present the general provision being applied by the court of this case in the lack of expediting the last of lacking of there is no less the dition provision in the unsafely in the city of atlanta which then finds did not apply in this case finally there is an additional fine imposed on it was under the unified code of corrections that we argue that fine is not applicable to this case and if it was that couple the court should have held a hearing pursuant to case law  constitutional excess fines for the if i could i'd like to set for just a quick timeline for the court that we think is appropriate for the court to realize the city of atlanta was and were noted when they were notified of a violation violation of an unsafe building provision by a neighbor who was looking at trying to buy the property in august two thousand and thirteen without inspecting the building they sent a notice of violation pursuant to their own state building works fifteen days passed nothing happened three months later they followed complained december of two thousand and thirteen citing her unsafe building ordinance as the basis of their claim they don't lean they don't see demolition repair even though their organs mandate said they should and repair or demolition of the property they wait until may two thousand and fourteen five months after filing their complaint eight months after sending out a notice and they sent a structural engineer to the property may of two thousand and fourteen to inspect the property which really look at the general the provision it talks about except as otherwise provided any person convicted of a violation of any section of this code shall be fined in the summer and then it goes on whereas the n c a a building ordinance does not speak to a fine it doesn't use any fine language it says they are comply your honor it sets forth a specific remedy for failure to comply that works it's our position that it's under the general penalty provision and it's a penalty or fine because it says general penalty that's what it's under in the code and it says they shall be fined in that amount it doesn't say seller shall we penalize but that the heading says general penalty and it's our position that this order does provide course penalty it says the government can go to the trial court and say i want to take control of your building your property and then does not provide for fine would you know realize your i agree doesn't because i don't think a fine is applicable in this case at all their statutes if they don't even realize state statute they don't comply with their own organs were or didn't that mandates that they take certain action well the remedy is that they should not then be able to amass a windfall by not acting pursuant to their own mandates they chose impose on themselves by passing this word and so that says you shall do this when the state statute says you may do this they impose that on themselves and when they don't act they can't turn a blind eye to their own laws blindside the statu and say we can choose whatever choice we want these are specific as to these individual causes of action the only one out of ten in the whole code that has any specific remedy for virally so what we're saying is the remedy except as otherwise provided if you want to call the fine penalty or remedy we're saying it's penalty under the hood but they use the word find amount they take the property they take possession and control with a court order and they do what they want with it they've been devalued property they can demolish it or they choose how repaired to what extent it repaired and then they can get recover costs for that and leave your property so they take possession of your property is the remedy that's the penalty my client faces instead and that's what they're mandated to do under their own ordinance and because of that specific remedy they have to follow their own law except otherwise provided now i see where the court is going with fine i guess randi as they should be able to just bring up the bill for four hundred fifty one days if they bring an action to demolish it repair and see fines until they end up getting the order and the mileage to repair i think that's reasonable for though that joint fine along with your action that you're mandated to ta you just can't say that he has your say since they sat on it they can't get the fine but if they hadn't sat on it they could get the fine no i stated it's not out what all but you're making a distinction between fine and penalty and i'm saying you're reading vis you did consistently and you're trying to read all these things to consistently so one is not found in apple to the other it's our position clearly otherwise provided it's otherwise provided specifically state statute an if you fail to comply with unsafe building ordinance this is what this is what you're supposed to do and you're supposed to do it in an expedited fashion pursuant to the you just go on fifty one days is not you say the general put out if you provide a fine and it should be imposed if that's the case then they can just turn a blind side to the code into the statute they need to do both if they want to find my guy they have to comply with their own law off and then seek an order to repairing demolish and do that the purpose of this whole statutory scheme is to protect the health safety and welfare of the public you see from the record here they're worried about the building falling so worried that they waited until eight months after sending a notice to get a structural engineer in there but that with the  authorization to do this and then get a windfall for fifty one days they've got if they're going to do it they've got to have both the same time they just can't ignore the law and say i'm going to fine