Village of Downers Grove v. Village Square III Condominium Ass'n

2022 IL App (2d) 210098No. 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
2022 IL App (2d) 210098¶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
-2-
2022 IL App (2d) 210098section 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
-3-
2022 IL App (2d) 210098file 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
1
The record shows the court preprepared its remarks and announced its ruling in open court.
The record contains no report of those proceedings, but the court filed a copy of its prepared
remarks.
-4-
2022 IL App (2d) 210098motion 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
-5-
2022 IL App (2d) 210098¶ 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
-6-
2022 IL App (2d) 210098allowed 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.
-7-
2022 IL App (2d) 210098¶ 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.
-8-
2022 IL App (2d) 210098¶ 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
-9-
2022 IL App (2d) 210098completed by [October 31, 2019,] pursuant to previous ruling to stand.”
¶ 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) 210098did 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,
2
The trial court did not lose jurisdiction when defendant filed its first notice of appeal.
Because no fine had been imposed at that time, the court had not entered a final judgment. See
In re Marriage of Schwieger, 379 Ill. App. 3d 687, 689 (2008). Thus, defendant’s first notice of
appeal was ineffective and did not divest the court of its jurisdiction to enter the October 30, 2019,
order imposing the $1500 fine. In re Marriage of Gutman, 232 Ill. 2d 145, 156 (2008). The
judgment became final when the court imposed the $1500 fine. The Village timely moved to
reconsider that order. Therefore, the court had jurisdiction to vacate that order, even if it did so
based on its erroneous belief that it had lost jurisdiction. See Welch v. Ro-Mark, Inc., 79 Ill. App.
3d 652, 657 (1979).
- 11 -
2022 IL App (2d) 210098and October 29, 2018. (Again, our calculation shows it was only 312 days.) The court stayed
payment of the fines until January 27, 2021, and continued the matter so that Straub could talk
with the unit owners about how to proceed. The court declined to order defendant to comply with
the annual-testing requirement, determining that it had no authority to do so.
¶ 43 On January 27, 2021, the court vacated the stay, and this appeal followed.
¶ 44 II. ANALYSIS
¶ 45 On appeal, defendant contends the trial court erred by (1) denying its motion to dismiss,
(2) finding it guilty of the violation, and (3) imposing a daily fine.
¶ 46 A. Forfeiture
¶ 47 As an initial matter, the Village argues defendant forfeited review of the orders denying
defendant’s motions to reconsider, because it failed to offer substantive argument in support of
those contentions. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires a party’s brief
to present argument, which must contain the contentions of the party and be supported by citation
to the authority and the pages of the record relied on. A party must clearly define the issues to be
decided and set forth cogent arguments in support of his or her position. Maday v. Township High
School District 211, 2018 IL App (1st) 180294, ¶ 50. A party forfeits an argument when he or she
fails to adequately develop it. Id.¶ 48 As the Village points out, defendant offers nothing more than a bare assertion that it was
error to deny its motions to reconsider. Ordinarily, we would be inclined to find defendant forfeited
review of the trial court’s decisions on those motions. See id. But even if we were to determine
defendant forfeited review of the denials of its motions to reconsider, such a determination would
have little practical effect. Indeed, defendant’s motions to reconsider contended the trial court erred
in its initial application of the law and they essentially raised the same arguments advanced in its
- 12 -
2022 IL App (2d) 210098motion to dismiss, in its summation after trial, and on appeal. The Village does not contend those
arguments are not otherwise properly presented. Under these circumstances, we decline to
conclude defendant forfeited review of the denials of the motions to reconsider.
¶ 49 B. Finding of Guilt
¶ 50 Because it will better frame our discussion of defendant’s motion to dismiss, we first
address defendant’s contention that the trial court erred by finding the annual-testing requirement
was applicable to defendant’s buildings.
¶ 51 Defendant’s contention requires us to construe the Fire Prevention Code, which is a
question of law, subject to de novo review. Saladrigas v. City of O’Fallon, 2020 IL App (5th)
190466, ¶ 19. When construing a municipal ordinance, we apply the familiar canons of statutory
construction. Id. Thus, our primary concern is to ascertain and effect the legislator’s intent, the
best indicator of which is the language of the ordinance given its plain and ordinary meaning. Id.Further, we must view the enactment as a whole and interpret it in light of all relevant provisions.
Id.¶ 52 Section 907.8 of the Fire Prevention Code states as follows:
“The maintenance and testing schedules and procedures for fire alarm and fire
detection systems shall be in accordance with Sections 907.8.1 through 907.8.5 and NFPA
72 [National Fire Alarm and Signaling Code]. Records of inspection, testing[,] and
maintenance shall be maintained. Records of inspection, testing[,] and maintenance shall
be submitted to the Fire Prevention Bureau in an approved manner. Annual testing of fire
alarm systems shall include 100% of all devices.” Downers Grove Municipal Code § 17.45
(amended Aug. 12, 2017) (adopting Int’l Fire Code § 907.8 (2015), as amended).
