Dombrowski v. City of Chicago

• Decision Date: 29 December 2005
• Docket Number: No. 1-05-0321.,1-05-0321.
• Citation: 842 N.E.2d 302
• Parties: Joseph DOMBROWKSI, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, The Department of Administrative Hearings, and The Department of Buildings, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

842 N.E.2d 302

Joseph DOMBROWKSI, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, The Department of Administrative Hearings, and The Department of Buildings, Defendants-Appellees.

No. 1-05-0321.

Appellate Court of Illinois, First District, Fourth Division.

December 29, 2005.

COPYRIGHT MATERIAL OMITTED

Gregory A. Bedell, McNish, Knabe & Kroning, Chicago, for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago, (Benna Ruth Solomon, Myriam Zreczny, Christopher S. Norborg, of counsel), for Appellees.

Justice GREIMAN delivered the opinion of the court:

Plaintiff Joseph Dombrowski owns the building located at 1331-41 West Addison Street (the Building), which a City of Chicago (the City) building inspector observed and alleged violated the Chicago Building Code, specifically section 13-196-530(b), which requires that building exteriors be free of holes, cracks, or other openings that might admit water into a building's interior. Chicago Municipal Code § 13-196-530(b) (1990). At trial, at which only plaintiff testified, an administrative law judge (ALJ) found plaintiff liable and imposed a fine of $500. On administrative review to the circuit court of Cook County, the ALJ's judgment was affirmed. Plaintiff now appeals.

On May 11, 2004, the City issued plaintiff and his management company a notice of violation and summons, advising plaintiff of alleged violations of sections 13-196-530(b), 13-196-570, and 13-12-100 of the Building Code (Chicago Municipal Code §§ 13-196-530(b), 13-196-570, and 13-12-100) (1990, 1990, and 2005, respectively), specifically that there were cracks and other openings between bricks and mortar joints in the Building's west and north walls, that the Building's porch had broken and missing pickets, and that plaintiff failed to arrange entry for the inspector into the Building's interior, all observed on March 12, 2004. The notice advised plaintiff that the City would conduct a hearing on May 28, 2004, and that he would be required to present all evidence as to the nonexistence or correction of the alleged violations at the hearing. Plaintiff appeared at the hearing pro se and was found not liable on the final count. The ALJ continued proceedings as to the remaining violations to June 25, 2004, and set a reinspection date of June 18, 2004, to allow plaintiff to correct the alleged violations.

A City inspector observed the Building again on June 18, 2004, and noted that the previously alleged defects had not been corrected.

At the June 25, 2004, hearing, at which plaintiff again appeared pro se, the ALJ and plaintiff discussed the alleged violation of section 13-196-530(b), in which the City contended that the Building's west wall had "wash[ed] out mortar" and "loose brick" between the second and third elevation and "loose brick" and "washout mortar joint" on the third floor, and that the north wall had "washout mortar joint[s]" at each elevation. The ALJ stated that the City had established a prima facie case for liability through its first and second inspection reports. Plaintiff responded that he had visually observed the allegedly violative conditions and measured the openings in the mortar, which, he stated did "not exceed or go into the second course of brick."

The ALJ explained that, in order to resolve the case, he had to weigh plaintiff's evidence against the City's, which was the sworn statements by its inspectors as to the Building's conditions, and that plaintiff had failed to rebut the City's case. Plaintiff responded that, while the City alleged that the Building's exterior was in such a condition as to admit water into its interior, there was no allegation that it had in fact caused moisture to infiltrate the outer walls. The ALJ nonetheless found that the City's allegation was sufficient to state a Code violation and found plaintiff liable on that count.

The ALJ found plaintiff not liable on the charge of violating section 13-196-570, based on the fact that the City had alleged the same violation in July 2003 but never pressed a suit against plaintiff. The ALJ imposed a fine of $500 plus $25 in costs on the count of violating section 13-196-530(b).

Plaintiff filed a complaint for administrative review pro se, alleging that the records of his hearings were incomplete and prevented him from proceeding without prejudice, that the ALJ made his finding of liability based solely on the City inspector's March 2004 report, that the inspector's report did not allege that the Building's exterior condition allowed water to enter its interior, that the ALJ found liability without evidence of water being admitted to the Building's interior, and that the ALJ provided no basis or aggravating factors for imposing the maximum fine.