you and not follow our own ordinance and state law repair or demolition we think fines don't apply if you think fines apply then they only get the reasonable time it takes to get a court order to get a repaired demolition and those fines go for that time period they're just not open ended they can't sit on it not follow the law and seek fines and not and ignore their obligations under the law as to repair it miles and that's part of the problem that we have here is we weren't allowed at the trial court to present arguments as to fine but how did your client's obligation to put the billion see condition or to demolish it how does that play into the analysis here oh you know he didn't he didn't what happened is he tried to negotiate with the city is my understanding for the record the records kind of sparse it wasn't trial counsel there's no transcripts but it's far says they're going back and forth i think they tried to work together to get work and at the end they found him in violation after they waited the time period until may of two thousand and fourteen to inspect but it's not that it says my client fails to act what is the city's obligation the city's obligation under their ordinance they imposed on their self mandatory shall they shall seek an order from the circuit court and request demolition counsel for the city said we can do whatever we can do either we have an alternate choice they don't have a choice the law says you have to do this their own law they impose it on themselves additionally if you know civil code says you may do it but once you do it you've got getting is why why not find a why not buy into this except otherwise provided and they can't ignore their obligations under the law to get fines if they did vote and they said it took thirty five days forty five days to get the order and they got fined during that time that's palatable because they did what they were supposed to do under the law they didn't turn a blind side to their legal obligations after my client fail to act this is what they say they're mandated to do after my client fails to act it's not my it's not my client did this did that this is on them they impose that obligation on themselves once my client fails to act in fifteen days and additionally supposed upon them by the  the state level once they've made the initiative to file into this it says you may file but when you do shall do these things and that shall is mandatory as well because it impacts people's rights and so it's not directive it's mandatory and there's pay for that says when there's that affect someone's rights and substantial rights which are health and welfare and safety of the people and my client's property interests and rights and its property and ability to do things it's not a shred of mandatory tr denied my clients we could councils request for a hearing your honor we think they said they didn't have discretion to modify the amount per day we believe under the survivor case and other case law that the court does have discretion to hear evidence regarding the number of days they are in violation your honor in this case city failed to live free of their own ordinances the first one is the unsafe the building ordinance that says you shall file an action investigate until may of two thousand and fourteen they don't know that the violation existed until they investigated under their own required orders when they sent in the structural engineer those issues were that eight months after the notice by month after the filing you're out of there so there's there's nothing in the record to show that they investigated prior filed giving us notice and prior to filing a complaint it's the it's a position of the you tell here that we should be able to present that evidence to the trial court argue that those type time for that eight months doesn't count to leave established that there is actually a violation additionally they're required to act they're required to act we want to our position is you can't get fees when there's a specific remedy set for days and there was no opportunity to be present on the record debate with the unified code of corrections steve fine this case there was an additional fine of about thirty thousand dollars assessed my client and it's our position that that is not after all in this case first of all it's it's a fine under the in fight code of corrections the first sentence says that by the traffic and criminal offenses we believe be read that second sentence is a qualification supervision no plea of guilty no entry of guilty it's just not a criminal proceeding or a criminal i proceeding here to court this court fourth district has referred to this is a traffic criminal surcharge the supreme court is defined as the in his position what he did was he said hey i want to hear it on this because there's problems with the fines until there's an imposition a fine never fished a fine or a liability there's no issue as to fi city didn't even inspect it until may after they filed the complaint and his assertion was i believe i could have done absolutely twenty twenty hindsight should have done it maybe i don't know but monday morning quarterback would walk the interview path but i don't think that the judge said i don't want to think about it it wasn't mine may said it was the clerk so he didn't have an opportunity to argue that he said hey i want to hearing on that they said no that was the first you heard about it and then they try to ratify a use of order to pay but the order to pay is not intrude the order that's ordinances should be read together where they're not in conflict yet continually refuses to acknowledge states the general penalty provision in the unsafe building ordinance can and should be read together and that they do not conflict with each