ILLINOIS OFFICIAL REPORTS

Appellate Court

Shachter v. City of Chicago, 2011 IL App (1st) 103582

Appellate Court

Caption

JAY F. SHACHTER, Plaintiff-Appellant, v. THE CITY OF CHICAGO,

a Municipal Corporation,THEDEPARTMENTOFADMINISTRATIVE

HEARINGS, and THE DEPARTMENT OF STREETS and

SANITATION, Defendants-Appellees.

 District & No. First District, First Division

Docket No. 1-10-3582

Filed

Rehearing denied

December 5, 2011

January 5, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The trial court properly affirmed administrative findings that plaintiff

violated ordinances involving the care of his property and the parkway

outside his home and rejected plaintiff’s arguments that his petition for

substitution of judge should have been granted, that the administrative

law officer’s findings were against the manifest weight of the evidence,

and that the city’s weed and parkway ordinances were unconstitutional.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-M1-450812; the

Hon. William G. Pileggi, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Jay F. Shachter, of Chicago, appellant pro se.

Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth

Solomon, Myriam Zreczny Kasper, Stephen R. Patton, and Suzanne M.

Loose, Assistant Corporation Counsel, of counsel), for appellees.

Panel JUSTICE ROCHFORD delivered the judgment of the court, with

opinion.

Justices Hall and Karnezis concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises out of an administrative proceeding in which plaintiff-appellant, Jay

F. Shachter, was found to have violated two municipal ordinances involving the care of his

property and the parkwayoutside his home. Plaintiff thereafter filed a complaint in the circuit

court for administrative review and declaratory judgment against defendants-appellees, The

City of Chicago, a municipal corporation (the city), the department of administrative

hearings, and the department of streets and sanitation. In that complaint, plaintiff asserted a

number of procedural and substantive challenges to the administrative proceedings, as well

as constitutional challenges to the two municipal ordinances he was found to have violated.

After having quashed plaintiff’s subpoenas, denied plaintiff’s request to present additional

evidence, and denied a motion for substitution of judge, the circuit court affirmed the

administrative findings and rejected plaintiff’s constitutional challenges.

¶ 2 On appeal, plaintiff raises a number of challenges to both the administrative and circuit

court proceedings, and also continues to press his constitutional challenges to the ordinances

themselves. For the reasons that follow, we affirm.

¶ 3 I. BACKGROUND

¶ 4 On October 23, 2009, an officer of the city’s department of streets and sanitation

completed a written “ADMINISTRATIVE NOTICE OFORDINANCEVIOLATION.”That

notice of violation asserted that conditions on or near property plaintiff owned on the

northwest side of Chicago caused him to be in violation of two provisions of the Chicago

Municipal Code (municipal code). Specifically, the notice alleged that weeds on plaintiff’s

propertywere over 10 inches tall and that plaintiff had failed to maintain the parkway in front

of his property. These conditions were alleged to be in violation, respectively, of sections 7-

28-120(a) and 10-32-050 of the city’s municipal code. Chicago Municipal Code § 7-28-

120(a) (amended Dec. 4, 2002) (weed ordinance), § 10-32-050 (amended July 10, 2002)

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(parkway ordinance). Finally, the notice indicated that an administrative hearing on these

violations had been scheduled for November 24, 2009. This notice of violation was mailed

to plaintiff on November 2, 2009.

¶ 5 The hearing was held as scheduled before an administrative law officer (ALO) sitting in

the city’s department of administrative hearings, environmental safety hearings division.

Plaintiff appeared and was sworn in as a witness. The ALO thereafter recited the two

violations as specified on the notice of violation, stated that the officer who had completed

the notice of violation had also taken pictures of plaintiff’s property and the parkway in front

of plaintiff’s property, and indicated that these photos had been provided to the ALO with

attached descriptions. The ALO then stated that these photos and the officer’s descriptions

indicated that plaintiff’s property and the parkway in front of his property contained

overgrown weeds and grass, this situation was “attracting rodents,” and that plaintiff was a

“repeat offender.” The ALO then entered the photos into the record, found that the city had

stated a cause of action for the alleged violations, and asked plaintiff: “What’s your defense?

Tell me why this is not a violation.”

¶ 6 Plaintiff stated that he had a written motion to dismiss, which the ALO indicated he was

not authorized to hear. This written motion is not contained in the record on appeal.

