                                 2015 IL App (1st) 143426

                                                                             THIRD DIVISION
                                                                              October 14, 2015

                                       No. 1-14-3426


NIKKI ZOLLAR,                                              )              Appeal from the
                                                           )              Circuit Court of
     Plaintiff-Appellant,                                  )              Cook County
                                                           )
v.                                                         )              No. 2014 M1 450030
                                                           )
THE CITY OF CHICAGO DEPARTMENT OF                          )
ADMINISTRATIVE HEARINGS and THE CITY OF                    )
CHICAGO ANIMAL CARE AND CONTROL                            )
COMMISSION,                                                )              Honorable
                                                           )              Joseph Sconza,
     Defendants-Appellees.                                 )              Judge Presiding.

     PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
     Justices Lavin and Hyman concurred in the judgment and opinion.

                                         OPINION

¶1          On September 13, 2013, plaintiff-appellant Nikki Zollar's 100-pound male

     bullmastiff, Eli, attacked Jib, a female Portuguese water dog weighing 39 pounds, in an

     alley in the city of Chicago. A city ordinance defines a "dangerous animal" as any animal

     that "bites, inflicts injury on, kills or otherwise attacks a human being or domestic animal

     without provocation." Chicago Municipal Code § 7-12-020 (amended Nov. 19, 2008).

     After an investigation, the City of Chicago Animal Care and Control Commission (City)

     declared Eli to be a dangerous animal. Zollar demanded and received an administrative

     hearing. No evidence was presented at the hearing that Zollar's dog was provoked—

     either by a human being or another animal—prior to the attack. Following the hearing,

     the "dangerous animal" classification was upheld, but because Jib's injuries were not

     deemed severe, Zollar was not required to euthanize Eli. Instead, the administrative

     decision required her to comply with conditions imposed by the ordinance such as
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      posting a sign on her premises alerting passersby of the presence of a dangerous animal,

      muzzling the dog while off her property, implanting a microchip under the dog's skin,

      sterilization and maintenance of liability insurance. See Chicago Municipal Code § 7-12-

      050(c)(1)-(6) (amended Mar. 14, 2007). Zollar appealed the adverse decision to the

      circuit court of Cook County, which affirmed the decision. Zollar now appeals to this

      court. We likewise affirm.

¶2              Decisions of hearing officers under the Illinois Municipal Code are reviewed

      under the Administrative Review Law. 65 ILCS 5/1-2.2-50 (West 2014). As in any

      appeal from a decision under the Administrative Review Law (735 ILCS 5/3-101 et seq.

      (West 2014)), we review the decision of the agency and not the decision of the circuit

      court. Wortham v. City of Chicago Department of Administrative Hearings, 2015 IL App

      (1st) 131735, ¶ 13. An agency's decision on questions of fact will be affirmed when it is

      supported by the manifest weight of the evidence. Marconi v. Chicago Heights Police

      Pension Board, 225 Ill. 2d 497, 534 (2006); Wortham, 2015 IL App (1st) 131735, ¶ 13.

      Where the question presented is a mixed question of fact and law, i.e., whether the facts

      as established at the administrative hearing fall within the applicable law, the agency's

      determination will not be disturbed unless it is clearly erroneous. Wortham, 2015 IL App

      (1st) 131735, ¶ 13. Finally, an agency's decisions on questions of law are reviewed de

      novo. Id.

¶3              We have carefully examined the administrative record, including the evidence and

      testimony presented at the administrative hearing and, without summarizing that

      evidence, can say without hesitation that the hearing officer's determination that Zollar's

      dog is a dangerous animal within the meaning of the ordinance is amply supported by the

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      manifest weight of the evidence. Whether, as Zollar contended, her dog is normally

      mild-mannered and had never before acted in an aggressive manner, is beside the point.

      On September 13, 2013, Zollar's dog escaped from his dogsitter, raced down an alley

      where Jib was walking on a leash with her owner and grabbed the smaller dog in his

      jaws, initially by the hind flank and later by the mid-section and neck, ultimately

      inflicting several wounds. These facts overwhelmingly support the finding that Eli is a

      "dangerous animal."

¶4              Zollar claims that the hearing officer erred in shifting to her the burden of

      establishing that the attack was provoked. Again, the record belies this assertion and

      reflects that the City established in its case-in-chief that the attack was unprovoked. No

      evidence supports Zollar's contention that either Jib or her owner did anything to provoke

      the attack. After Zollar's dog attacked Jib, the latter's owner naturally attempted to protect

      her dog by hitting and kicking Eli. Zollar speculates that Eli was "playing" when he

      raced toward Jib and grabbed her between his jaws and only injured Jib after he was

      "assaulted" by Jib's owner or his dogsitter, who likewise attempted to stop the attack by

      hitting Eli. This scenario is pure speculation.