Section 907.8.2 of the Fire Prevention Code states that “[c]omplete and satisfactory tests shall be
- 13 -
2022 IL App (2d) 210098performed on all devices in accordance with Chapter 17, Article VI of the Downers Grove
Municipal Code [(Alarm Code) (Downers Grove Municipal Code §§ 17.54 to 17.74 (amended
Aug. 12, 2017))].” Downers Grove Municipal Code § 17.45 (amended Aug. 12, 2017) (deleting
and replacing Int’l Fire Code § 907.8.2 (2015)).
¶ 53 Section 17.62(b) of the Alarm Code provides that “any fire Alarm System and all devices
[shall be] tested annually by a licensed testing agency or licensed electrical contractor.” Downers
Grove Municipal Code § 17.62(b) (amended Aug. 12, 2017). It also states:
“The results of the testing agency or electrical contractors test shall be in writing, signed
by the agency or contractor, and kept on file at the premises where the Alarm System is
being used. A copy of the test results shall be submitted to the Village as directed by the
Fire Alarm Coordinator in an approved manner through a third party company upon
completion of the Alarm System test. Tests shall not be considered completed until the
Village receives the written results thereof.” Downers Grove Municipal Code § 17.62(b)(2)
(amended Aug. 12, 2017).
¶ 54 Thus, this scheme, if applicable, requires the user of a fire protection system to hire a
licensed testing agency or electrical contractor to annually test the system and submit a report of
the testing results to the Village in an approved manner.
¶ 55 Defendant contends the trial court erred by finding the annual-testing requirement was
applicable to defendant’s buildings, for two reasons: (1) the Fire Prevention Code, in general,
“do[es] not apply to residential buildings like those of the defendant” and, (2) if the Fire Prevention
Code does generally apply, defendant is not subject to the annual-testing requirement because its
buildings are not required to have a fire protection system at all.
- 14 -
2022 IL App (2d) 210098¶ 56 Reading the Fire Prevention Code as a whole, we conclude the trial court correctly
determined that defendant was subject to the annual-testing requirement. As the trial court found,
even if a building is not required by the Fire Prevention Code or some other code to have a fire
protection system, once an approved fire protection system is in place, the Fire Prevention Code
requires the system to be tested annually and a report to be submitted to the Village.
¶ 57 Chapter 9 of the Fire Prevention Code makes it clear that its annual-testing requirement
applies to all approved fire protection systems, even if a building is not required by the Fire
Prevention Code or some other code to have a fire protection system. Section 901.1 of the Fire
Prevention Code states, “[t]he provisions of this chapter [9] shall specify where fire protection
systems are required and shall apply to the design, installation, inspection, operation, testing[,] and
maintenance of all fire protection systems.” (Emphases added.) Downers Grove Municipal Code
§ 17.45 (amended Aug. 12, 2017) (adopting Int’l Fire Code § 901.1 (2015), as amended).
Additionally, section 901.6 of the Fire Prevention Code states that “[n]onrequired fire protection
systems *** shall be inspected, tested[,] and maintained or removed.” Downers Grove Municipal
Code § 17.43 (amended Aug. 12, 2017) (adopting Int’l Fire Code § 901.6 (2015)). Thus, the
language of these provisions clearly evidences an intent to require all fire protection systems,
including those that are not required, to be tested annually.
¶ 58 Defendant argues that “any applicable provisions within the [2015 International Fire Code]
or the [Fire Prevention Code] do not apply to residential buildings like those of the defendant.”
According to defendant, its buildings contain single-family residences, and the Fire Prevention
Code “largely exempts residences” and instead focuses on commercial buildings. We disagree.
¶ 59 Section 102 of the Fire Prevention Code defines its scope. Pertinent here, section 102.2
states the administrative, operational, and maintenance provisions of the code apply to “[e]xisting
- 15 -
2022 IL App (2d) 210098conditions and operations.” Downers Grove Municipal Code § 17.43 (amended Aug. 12, 2017)
(adopting Int’l Fire Code § 102.2 (2015)). This provision contains no distinction between
commercial and residential properties, and defendant cites no provision in the Fire Prevention
Code that generally exempts residential buildings from its purview. Given the Fire Prevention
Code’s broad statement that its administrative, operational, and maintenance provisions apply to
existing buildings, we reject defendant’s assertion that the Fire Prevention Code does not, in
general, apply to residential buildings.
