                                Illinois Official Reports

                                        Appellate Court



                 Sloper v. City of Chicago, Department of Administrative Hearings,
                                      2014 IL App (1st) 140712



Appellate Court            PATRICK SLOPER, Plaintiff-Appellant, v. THE CITY OF
Caption                    CHICAGO, DEPARTMENT OF ADMINISTRATIVE HEARINGS,
                           and THE CITY OF CHICAGO, DEPARTMENT OF STREETS AND
                           SANITATION, Defendants-Appellees.



District & No.             First District, Third Division
                           Docket No. 1-14-0712



Filed                      December 30, 2014



Decision Under             Appeal from the Circuit Court of Cook County, No. 13-M1-450165;
Review                     the Hon. Joseph M. Sconza, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Limbaugh Law Firm, LLC, of Chicago (Zachary D. Limbaugh, of
Appeal                     counsel), for appellant.

                           Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                           Solomon, Myriam Zreczny Kasper, and Justin A. Houppert, Assistant
                           Corporation Counsel, of counsel), for appellees.
     Panel                    JUSTICE MASON delivered the judgment of the court, with opinion.
                              Presiding Justice Pucinski and Justice Hyman concurred in the
                              judgment and opinion.



                                               OPINION

¶1         Plaintiff Patrick Sloper appeals the finding of the City of Chicago’s (City) department of
       administrative hearings that he violated a municipal ordinance prohibiting narcotics in vehicles
       and the $3,320 judgment imposed against him for that violation. On appeal, Sloper claims the
       administrative law officer (ALO) lost jurisdiction to decide the matter because the
       impoundment hearing was held more than 30 days after Sloper’s request. Sloper also claims
       the penalty imposed was unconstitutionally excessive because the value of his vehicle was
       substantially less than the penalty and he was an “innocent owner” since he had no knowledge
       that the individual using his vehicle would possess narcotics inside the vehicle. Finding
       Sloper’s claims unpersuasive, we affirm.

¶2                                            BACKGROUND
¶3          On December 5, 2012, Michelle Calomino dropped Sloper off at the airport and he left his
       1995 Ford Escort in her possession. Sloper traveled to Las Vegas to visit his sister and
       remained there until December 10.
¶4          On December 9, 2012 in the vicinity of 4816 S. Leclaire in Chicago, police officers
       identified a vehicle they were looking for based on information that the vehicle’s driver
       possessed narcotics. The officers stopped the vehicle and asked the driver, later identified as
       Calomino, to exit the vehicle. Calomino was driving Sloper’s vehicle at that time. Following
       Calomino’s admission that she possessed narcotics, the officers recovered six bags of
       suspected heroin in her possession.
¶5          After recovering the narcotics from Calomino, the officers impounded the vehicle pursuant
       to section 7-24-225 of the Municipal Code of Chicago (Municipal Code) (Chicago Municipal
       Code § 7-24-225 (amended Nov. 16, 2011)), which subjects a vehicle containing any
       controlled substance to seizure and impoundment. The ordinance further provides for a $2,000
       administrative penalty for a vehicle found to contain narcotics; the penalty increases to $3,000
       if the violation takes place within 500 feet of a public park or school. On the impoundment
       form, the location of the violation was listed as within 500 feet of a park or school. The
       impoundment form also listed Calomino as the vehicle’s driver and Sloper as the vehicle’s
       owner.
¶6          The officers inventoried the bags recovered from Calomino and sent the bags to the Illinois
       state crime laboratory for testing. Following testing on 1.1 grams of the powder, the crime
       laboratory identified the recovered substance as heroin.
¶7          After Sloper returned to Chicago on December 10, Calomino’s mother was unable to tell
       him the whereabouts of Calomino or his vehicle. Sloper checked the City’s impoundment
       records and discovered his vehicle had been impounded.
¶8          On December 14, 2012, the City’s department of administrative hearings held a probable
       cause hearing regarding the vehicle’s impoundment. The City presented the vehicle

