Village of Sugar Grove v. Rich

• Decision Date: 04 March 2004
• Docket Number: No. 2-03-0272., No. 2-03-0218 to 2-03-0225
• Citation: 347 Ill. App.3d 689,808 N.E.2d 525,283 Ill.Dec. 559
• Parties: The VILLAGE OF SUGAR GROVE, Plaintiff-Appellee, v. James RICH, d/b/a J.R.'s Retreat, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

808 N.E.2d 525

347 Ill. App.3d 689

283 Ill.Dec. 559

The VILLAGE OF SUGAR GROVE, Plaintiff-Appellee, v. James RICH, d/b/a J.R.'s Retreat, Defendant-Appellant.

Nos. 2-03--03-0225, 2-03-0272.

Appellate Court of Illinois, Second District.

March 4, 2004.

Rehearing Denied May 21, 2004.

Timothy P. Dwyer, Law Office of Timothy P. Dwyer, St. Charles, for James Rich.

Steven A. Andersson, Mickey, Wilson, Weiler, Renzi & Andersson, P.C., Aurora, for Village of Sugar Grove.

Justice GILLERAN JOHNSON delivered the opinion of the court:

In this consolidated appeal, the defendant, James Rich, was issued 13 citations for violating the noise control ordinance of the plaintiff, the Village of Sugar Grove (the Village). Following a bench trial, the defendant was convicted on eight of the citations, sentenced to supervision, and fined $50 for each infraction. The trial court dismissed without prejudice the remaining citations. The defendant appeals five of his convictions. He also appeals the dismissal of four of the citations. On appeal, the defendant argues that (1) the Village's noise control ordinance violation is preempted by state law; (2) the trial court erred in refusing to admit into evidence a document that allegedly fell within the business document exception to the hearsay rule; and (3) his multiple convictions violate the one-act, one-crime doctrine.

The following facts have been discerned from the parties' bystanders report and the common law record. The defendant received 13 citations for violating section 4-5-1 of the Village Code of the Village of Sugar Grove (the Village Code). Section 4-5-1 of the Village Code provides:

"NOISE PROHIBITED: It shall be unlawful for any person to make, continue, or cause to be made or continued any excessive, unnecessary or unusually loud noise or any noise which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety with others within the Village." Sugar Grove Village Code § 4-5-1 (1998).

Section 4-5-4 of the Village Code further provides:

"PENALTY; REMEDIAL ACTION:

A. Violation; Penalty: Unless otherwise provided, any person violating any of the provisions of this Chapter shall be deemed guilty of a petty offense and, upon conviction thereof, shall be subject to penalty as provided in Section 1-4-1 of this Code. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such under this Chapter." Sugar Grove Village Code § 4-5-4 (1988).

Three of the defendant's violations occurred on June 8, 2002. One of the defendant's violations occurred on June 14, 2002. The remaining violations occurred on June 15, 2002.

The trial court conducted a consolidated bench trial on October 18, 2002. The defendant proceeded pro se. The following testimony was admitted. Michael Schoenberger testified that at approximately 9 p.m. on June 8, 2002, he was within his home and all of his windows were closed. He heard extremely loud, excessive, unnecessary, and disturbing music coming from outside his home. Schoenberger determined that the music was being caused by an establishment known as J.R.'s Retreat. The defendant was the owner and operator of J.R.'s Retreat. Schoenberger testified that the music alarmed and disturbed him and his family, caused them great anxiety, and disturbed their comfort, health, repose, and peace. Schoenberger reported the noise to police. Schoenberger testified that the occurrence took place within the Village's boundaries.

Allen Ratliff testified that at approximately 9:56 p.m. on June 8, 2002, he was inside his home. He heard loud, excessive, unnecessary, and disturbing music coming from outside his home. Ratliff determined that the music was being caused by J.R.'s Retreat, which is owned and operated by the defendant. The music alarmed and disturbed him and his family, caused them great anxiety, and disturbed their comfort, health, repose, and peace. Ratliff notified the police. Ratliff testified that the occurrence took place in the Village.

After Ratliff testified, the parties stipulated that the remaining witnesses would testify the same as the previous two witnesses, with the exception of the time and date of the occurrences. Marsha Schuster would testify that she heard the disturbing music on June 8, 2002, at 8:32 p.m. and on June 15, 2002, at 9 p.m. Linda Sackett would testify that she heard the disturbing music on June 14, 2002, at 8:17 p.m. Carol Gammas would testify that she heard the disturbing music on June 15, 2002, at 8:39 p.m. Gerry Schuster would testify that he heard the disturbing music on June 15, 2002, at 10:10 p.m. Finally, Diane Schuth would testify that she heard the disturbing music on June 15, 2002, at 10:16 p.m.