¶ 60 Defendant also argues that it is exempt, under section 907.2.9 of the 2015 International
Fire Code, from having any fire protection system. Int’l Fire Code § 907.2.9 (2015). Section
907.2.9 of the 2015 International Fire Code states that fire alarm systems and smoke alarms must
be installed in Group R-2 occupancies, except that fire alarm systems are not required
“in buildings not more than two stories in height where all dwelling units *** and
contiguous attic and crawl spaces are separated from each other and public or common
areas by not less than 1-hour fire partitions and each *** unit has an exit directly to a public
way, egress court[,] or yard.” Int’l Fire Code § 907.2.9.1 (2015).
According to defendant, its buildings most closely fit within the Group R-2 residential
classification and the evidence at trial established, and the court found, that its buildings were not
more than two stories in height and that each unit was separated by appropriate firewalls and had
its own entrance/exit at grade level. Defendant maintains that, because it was exempt from having
any fire protection system, it could not be required to comply with the annual-testing requirement.
¶ 61 We reject defendant’s argument that it is exempt from the annual-testing requirement, for
three reasons. First, when the Village adopted the current version of the Fire Prevention Code (by
incorporating the 2015 International Fire Code), it deleted section 907.2.9. Downers Grove
- 16 -
2022 IL App (2d) 210098Municipal Code § 17.45 (amended Aug. 12, 2017) (deleting Int’l Fire Code § 907.2.9 (2015) from
the Fire Protection Code). Thus, the sole authority for defendant’s assertion does not exist.
¶ 62 Second, section 907.1 of the Fire Prevention Code states that section 907.2 (which included
section 907.2.9) applies only to new buildings and section 907.9 applies only to existing buildings.
Downers Grove Municipal Code § 17.45 (amended Aug. 12, 2017) (adopting Int’l Fire Code
§ 907.1 (2015), as amended). Otherwise, section 907 applies generally to all new and existing
buildings. Thus, even if section 907.2.9 had not been deleted, section 907.2.9 would not apply,
because the townhomes existed when the Fire Prevention Code was adopted.
¶ 63 Third, even if defendant were exempt from having a fire protection system under section
907.2.9, it nevertheless had an approved fire alarm system in place. As discussed above, the Fire
Prevention Code makes it clear that all fire protection systems, even those that are not required,
must be tested annually. 3 Downers Grove Municipal Code § 17.45 (amended Aug. 12, 2017)
(adopting Int’l Fire Code §§ 901.1, 901.6, 907.8, 907.8.2 (2015), as amended).
¶ 64 Defendant also notes testing cannot be performed remotely from outside the units but,
rather, requires access to each individual unit. According to defendant, it must receive prior
permission to access each unit, which had in the past proved to be “a lengthy if nigh impossible
task.” Therefore, defendant argues, even if the annual-testing requirement was applicable to
3
Defendant’s claimed exemption from the annual-testing requirement is based on the
removal of its existing fire protection system. Nothing in the record indicates defendant has
removed its system. An exemption based upon a status not yet achieved is an exemption not yet
perfected. We note, in the trial court, defendant asserted it could remove its existing fire protection
system but abandoned that claim on appeal.
- 17 -
2022 IL App (2d) 210098defendant’s buildings, “the [V]illage is requiring the impossible, and seeks fining the impossible
on a day-by-day basis.”
¶ 65 We reject this argument. It is better addressed to the Village council, which has the
authority to change the Fire Prevention Code. We, on the other hand, must apply the ordinance as
written. See, e.g., People v. Barker, 2021 IL App (1st) 192588, ¶ 70. Thus, we cannot find the
ordinance inapplicable to defendant merely because it is purportedly difficult for defendant to
attain compliance.
¶ 66 In this case, there is no dispute that defendant removed its original fire protection system
and installed a new, approved fire protection system in the 1990s. Thus, defendant was required
to test its fire protection system annually and submit the required report. There is likewise no
dispute that defendant never submitted the required report, and therefore the trial court correctly
found defendant guilty of the violation.
¶ 67 C. Motion to Dismiss
¶ 68 Defendant next contends the trial court should have granted its motion to dismiss the
citations. Specifically, defendant argues the annual-testing requirement violated the fourth
amendment and the Village’s failure to allow it to administratively appeal violated its due-process
rights. We are not persuaded.
¶ 69 1. Standard of Review
¶ 70 Initially, we note defendant’s brief is devoid of any discussion of the standards of review
applicable to a motion to dismiss. In the trial court, defendant moved to dismiss under section 114-
1(a)(6) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-1(a)(6) (West 2018)). As the
trial court recognized, this was incorrect. Ordinance violation proceedings are quasi-criminal in
nature but are “tried and reviewed as a civil proceeding.” Village of Plainfield v. American Cedar
- 18 -
2022 IL App (2d) 210098Designs, Inc., 316 Ill. App. 3d 130, 135 (2000). Indeed, when, as here, the violation of an ordinance
does not carry the possibility of a jail term, the Code of Civil Procedure applies. Ill. S. Ct. Rs. 570,
571 (eff. Dec. 7, 2011).
