Shachter v. City of Chi.

• Decision Date: 08 April 2016
• Docket Number: No. 1–15–0442.,1–15–0442.
• Citation: 52 N.E.3d 339,402 Ill.Dec. 418
• Parties: Jay F. SHACHTER, Plaintiff–Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, the Department of Administrative Hearings, and the Department of Streets and Sanitation, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

52 N.E.3d 339

402 Ill.Dec. 418

Jay F. SHACHTER, Plaintiff–Appellant

v.The CITY OF CHICAGO, a Municipal Corporation, the Department of Administrative Hearings, and the Department of Streets and Sanitation, Defendants–Appellees.

No. 1–15–0442.

Appellate Court of Illinois, First District, Sixth Division.

Rule 23 order filed Feb. 11, 2016.

Rule 23 order withdrawn April 4, 2016.

Opinion filed April 8, 2016.

Jay F. Shachter, Chicago, appellant pro se.

Stephen R. Patton, Corporation Counsel, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellees.

OPINION

Presiding Justice ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellant, Jay F. Shachter, brought the instant action against defendants-appellees, the City of Chicago (City), the City's Department of Administrative Hearings (DOAH), and the City's Department of Streets and Sanitation (Department). Plaintiff sought administrative review of a finding by an administrative law officer (ALO) that he had violated section 7–28–120(a) of the Chicago Municipal Code (Chicago Municipal Code § 7–28–120(a) (amended Nov. 16, 2011)) (weed ordinance), for having weeds greater than 10–inches tall on his property. The circuit court affirmed the ALO's finding that plaintiff violated the weed ordinance, and also dismissed the claims in plaintiff's second amended complaint seeking declarations that the weed ordinance and the administrative proceedings were invalid. We confirm the decision of the ALO, and affirm the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 On September 12, 2012, the Department mailed plaintiff an “ADMINISTRATIVE NOTICE OF ORDINANCE VIOLATION” (notice) to his residence, located at 6424 North Whipple Street in Chicago (property). The notice asserted that, on May 31, 2012, an employee of the Department (badge number 626) inspected the property and discovered that weeds “greater than 10 inches in height” were growing on the property in violation of the weed ordinance. The notice informed plaintiff that an administrative hearing on the violation would be held on October 2, 2012. Plaintiff was instructed to “bring all relevant evidence and ensure that necessary witnesses are present at your hearing.” He was further instructed to notify the Department by phone if he was not the owner of the property and to contact the DOAH with any questions about the administrative proceedings.

¶ 4 On October 2, 2012, plaintiff failed to appear at the scheduled hearing, and a default finding of liability was entered against him. On November 27, 2012, plaintiff appeared before the ALO with two witnesses. The ALO granted plaintiff's motion to vacate the default finding of liability and commenced a hearing on the notice.

¶ 5 However, before evidence was presented, plaintiff presented a written motion to recuse the ALO on the ground that, as an employee of the DOAH, the ALO had a pecuniary interest in the outcome of the hearing. The ALO denied the motion and stated that he did not work for the City and was not an employee of the DOAH, but was “an attorney that is hired as an independent contractor to preside over these hearings.”

¶ 6 The Department then presented into evidence the notice, wherein the inspector, badge number 626, certified that an inspection of the property showed weeds more than 10 inches tall were growing on the property in violation of the weed ordinance, and that photographs attached to the administrative complaint “truly and accurately depict[ed]” the property at the time of the inspection: May 31, 2012, at 9:08 a.m. Additionally, the Department presented as evidence the 10 photographs which had been attached to the administrative complaint, and a deed which showed plaintiff as the owner of the property. The ALO admitted the photographs into evidence over plaintiff's objection that one of the photographs depicted the parkway and not the property and, therefore, was irrelevant. The photographs showed the condition of the property from different perspectives, and one picture showed a sign attached to a building on the property showing the street number “6424.” On the basis of this evidence, the ALO found the notice was proper and that the Department had established a prima facie case as to plaintiff's violation of the weed ordinance.

¶ 7 The ALO then provided plaintiff an opportunity to respond. Plaintiff first presented a written motion to continue the hearing on the ground that he had not previously seen any of the Department's evidence and, therefore, he was deprived of due process. In presenting his motion, plaintiff stated that he had brought two witnesses and was “obviously prepared to argue my case today.” The ALO denied the motion to continue stating that plaintiff had “familiarity with the process” based on past charges and that both sides were prepared “to proceed.”