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       impoundment seizure report in which the police officer stated the driver was found to be in
       possession of six bags of suspected heroin. The ALO found the City had established probable
       cause to impound the vehicle and that the vehicle contained unlawful drugs within 500 feet of
       a park or school. The ALO imposed a $3,235 judgment for the violation, consisting of a $3,000
       penalty, a storage fee of $85 and towing charges of $150. Pursuant to Sloper’s request, the
       ALO scheduled the full impoundment hearing for January 11, 2013.
¶9         On the scheduled hearing date, the City asked for a continuance because it had not yet
       received the laboratory test results for the substance recovered from Calomino. Sloper objected
       to the continuance because a new hearing date would be outside the time period set in section
       2-14-132(2) of the Municipal Code (Chicago Municipal Code § 2-14-132(2) (amended July
       28, 2011)), which provides that the “hearing date must be no more than 30 days after a request
       for a hearing has been filed.” The ALO noted Sloper’s objection, but concluded that the Code
       required only that the hearing be scheduled within 30 days, which it was and, thus, a
       continuance beyond 30 days did not violate the ordinance. The ALO continued the matter to
       February 8, 2013. Sloper’s vehicle remained impounded.
¶ 10       At the next hearing on February 8, the ALO granted Sloper’s request for a continuance
       because he had just retained an attorney that day who needed additional time to review the
       evidence and obtain additional information. The ALO set March 15, 2013 as the new hearing
       date.
¶ 11       On March 15, the ALO held a hearing and found that Sloper’s vehicle contained narcotics
       resulting in a violation of section 7-24-225, but the City failed to establish that the vehicle was
       within 500 feet of a park or school at the time of the violation. The ALO imposed a $3,320
       judgment consisting of a $2,000 penalty, $1,170 in storage fees and a $150 tow fee. Sloper
       objected to the penalty claiming it was unconstitutionally excessive.
¶ 12       Sloper sought review of the administrative agency’s decision in the circuit court asserting,
       in part, that the impoundment hearing was untimely because it occurred more than 30 days
       after his request for a hearing and the $2,000 penalty was grossly disproportionate to the
       conduct it purported to deter. On February 7, 2014, the circuit court affirmed the administrative
       agency’s decision. Sloper timely appealed.

¶ 13                                           ANALYSIS
¶ 14       On appeal, Sloper first claims the administrative agency’s decision should be reversed
       because the agency lost jurisdiction over the matter when it failed to conduct an impoundment
       hearing within 30 days of his request. According to Sloper’s interpretation of section
       2-14-132(2), a hearing must be scheduled and completed within 30 days of a written request.
       Because the hearing was not completed within the 30 days, Sloper asserts the administrative
       agency’s decision was untimely and must be reversed.
¶ 15       The Illinois Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2012)) governs
       our review of the ALO’s decision. 735 ILCS 5/3-102 (West 2012); Chicago Municipal Code
       § 2-14-102 (added Apr. 29, 1998). On administrative review, this court reviews the
       administrative agency’s final decision, not the circuit court’s decision. Marconi v. Chicago
       Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006); Pedersen v. Village of Hoffman
       Estates, 2014 IL App (1st) 123402, ¶ 48. An administrative agency’s interpretation of a
       statute’s language constitutes a question of law, which we review de novo. Cinkus v. Village of
       Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). But we will not

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       substitute our interpretation of a statutory provision for a reasonable interpretation adopted by
       the agency charged with the statute’s administration. Hadley v. Illinois Department of
       Corrections, 224 Ill. 2d 365, 371 (2007).
¶ 16       When interpreting a statute, or, as in this case, a municipal ordinance, a fundamental
       principle of statutory construction is to ascertain and give effect to the intent of the drafters.
       Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 6-7 (2009). The ordinance’s language, which must
       be given its plain and ordinary meaning, is the best indicator of the drafters’ intent. Id. at 6. We
       will apply the ordinance as written where the ordinance’s language is clear and unambiguous,
       and no exceptions, limitations or conditions that the drafters did not express will be read into
       the enactment. Id. at 6-7; Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414,
       426 (2002). Further, we must read all of the ordinance’s provisions as a whole. Id. at 422. With
       these principles in mind, we turn to the jurisdictional issue raised by Sloper on appeal.
¶ 17       Section 2-14-132(2) provides in relevant part:
                “The owner of record seeking a hearing must file a written request for a hearing with
                the department of administrative hearings no later than 15 days after notice [of the
                impoundment] was mailed or otherwise given under this subsection. The hearing date
                must be no more than 30 days after a request for a hearing has been filed. If, after the
                hearing, the administrative law officer determines by a preponderance of the evidence
                that the vehicle was used in the violation *** the administrative law officer shall enter
                an order finding the owner of record liable to the city for the amount of the
                administrative penalty prescribed for the violation, plus towing and storage fees.”
                Chicago Municipal Code § 2-14-132(2) (amended July 28, 2011).
¶ 18       Because the ordinance prescribes the performance of an act by a public official or public
       body, another relevant consideration is whether the provision is mandatory or directory.
       People v. Delvillar, 235 Ill. 2d 507, 516 (2009); Andrews v. Foxworthy, 71 Ill. 2d 13, 21
       (1978). While it is clear that the obligation to hold a hearing after written demand is
       mandatory, a separate issue is posed with respect to the requirement that the “hearing date” be
       no more than 30 days after the written demand. The determination of whether a provision is
       mandatory or directory depends on whether the language used dictates a particular
       consequence for failing to comply with the provision’s command. In re M.I., 2013 IL 113776,
       ¶ 16. Absent such language, the ordinance is directory and no particular consequence results
       from noncompliance. Id. Consequences still result from a directory reading, but such a reading
       “ ‘acknowledges only that no specific consequence is triggered by the failure to comply with
       the [ordinance].’ ” (Emphasis in original.) Id. (quoting Delvillar, 235 Ill. 2d at 515).
¶ 19       An ordinance including language that dictates a procedural command to a governmental
       official is presumed directory rather than mandatory, which means the failure to comply with a
       procedural step does not invalidate the governmental action to which the procedural
       requirement relates. In re James W., 2014 IL 114483, ¶ 35. Either of the following two
       conditions overcomes that presumption: “(1) when there is negative language prohibiting
       further action in the case of noncompliance or (2) when the right the provision is designed to
       protect would generally be injured under a directory reading.” Id. Neither condition applies
       here.
¶ 20       We find that section 2-14-132(2)’s requirement that the hearing date “must be no more
       than 30 days” after the filing of a request for a hearing is directory rather than mandatory, and,
       therefore, we reject Sloper’s claim that the administrative agency lost jurisdiction by failing to

