaintiff was walking her Rottweilers
on the sidewalk bordering Young’s yard when Brandy “ran up” and “approached” the
Rottweilers, at which point the Rottweilers “got off [the] leash.” Wood characterized Brandy
as “aggressive” and believed that the Rottweilers were “attacking because the pit bull was the
aggressor.” Wood also testified that plaintiff “dropped” the leash when Brandy approached her
dogs and that the “pit bull bit first.”
¶9 Plaintiff testified on her own behalf that Brandy, who was unleashed, charged plaintiff’s
Rottweilers and bit them. She further testified that Brandy bit Moo Moo, but not Hugo.
Although plaintiff admitted that, in the prior incident on July 31, 2011, her Rottweiler Hugo
broke away from her and attacked King, she testified that King was barking at Hugo before the
incident. Plaintiff was asked if her dogs had been involved in any dog-bite incidents other than
those involving Brandy and King, and she responded that it was “not relevant” to the case but
that she “did have an incident with my dog.” When asked to describe the incident, plaintiff
responded, “I won’t answer.”
¶ 10 Plaintiff was previously asked by the DACC to write a statement detailing the incident.
That statement, which was admitted into evidence, stated that Hugo and Moo Moo fought
Brandy instinctively to defend themselves in response to Brandy’s engagement. In addition,
Thumbelina did not bite Brandy.
¶ 11 Besides the above testimony, written statements from plaintiff’s veterinarian and 20
residents from plaintiff’s neighborhood were admitted into evidence. The veterinarian stated
that the three Rottweilers had never shown aggression or exhibited vicious behavior to him or
to his staff. The 20 statements essentially stated that they had seen plaintiff with her dogs and
that she was able to control them.
¶ 12 The ALJ affirmed the determination that the three Rottweilers were dangerous animals
under the Code. The ALJ stated that, despite the letters from residents of plaintiff’s
neighborhood, the ALJ did not believe plaintiff could control her dogs, who “attacked at least
two animals.” While plaintiff “refused to answer [questions about] a possible third attack on an
*** animal,” the ALJ stated that plaintiff’s dogs “did attack Brandy” and “did attack King.”
The ALJ ordered plaintiff to comply with sections 7-12-050(c)(1) through (c)(6) and (c)(8) of
the Code. Those sections require the owner to keep the dangerous animal in a way that
prevents them from attacking human beings and other animals in the future, which includes
installation of identifying chip and sterilization. Chicago Municipal Code § 7-12-050(c)(1)-(6)
(amended Mar. 14, 2007). Plaintiff thereafter sought review in the circuit court of Cook
County, which affirmed the ALJ’s decision. Plaintiff now appeals.
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¶ 13 On appeal, this court’s role is to review the administrative decision rather than the circuit
court’s decision. Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 847 (2007). For
any given issue, the appropriate standard of review, which reflects the level of deference we
afford the administrative agency, depends on whether the issue is one of fact, one of law, or a
mixed question of law and fact. Id. An agency’s findings of fact are deemed prima facie true
and correct and will not be overturned unless they are against the manifest weight of the
evidence. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,
210 (2008). An agency’s factual findings are against the manifest weight of the evidence “if
the opposite conclusion is clearly evident.” Id. An agency’s decision on a question of law,
however, is not binding on a reviewing court and is reviewed de novo. Id. An agency’s ruling
on a mixed question of law and fact–a question in which the historical facts are admitted, the
rule of law is undisputed, and the only question is whether the facts satisfy a statutory standard
with which the agency has expertise–will not be disturbed unless clearly erroneous. Id. at 211.
Under this standard, we afford some deference to the agency’s experience and expertise and
we must accept the agency’s finding unless after reviewing the record we are left with the
“ ‘definite and firm conviction that a mistake has been committed.’ ” AFM Messenger Service,
Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391-95 (2001) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
¶ 14 Plaintiff first contends that the ALJ erred in finding that the defense of provocation was not
available in cases where a dog provokes another dog. Plaintiff claims that provocation should
be extended to include cases where one dog provokes another, which she asserts happened in
this case. Plaintiff reasons that it would be absurd to interpret the statutory language to mean
that a dog could not provoke another dog because such interpretation is contrary to common
sense and practical experience.
¶ 15 The City responds that plaintiff forfeited this issue because she did not raise it during the
administrative hearing. “It is quite established that if an argument, issue, or defense is not
presented in an administrative hearing, it is procedurally defaulted and may not be raised for
the first time before the circuit court on administrative review.” Cinkus, 228 Ill. 2d at 212-13.
Our review of record establishes that plaintiff never argued during the administrative hearing
that the defense of provocation should be extended to situations where one dog provokes
another. Therefore, the argument is forfeited and cannot be raised on appeal.
