Modrytzkji v. The City of Chicago

2015 IL App (1st) 141874
No. 1-14-1874
Fourth Division
September 30, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
ZEONID MODRYTZKJI, )
) Appeal from the Circuit Court of
Plaintiff-Appellant, ) Cook County, Illinois-Civil Department
) Municipal Division First District
v. )
) No. 13 M1 450143
THE CITY OF CHICAGO, DEPARTMENT )
OF ADMINISTRATIVE HEARINGS, and ) The Honorable
THE CITY OF CHICAGO, COMMISSION ) Joseph M. Sconza
ON ANIMAL CARE AND CONTROL, ) Judge Presiding.
)
Defendants-Appellees. )
______________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion.
Justices Howse and Ellis concurred in the judgment and opinion.
OPINION
¶1 The City of Chicago Commission on Animal Care and Control (Commission) declared
that two St. Bernard dogs owned by plaintiff, Zeonid Modrytzkji, were “dangerous animals”
as defined by section 7-12-020 of the Chicago Municipal Code. Chicago Municipal Code §
7-12-020 (amended Oct. 16, 1984). Thereafter, plaintiff requested a hearing at the Chicago
Department of Administrative Hearings (Department). The Administrative Law Judge (ALJ)
for the Department affirmed the dangerous animal determinations. Plaintiff then appealed to
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the circuit court, requesting review of the Department's decision. The circuit court affirmed.
Plaintiff now appeals, arguing that the circuit court's review of the administrative decision
was improper because it was based on an incomplete and inaccurate record and that the
administrative order must be reversed because plaintiff did not receive a hearing within the
mandated time for review. Defendant, the City of Chicago (City), argues that the Department
did not have jurisdiction to conduct a hearing because plaintiff’s request for a hearing was
not timely. The City further argues that the Department’s lack of jurisdiction deprived the
circuit court and this court of jurisdiction to review the Department’s decision. For the
following reasons, the circuit court’s judgment and the decision of the Department are
vacated.
¶2 BACKGROUND
¶3 On July 9, 2012, at approximately 6 a.m., plaintiff's friend, Tom Doris, was walking his
two dogs, Mala and Munia. At the same time, Sara Lorenzo was walking her small dog
Maverick. When Sara and Maverick exited the gangway next to their building, Maverick was
immediately scooped up by Munia. Munia held Maverick in her mouth and shook him as
Mala lunged toward him and nipped at him. Despite attempts from Sara and Tom to get
Munia to release Maverick, Munia did not let him go until minutes later when Daniel
Lorenzo, Sara's husband, heard the commotion, ran outside, and punched Munia in the
mouth. Maverick passed away on the way to the Animal Emergency & Treatment Center of
Grayslake.
¶4 From that incident, plaintiff was issued five Administrative Notices of Ordinance
Violations. He received two violations for owning unlicensed animals, one each for Mala and
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Munia, two citations for not having valid rabies certifications for each dog, and one citation
for Munia being an unrestrained animal.
¶5 Additionally, Commission inspector Tony Delrio investigated the incident. He spoke to
Sara and Daniel as well as plaintiff, the owner of the St. Bernards. Delrio found that the
animals were dangerous and gave a written report to the Commission’s director, Sandra
Alfred. Based upon that report, pursuant to her authority under section 7-12-050 of the
Chicago Municipal Code, Director Alfred determined that the dogs were dangerous and
ordered the animals barred from the city of Chicago and “microchipped.” See Chicago
Municipal Code § 7-12-050 (added Oct. 2, 1995). On September 24, 2012, she sent notice of
the determinations, orders and restrictions to plaintiff. The notice also informed plaintiff that
he had the right to appeal the dangerous animal determinations "by filing a written request
with my office (2741 S. Western, Chicago, Illinois 60608) for a hearing within seven days
from the date of this letter." Plaintiff sent the Commission a written request for a hearing,
which was received by the Commission on November 5, 2012. In response, the Commission
sent plaintiff a "Notice of Hearing," which informed him that a hearing on the dangerous
animal determinations would occur on November 26, 2012, and that "the City intends to
object to the timeliness of your request for an appeal under Municipal Code Chapter 7-12-
050(d)."
¶6 On November 19, 2012, plaintiff appeared at the Department and requested that the
dangerous animal determination hearing occur at the same time as the five ordinance
violation hearings on December 10, 2012. Plaintiff's request was granted. Ultimately,
plaintiff pleaded liable to the unrestrained dog ordinance violation, the remaining ordinance
violations were nonsuited, and the dangerous dog determination hearing was continued to
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March 12, 2012. At that hearing, plaintiff motioned to dismiss the case because the hearing
was not held within 30 days of his request as required by section 7-12-050(e) of the Chicago
Municipal Code. Chicago Municipal Code § 7-12-050(e) (added Oct. 2, 1995). The ALJ
denied the motion. The City presented its case and introduced into evidence Sara Lorenzo’s
affidavit. However, the ALJ denied the City’s request to admit victim reports from the
Commission’s investigation for lack of sufficient procedural safeguards. Plaintiff then
presented his case and introduced into evidence the five ordinance violations. After hearing
arguments from both sides, the ALJ affirmed the director’s determinations that both Mala
and Munia were dangerous animals.