¶ 71 We review de novo dismissals under the Code of Civil Procedure. Rodriguez v. Illinois
Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007); 735 ILCS 5/2-615, 2-619 (West 2018).
We also review de novo whether a party’s constitutional rights have been violated. In re Parentage
of Scarlett Z.-D., 2015 IL 117904, ¶ 57.
¶ 72 2. Fourth Amendment
¶ 73 Defendant first argues the annual-testing requirement violates its members’ fourth
amendment right to be free from unreasonable searches. We disagree.
¶ 74 The fourth amendment protects an individual’s right to be free from unreasonable searches,
and its basic purpose “is to safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials.” Camara, 387 U.S. at 528; see U.S. Const., amend. IV; Ill.
Const. 1970, art. I, § 6 (Illinois counterpart to fourth amendment). “[E]xcept in certain carefully
defined classes of cases, a search of private property without proper consent is unreasonable unless
it has been authorized by a valid search warrant.” (Internal quotation marks omitted.) Camara, 387
U.S. at 528-29. “ ‘A “search” occurs when an expectation of privacy that society is prepared to
consider reasonable is infringed.’ ” People v. Bartelt, 241 Ill. 2d 217, 226 (2011) (quoting United
States v. Jacobsen, 466 U.S. 109, 113 (1984)).
¶ 75 Initially, the Village argues that, as a matter of law, defendant does not have standing to
raise the fourth amendment claim. In support, it cites the well-settled principle that fourth
amendment rights are purely personal and may not be vicariously asserted. See, e.g., People v.
Thomas, 2019 IL App (1st) 170474, ¶ 48. We reject this argument.
- 19 -
2022 IL App (2d) 210098¶ 76 Defendant is a condominium association whose members, i.e., the individual unit owners,
have submitted their property to the Condominium Property Act. Section 9.1 of the Condominium
Property Act provides that a condominium association’s “board of managers shall have standing
and capacity to act in a representative capacity in relation to matters involving the common
elements or more than one unit, on behalf of the unit owners, as their interests may appear.”
(Emphasis added.) 765 ILCS 605/9.1 (West 2016); see Henderson Square Condominium Ass’n v.
LAB Townhomes, LLC, 2015 IL 118139, ¶ 75 (noting “it is clear that a condominium association
generally has standing to pursue claims that affect the unit owners or the common elements”).
Here, the ordinance at issue affects all unit owners in the association. Accordingly, we find
defendant has standing to assert the fourth amendment claim.
¶ 77 In Camara, the Supreme Court considered a facial challenge to a municipal ordinance that
allowed authorized city employees, upon presentation of proper credentials, “to enter, at
reasonable times, any building, structure, or premises in the City to perform any duty” required of
them by the city code. (Internal quotation marks omitted.) Camara, 387 U.S. at 526. The Court
held the ordinance violated the fourth amendment because it did not contain a warrant procedure.
Id. at 534.
¶ 78 We conclude the annual-testing requirement does not implicate the fourth amendment as it
concerns defendant and its members. First, we note Camara is distinguishable. There, the
ordinance at issue required the occupant of any building, structure, or premises to allow a city
official to enter a premises to perform any duty required of them by the city code. Id. at 526. Thus,
as the Court recognized, occupants were left to the discretion of the city officials in the field. Id.
at 532-33. Here, on the other hand, the ordinance at issue requires a property owner to allow a
private, licensed contractor (of its choosing from an approved list) to enter a premises for the
- 20 -
2022 IL App (2d) 210098limited purposes of testing the components of the fire protection system and reporting the results
to the Village.
¶ 79 Thus, there is a fair question as to whether the fourth amendment is even applicable,
because the ordinance does not authorize a government official to physically enter each unit. It is
well settled that the fourth amendment does not apply to private actors unless, under the totality of
the circumstances, it can be said that the private actor is acting as an agent or instrument of the
government. People v. Heflin, 71 Ill. 2d 525, 539 (1978). But we need not answer that question,
because this issue may be resolved on a different basis.
¶ 80 Again, defendant is a condominium association and its members have submitted their
property to the Condominium Property Act. Under Illinois law, condominiums are creatures of
statute and the rights of condominium owners are to be addressed with primary reliance on the
Condominium Property Act. Schaumburg State Bank v. Bank of Wheaton, 197 Ill. App. 3d 713,
718-19 (1990). As another court has commented,
“It appears to us that inherent in the condominium concept is the principle that to promote
the health, happiness, and peace of mind of the majority of the unit owners since they are
living in such close proximity and using facilities in common, each unit owner must give
up a certain degree of freedom of choice which he [or she] might otherwise enjoy in
separate, privately owned property. Condominium unit owners comprise a little democratic
sub society of necessity more restrictive as it pertains to use of condominium property than
may be existent outside the condominium organization.” Hidden Harbour Estates, Inc. v.