¶ 8 Plaintiff presented as evidence a copy of the rules and regulations of the Department which defines “weeds” for the purposes of the weed ordinance as “vegetation that is not managed or maintained” by the owner or person who controls the premises and “which, on average, exceeds ten inches in height.” City of Chicago Department of Streets and Sanitation & Department of Environments, Rules and Regulations for Weed Control § 2.0 (eff. May 28, 2008). Plaintiff posited that, to defeat the charge of violating the weed ordinance based on this definition, he need only establish that the vegetation on his property was managed or maintained.

¶ 9 As to the condition of his property, plaintiff testified that the plants on his property were not weeds because he “assiduously and scrupulously” manages and maintains them. He said that “all the plants on my property are growing exactly where I want them to grow” and were the types of plants he wished to grow on his property. Plaintiff also asserted that the Department's photographs actually show he did maintain his property because there was no trash depicted in the photographs. Plaintiff believed the property was “the best tended property on my block” in that there was trash on the lawns of other properties.

¶ 10 Plaintiff presented as witnesses, Dwanye Esslick, who lives across the street from the property, and Anthony Evans, who lives on the property. Both witnesses testified that plaintiff tended and maintained his plants, there was no garbage on the property, and plaintiff tied the plants on the property so that the sidewalk was kept free of obstruction. Mr. Esslick described plaintiff as a “kind of naturalist.” Mr. Esslick said some of the plants “look more like wildflowers” and that he would not “personally call them a weed.” Mr. Esslick thought the property, at the time of the hearing, looked similar to the condition depicted in the Department's photographs. On cross examination, Mr. Esslick admitted that he had not seen plaintiff doing any planting on the property or mowing his lawn.

¶ 11 Mr. Evans testified that plaintiff “tended” the property in spring 2012, but that the Department's photographs “aren't very good.” On cross examination, he said he could not recall if plaintiff tended the property on May 31, 2012. On redirect, he stated that in spring 2012, he did not “see” plaintiff tending the property, but he knew that plaintiff “had done it.”

¶ 12 During his examination of Mr. Evans, plaintiff asked about Bob Lee, who also lives on the property, but was unavailable to testify at the hearing. The ALO sustained the Department's hearsay objection to plaintiff's attempt to elicit from Mr. Evans the nature of Mr. Lee's testimony had he been called as a witness. Plaintiff later sought to introduce a purported tape recording of Mr. Lee's potential testimony. The ALO sustained the Department's objection to the introduction of the tape finding it was not authenticated. The ALO suggested that plaintiff could have presented an affidavit from Mr. Lee.

¶ 13 After hearing closing arguments, the ALO found that the Department's photographs established that the property “clearly had weeds that were in violation of the ordinance” and plaintiff had not sufficiently rebutted that evidence as to the condition of the property on May 31, 2012. The ALO thus entered an order finding the Department had established, by a preponderance of the evidence, that plaintiff had violated the weed ordinance on May 31, 2012, and imposed a fine of $1,200 plus $60 in costs, against plaintiff.

¶ 14 Plaintiff, on January 2, 2013, filed a five-count complaint in the circuit court against the City, the Department, and the DOAH seeking administrative review of the ALO's decision (count I), and declaratory judgments that the weed ordinance is invalid (count II), the administrative proceeding was invalid because plaintiff first saw the Department's evidence on the day of trial (count III), the ALO prohibited the introduction of hearsay evidence (count IV), and the ALO was unfit to hear these matters (count V). Defendants filed an appearance on January 17, 2013, and a certified record of the administrative proceedings on August 8, 2013.

¶ 15 Plaintiff filed a specification of errors contending, in relevant part, that: (1) his due process rights were violated because he was not given an opportunity to review the evidence against him before the administrative hearing; (2) the ALO wrongly found the relevant question was whether the plants on the property on the date of the inspection violated the weed ordinance; (3) the ALO should have allowed his hearsay evidence; (4) the ALO should have recused himself because he was employed by the DOAH; (5) plaintiff's due process rights were violated because he was not afforded time to prepare his defense and was denied a continuance; and (6) the evidence did not support a finding of liability because plaintiff presented evidence that he maintained the vegetation on his property.

¶ 16 Defendants moved to dismiss plaintiff's declaratory judgment claims (counts II through...