¶5              Further, under the City ordinance, "provocation" means that "the threat, injury or

      damage by the animal was sustained by a person who, at the time, was committing a

      willful trespass or other tort upon the premises occupied by the owner of the animal, or

      was tormenting, abusing, or assaulting the animal, or was committing or attempting to

      commit a crime." (Emphasis added.) Chicago Municipal Code, § 7-12-020 (amended

      Nov. 19, 2008). Provocation within the meaning of the ordinance does not exist here for

      two reasons. First, Zollar's dog did not injure another person; he injured another animal.

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No. 1-14-3426


      This court recently addressed this precise issue, finding that one animal cannot "provoke"

      another under the plain language of the ordinance. Wortham, 2015 IL App (1st) 131735,

      ¶ 18 ("[S]ince the language of the ordinance is clear and unambiguous, we will not depart

      from it in order to expand the meaning of provocation to the situation where a dog

      provokes another dog."). We agree with Wortham's reasoning and see no need to further

      address the issue. Second, as we have noted, the conduct of Jib's owner (who was not

      injured) in defending her pet after the attack cannot reasonably be characterized as

      "tormenting, abusing, or assaulting" Eli. Thus, under the plain language of the ordinance,

      there is no basis for Zollar's claim that the attack was provoked.

¶6              Zollar also assigns error in the hearing officer's admission of the investigative

      report prepared by a City animal control inspector. It is well-settled that the rules of

      evidence are relaxed in administrative hearings. Specifically, under the provisions of the

      Illinois Municipal Code governing hearings for code violations, "[r]ules of evidence shall

      not govern. The formal and technical rules of evidence do not apply in an adjudicatory

      hearing permitted under this Division. Evidence, including hearsay, may be admitted

      only if it is of a type commonly relied upon by reasonably prudent persons in the conduct

      of their affairs." 65 ILCS 5/1-2.1-6 (West 2014). Where the investigator's report formed

      the basis of the ordinance violation citation and the City typically relies on the results of

      such investigations in citing animal owners under the ordinance, we cannot say it was an

      abuse of discretion to admit that report at the administrative hearing. The investigator

      also did not testify to the substance of any out-of-court statements by witnesses to the

      incident, which ameliorates any hearsay concerns. Finally, both Eli's dogsitter and Jib's

      owner—eyewitnesses to the occurrence—testified at the hearing and were subject to

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No. 1-14-3426


      cross-examination, thus eliminating any possible prejudice from the admission of the

      report.

¶7              Lastly, Zollar contends that the dangerous animal ordinance is unconstitutionally

      "void for vagueness" because it fails to include provocation by other animals in the

      definition of that term. Zollar's argument is predicated on the specious contention that

      because the definition of "dangerous animal" under the ordinance refers only to an animal

      that attacks "without provocation," a reasonable person would understand that both a

      person and another animal could provoke an attack. Yet, in the same definitions section,

      "provocation" is defined to include only conduct by a person against an animal.

      Therefore, a reasonable person reading both definitions would understand that only a

      person can provoke an attack by tormenting, abusing or assaulting an animal. As we

      found in Wortham, there is nothing vague about the ordinance; its language is clear and

      unambiguous and the definition of provocation, as relevant here, includes only deliberate

      conduct by a person directed against an animal which thereafter injures the person.

¶8              Zollar's real complaint is that the Chicago city council did not elect to include

      provocation by other animals within the definition of "provocation" in the ordinance. But

      this does not make the ordinance vague as applied here. We will not second-guess the

      city council's decision to limit the definition of provocation given that humans act

      "willfully" and animals do not. And because Zollar presented no evidence that Jib

      provoked the attack by Eli, we need not address whether an animal "provoked" by

      another animal can be declared dangerous under the ordinance. See Hegwood v. City of

      Eau Claire, 676 F.3d 600, 603 (7th Cir. 2012) (When addressing a vagueness as-applied

      challenge, courts examine the facts of the case exclusively and not any hypothetical set of

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No. 1-14-3426


       facts under which the statute might be unconstitutional.). See also People v. White, 2011

       IL 109689, ¶ 144 (Courts will not consider constitutional questions unless they are

       essential to the disposition of the case.).

¶9              Finding no error in the administrative decision, we confirm the commission's

       order.

¶ 10            Confirmed.




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