¶7 Plaintiff appealed the final decision of the Department to the circuit court. During those
proceedings, the City was granted leave to supplement the record. The supplement contained
documents that were not admitted at the Department hearing, specifically the victim reports
that were excluded. However, plaintiff's exhibits that were admitted were not in the record.
On May 15, 2014, the circuit court affirmed the decision of the Department, from which
plaintiff now appeals.
¶8 ANALYSIS
¶9 The City contends that the Department did not have jurisdiction 1 to conduct a hearing on
the dangerous animal determinations because plaintiff’s request for a hearing was untimely.
The City further argues that the Department’s alleged lack of authority deprived the circuit
court and this court of jurisdiction to review the appeal. As a challenge to jurisdiction is a
threshold matter, we must address it first, before we can reach the substance of plaintiff’s
11
Although administrative agencies do not have “jurisdiction,” the term can be used to designate the agency’s
authority to act (Farrar v. City of Rolling Meadows, 2013 IL App (1st) 130734, ¶ 14 (citing Business & Professional
People for the Public Interest v. Illinois Commerce Comm'n, 136 Ill. 2d 192, 243 (1989)) and in some administrative
contexts, the terms “jurisdiction” and “authority” are used interchangeably. Business & Professional People for the
Public Interest, 136 Ill. 2d at 244.
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appeal. We note that the City failed to successfully make an argument regarding authority at
the Department and there is nothing in the record demonstrating that the City challenged
jurisdiction in the circuit court. However, a challenge to jurisdiction can be raised at any
time. Robinson v. Human Rights Comm'n, 201 Ill. App. 3d 722, 726 (1990) (citing Fredman
Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 215 (1985)). A
determination of the Department's jurisdiction necessarily informs the issue of jurisdiction in
the circuit court and in the appellate court. Thus, we initially consider whether the
Department had “jurisdiction” or authority to act. Whether an administrative agency has
jurisdiction is a question of law that is reviewed de novo. Vogue Tyre & Rubber Co. v. Office
of the State Fire Marshal of State, 354 Ill. App. 3d 20, 23 (2004).
¶ 10 An administrative agency’s authority is limited to that which is specified by statute.
Farrar v. City of Rolling Meadows, 2013 IL App (1st) 130734, ¶ 14. “ ‘Since an
administrative agency *** is a creature of statute, its jurisdiction or authority must be found
within the provisions of the statute by which it acts.’ ” J&J Ventures Gaming, LLC v. Wild,
Inc., 2015 IL App (5th) 140092, ¶ 35 (quoting Byington v. Department of Agriculture, 327
Ill. App. 3d 726, 730 (2002)). Thus, parties seeking review of an agency decision must
"strictly comply" with the procedures set forth in the statute or ordinance. Collinsville
Community Unit School District No. 10 v. Regional Board of School Trustees of St. Clair
County, 218 Ill. 2d 175, 182 (2006).
¶ 11 The City of Chicago has the authority under its home rule powers to establish
administrative agencies. Ill. Const. 1970, art. VII, § 6(a). Pursuant to this power, the City
created the Commission and vested it with authority to determine whether an animal is a
"dangerous animal" and, if so, to require the animal's owner to comply with orders specified
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by the ordinance. Chicago Municipal Code § 7-12-050 (added Oct. 2, 1995). Section 7-12-
050(d)-(e) of the Chicago Municipal Code sets forth the procedures by which an owner can
appeal the agency's determination. Chicago Municipal Code § 7-12-050(d)-(e) (added Oct. 2,
1995). It provides, in relevant part, that the director of the Commission must send a notice of
the dangerous animal determination to the owner "informing the owner of his or her right to
appeal such determination by filing a written request for a hearing within seven days of
service of the notice." Chicago Municipal Code § 7-12-050(d) (added Oct. 2, 1995).
Additionally, section 2-14-190(c) of the Chicago Municipal Code authorizes the Department
to conduct hearings to review other City of Chicago agencies' decisions, including decisions
of the Commission. Chicago Municipal Code § 2-14-190(c) (added July 10, 1996); see also
65 ILCS 5/1-2.1-2 (West 2012) (authorizing municipalities to provide for a system of
adjudication of municipal code violations). The dangerous animal provision of the
Commission's enabling ordinance also contemplates that the Department will conduct
hearings to review its decisions when an owner has requested a hearing. Chicago Municipal
Code § 7-12-050(e) (added Oct. 2, 1995).
¶ 12 Accordingly, the Department has authority to hear an owner's appeal of the Commission's
determination that his or her dog is a "dangerous animal." However, the ordinance states that
an owner has a right to appeal the determination "within seven days of the service of the
notice." It does not provide for written requests for hearings that are filed beyond seven days
of the notice and there is nothing in the Chicago Municipal Code that authorizes the
Department to conduct hearings when a request for a hearing is untimely. Because the
Department only has limited statutory authority, its powers cannot be expanded beyond what
is authorized by the Chicago Municipal Code. See Farrar v. City of Rolling Meadows, 2013
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IL App (1st) 130734, ¶ 14; J&J Ventures Gaming, LLC v. Wild, Inc., 2015 IL App (5th)
140092, ¶ 35.