other  the plain language of each ordinance provides that the general penalties provision will apply to a violation of any section of the code for which a fine is not already imposed within that section is undisputed that the unsafe building ordinance nuisance organise themselves do not provide for a specific crime those fines that and will be assessed against individuals violating say those sections of the with the general penalty purpose and that penalty provision you know if we want to talk about the word shall and what it what it means the general penalty provision says that except as otherwise provided any person convicted of a violation of any section of this code shall be fined and the sound of not less than two hundred fifty dollars more than five hundred dollars defendant wants us to impose mandatory action on the city in accordance with the faith building ordinance because if the word shall yet ignores that same provision in the general penalty or it now the i think building ordinance does provide certain things that the city must do if the city it is going to demolish or repair the defendant's property and that is to protect the defendants in this case and his interest in the property and yes there are certain things that are set forth in the ordinance as well as illinois municipal code to provide that there are things that shall be done if a city decides or municipality decides going to or wants to demolish them but use property that was not the reading something more into section seven inch monitors to dance five d he talked about if they decide to demolish or repair well it means the statue talks about if after fifteen days subsequent to the giving of the notice it was the notice given here there was a notice in fifteen days did pass a team david and was there this request made to the council directing the city attorney to apply on behalf of the city to the court to authorize the city to demolish sure repair the city did not seek to do that because the city was working with the defendant at that time in an attempt to allow that defendant to repair the property itself but can you point me to in this section of the statute where it says  indicating if the city decides to do that i mean it seems pretty clear and this counsel was pointing out there's a lot of shall going on in this section well the fact that this city has certain requirements that would apply to the demolition doesn't take away from the fact that the city can assess fines for violation of section a that statute i guess what i'm asking you read to me point me to the section of the code that talks about the city can make this choice as to whether or not to seek to demolish or repair once they have given this notice i just don't see that well and i it's not set forth that way it's two separate statutes that we're trying to argue should be read together and not separate only be the first section of the unpaid building ordinances approach the bishan it prohibits be owner of a building to allow a building to get into such a condition that it's determined to be unsafe the violation of that section alone  warrants the imposition of fines and of the general penalty provision so any time that i know owner violates that section of the unsafe building ordinance there is in fact a violation that can be punishable by fine which are to deter there is also there were maining portion of that does provide poor demolition however in this case that's for the owner part and we're talking about the unsafe buildings when it's in talks about notifying the owner and directing the owner to put the building in a safe condition or demolish it where and as the section of the code that talks about giving notice and then asking that the city attorney pursue an action that talks about the city's obligation to demolish or repair correct it dies although the intent of that it's if you read it in connection with the illinois municipal code section of the act which it tracks almost identically the intent of that is to provide a mechanism to protect the defendant's property in providing that they have to do certain things before it tears it down it could have been better written certainly we wouldn't be here today had it if there were sorry you saying the city was under no obligation to demolish or repair based on the notice being intent and the language of the hill and i mean this code which is virtually identical to this section and we think that the intent of that was not to impose a mandatory obligation on the city to tear down every building that it deemed unsafe even where it's trying to work with the defendant to try and repair it by its that it is there to protect the defendant proud of having its property having its property torn down were certain things ha point there will be unclear i think from the record but maybe if it's not you know this is just talk to them and they're talking about what were you going to do what  defendant had made some repairs there had been multiple inspections importing and putting at least two inspections by the defendant's own inspector all of which found that the building was unsafe and that a condition existed and continued compliant with the unsafe building act and then he later admitted that no had done that and the building was in fact still open so council my question is at some point negotiations broke down and it was apparent there was not going to be an agreement right yes that is true so what was the obligation of the city at that point at that point this case had already been pending is my understanding and so we completely broke down i think there was still throughout the entire litigation some effort because i believe that agreed order that was entered where he would have agreed that he would have closed the building up to the