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       conduct the hearing within 30 days. The plain and unambiguous language of section
       2-14-132(2) expressly requires the administrative agency to schedule a hearing date within 30
       days after a request, but the ordinance’s plain language does not compel the conclusion that the
       failure to commence and conclude the hearing within that period deprives the agency of
       jurisdiction. Important to this analysis is the fact that the ordinance fails to impose any
       consequences if the hearing is not scheduled within 30 days nor does it contain any negative
       language preventing further action if the 30-day time limit is not met. Id. ¶¶ 35-36; Delvillar,
       235 Ill. 2d at 517. Moreover, the purpose of section 2-14-132(2) is to provide the owner of an
       impounded vehicle with the right to request a hearing “to challenge whether a violation of this
       Code for which seizure and impoundment applies has occurred.” Chicago Municipal Code
       § 2-14-132(2) (amended July 28, 2011). An ALO’s decision to continue a hearing date beyond
       30 days does not defeat the ordinance’s purpose because the owner may still challenge the
       violation. See In re James W., 2014 IL 114483, ¶ 35 (procedural command deemed mandatory
       when the right the provision is designed to protect would generally be injured under a directory
       reading). Further, as we discuss below, because a vehicle owner is able to secure the vehicle’s
       release by paying the penalty and fees, subject to a refund if the owner prevails at the hearing,
       the owner can avoid an extended period of deprivation of use of the vehicle. Thus, the
       ordinance’s plain language does not defeat the presumption of a directory reading of the
       procedural command and a directory interpretation is most consistent with the drafters’ intent.
¶ 21        Sloper relies on People v. Schaefer, 154 Ill. 2d 250 (1993). Schaefer addressed the hearing
       procedure for a challenge to the summary suspension of driving privileges, and the relevant
       statutory language stated that “ ‘[w]ithin 30 days after receipt of the written request *** the
       hearing shall be conducted by the circuit court having jurisdiction.’ ” (Emphasis added.) Id. at
       254 (quoting Ill. Rev. Stat. 1989, ch. 95½, ¶ 2-118.1(b)). In Schaefer, the State asked for a
       continuance prior to the scheduled hearing date, which the trial court granted despite the
       defendant’s objection that the new hearing date would exceed the 30-day period required by
       the statute. Id. at 263. The defendant filed a petition seeking to rescind the summary
       suspension of his driving privileges and our supreme court held the trial court erred in denying
       the petition. Id. at 264. The court also recognized that a driver’s license is considered a
       property interest protected by the due process clause of the United States and Illinois
       Constitutions requiring notice and an opportunity to be heard. Id. at 261. The court concluded
       that in order to comply with due process, the hearing mandated under the statute
       must–according to the language of the statute–be held within 30 days of the written request for
       a hearing. Id. at 261-62.
¶ 22        Schaefer is distinguishable because the language at issue there expressly stated that the
       hearing shall be conducted within 30 days, but a similar direction is absent from the ordinance
       here, which merely provides that the hearing date must be no more than 30 days after a request.
       If the city council had intended that the hearing following the impoundment of a vehicle must
       be held or conducted within 30 days of a written demand, it could have easily drafted the
       ordinance to say so. Further, the due process concerns implicated in Schaefer are also not
       present here because under the ordinance a vehicle owner may secure the release of the vehicle
       by paying the penalty and storage and tow fees upon receipt of the impoundment notice, and
       obtain a refund if he later prevails after the impoundment hearing. See Jackson v. City of
       Chicago, 2012 IL App (1st) 111044, ¶ 86 (rejecting a vehicle owner’s claim that it was unfair
       to continue an impoundment hearing because doing so prolonged the deprivation of her vehicle