¶ 13 Furthermore, Illinois courts have recognized that the same rule governing
commencement of administrative review actions in the circuit court also applies to the
initiation of administrative proceedings. Under the Administrative Review Law, the 35-day
time limitation to commence review of an administrative decision in the circuit court is
jurisdictional, and therefore the court cannot hear a case filed beyond 35 days of the final
administrative decision. Fredman Brothers Furniture Co., 109 Ill. 2d at 209-10; 735 ILCS
5/3-103 (West 2012). The court has held that this concept likewise applies to time limitations
for commencing actions in administrative courts. Miller v. Daley, 14 Ill. App. 3d 394, 398
(1973). In fact, “Illinois has consistently held that time limitations upon bringing actions
before administrative agencies are matters of jurisdiction which cannot be tolled.
[Citations.]” Reilly v. Wyeth, 377 Ill. App. 3d 20, 33-34 (2007). Additionally, statutory
language similar to the dangerous animal provision in the Chicago Municipal Code has been
interpreted to be to be jurisdictional. See El Sauz, Inc. v. Daley, 328 Ill. App. 3d 508, 515
(2002) (holding that the Liquor Control Act of 1934's (235 ILCS 5/7-10 (West 1998))
provision stating "[w]ithin 20 days after the service of any rule, regulation, order or decision
*** upon any party to the proceeding, such party may apply for a rehearing in respect to any
matters determined by said commission" is jurisdictional).
¶ 14 Here, it is undisputed that the Commission sent notice of the dangerous animal
determination to plaintiff on September 24, 2012, and that plaintiff's request for a hearing
was received by the Commission on November 5, 2012, over 40 days later. Plaintiff was
required by the ordinance to file his request for a hearing by October 1, 2012, and he failed to
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comply. Plaintiff did not argue before the Department or in his brief that he did not receive
the notice of the dangerous dog determination and his right to request a hearing in a timely
fashion. Further, we note that the record reveals that plaintiff was aware that the Commission
was conducting an investigation of his dogs before the determination was sent. Therefore,
because plaintiff's request for a hearing was untimely, the Department did not have authority
to conduct a hearing on plaintiff's dogs' "dangerous animal" status and related orders. A
decision of an administrative agency that does not have authority from the enabling statute is
void. Weingart v. Department of Labor, 122 Ill. 2d 1, 17 (1988); Wabash County, Illinois v.
Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924, 930 (2011). Therefore, the
Department’s decision is void and the Executive Director's determinations which were
mailed on September 24, 2012, stand.
¶ 15 We next consider the City’s argument that the circuit court was deprived of jurisdiction
because the Department’s decision was void. Initially, we note that plaintiff complied with
the requirements of the Administrative Review Law when appealing the Department's
decision to the circuit court. See 735 ILCS 5/3-103 (West 2012). Therefore, the matter was
properly before the circuit court. However, because the Department's judgment was void, the
circuit court did not have the authority to consider the merits of plaintiff's appeal. See Kyles
v. Maryville Academy, 359 Ill. App. 3d 423, 432 (2005) (holding that when a lower court
enters an order without jurisdiction, the reviewing court cannot reach the substance of the
appeal). Rather, the circuit court was limited to reviewing the Department's decision for
whether the decision was void. Id. In the instant matter, the circuit court failed to consider the
authority of the Department and improperly considered the substance of plaintiff's
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arguments. 2 Accordingly, because the circuit court did not have authority to rule on the
merits, the circuit court order must be vacated.
¶ 16 Finally, the City similarly argues that this court lacks jurisdiction. Although, like the
circuit court, this court cannot hear the substantive arguments regarding the propriety of a
judgment entered without jurisdiction, "that does not mean that the appellate court has no
jurisdiction at all." People v. Bailey, 2014 IL 115459, ¶ 29. The appellate court must have a
means to exercise the authority conferred on it by law to review, recognize and correct any
action that exceeds the lower court's jurisdiction. Id. Accordingly, this court has jurisdiction
over this matter. However, for the reasons stated, we are limited on review to considering
whether the Department had authority to act. See Kyles, 359 Ill. App. 3d at 432. As discussed
above, we find that the Department did not have authority to conduct the hearing on the
dangerous animal determinations and consequently its order was void. Accordingly, we do
not reach plaintiff's additional claims of error.
¶ 17 CONCLUSION
¶ 18 For the foregoing reasons, the judgment of the circuit court of Cook County is vacated
and the order of the Department is vacated.
¶ 19 Orders vacated.
2
We note that on administrative review, the appellate court does not review the decision of the circuit court, we
review the agency’s decision. Sloper v. City of Chicago, Department of Administrative Hearings, 2014 IL App (1st)
140712, ¶ 15.
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