                                      2015 IL App (1st) 141874
                                            No. 1-14-1874
                                                                       Fourth Division
                                                                   September 30, 2015
     ______________________________________________________________________________

                                               IN THE
                                 APPELLATE COURT OF ILLINOIS
                                          FIRST DISTRICT
     ______________________________________________________________________________

     ZEONID MODRYTZKJI,                     )
                                            )     Appeal from the Circuit Court of
                 Plaintiff-Appellant,       )     Cook County, Illinois-Civil Department
                                            )     Municipal Division First District
     v.                                     )
                                            )     No. 13 M1 450143
     THE CITY OF CHICAGO, DEPARTMENT )
     OF ADMINISTRATIVE HEARINGS, and        )     The Honorable
     THE CITY OF CHICAGO, COMMISSION        )     Joseph M. Sconza
     ON ANIMAL CARE AND CONTROL,            )     Judge Presiding.
                                            )
                 Defendants-Appellees.      )
     ______________________________________________________________________________

                  JUSTICE COBBS delivered the judgment of the court, with opinion.
                  Justices Howse and Ellis concurred in the judgment and opinion.

                                              OPINION


¶1         The City of Chicago Commission on Animal Care and Control (Commission) declared

        that two St. Bernard dogs owned by plaintiff, Zeonid Modrytzkji, were “dangerous animals”

        as defined by section 7-12-020 of the Chicago Municipal Code. Chicago Municipal Code §

        7-12-020 (amended Oct. 16, 1984). Thereafter, plaintiff requested a hearing at the Chicago

        Department of Administrative Hearings (Department). The Administrative Law Judge (ALJ)

        for the Department affirmed the dangerous animal determinations. Plaintiff then appealed to
     No. 1-14-1874

        the circuit court, requesting review of the Department's decision. The circuit court affirmed.

        Plaintiff now appeals, arguing that the circuit court's review of the administrative decision

        was improper because it was based on an incomplete and inaccurate record and that the

        administrative order must be reversed because plaintiff did not receive a hearing within the

        mandated time for review. Defendant, the City of Chicago (City), argues that the Department

        did not have jurisdiction to conduct a hearing because plaintiff’s request for a hearing was

        not timely. The City further argues that the Department’s lack of jurisdiction deprived the

        circuit court and this court of jurisdiction to review the Department’s decision. For the

        following reasons, the circuit court’s judgment and the decision of the Department are

        vacated.

¶2                                          BACKGROUND

¶3         On July 9, 2012, at approximately 6 a.m., plaintiff's friend, Tom Doris, was walking his

        two dogs, Mala and Munia. At the same time, Sara Lorenzo was walking her small dog

        Maverick. When Sara and Maverick exited the gangway next to their building, Maverick was

        immediately scooped up by Munia. Munia held Maverick in her mouth and shook him as

        Mala lunged toward him and nipped at him. Despite attempts from Sara and Tom to get

        Munia to release Maverick, Munia did not let him go until minutes later when Daniel

        Lorenzo, Sara's husband, heard the commotion, ran outside, and punched Munia in the

        mouth. Maverick passed away on the way to the Animal Emergency & Treatment Center of

        Grayslake.

¶4         From that incident, plaintiff was issued five Administrative Notices of Ordinance

        Violations. He received two violations for owning unlicensed animals, one each for Mala and




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        Munia, two citations for not having valid rabies certifications for each dog, and one citation

        for Munia being an unrestrained animal.