Norman, 309 So. 2d 180, 181-82 (Fla. Dist. Ct. App. 1975).
This court has cited Hidden Harbour with approval, noting a condominium unit owner cedes some
degree of freedom of choice and agrees to subordinate some of his or her traditional ownership
- 21 -
2022 IL App (2d) 210098rights when he or she elects this type of ownership. Schaumburg State Bank, 197 Ill. App. 3d at
718-19.
¶ 81 One such right defendant’s members have ceded is the right to refuse entry of the board of
managers and its agents for the purpose of maintaining the common elements of the buildings.
Under section 18.4(j) of the Condominium Property Act, defendant’s board of managers has the
right “[t]o have access to each unit from time to time as may be necessary for the maintenance,
repair[,] or replacement of any common elements.” 765 ILCS 605/18.4(j) (West 2016).
¶ 82 In light of section 18.4(j) of the Condominium Property Act and under these circumstances,
we find the fourth amendment is not implicated in the present case. Defendant’s members had no
legitimate expectation in keeping a contractor, selected by defendant’s board, from entering their
units for the limited purpose of testing the fire protection system. See Bartelt, 241 Ill. 2d at 226.
Indeed, regular testing and inspection are integral parts of the maintenance of any system, as they
allow problems to be identified and corrected.
¶ 83 3. Due Process
¶ 84 Defendant also argues the citations should have been dismissed because the Village
initiated court proceedings without allowing defendant to avail itself of the administrative appeal
procedures contained in the Fire Prevention Code, in violation of its due-process rights.
¶ 85 The due-process clauses of the United States and Illinois Constitutions preclude the
government from depriving a person of life, liberty, or property without due process of law. U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, § 2. “Procedural due process is meant to protect
persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty[,]
or property.” Segers v. Industrial Comm’n, 191 Ill. 2d 421, 434 (2000). Thus, generally, the right
to due process includes the right to notice and an opportunity to be heard before a person is
- 22 -
2022 IL App (2d) 210098deprived of property. United States v. James Daniel Good Real Property, 510 U.S. 43, 48 (1993).
The opportunity to be heard must be afforded “at a meaningful time and in a meaningful manner.”
Armstrong v. Manzo, 380 U.S. 545, 552 (1965). “ ‘Due process of law is served where there is a
right to present evidence and argument in one’s own behalf, a right to cross-examine adverse
witnesses, and impartiality in rulings upon the evidence which is offered.’ ” Bartlow v. Shannon,
399 Ill. App. 3d 560, 570 (2010) (quoting Piotrowski v. State Police Merit Board, 85 Ill. App. 3d
369, 373 (1980)).
¶ 86 We conclude the trial court properly rejected defendant’s due-process claim. Here,
defendant received notice of the violation and was afforded a full-blown trial at which it was
permitted to present evidence, cross-examine the Village’s sole witness, and argue why it could
and should not be found guilty of the violation, all before it was deprived of its property (when the
fine was imposed). See id.¶ 87 Defendant nevertheless argues its due-process rights were infringed because it had a clear
right of review before the Building Board of Appeals. Defendant relies on section 108.1 of the Fire
Prevention Code, which states that a “person aggrieved by any decision or interpretation of the fire
official made under the provisions of this Code may take an appeal to the Building Board of
Appeals in accordance with the procedures prescribed in Chapter 7, Article IX of the Downers
Grove Municipal Code.” Downers Grove Municipal Code § 17.45 (amended Aug. 12, 2017)
(deleting and replacing Int’l Fire Code § 108.1 (2015), as amended). An appeal to the Building
Board of Appeals must be commenced within 30 days of the date of the decision being appealed.
Downers Grove Municipal Code § 7.901(f)(2) (adopted Oct. 6, 2009).
¶ 88 It is not clear, however, that defendant timely availed itself of the administrative appeal
procedure. In its motion to dismiss, defendant alleged it filed a notice with the Building Board of
- 23 -
2022 IL App (2d) 210098Appeals on January 22, 2018, after the citations were issued and after the ordinance-violation
proceedings were commenced in the trial court. However, the annual test of defendant’s system
was due to be completed in March 2017, and defendant twice received notice that it was not in
compliance with the annual-testing requirement before the citations were issued and the ordinance-
violation proceedings were commenced. Indeed, defendant first received an automatic notice from
the third-party reporting system when the report was 37 days overdue and thereafter received a
separate notice from the Village. It seems, then, that the time to file its notice of appeal under the
administrative appeal procedure did not commence when the citations were issued on December
21, 2017, but, rather, when it received the automatic notice (at the earliest) and the Village’s
separate notice (at the latest). Thus, though defendant appealed to the Building Board of Appeals
within 30 days of the date the citations were issued, it is not clear defendant actually complied
with the time requirements for an administrative appeal.
