                             2014 IL App (2d) 131261
                                  No. 2-13-1261
                          Opinion filed October 30, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THERESA HAYENGA,                       ) Appeal from the Circuit Court
                                       ) of Winnebago County.
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 13-MR-397
                                       )
THE CITY OF ROCKFORD,                  ) Honorable
                                       ) Eugene G. Doherty,
       Defendant-Appellant.            ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Jorgensen and Spence concurred in the judgment and opinion.

                                           OPINION

¶1     After defendant, the City of Rockford (City), a non-home-rule unit of government,

impounded a vehicle owned by plaintiff, Theresa Hayenga, she brought an administrative action.

The administrative hearing officer ruled in favor of the City. On administrative review, the trial

court reversed the administrative hearing officer’s decision and ruled that the City did not have

the authority to impound Hayenga’s vehicle. The City appeals the trial court’s decision, arguing

that: (1) the City was authorized to impound Hayenga’s vehicle under a municipal ordinance; (2)

the City had authority under state law to impound Hayenga’s vehicle; and (3) the trial court erred

by denying the City’s motion to reconsider. We affirm the trial court’s decision.

¶2                                     I. BACKGROUND
2014 IL App (2d) 131261


¶3      On January 2, 2013, at approximately 11 p.m., Matthew Wiseman, Hayenga’s boyfriend,

was driving Hayenga’s vehicle, alone, when he was pulled over by the Rockford police for a

burned-out rear license-plate light. Rockford police officer Christopher Jones observed multiple

firearms, in plain view, on the backseat of the car. Upon Jones’s request, Wiseman stepped out

of the car. During a search of Wiseman, Jones found in Wiseman’s pocket a glass bowl or pipe

with what appeared to be cannabis residue. Jones arrested Wiseman for unlawful possession of

drug paraphernalia, a Class A misdemeanor. See 720 ILCS 600/3.5 (West 2012). Jones also

issued Wiseman a citation for the traffic violation and impounded Hayenga’s vehicle. Hayenga

sought an administrative hearing, challenging the City’s authority to impound her vehicle.

¶4      During the administrative hearing on March 8, 2013, the City argued that it had authority

to impound Hayenga’s vehicle pursuant to section 17-41(a)(12) of the Rockford Code of

Ordinances (Rockford Code of Ordinances § 17-41(a)(12) (adopted Dec. 19, 2011)). Hayenga

argued that section 17-41(a)(12) did not grant authority to impound vehicles, because it

addressed only fees and procedures regarding impounded vehicles. Hayenga also argued that the

impoundment was improper because Wiseman was arrested for a misdemeanor, such that “he did

not have to be brought before a magistrate” without unnecessary delay, and the City “had

absolutely no authority to impound the vehicle” under state law. Further, the City had no

statutory authority for its interpretation of its ordinance.

¶5      During the administrative hearing on April 12, the City argued that it relied on section

11-208.7(b)(12) of the Illinois Vehicle Code (625 ILCS 5/11-208.7(b)(12) (West 2012)) in

enacting section 17-41(a)(12). The administrative hearing officer stated that there were no

questions of fact and that section 17-41(a)(12)’s validity was a question of law. The hearing

officer stated, “I do find this City’s ordinance allows and is proper in accordance with State law



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and with [the Rockford police department’s probable-cause statement] and I will uphold the

impounding of the vehicle.”

¶6     The probable-cause statement indicated the following. Jones stopped Wiseman “for no

rear registration light in the 1100 block of N. Church St.” Because Jones observed multiple

firearms on the backseat (the guns were later determined to be “BB/CO2 guns”), Jones had

Wiseman step out of the vehicle and patted him down. Jones removed from Wiseman’s pocket a

glass bowl or pipe used to ingest cannabis and took him “into custody at 1100 N. Church St.

without incident.”

¶7     On April 23, 2013, Hayenga timely filed a complaint for administrative review in the trial

court, alleging that “[t]he decision of the Hearing Officer was contrary to the law, against the

manifest weight of the evidence and clearly erroneous”; section 17-41(a)(12) did not authorize

the impoundment of her vehicle; and the City did not otherwise have authority to impound her

vehicle, because Wiseman “could have legally parked the vehicle where it was stopped.”

Hayenga asked the trial court to reverse the decision of the administrative hearing officer and

order her vehicle returned to her without the payment of fees or costs.