¶5         Additionally, Commission inspector Tony Delrio investigated the incident. He spoke to

        Sara and Daniel as well as plaintiff, the owner of the St. Bernards. Delrio found that the

        animals were dangerous and gave a written report to the Commission’s director, Sandra

        Alfred. Based upon that report, pursuant to her authority under section 7-12-050 of the

        Chicago Municipal Code, Director Alfred determined that the dogs were dangerous and

        ordered the animals barred from the city of Chicago and “microchipped.” See Chicago

        Municipal Code § 7-12-050 (added Oct. 2, 1995). On September 24, 2012, she sent notice of

        the determinations, orders and restrictions to plaintiff. The notice also informed plaintiff that

        he had the right to appeal the dangerous animal determinations "by filing a written request

        with my office (2741 S. Western, Chicago, Illinois 60608) for a hearing within seven days

        from the date of this letter." Plaintiff sent the Commission a written request for a hearing,

        which was received by the Commission on November 5, 2012. In response, the Commission

        sent plaintiff a "Notice of Hearing," which informed him that a hearing on the dangerous

        animal determinations would occur on November 26, 2012, and that "the City intends to

        object to the timeliness of your request for an appeal under Municipal Code Chapter 7-12-

        050(d)."

¶6         On November 19, 2012, plaintiff appeared at the Department and requested that the

        dangerous animal determination hearing occur at the same time as the five ordinance

        violation hearings on December 10, 2012. Plaintiff's request was granted. Ultimately,

        plaintiff pleaded liable to the unrestrained dog ordinance violation, the remaining ordinance

        violations were nonsuited, and the dangerous dog determination hearing was continued to


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          March 12, 2012. At that hearing, plaintiff motioned to dismiss the case because the hearing

          was not held within 30 days of his request as required by section 7-12-050(e) of the Chicago

          Municipal Code. Chicago Municipal Code § 7-12-050(e) (added Oct. 2, 1995). The ALJ

          denied the motion. The City presented its case and introduced into evidence Sara Lorenzo’s

          affidavit. However, the ALJ denied the City’s request to admit victim reports from the

          Commission’s investigation for lack of sufficient procedural safeguards. Plaintiff then

          presented his case and introduced into evidence the five ordinance violations. After hearing

          arguments from both sides, the ALJ affirmed the director’s determinations that both Mala

          and Munia were dangerous animals.

¶7           Plaintiff appealed the final decision of the Department to the circuit court. During those

          proceedings, the City was granted leave to supplement the record. The supplement contained

          documents that were not admitted at the Department hearing, specifically the victim reports

          that were excluded. However, plaintiff's exhibits that were admitted were not in the record.

          On May 15, 2014, the circuit court affirmed the decision of the Department, from which

          plaintiff now appeals.

¶8                                                     ANALYSIS

¶9           The City contends that the Department did not have jurisdiction 1 to conduct a hearing on

          the dangerous animal determinations because plaintiff’s request for a hearing was untimely.

          The City further argues that the Department’s alleged lack of authority deprived the circuit

          court and this court of jurisdiction to review the appeal. As a challenge to jurisdiction is a

          threshold matter, we must address it first, before we can reach the substance of plaintiff’s

     11
      Although administrative agencies do not have “jurisdiction,” the term can be used to designate the agency’s
     authority to act (Farrar v. City of Rolling Meadows, 2013 IL App (1st) 130734, ¶ 14 (citing Business & Professional
     People for the Public Interest v. Illinois Commerce Comm'n, 136 Ill. 2d 192, 243 (1989)) and in some administrative
     contexts, the terms “jurisdiction” and “authority” are used interchangeably. Business & Professional People for the
     Public Interest, 136 Ill. 2d at 244.
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          appeal. We note that the City failed to successfully make an argument regarding authority at

          the Department and there is nothing in the record demonstrating that the City challenged

          jurisdiction in the circuit court. However, a challenge to jurisdiction can be raised at any

          time. Robinson v. Human Rights Comm'n, 201 Ill. App. 3d 722, 726 (1990) (citing Fredman

          Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 215 (1985)). A

          determination of the Department's jurisdiction necessarily informs the issue of jurisdiction in

          the circuit court and in the appellate court. Thus, we initially consider whether the

          Department had “jurisdiction” or authority to act. Whether an administrative agency has

          jurisdiction is a question of law that is reviewed de novo. Vogue Tyre & Rubber Co. v. Office

          of the State Fire Marshal of State, 354 Ill. App. 3d 20, 23 (2004).

¶ 10          An administrative agency’s authority is limited to that which is specified by statute.