¶ 89 In any event, we also note that the Fire Prevention Code does not require the Village to
issue a notice of violation before proceeding with ordinance-violation proceedings in the trial
court. To be sure, the fire code official (here, Deputy Chief Hull) “is authorized to prepare a written
notice of violation” when he or she determines a person has violated the Fire Prevention Code
(Downers Grove Municipal Code § 17.43 (amended Aug. 12, 2017) (adopting Int’l Fire Code
§ 109.3 (2015)) and “is authorized to request” the Village attorney to initiate legal proceedings if
a notice of violation is not corrected (Downers Grove Municipal Code § 17.43 (amended Aug. 12,
2017) (adopting Int’l Fire Code § 109.3.3 (2015)). However, section 1.18 of the Downers Grove
Municipal Code also states, without regard to the administrative appeal procedure, that the Village
may commence in the circuit court a prosecution for the violation of any Village ordinance.
Downers Grove Municipal Code § 1.18 (1925). Further, the Village is a home rule municipality,
- 24 -
2022 IL App (2d) 210098and “[t]he adoption by a [home rule] municipality of a system of administrative adjudication does
not preclude the municipality from using other methods to enforce municipal ordinances.”
(Emphasis added.) 65 ILCS 5/1-2.1-3 (West 2018). Thus, the existence of the administrative
appeal procedure did not preclude the Village from using another method, i.e., ordinance-violation
proceedings, to enforce compliance with the annual-testing requirement.
¶ 90 Defendant also argues it should have been permitted to administratively appeal the
Village’s decision to issue the citations, because the Building Board of Appeals “would have
proper and superior knowledge of fire alarm system requirements in the village.” We are not
persuaded.
¶ 91 The alleged violation here did not require any specialized knowledge of building
requirements or fire protection systems. It required merely a straightforward determination of
whether defendant failed to have a licensed contractor test its existing system and submit a report
of the results during the applicable timeframe. Thus, we see no reason why the Building Board of
Appeals would be better equipped than the trial court to consider the alleged violation.
¶ 92 Moreover, the sole authority offered by defendant, Redwood v. Lierman, 331 Ill. App. 3d
1073 (2002), does not support its argument. The court in Redwood did not hold that a party has a
due-process right to administratively appeal the decision to commence ordinance-violation
proceedings during which the party receives a full-blown trial before any potential deprivation of
property occurs. Rather, it merely applied the well-settled principle that a party is entitled to notice
and a hearing before he or she is deprived of property. In that case, the court found the removal of
a van from the plaintiffs’ property before a hearing on the van’s operability was held violated the
plaintiffs’ due-process rights. Id. at 1085-86.
- 25 -
2022 IL App (2d) 210098¶ 93 Finally, we reject defendant’s argument, raised for the first time in its reply brief, that it
should have been permitted to exhaust its administrative remedies before being haled into court.
Arguments may not be raised for the first time in a reply brief. Ill. S. Ct. R. 341(h)(7) (Oct. 1,
2020). Accordingly, defendant has forfeited this argument.
¶ 94 D. Daily Fine
¶ 95 Defendant’s final contention is that the trial court erred when it imposed a daily fine.
Defendant argues that, under section 109.4 of the Fire Prevention Code (Downers Grove Municipal
Code § 17.45 (amended Aug. 12, 2017) (deleting and replacing Int’l Fire Code § 109.4 (2015), as
amended)), the court could not impose daily fines unless the Village gave a separate notice for
each day included in the fine. It essentially maintains that the Village was required to initiate
separate court proceedings for each day it sought a fine. Defendant also argues that, given the
court’s and the parties’ preference that the matter would be resolved without resorting to fines, the
$23,475 fine imposed here was “both logically incongruous and highly prejudicial.” We reject
defendant’s arguments.
¶ 96 Defendant’s contention requires us to construe the Fire Prevention Code and the Downers
Grove Municipal Code. Again, this is a question of law, subject to de novo review. Saladrigas,
2020 IL App (5th) 190466, ¶ 19.
¶ 97 Section 109.4 of the Fire Prevention Code states as follows:
“Any person, firm[,] or corporation violating any of the provisions of th[is] code or
failing to comply with any order issued pursuant to any section thereof shall be guilty of a
petty offense, and upon conviction thereof shall be punished as provided in *** Section
1.15 of the Downers Grove Municipal Code. Each day that a violation continues, after a
service of notice as provided for in this Code, shall be deemed a separate offense.” Downers
- 26 -
2022 IL App (2d) 210098Grove Municipal Code § 17.45 (amended Aug. 12, 2017) (deleting and replacing 2015 Int’l
Fire Code § 109.4 (2015), as amended).