¶8     The City responded, arguing that it had authority to impound Hayenga’s vehicle pursuant

to section 17-41(a)(12), which mirrored section 11-208.7(b)(12) of the Vehicle Code.

¶9     On September 6, the trial court ruled that the City did not have authority to impound

Hayenga’s vehicle. The trial court’s order states, “Section 17-41 of [the Code of Ordinances]

does not enable [the City] to impound the Plaintiff’s vehicle.”

¶ 10   On October 1, the City filed a motion to reconsider, arguing that it had authority to

impound Hayenga’s vehicle because Wiseman was arrested for a Class A misdemeanor (720

ILCS 600/3.5 (West 2012)); the vehicle was on a “highway” within the meaning of section 11-

1302(c)(3) of the Vehicle Code (625 ILCS 5/11-1302(c)(3) (West 2012) (authorizing towing a

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2014 IL App (2d) 131261


vehicle after an arrest); and section 109-1(a) of the Code of Criminal Procedure of 1963 (725

ILCS 5/109-1(a) (West 2012)) mandated the police to arrest Wiseman and transport him to the

Winnebago County jail “without unnecessary delay.”

¶ 11   The trial court denied the City’s motion on October 31, reasoning that “citation of

existing authority to support a new theory of the City’s position is not a proper basis for

reconsideration.” On November 20, the City filed a notice of appeal.

¶ 12                                     II. ANALYSIS

¶ 13   The City urges this court to reverse the trial court’s decision that it had no authority to

impound Hayenga’s vehicle. The City argues that it had authority under section 17-41(a)(12) of

its Code of Ordinances.

¶ 14   On appeal, this court reviews the determination of the agency and not that of the trial

court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006). The

factual findings of the agency are deemed prima facie true and correct.             Livingston v.

Department of Employment Security, 375 Ill. App. 3d 710, 714 (2007). This court will not

overturn such findings unless they are against the manifest weight of the evidence. Lyon v.

Department of Children & Family Services, 209 Ill. 2d 264, 271 (2004). “An administrative

agency decision is against the manifest weight of the evidence only if the opposite conclusion is

clearly evident.” Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76,

88 (1992). However, we review de novo questions of law. See Lyon, 209 Ill. 2d at 271.

¶ 15   We first note that the parties agree that the City is a non-home-rule unit. As a non-home-

rule unit, the City is governed by “Dillon’s Rule.” See Janis v. Graham, 408 Ill. App. 3d 898,

902 (2011).    Under “Dillon’s Rule,” a non-home-rule unit possesses only those powers

specifically granted by the Illinois Constitution or by statute. Id. However, when exercising



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2014 IL App (2d) 131261


authority to regulate in a particular field, a non-home-rule unit may not adopt an ordinance that

infringes upon the spirit of the state law or is repugnant to the general policy of this state. Id.

¶ 16   The City argues that “the Administrative Hearing Officer properly construed section 17-

41(a)(12) as authority to impound Hayenga’s vehicle.”             Hayenga argues that section 17-

41(a)(12) merely authorized the City to impose administrative fees and did not authorize the City

to impound Hayenga’s vehicle.

¶ 17   The rules of statutory construction apply to the interpretation of municipal ordinances.

Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 48. The primary

objective of statutory construction is to ascertain and give effect to the intent of the legislature.

Id. The best indication of the legislative intent is the statutory language, given its plain and

ordinary meaning. Id. We review de novo a question of statutory construction. Id.

¶ 18   Section 17-41(a)(12) provides:

       “Sec. 17-41. Administrative fees and procedures for impounding vehicles for specified

       violations.

                       (a) The city, in addition to any fees charged for the towing and storage of

               an impounded vehicle, shall impose on the registered owner of the motor vehicle

               or the agents of that owner, a reasonable administrative fee related to its

               administrative and processing costs associated with the investigation, arrest, and

               detention of an offender, or the removal, impoundment, storage and release of a

               vehicle for the following violations:

                                                 ***

                               (12) Operation or use of a motor vehicle in the commission of, or

                       in the attempt to commit, any other misdemeanor or felony offense in

                       violation of the Criminal Code of 1961 when so provided by local

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2014 IL App (2d) 131261


                      ordinance.”    (Emphasis added.)     Rockford Code of Ordinances § 17-

                      41(a)(12) (adopted Dec. 19, 2011).