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       (citing Chicago Municipal Code §§ 2-14-132(1), (2), (3) (amended Nov. 18, 2009))). In
       contrast, in Schaefer the statute provided no means by which driving privileges could be
       restored prior to a hearing.
¶ 23        Adopting Sloper’s interpretation of section 2-14-132(2) that a hearing must be completed
       within 30 days without exception would require this court to read into the ordinance a
       requirement that the drafters chose not to include. Consequently, we decline Sloper’s request
       to add unwritten limitations to a clearly and unambiguously drafted ordinance. See Landis, 235
       Ill. 2d at 6-7 (reviewing courts may not read in exceptions or conditions when applying a clear
       and unambiguous statute).
¶ 24        Moreover, section 2-14-076 of the Municipal Code (Chicago Municipal Code § 2-14-076
       (adopted July 10, 1996)) expressly provides the ALO with the right to grant a continuance
       upon a finding of good cause. On December 14, 2012 during the probable cause hearing, the
       administrative agency scheduled the full impoundment hearing for January 11, 2013, which
       was within 30 days. On January 11, the City requested a continuance because laboratory test
       results on the substance recovered from Calomino had not yet been received. Because the test
       results were necessary to establish whether the substance recovered was narcotics, an essential
       element of a violation of section 7-24-225, the ALO clearly had good cause to continue the
       hearing. Reading the ordinance as a whole, we find that the ALO properly exercised his
       discretion to grant a continuance allowing the City additional time to obtain the laboratory test
       results of the suspected narcotics. Contrary to Sloper’s assertion, the intent and language of
       sections 2-14-076 and 7-24-225 do not conflict, but may easily be harmonized. Following
       Sloper’s objection to the City’s request for a continuance, the ALO properly concluded that
       under the ordinance an impoundment hearing must be scheduled within 30 days, which was
       done in compliance with the ordinance, but that the hearing need not be conducted or
       completed within the same time frame. Nothing in the terms of the ordinance precludes an
       ALO from granting a continuance of the hearing date for good cause shown. We conclude the
       ALO reasonably interpreted the ordinance he was charged with enforcing. Hawthorne Race
       Course, Inc. v. Illinois Racing Board, 2013 IL App (1st) 111780, ¶ 27 (citing Hadley v. Illinois
       Department of Corrections, 224 Ill. 2d 365, 370 (2007)). Consequently, the administrative
       agency retained jurisdiction to decide the matter and we reject Sloper’s jurisdictional
       argument.
¶ 25        Sloper’s other contention on appeal is that the $2,000 penalty mandated by the ordinance is
       excessive and thus violates the constitutional prohibition against grossly disproportionate
       fines.1 Sloper raises an “as applied” challenge to the constitutionality of the penalty imposed
       under section 7-24-225(a) asserting the penalty was excessive considering the facts of this case
       where the value of his vehicle was substantially less than the penalty amount and he was not
       himself in possession of narcotics in the vehicle.



           1
            The City responds that the United States Supreme Court has never held that the eighth amendment
       applies to states and local governments through the fourteenth amendment. See McDonald v. City of
       Chicago, 561 U.S. 742, 765 n.13 (2010) (“We have never decided whether the *** Eighth
       Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause.”).
       We need not address the City’s incorporation claim because Sloper’s contention is readily disposed of
       on its merits.