Section 1.15 of the Downers Grove Municipal Code states, in pertinent part, as follows:
“(a) Any person violating any of the provisions or failing to comply with any of the
mandatory requirements of the ordinances of the Village shall be guilty of an offense.
Except in cases where a different penalty is prescribed by any ordinance of the Village,
any person who *** is found guilty of an offense under the ordinances of Downers Grove
shall be punished by a fine of not less than [$75] nor more than [$750].
(b) Any person shall be guilty of a separate offense for each and every day during
any portion of which any violation of any provision of the ordinances of the Village is
committed, continued[,] or permitted by any such person, and he [or she] shall be punished
accordingly.” Downers Grove Municipal Code § 1.15(a), (b) (adopted Aug. 21, 2012).
¶ 98 Defendant argues that section 109.4 of the Fire Prevention Code requires the Village to
serve a separate notice for each day that the daily fine was imposed. To support its position,
defendant relies on the second sentence of section 109.4, which states, “Each day that a violation
continues, after a service of notice as provided for in this Code, shall be deemed a separate
offense.” Downers Grove Municipal Code § 17.45 (amended Aug. 12, 2017) (deleting and
replacing Int’l Fire Code § 109.4 (2015), as amended). Relatedly, defendant asserts the trial court
erred when it turned to section 1.15 of the Downers Grove Municipal Code for the proposition that
the Village had expressed its intent to impose daily fines without separate notices for violators of
the Fire Prevention Code. Defendant points to the sentence in section 1.15 that states, “Except in
cases where a different penalty is prescribed by any ordinance of the Village, any person who ***
is found guilty of an offense under the ordinances of Downers Grove shall be punished by a fine
- 27 -
2022 IL App (2d) 210098of not less than [$75] nor more than [$750].” Downers Grove Municipal Code § 1.15(a) (adopted
Aug. 21, 2012). It argues section 109.4 of the Fire Prevention Code prescribes a penalty for its
violation and, because section 1.15 of the Downers Grove Municipal Code states it does not apply
when a different penalty is prescribed, the trial court erred by relying on it.
¶ 99 We conclude the trial court correctly determined it was required to impose a daily fine for
each day defendant failed to submit the testing report, after December 21, 2017. Initially, we reject
defendant’s argument that the trial court erred by relying on section 1.15 of the Downers Grove
Municipal Code in its analysis. We do not necessarily disagree that section 109.4 of the Fire
Prevention Code prescribes a penalty for violations of the code. But it does so by expressly
incorporating the general penalty provisions contained in section 1.15 of the Downers Grove
Municipal Code, and it certainly does not prescribe a different penalty than that set forth in section
1.15. Thus, the court correctly referenced section 1.15 in its analysis.
¶ 100 When read together, section 109.4 of the Fire Prevention Code and section 1.15 of the
Downers Grove Municipal Code make it clear the Village intended to require only a single notice
of violation before a daily fine could be imposed. Indeed, nothing in section 109.4 of the Fire
Prevention Code indicates a separate notice of violation is required for each day the Village seeks
a fine. To the contrary, section 109.4 refers to a single notice and states that a violator is guilty of
a separate offense for each day the violator allows the violation to continue after receipt of that
notice. In turn, section 1.15 of the Downers Grove Municipal Code sets forth the penalty for each
offense—a fine of at least $75 and at most $750. Downers Grove Municipal Code § 1.15(a)
(adopted Aug. 21, 2012). And, consistent with section 109.4 of the Fire Prevention Code, section
1.15 also provides that a violator is guilty of “a separate offense for each and every day” the
violator allows a violation to continue and “shall be punished accordingly.” Downers Grove
- 28 -
2022 IL App (2d) 210098Municipal Code § 1.15(b) (adopted Aug. 21, 2012). Thus, under this legislative scheme, a notice
of violation starts the clock for the imposition of daily fines, and a violator who allows a violation
to continue, after receipt of that notice, is subject to a daily fine of at least $75 and at most $750.
To conclude that a daily fine cannot be imposed absent a separate notice for each day would require
this court to read into the ordinances a condition that the Village did not include. We will not do
so. People v. Burge, 2021 IL 125642, ¶ 20.
¶ 101 Further, we note the Village attached to each citation an addendum that informed defendant
that it was subject to a separate fine between $75 and $750 for each day the violation continued.
Thus, contrary to defendant’s assertion, it had actual notice that it was subject to a fine for each
day, after service, it failed to comply with the annual-testing requirement.
¶ 102 Defendant also notes that, during the hearing in which the court imposed the daily fines,
the court recognized it had continued the case from time to time to allow the parties to explore a
resolution, noting the parties and the court “were hoping there would be a way to resolve [the
matter] without the necessity of fining the defendant.” Relying on City of Chicago v. Old Colony
Partners, L.P., 364 Ill. App. 3d 806 (2006), defendant argues, “[e]ven if daily fines could be
considered under the ordinance, it is both logically incongruous and highly prejudicial to the
defendant to allot the parties time to consider alternative resolutions, but then fine the defendant
for that same time period, and without notice prior to the date of trial.”