¶ 19   In this case, the administrative hearing officer determined that the City’s ordinance

permitted the impoundment of Hayenga’s vehicle and was in accordance with section 11-

208.7(b)(12) of the Vehicle Code. It is this decision that we must review. See Marconi, 225 Ill.

2d at 531.

¶ 20   The City contends that the administrative hearing officer reasonably determined that the

City was authorized to impound Hayenga’s vehicle pursuant to its ordinance and section 11-

208.7(b)(12) of the Vehicle Code.

¶ 21   The City acknowledges in its brief, “Section 17-41 of the [Code of Ordinances] does not

expressly authorize the arrest of a driver or the ability to impound a vehicle.” (Emphasis added.)

After reviewing the language of the ordinance, there can be no other conclusion. Nothing in the

ordinance authorizes the City to impound a vehicle. The ordinance addresses the imposition of

fees and costs related to an impounded vehicle; it does not grant authority to impound. Whether

the ordinance is in accordance with section 11-208.7(b)(12) of the Vehicle Code does not matter

for our purposes here. The ordinance relied upon by the City for impoundment is insufficient.

Accordingly, the administrative hearing officer erred by determining that the ordinance

authorized the impoundment of Hayenga’s vehicle.

¶ 22   The City argues that as a non-home-rule unit it had explicit authority to impound

Hayenga’s vehicle pursuant to section 11-208.7 of the Vehicle Code. The City also contends

that section 11-208.7 should be construed as part of a comprehensive legislative framework that

ensures the safety of the members of the public who use the public roadways. However, the City

failed to raise these arguments during the administrative process. The record indicates that,

regarding section 11-208.7 of the Vehicle Code, the City argued only that it relied on that section

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2014 IL App (2d) 131261


in enacting section 17-41(a)(12).    Accordingly, the City’s “explicit authority” argument is

forfeited. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278 (1998) (“issues or

defenses not placed before the administrative agency will not be considered for the first time on

administrative review”); see 735 ILCS 5/3-110 (West 2012).

¶ 23   Even if the City had raised the argument that section 11-208.7 of the Vehicle Code

granted it explicit authority to impound Hayenga’s vehicle, its argument would fail. We agree

with Hayenga’s argument that nothing in section 11-208.7 grants authority to impound vehicles.

Section 11-208.7 provides:

              “§11-208.7. Administrative fees and procedures for impounding vehicles for

       specified violations.

              (a) Any municipality may, consistent with this Section, provide by ordinance

       procedures for the release of properly impounded vehicles and for the imposition of a

       reasonable administrative fee related to its administrative and processing costs associated

       with the investigation, arrest, and detention of an offender, or the removal, impoundment,

       storage, and release of the vehicle. The administrative fee imposed by the municipality

       may be in addition to any fees charged for the towing and storage of an impounded

       vehicle. The administrative fee shall be waived by the municipality upon verifiable proof

       that the vehicle was stolen at the time the vehicle was impounded.

              (b) Any ordinance establishing procedures for the release of properly impounded

       vehicles under this Section may impose fees for the following violations:

                                              ***

                      (12) operation or use of a motor vehicle in the commission of, or in the

              attempt to commit, any other misdemeanor or felony offense in violation of the



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2014 IL App (2d) 131261


              Criminal Code of 1961 or the Criminal Code of 2012, when so provided by local

              ordinance; ***.” (Emphases added.) 625 ILCS 5/11-208.7 (West 2012).

¶ 24   Hayenga argues that section 11-208.7 of the Vehicle Code does not grant authority to

impound vehicles. Hayenga argues that section 11-208.7 “clearly and unambiguously provides

for a procedure for non-home-rule entities to ‘provide by ordinance for procedures for release of

properly impounded vehicles and for the imposition of a reasonable administrative fee.’ ”

(Emphasis added.) See 625 ILCS 5/11-208.7(a) (West 2012).

¶ 25   We agree with Hayenga’s interpretation. Nothing in section 11-208.7 of the Vehicle

Code grants authority to impound vehicles. The plain and ordinary language of subsection (a)

grants non-home-rule units the power to enact ordinances to establish procedures for the release

of “properly impounded vehicles” and for the imposition of reasonable fees. Subsection (b),

likewise, limits a non-home-rule unit’s power to impose fees pursuant to its procedures for the

release of vehicles that were “properly impounded.” Thus, section 11-208.7 does not grant non-

home-rule units the power to impound vehicles. Accordingly, even if the City had not forfeited

its argument that section 11-208.7 granted it explicit authority to impound Hayenga’s vehicle,

that argument would fail.