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¶ 26        The eighth amendment prohibits the imposition of excessive fines. U.S. Const., amend.
       VIII. Fines are considered excessive if they are “ ‘grossly disproportional to the gravity of a
       defendant’s offense.’ ” Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 856 (2007)
       (quoting United States v. Bajakajian, 524 U.S. 321, 334 (1998)). Municipal ordinances, just
       like statutes, are presumed constitutional. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185,
       200 (2009); Jackson, 2012 IL App (1st) 111044, ¶ 20. The party challenging the ordinance’s
       constitutionality must clearly establish a constitutional violation to overcome that
       presumption. Id. We review a challenge to the constitutionality of an ordinance de novo. Id. In
       an “as applied” challenge, the plaintiff protests only how the statute was applied against him in
       a particular situation, and the facts of his particular case become relevant. Napleton v. Village
       of Hinsdale, 229 Ill. 2d 296, 306 (2008).
¶ 27        Sloper cites Towers v. City of Chicago, 173 F.3d 619, 624 (7th Cir. 1999), where the
       plaintiffs also raised an excessive fines claim based on the same ordinance asserting the civil
       penalty bore no relationship to their culpability as innocent owners of vehicles that were used
       without their knowledge for prohibited purposes. The Towers court recognized that the penalty
       served the goal of deterring owners from allowing their vehicles to be used for prohibited
       purposes and the City had a right to sanction vehicle owners who fail to ensure that individuals
       with access to the vehicles refrain from placing illegal substances or other contraband in the
       vehicles. Id. at 625. When Towers was decided, section 7-24-225(a) imposed a $500 penalty
       and the court held the penalty was large enough to function as a deterrent, but not so large as to
       be grossly disproportionate to the activity the City wanted to deter. Id. at 626; see Jackson v.
       City of Chicago, 2012 IL App (1st) 111044, ¶¶ 40-41 (upholding the constitutionality of
       section 7-24-225, which, as amended, imposed a $1,000 penalty, despite its lack of an innocent
       owner exception); People v. Jaudon, 307 Ill. App. 3d 427, 439 (1999) (adopting Towers’
       reasoning and holding that the $500 penalty imposed on vehicle owners who lend their
       vehicles to individuals who place unlawful weapons inside the vehicles is not grossly
       disproportionate to the offenses committed). Relying on Towers, Sloper claims the current
       $2,000 penalty is grossly disproportionate when considered in the context of a case in which
       his only offense is “perhaps lending his vehicle to the wrong person” and where his vehicle is
       only worth a fraction of the fine imposed.
¶ 28        But the fact that over 13 years, the penalty under section 7-24-225 has increased from $500
       to $2,000 does not, standing alone, pose any constitutional issues. And Sloper, disavowing a
       facial challenge to the ordinance, does not so contend. Further, the added circumstance that
       Sloper’s vehicle is worth less than the fixed penalty imposed does not transform an otherwise
       facially valid penalty into an unconstitutionally excessive fine. The City’s decision to penalize
       owners of vehicles in which drugs or other contraband are found, is, as Towers recognized,
       aimed at deterring such activity and bears no relationship to the value of the vehicle in which
       the prohibited activity occurs. Towers, 173 F.3d at 625, 627. Moreover, the imposition of
       uniform fines for prohibited activity poses fewer constitutional concerns than statutes
       requiring forfeiture of the innocent owner’s entire interest in the involved property regardless
       of its value. Id. at 627. And prospects of constitutional infirmity would increase if the amount
       of the fine depended on the value of the property involved. Id. (“[A] fixed fine removes the
       potential for drastically, or exorbitantly, harsh penalties on an innocent owner.”). We cannot
       say that the City’s selection of a substantial fine–even granting that the fine exceeds by a wide
       margin the value of Sloper’s vehicle–renders the ordinance unconstitutional as applied to


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       Sloper. Sloper identifies no authority that obligates a municipality to implement a sliding scale
       of fines to account for such disparity. Moreover, the penalty is uniformly imposed as a result of
       the prohibited conduct and is unrelated to the value of the vehicle in which the conduct occurs.
¶ 29       Sloper’s additional argument regarding the amount of fees imposed (aggregating
       $1,320–more than one-third of the entire judgment) is likewise without merit given that the
       amount of the fees was, in large part, a product of Sloper’s decision to refrain from paying the
       penalty and accumulated fees in order to secure the release of his car. Again, Sloper cites no
       authority for his claim that the amount of the fees charged for towing and storing the
       impounded vehicle gives rise to any violation of the owner’s constitutional rights.

¶ 30                                       CONCLUSION
¶ 31      For the reasons stated, the administrative agency’s finding that Sloper violated section
       7-24-225 and the penalty and fees imposed for that violation are affirmed.

¶ 32      Affirmed.




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