          Farrar v. City of Rolling Meadows, 2013 IL App (1st) 130734, ¶ 14. “ ‘Since an

          administrative agency *** is a creature of statute, its jurisdiction or authority must be found

          within the provisions of the statute by which it acts.’ ” J&J Ventures Gaming, LLC v. Wild,

          Inc., 2015 IL App (5th) 140092, ¶ 35 (quoting Byington v. Department of Agriculture, 327

          Ill. App. 3d 726, 730 (2002)). Thus, parties seeking review of an agency decision must

          "strictly comply" with the procedures set forth in the statute or ordinance. Collinsville

          Community Unit School District No. 10 v. Regional Board of School Trustees of St. Clair

          County, 218 Ill. 2d 175, 182 (2006).

¶ 11         The City of Chicago has the authority under its home rule powers to establish

          administrative agencies. Ill. Const. 1970, art. VII, § 6(a). Pursuant to this power, the City

          created the Commission and vested it with authority to determine whether an animal is a

          "dangerous animal" and, if so, to require the animal's owner to comply with orders specified


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          by the ordinance. Chicago Municipal Code § 7-12-050 (added Oct. 2, 1995). Section 7-12-

          050(d)-(e) of the Chicago Municipal Code sets forth the procedures by which an owner can

          appeal the agency's determination. Chicago Municipal Code § 7-12-050(d)-(e) (added Oct. 2,

          1995). It provides, in relevant part, that the director of the Commission must send a notice of

          the dangerous animal determination to the owner "informing the owner of his or her right to

          appeal such determination by filing a written request for a hearing within seven days of

          service of the notice." Chicago Municipal Code § 7-12-050(d) (added Oct. 2, 1995).

          Additionally, section 2-14-190(c) of the Chicago Municipal Code authorizes the Department

          to conduct hearings to review other City of Chicago agencies' decisions, including decisions

          of the Commission. Chicago Municipal Code § 2-14-190(c) (added July 10, 1996); see also

          65 ILCS 5/1-2.1-2 (West 2012) (authorizing municipalities to provide for a system of

          adjudication of municipal code violations). The dangerous animal provision of the

          Commission's enabling ordinance also contemplates that the Department will conduct

          hearings to review its decisions when an owner has requested a hearing. Chicago Municipal

          Code § 7-12-050(e) (added Oct. 2, 1995).

¶ 12         Accordingly, the Department has authority to hear an owner's appeal of the Commission's

          determination that his or her dog is a "dangerous animal." However, the ordinance states that

          an owner has a right to appeal the determination "within seven days of the service of the

          notice." It does not provide for written requests for hearings that are filed beyond seven days

          of the notice and there is nothing in the Chicago Municipal Code that authorizes the

          Department to conduct hearings when a request for a hearing is untimely. Because the

          Department only has limited statutory authority, its powers cannot be expanded beyond what

          is authorized by the Chicago Municipal Code. See Farrar v. City of Rolling Meadows, 2013


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          IL App (1st) 130734, ¶ 14; J&J Ventures Gaming, LLC v. Wild, Inc., 2015 IL App (5th)

          140092, ¶ 35.

¶ 13         Furthermore, Illinois courts have recognized that the same rule governing

          commencement of administrative review actions in the circuit court also applies to the

          initiation of administrative proceedings. Under the Administrative Review Law, the 35-day

          time limitation to commence review of an administrative decision in the circuit court is

          jurisdictional, and therefore the court cannot hear a case filed beyond 35 days of the final

          administrative decision. Fredman Brothers Furniture Co., 109 Ill. 2d at 209-10; 735 ILCS

          5/3-103 (West 2012). The court has held that this concept likewise applies to time limitations

          for commencing actions in administrative courts. Miller v. Daley, 14 Ill. App. 3d 394, 398

          (1973). In fact, “Illinois has consistently held that time limitations upon bringing actions

          before administrative agencies are matters of jurisdiction which cannot be tolled.