¶ 16 Forfeiture aside, plaintiff’s argument has no merit. The question of whether provocation
applies to situations in which one animal provokes another requires an interpretation of the
Code, which is a question of law that we review de novo. See Cinkus, 228 Ill. 2d at 211. The
rules of statutory construction apply to municipal ordinances. LeCompte v. Zoning Board of
Appeals, 2011 IL App (1st) 100423, ¶ 22. When the language of an ordinance is clear and
unambiguous, reviewing courts should not depart from the plain language and meaning of the
municipal ordinance by reading into it exceptions, limitations or conditions that the legislature
did not express. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).
¶ 17 Section 7-12-020 of the Code sets out five criteria under which an animal can be found to
be a “dangerous animal.” As relevant to this case and as previously noted, a dangerous animal
is defined as “[an] animal which bites, inflicts injury on, kills or otherwise attacks a human
being or domestic animal without provocation on any public or private property.” (Emphasis
added.) Chicago Municipal Code § 7-12-020 (amended Nov. 19, 2008). The Code defines
“provocation” in the following manner:
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“ ‘Provocation’ means that the threat, injury or damage caused by the animal was
sustained by a person who, at the time, was committing a willful trespass or other tort
upon the premises occupied by the owner of the animal, or was tormenting, abusing, or
assaulting the animal, or was committing or attempting to commit a crime.” (Emphasis
added.) Chicago Municipal Code § 7-12-020 (amended Nov. 19, 2008).
¶ 18 In this case, the plain language of the Code clearly limits provocation to situations where “a
person” provokes a dog. Had the city council intended the defense to be available when an
animal provokes another animal, it could have done so by adding the phrase “by a person or
animal” to the definition of provocation. However, the city council did not do so. Additionally,
plaintiff does not cite any legislative history indicating that the defense of “provocation” was
intended to apply to the situation where an animal provokes another animal. Therefore, since
the language of the ordinance is clear and unambiguous, we will not depart from it in order to
expand the meaning of provocation to the situation where a dog provokes another dog. See
Kraft, 138 Ill. 2d at 189.
¶ 19 Plaintiff next contends that she was deprived of her fundamental right to due process of law
when the ALJ allowed Thigpen to testify about the incident between Hugo and King. Plaintiff
claims that Thigpen’s testimony was irrelevant and prejudicial. Plaintiff further claims that
allowing Thigpen to testify violated plaintiff’s right to confront and cross-examine the witness
against her.
¶ 20 The City responds that plaintiff forfeited this argument because she did not object to
Thigpen testifying during the administrative hearing. Our review of record shows that Thigpen
testified about the incident between Hugo and King without objection from plaintiff.
Therefore, plaintiff has forfeited her challenge to Thigpen’s testimony.
¶ 21 Plaintiff’s argument is meritless even if it was not forfeited. Whether one is deprived of
fundamental right to due process is a question of law, which is reviewed de novo. Buckner v.
University Park Police Pension Fund, 2013 IL App (3d) 120231, ¶ 21. Procedural due process
in an administrative proceeding does not require a proceeding in the nature of a judicial
proceeding. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 92
(1992). However, a reviewing court has a duty to examine the procedural methods employed at
the administrative hearing to ensure that a fair and impartial procedure was used. Id. at 92-93.
A fair hearing before an administrative agency includes the right to cross-examine adverse
witnesses and impartiality in ruling upon the evidence. Id.
¶ 22 In this case, section 7-12-050 of the Code authorizes the executive director of DACC to
determine whether a particular animal “is a dangerous animal,” rather than whether it was a
dangerous animal at one specific moment in the past. The determination of whether an animal
is a “dangerous animal,” therefore, depends on all of this animal’s behaviors rather than the
animal’s behavior in one particular instance. This is the reason that plaintiff was allowed to
submit letters into evidence from her veterinarian and residents in her neighborhood attesting
to the dogs’ behavior and plaintiff’s ability to control her dogs. Thus, the incident involving
Hugo and King was relevant to the determination of whether Hugo was a dangerous animal,
and its consideration by the ALJ did not deprive plaintiff of her right of a fair hearing.
Furthermore, during the administrative hearing, plaintiff had the chance to cross-examine
Thigpen but chose not to do so. Therefore, plaintiff was not denied her right to cross-examine
the witnesses against her.
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¶ 23 Plaintiff claims that the ALJ made an improper reference to a possible third incident
involving her dogs. However, our review of record shows that the ALJ did not rely upon the
incident in coming to his determination.
¶ 24 Plaintiff also claims that Thigpen’s testimony was prejudicial because the ALJ relied upon
it to conclude that all three of plaintiff’s dogs were dangerous animals even though Thigpen’s
testimony only indicated that Hugo was involved in the King incident. Plaintiff specifically
references the ALJ’s statement about her three dogs that “they attacked at least two animals.”
Plaintiff has forfeited this claim as well because she failed to object when the ALJ made the
above statement when announcing his decision. See Pesoli v. Department of Employment
Security, 2012 IL App (1st) 111835. Moreover, the focus of the administrative hearing was on
the incident between plaintiff’s dogs and Young’s pit bull, and the evidence about that incident
was sufficient to uphold the ALJ’s determination that all three of plaintiff’s dogs were
dangerous animals.
¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 26 Affirmed.
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