elements and repair or to cause the demolition or repair of the building i don't believe that that has how to address that issue in connection with that dillon's rule claim i don't think that there is a dillon's rule issue in this case and that is the illinois municipal code and the ordinances in this don't conflict there is no issue of of preemption because the both of them can be read together and in fact as i stated are virtually identical so this whole claim that dylan's rules somehow required an expedited proceeding is not a case where we weren't proceeding to demolish that property how we proceeded to seek demolition certainly there were requirements that we would have had to have and so there's there is no dispute that there is that provision and where there is that particular provision then it's not a windfall because they're the aggregate amount it is more than the defendant wants to pay in this case if you look at the individual penalties that works for each individual violation the court assessed the minimum the minimum provided by the general penalties provision and i think that's important to know because we're supreme court ruled by seventy imposes a duty and an obligation on the court to impose the minimum find it's permitted under the statute in this statute i'm sorry this ordinance provide that the minimum fine is not less than two hundred fifty dollars nor more than five hundred the court assessed the minimum fine so failing to hold another hearing as to whether or not that fine was excessive was unnecessary to work with accurate when it stated that its that it wasn't within his discretion to reduce the per day fine now when the defendant could be arguing and make claim that the defendant should have been allowed to present additional evidence as to the number of violations that being the number of days that this property was allowed to remain in this condition by the defendant however if you look a count two of the complaints count two alleges occurred a violation had the defendant wanted to challenge whether or not a violation had occurred on each of those days the defendant have that opportunity to you after the trial and in fact if you look at the report there is significant testimony as to the time frame of when this the condition of the property as to what the condition of the property was on certain days and that was the plaintiff's showing that the property had been the fact that the defendants didn't raise an issue as to whether or not the violations were her own during that time that should have been done at the trial that was what the trial was about was whether or not the defendant had committed the initial windfall for all of these days to defend it permitted to condition the property to remain in the condition why that's seems to indicate that the defendant had no control over this whatsoever  just that in judgement for this amount there was nothing to defend it could have done about it the defendant could have done something about it the depending would have rocked the property into a condition that comply with the unsafe building or that ordinance is a duty on a landowner to keep a building from becoming a nuisance and in this case at any time during the proceedings and if any day leading up to the judgment the plaintiff could have taken the steps necessary to get the building into compliance with the un with the ordinance and had the defendant done that the fines would have cut off but they depended didn't do that at all the building at no times complied with the ordinance and case if you recall if what they found the finds time to be excessive because there was just one single violation which resulted in essentially a penalty of three hundred fifty seven thousand dollars in this case it's distinguish conclusion the plaintiffs unfaithful the ordinance doesn't conflict with the application of the general penalty provision nor does that conflict with the illinois municipal code the number of violations and fines are supported by the evidence and did not violate the defend they go through all of these issues the nuances of the un and it's not we're not putting this burden on the city we say the city put it on itself by necking the ordinance that says once my guy fail to act the city shall do these things the city can't mandated remedy under their own imposed work that's so if they're going to seek a fine and i like that they say we're talking it said it was for my my finest well we're talking we're trying to remedy it why do they get the pass on their legal obligation if we don't get the facts  one here if we they could have done exactly what was mandated and then stayed the order they could've done exactly what was mandated worked out a deal and said hey the law says we have to that's a windfall because they turn a blind eye to their other obligations it's not imposing an obligation on the city the law clearly voted on my client first if my client fail then it didn't but is imposed on the city and supposed on the city because they want to are the reports there's a construction person that is not a structural engineer who reports to the city and then the obligation the city says whenever any nuisance shall be reported investigated determined by the police fire health out and in our our structural engineer says that in his report not until the city's may two thousand and fourteen structural engineer report says hey this is bad structurally to hear reports are important because it tells you what's going on it doesn't b it violates the spirit of dylan's law you can't say expedite these and then hold on four hundred fifty one days negotiating and stick to my diet the end just doesn't smell right it doesn't smell right once the obligation the city to rectify it for the safety of their own citizens