          [Citations.]” Reilly v. Wyeth, 377 Ill. App. 3d 20, 33-34 (2007). Additionally, statutory

          language similar to the dangerous animal provision in the Chicago Municipal Code has been

          interpreted to be to be jurisdictional. See El Sauz, Inc. v. Daley, 328 Ill. App. 3d 508, 515

          (2002) (holding that the Liquor Control Act of 1934's (235 ILCS 5/7-10 (West 1998))

          provision stating "[w]ithin 20 days after the service of any rule, regulation, order or decision

          *** upon any party to the proceeding, such party may apply for a rehearing in respect to any

          matters determined by said commission" is jurisdictional).

¶ 14         Here, it is undisputed that the Commission sent notice of the dangerous animal

          determination to plaintiff on September 24, 2012, and that plaintiff's request for a hearing

          was received by the Commission on November 5, 2012, over 40 days later. Plaintiff was

          required by the ordinance to file his request for a hearing by October 1, 2012, and he failed to


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          comply. Plaintiff did not argue before the Department or in his brief that he did not receive

          the notice of the dangerous dog determination and his right to request a hearing in a timely

          fashion. Further, we note that the record reveals that plaintiff was aware that the Commission

          was conducting an investigation of his dogs before the determination was sent. Therefore,

          because plaintiff's request for a hearing was untimely, the Department did not have authority

          to conduct a hearing on plaintiff's dogs' "dangerous animal" status and related orders. A

          decision of an administrative agency that does not have authority from the enabling statute is

          void. Weingart v. Department of Labor, 122 Ill. 2d 1, 17 (1988); Wabash County, Illinois v.

          Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924, 930 (2011). Therefore, the

          Department’s decision is void and the Executive Director's determinations which were

          mailed on September 24, 2012, stand.

¶ 15         We next consider the City’s argument that the circuit court was deprived of jurisdiction

          because the Department’s decision was void. Initially, we note that plaintiff complied with

          the requirements of the Administrative Review Law when appealing the Department's

          decision to the circuit court. See 735 ILCS 5/3-103 (West 2012). Therefore, the matter was

          properly before the circuit court. However, because the Department's judgment was void, the

          circuit court did not have the authority to consider the merits of plaintiff's appeal. See Kyles

          v. Maryville Academy, 359 Ill. App. 3d 423, 432 (2005) (holding that when a lower court

          enters an order without jurisdiction, the reviewing court cannot reach the substance of the

          appeal). Rather, the circuit court was limited to reviewing the Department's decision for

          whether the decision was void. Id. In the instant matter, the circuit court failed to consider the

          authority of the Department and improperly considered the substance of plaintiff's




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           arguments. 2 Accordingly, because the circuit court did not have authority to rule on the

           merits, the circuit court order must be vacated.

¶ 16           Finally, the City similarly argues that this court lacks jurisdiction. Although, like the

           circuit court, this court cannot hear the substantive arguments regarding the propriety of a

           judgment entered without jurisdiction, "that does not mean that the appellate court has no

           jurisdiction at all." People v. Bailey, 2014 IL 115459, ¶ 29. The appellate court must have a

           means to exercise the authority conferred on it by law to review, recognize and correct any

           action that exceeds the lower court's jurisdiction. Id. Accordingly, this court has jurisdiction

           over this matter. However, for the reasons stated, we are limited on review to considering

           whether the Department had authority to act. See Kyles, 359 Ill. App. 3d at 432. As discussed

           above, we find that the Department did not have authority to conduct the hearing on the

           dangerous animal determinations and consequently its order was void. Accordingly, we do

           not reach plaintiff's additional claims of error.

¶ 17                                                  CONCLUSION

¶ 18           For the foregoing reasons, the judgment of the circuit court of Cook County is vacated

           and the order of the Department is vacated.

¶ 19           Orders vacated.




       2
         We note that on administrative review, the appellate court does not review the decision of the circuit court, we
       review the agency’s decision. Sloper v. City of Chicago, Department of Administrative Hearings, 2014 IL App (1st)
       140712, ¶ 15.

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