The defendant testified that he agreed with the testimony of the Village's witnesses. He maintained, however, that he did not violate the ordinance. He attempted to offer into evidence a document. The Village objected, claiming that the writing was irrelevant and hearsay. The defendant did not respond to the objection and the trial court sustained it. The defendant did not make an offer of proof and the document is not a part of the record. The defendant then asked for a continuance, which the trial court denied. Lastly, the defendant testified that he would have turned down the music had anyone complained to him directly.

Following the parties' closing arguments, the trial court found the defendant guilty of eight violations of the Village's noise ordinance. It sentenced the defendant to court supervision and fined him $50 for each offense. As to five of the citations, the Village's complaining witnesses had failed to appear. Accordingly, the trial court granted the Village's motion to dismiss those cases with leave to reinstate.

Following the denial of his posttrial motions, the defendant timely appealed his convictions in case Nos. 02-OV-3219, 02-OV-3220, 02-OV-3222, 02-OV-3223, and 02-OV-3227, which were based on the testimony of Sackett, Gammas, Marsha Schuster as to the occurrence on June 15, 2002, Gerry Schuster, and Schuth, respectively. Additionally, the defendant appeals from the trial court's dismissal of case Nos. 02-OV-3221, 02-OV-3224, 02-OV-3225, and 02-OV-3226.

Before addressing the merits of the defendant's appeal, this court has an obligation to consider, sua sponte, its jurisdiction over the appeal. Renzulli v. Zoning Board of Appeals, 176 Ill.App.3d 661, 662, 126 Ill.Dec. 116, 531 N.E.2d 411 (1988). An appellate court's jurisdiction is limited to review of appeals from final orders (107 Ill.2d R. 301), unless the order appealed from comes within one of the exceptions for interlocutory orders set forth in the supreme court rules (see 107 Ill.2d Rs. 306, 307, 308). It is well settled that dismissals granted without prejudice are not final and appealable orders. DeLuna v. Treister, 185 Ill.2d 565, 569, 236 Ill.Dec. 754, 708 N.E.2d 340 (1999); Flores v. Dugan, 91 Ill.2d 108, 114, 61 Ill.Dec. 783, 435 N.E.2d 480 (1982); Renzulli 176 Ill.App.3d at 662, 126 Ill.Dec. 116, 531 N.E.2d 411. The defendant here has appealed several matters that the trial court dismissed with leave to reinstate. These matters were not final and appealable, as they were dismissed without prejudice. Accordingly, we dismiss the defendant's appeals in case Nos. 02-OV-3221, 02-OV-3224, 02-OV-3225, and 02-OV-3226.

As to the remaining cases, the defendant's first contention on appeal is that the Village's noise ordinance is preempted by the Illinois Environmental Protection Act (Environmental Protection Act) (415 ILCS 5/1 et seq. (West 2002)). The defendant relies upon City of Des Plaines v. Chicago & North Western Ry. Co., 65 Ill.2d 1, 2 Ill.Dec. 266, 357 N.E.2d 433 (1976). In that case, the City of Des Plaines charged the North Western Railway Company with violating its local noise control ordinance. Chicago & North Western Ry. Co., 65 Ill.2d at 2-3, 2 Ill.Dec. 266, 357 N.E.2d 433. The alleged violations were based upon noise caused by North Western Railway's locomotives in their morning departure from the Des Plaines railroad yard. Chicago & North Western Ry. Co., 65 Ill.2d at 3, 2 Ill.Dec. 266, 357 N.E.2d 433. On appeal, the Illinois Supreme Court struck down the City of Des Plaines's noise control ordinance, holding that it was legislation in an area which did not pertain to the government and affairs of a home rule unit. Chicago & North Western Ry. Co., 65 Ill.2d at 7, 2 Ill.Dec. 266, 357 N.E.2d 433.

The Chicago & North Western Ry. Co. court reasoned:

"While noise pollution may initially appear to be a matter of local concern, an analysis of the problem reveals that noise pollution is a matter requiring regional, if not statewide, standards and controls. * * * While certain categories of noise pollution may be confined within the boundaries of one municipality, such as an irate motorist sounding his horn, other categories are not so limited. A railroad yard or industrial district located on the boundary of one municipality will obviously affect other municipalities with noise pollution emissions. Of particular relevance is the question of noise emissions from trains in transit which may pass through numerous municipalities en route to their destination. During oral argument in the present case, counsel for Des Plaines acknowledged that the ordinance in question was designed to regulate unwanted noise emissions affecting Des Plaines residents whether or not the noise pollution originated within that municipality. Des Plaines, therefore, recognized * * * that control of unwanted noise emissions was not a matter of local concern." Chicago & North Western Ry. Co.,65 Ill.2d at 5,2 Ill.Dec. 266,357 N.E.2d 433.

While Chicago & North Western Ry. Co. is certainly instructive, it is not entirely on point. Unlike the City of Des Plaines, the Village is a not a home rule unit of government. Rather, it is a non-home-rule unit of government...