¶ 26   The City argues that this interpretation is illogical because it grants municipalities the

authority to impose fees for impounding vehicles while denying municipalities the authority to

impound those same vehicles. We disagree with the City’s argument. The plain and ordinary

language of section 11-208.7 does not deny non-home-rule units the power to impound vehicles;

rather, it requires that those vehicles are “properly impounded.” However, the record indicates

that the City failed to argue that Hayenga’s vehicle was “properly impounded.” Further, nothing

in the record indicates that the administrative hearing officer made any findings regarding this

issue. Rather, the City relied only upon, and the administrative hearing officer ruled only upon,

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2014 IL App (2d) 131261


whether the City had authority to impound pursuant to its ordinance in accordance with section

11-208.7. Thus, we need not discuss whether Hayenga’s vehicle was “properly impounded.”

See Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 278; see also Wade v. City of North

Chicago Police Pension Board, 226 Ill. 2d 485, 504 (2007) (on appeal from administrative

review in the trial court, it is the hearing officer’s decision that is reviewed, and not that of the

trial court).

¶ 27    The City also argues that it had authority to impound Hayenga’s vehicle pursuant to

section 109-1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/109-1(a) (West 2012))

and section 11-1302(c)(3) of the Vehicle Code (625 ILCS 5/11-1302(c)(3) (West 2012)).

Section 109-1(a) of the Code of Criminal Procedure of 1963 provides, “A person arrested with or

without a warrant shall be taken without unnecessary delay before the nearest and most

accessible judge in that county.” Section 11-1302(c)(3) of the Vehicle Code provides:

                “(c) Any police officer is hereby authorized to remove or cause to be removed to

        the nearest garage or other place of safety any vehicle found upon a highway when:

                                                  ***

                3. the person driving or in control of such vehicle is arrested for an alleged

        offense for which the officer is required by law to take the person arrested before a proper

        magistrate without unnecessary delay ***.” 625 ILCS 5/11-1302(c)(3) (West 2012).

The City argues that, pursuant to section 109-1(a), when Jones arrested Wiseman, he was

“required” for purposes of section 11-1302(c)(3) to take him before a magistrate without

unnecessary delay. Therefore, the City contends, section 11-1302(c)(3) authorized the City to

impound Hayenga’s vehicle. Hayenga argues that Jones was not “required” to arrest Wiseman;

instead, Jones could have issued Wiseman a notice to appear pursuant to section 107-12 of the



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Code of Criminal Procedure of 1963 (725 ILCS 5/107-12 (West 2012)), and there would have

been no need to take him into custody.

¶ 28   It is well settled that the forfeiture principle applies to administrative review cases, and

“issues or defenses not placed before the administrative agency will not be considered for the

first time on administrative review.” Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 278; see

735 ILCS 5/3-110 (West 2012). Because this case comes to us on administrative review, it is the

hearing officer’s decision that we review, not that of the trial court. See Wade, 226 Ill. 2d at 504.

Consequently, the only question relevant to forfeiture is whether the City raised these arguments

during the administrative hearing.     The record indicates that the City failed to raise these

arguments, and therefore these arguments are forfeited.

¶ 29   The City also argues that the trial court erred by denying its motion to reconsider. In its

motion to reconsider, the City argued that it had authority to impound Hayenga’s vehicle

because: Wiseman was arrested for a Class A misdemeanor (720 ILCS 600/3.5 (West 2012)); the

vehicle was on a “highway” within the meaning of section 1302(c)(3) of the Vehicle Code (625

ILCS 5/1302(c)(3) (West 2012) (authorizing towing a vehicle after an arrest); and section 109-

1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/109-1(a) (West 2012)) mandated

the police to arrest Wiseman and transport him to the Winnebago County jail “without

unnecessary delay.” The City urges this court to consider these arguments on appeal. However,

because the City failed to raise these arguments during the administrative hearing, these

arguments are forfeited.

¶ 30                                     III. CONCLUSION

¶ 31   For the reasons stated, we affirm the judgment of the trial court.

¶ 32   Affirmed.



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