According to a bystander's report, plaintiff appeared pro se at the administrative review and argued that the incomplete record of the proceedings before the ALJ prevented a full and fair review by the trial court. The City countered that the unrecorded and inaudible portions of the hearings were not problematic because the circuit court would be able to comprehend the basis of the proceedings. The circuit court determined that the record was sufficient to allow for an adequate review of the ALJ's decision.

Plaintiff next argued the ALJ improperly interpreted the Building Code by finding a violation of section 13-196-530(b) without proof of actual water infiltration and that the evidence he presented at the prior hearings established that the Building's condition did not violate that provision of the Building Code. The City countered that the language of the Building Code does not require proof of actual water infiltration and that the ALJ's decision was not against the manifest weight of the evidence.

The trial court determined that the ALJ had not misinterpreted the Building Code and that the fine imposed was not unconstitutional or unsupported by the record. Plaintiff, with counsel, now appeals.

Plaintiff first contends that he was deprived of his due process right to a full and fair administrative hearing where he was not allowed to cross-examine the only evidence presented against him, and that the ALJ improperly granted more weight to the City inspector's reports than to his own testimony. He argues that, because the City inspector who alleged the Building Code violations was unavailable to testify at the hearing, plaintiff was denied the opportunity to challenge the inspector's qualifications, methods, and conclusions through cross-examination. Plaintiff also challenges section 13-196-530(b) of the Building Code as unconstitutionally vague.

Defendants counter that plaintiff has waived the preceding constitutional arguments on appeal because he failed to raise them either during the administrative hearing or on administrative review in the circuit court. They rely on the rule that constitutional issues not raised before an administrative agency and only presented for the first time on appeal to this court are waived. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill.2d 262, 230 Ill.Dec. 991, 695 N.E.2d 481 (1998); Connor v. City of Chicago, 354 Ill.App.3d 381, 290 Ill.Dec. 86, 820 N.E.2d 1153 (2004). Defendants point out that plaintiff never questioned the validity of section 13-196-530(b), complained of the ALJ's apparent favor for the City inspector's statement, or asked that the inspector be made available at any time prior to this appeal and thereby created the very problem of which he now complains. Defendants further argue that plaintiff's failure to raise these issues prior to now deprives this court of a full record on which to assess his claims and that original jurisdiction over the constitutionality of a given piece of legislation lies with the circuit court.

Plaintiff presents no real rebuttal to defendants' claim of waiver, but responds only that, even if his constitutional arguments are waived, this court should nevertheless consider and resolve them because they "go to the heart of the administrative hearing process" in the form of a party's due process right to a full, fair, and impartial hearing. Plaintiff argues that this court ought to consider the due process claims as constitutional issues of significant importance, notwithstanding waiver, in order to achieve a just result, in accordance with the holdings of El Sauz, Inc. v Daley, 328 Ill.App.3d 508, 262 Ill.Dec. 444, 765 N.E.2d 1052 (2002), Catholic Charities v. Thorpe, 318 Ill.App.3d 304, 251 Ill.Dec. 764, 741 N.E.2d 651 (2000), and Daniels v. Industrial Comm'n, 201 Ill.2d 160, 266 Ill.Dec. 864, 775 N.E.2d 936 (2002).

We believe there ought to be some consideration for the fact that plaintiff appeared pro se at both the administrative hearings and on review to the circuit court, and may not have been aware of any potential constitutional violations that could have occurred at either stage. However, a party's pro se status does not relieve him or her of the burden of complying with procedural rules. See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill.App.3d 509, 511, 254 Ill.Dec. 776, 748 N.E.2d 222 (2001).

In general, an appellant cannot raise a constitutional issue for the first time on appeal to this court where the lower court has not had an opportunity to consider it. See Village of Lake Villa v. Stokovich, 211 Ill.2d 106, 118-19, 284 Ill. Dec. 360, 810 N.E.2d 13 (2004). While administrative agencies do not have the judicial authority to determine the constitutionality of the legislation they are charged with enforcing (see Yellow Cab Co. v. City of Chicago, 938 F.Supp. 500 (N.D.Ill.1996)), it is generally required that a litigant raise any challenges to a statute's validity at the administrative hearing and on review to the circuit court, lest the challenge be waived for purposes of appellate review. See Caauwe v. Police Pension Board, 216 Ill.App.3d 313, 160 Ill.Dec. 124, 576 N.E.2d 1078 (1991...