¶ 103 Old Colony is inapposite. The issue in that case was whether the trial court’s finding that
the defendant had not violated a city ordinance was against the manifest weight of the evidence,
not whether a daily fine could be imposed on the defendant. Admittedly, the appellate court found
concerning the city’s argument that a building owner could be fined while attempting to come into
compliance with the ordinance, particularly where the building was a protected historic building
- 29 -
2022 IL App (2d) 210098that required extra, time-consuming measures. Id. at 822. However, the court’s comments on this
point were dicta. In any event, section 109.4 of the Fire Prevention Code and section 1.15 of the
Downers Grove Municipal Code required the court to impose a daily fine on defendant because
defendant allowed the violation—the failure to submit the required report—to continue long after
it was served with notice of the violation, and any attempt to attain compliance or resolve the
matter is not a defense to the imposition of daily fines. See Ill. S. Ct. R. 579(a) (eff. Dec. 7, 2011)
(“any fine imposed shall not be less than the ‘minimum fine’ authorized by ordinance”); City of
McHenry v. Suvada, 396 Ill. App. 3d 971, 982 (2009); City of Chicago v. Elevated Properties,
L.L.C., 361 Ill. App. 3d 824, 835-36 (2005); City of Chicago v. Cotton, 356 Ill. App. 3d 1, 7 (2005).
¶ 104 Finally, though neither party raises it, we address the amount of the fine imposed on
defendant. The trial court calculated the fine in this case by multiplying the minimum fine
authorized by the ordinance by the number of days between the date the Village issued the citations
(December 21, 2017) and the date of trial (October 29, 2018). The Village represented that 313
days elapsed between those two dates and, accordingly, the court imposed a fine of $23,475 (313
days times $75 per day). However, our calculation shows that only 312 days elapsed between the
operative dates. Accordingly, pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1,
1994), we reduce the fine to $23,400 (312 days times $75 per day).
¶ 105 E. Compliance
¶ 106 The Village raises one final argument on appeal. It asserts that, in its June 26, 2019, order,
the trial court ordered defendant to comply with the annual-testing requirement and submit a report
by October 31, 2019. The Village contends that ruling was never reconsidered or vacated and,
therefore, defendant must still “comply by obtaining the inspections and submitting the required
- 30 -
2022 IL App (2d) 210098report.” It asks this court to “order the Defendant to come into compliance with the [Fire
Prevention Code] within a reasonable time of the ruling handed down herein.”
¶ 107 We reject this argument. In its June 26, 2019, order, the trial court did not order defendant
to comply with the annual-testing requirement and submit a report. Rather, the order stayed the
proceedings so that defendant could come into compliance and, thus, avoid a fine. Indeed, on June
26, 2019, after finding defendant guilty, the court stated, “I’m going to allow 120 days for
compliance by [defendant]. I’m going to stay the imposition of any fine or penalty, and I’m going
to waive any fines or costs if the building [sic] is, in fact, in compliance within 120 days.” When
defendant did not comply, the court lifted the stay and imposed an aggregate $1500 fine (which it
later vacated and replaced with the daily fine).
¶ 108 Further, the Village raised this argument in its motion to reconsider the original fine,
wherein it sought an order clarifying whether compliance had been stayed pending appeal. At the
hearing on the motion to reconsider, the trial court found it had no authority to require compliance
with the Fire Prevention Code and that, to obtain a court order requiring defendant to comply with
the annual-testing requirement, the Village would have to seek injunctive relief in a different
action. Thus, the court never ordered defendant to comply with the annual-testing requirement,
and the Village’s request that we order defendant to comply seeks relief it did not obtain in the
trial court. Essentially, then, the Village’s request is a cross-appeal, and, because the Village did
not file a cross-appeal, we decline to order defendant to comply with the annual-testing
requirement and file a report. See Herron v. Anderson, 254 Ill. App. 3d 365, 371 (1993).
¶ 109 III. CONCLUSION
¶ 110 For the reasons stated, we affirm as modified the judgment of the circuit court of Du Page
County.
- 31 -
2022 IL App (2d) 210098¶ 111 Affirmed as modified.
- 32 -
2022 IL App (2d) 2100982022 IL App (2d) 210098
Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 17-OV-
5177; the Hon. David E. Schwartz, Judge, presiding.
Attorneys Robert G. Black, Law Offices of Robert G. Black, P.C., of
for Naperville, for appellant.
Appellant:
Attorneys Dawn C. Didler, of Village of Downers Grove, of Downers
for Grove, for appellee.
Appellee:
- 33 -