THE VILLAGE OF DOWNERS GROVE v. VILLAGE SQUARE III CONDOMINIUM ASSOCIATION
No. 2-21-0098
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Opinion filed June 21, 2022
2022 IL App (2d) 210098
JUSTICE JORGENSEN dеlivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion.
Appeal from
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) (
¶ 2 I. BACKGROUND
¶ 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. Nonе 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 (
¶ 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 section 17.45 of the Downers Grove Municipal 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 (
¶ 12 D. Defendant‘s Motion to Dismiss
¶ 13 Defendant moved to dismiss the citations under
¶ 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
motion should have been brought under the
¶ 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
¶ 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
¶ 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, thе 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
allowed an aggrieved party to administratively appeal an adverse decision to the Downers Grove Building Board of Appeals before a citation was issued. He confirmed defendant “had the right to go before the *** Building Board of Appeals to appeal [the notice of violation].” He also agreed that defendant attempted to initiate an administrative appeal but the Building Board of Appeals did not consider the appeal because defendant was “already involved in the court system at the time when [it] applied to be before the Board of Appeals.”
¶ 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.
¶ 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 (
¶ 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.
¶ 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
¶ 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 (
¶ 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
completed 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 wаs 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
did not do in this matter against Defendant.” And without separate notices for each day, defendant argued, the court lacked the authority to impose a daily fine. As to compliance, defendant argued the court did not have the authority to compel its compliance with the annual-testing requirement.
¶ 40 At the February 26, 2020, hearing on the Village‘s motion, the court vacated its October 30, 2019, order (imposing the aggregate fine of $1500, plus costs) and placed the matter on inactive status due to defendant‘s pending appeal.
¶ 41 In July 2020, this court having issued its mandate following the voluntary dismissal of plaintiff‘s appeal, the matter reconvened for a status hearing on August 5, 2020. The trial court ultimately continued the matter to November 18, 2020, for “sentencing.”
¶ 42 At the November 18, 2020, hearing, the trial court noted it had vacated its October 30, 2019, order because it believed it lost jurisdiction over the matter when defendant appealed.2 The court ultimately found it was required to assess a daily fine and imposed an aggregate fine of $23,475, which consisted of $75 per day for each of the 313 days between December 21, 2017,
and 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.
¶ 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
motion 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 Dеfendant‘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
performed on all devices in accordance with Chapter 17, Article VI of the Downers Grove Municipal Code [(Alarm Code) (
¶ 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.”
“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
¶ 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.
¶ 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 Cоde 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.)
¶ 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 defеndant.” 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
conditions and operations.”
¶ 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 Codе states that fire alarm systems and smoke alarms must be
“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 Internаtional Fire Code), it deleted section 907.2.9. Downers Grove
Municipal 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.
¶ 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
¶ 64 Defendant also notes testing cannot be performed remotely from outside thе 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
defendant‘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.
¶ 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
does not carry the possibility of a jail term, the Code of Civil Procedure applies.
¶ 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);
¶ 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 safeguаrd the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara, 387 U.S. at 528; see
¶ 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.
¶ 76 Defendant is a condominium association whose members, i.e., the individual unit owners, have submitted their property to the Condominium Property
¶ 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
limited 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
¶ 80 Again, defendant is a condominium association and its members have submitted their property to the
“It appears to us that inherent in the condominium conceрt 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 rights 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
¶ 82 In light of
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
¶ 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
¶ 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 Appeals 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 autоmatic 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 hаs violated the Fire Prevention Code (
¶ 90 Defendant also argues it should have been permitted to administratively appeal the Village‘s decision to issue the citations, because the Building Board оf Appeals “would have proper and superior knowledge of fire alarm system requirements
¶ 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.
¶ 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.
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 (
¶ 96 Defendant‘s contention requires us to construe the Fire Prevention Code and thе 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 Grove Municipal Code § 17.45 (amended Aug. 12, 2017) (deleting and replacing2015 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.”
¶ 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 prescribе 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.
¶ 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 that 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 Codе 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
¶ 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
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 report.” 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).
III. CONCLUSION
¶ 110 For the reasons stated, we affirm as modified the judgment of the circuit court of Du Page County.
¶ 111 Affirmed as modified.