Nevertheless, after plaintiff stated he did not want to waive any challenge he might later raise

in the circuit court, he was allowed to read his motion into the record. The transcript

indicates that plaintiff’s motion asserted that the city had failed to provide him with proper

notice of the administrative hearing because the name of the officer completing the notice

of violation was not included on that document. The ALO denied this motion on the grounds

that he was not authorized to hear such prehearing motions to dismiss.

¶ 7 Plaintiff then asked to see the “original complaint” filed in this case. The ALO indicated

that this request was not relevant in light of the fact that he had already found that the city’s

written notice of violation and the photos, taken together, had stated a cause of action. The

ALO then indicated that plaintiff could further pursue this issue before the circuit court.

¶ 8 Plaintiff thereafter presented a written request for a subpoena compelling the appearance

and testimony of the officer who issued the notice of violation. The written motion was

entered into the record and plaintiff was given an opportunity to support that motion with

oral argument. In both the written motion and oral argument, plaintiff generally asserted that

because what was or was not a “weed” was “inherently ambiguous and subjective,” and

because he had a right to cross-examine witnesses pursuant to section 1-2.1-5(c) of the

Illinois Municipal Code (65 ILCS 5/1-2.1-5(c) (West 2008)), “there is no other way the

City’s case can be made other than by having the person who took those photographs come

in here and identity for your sake as well as for mine which of those plants he considers to

be the weeds and which he does not.” The ALO denied this motion as well, finding a

decision could be made upon the evidence already presented.

¶ 9 Plaintiff then made a number of substantive and constitutional arguments with respect

to the alleged violation of the city’s weed ordinance. Substantively, plaintiff argued that the

weed ordinance did not specifically define what a weed actually was. Citing to dictionary

definitions defining a weed as a plant “growing where you don’t want it,” plaintiff argued

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that “[a]ll of the plants on my land are growing exactly where I want them.” He also testified

that his land was well tended, it was “the best tended land on [his] block,” he tended the

parkway as well, and other properties in the area were strewn with rubbish.

¶ 10 With respect to his constitutional arguments, plaintiff first argued that the weed

ordinance was “fatally unspecific because it does not give the citizenry notice of what is and

what is not prohibited.” Specifically, plaintiff argued that the ordinance did not “specifywhat

a weed is.” Plaintiff then argued that the ordinance did not bear a rational relationship to any

legitimate public purpose because: (1) the plants on his property were not noxious; and (2)

nothing about the condition of his property contributed to any rodent problem. Plaintiff also

argued that because the “right to property is a fundamental right guaranteed by the Illinois

Constitution it must–the ordinance must not only satisfy the rational relationship test but it

must also satisfy the strict scrutiny test.” Plaintiff finally argued that the ordinance had been

arbitrarily enforced and that it also invited arbitrary enforcement.

¶ 11 Following plaintiff’s argument, the ALO found that the alleged violations had been

proven by a preponderance of the evidence and imposed a total of $300 in fines and $40 in

administrative costs. Plaintiff’s request to stay enforcement of this order was denied.

¶ 12 The following day, plaintiff filed a four-count complaint in the circuit court. The first

count sought administrative review of the ALO’s finding that he had violated the city’s weed

ordinance. That count included allegations that this ordinance: (1) was vague and subjective;

(2) invited arbitrary enforcement; (3) had been arbitrarily enforced; (4) failed the “strict

scrutiny” test because it limited the right to property in an overly broad manner; and (5) bore

no rational relationship to any legitimate or intended public purpose. Count I also included

allegations that: (1) the administrative hearing was conducted without proper notice; (2)

plaintiff was denied his right to cross-examination at the hearing; (3) the city’s case was

improperly presented by an employee of the department of administrative hearings; and (4)

the findings of fact at the administrative hearing were against the manifest weight of the

evidence and contrary to law. Finally, count I sought reversal of the administrative finding

with respect to the weed ordinance or a remand for further proceedings.

¶ 13 The second count of plaintiff’s complaint specifically incorporated only the first five

allegations discussed above and asked for a declaration that the city’s weed ordinance was

invalid. The third and fourth counts also sought administrative review and a declaratory

judgment, respectively, and asserted nearly identical allegations with regard to the finding

that plaintiff had violated the city’s parkway ordinance. We do note that these two counts

omitted any assertion that the parkway ordinance failed the “strict scrutiny” test or bore no

rational relationship to any legitimate or intended public purpose.

¶ 14 In an order entered on February 1, 2010, defendants were granted leave to file their

answer instanter, and plaintiff was ordered to file a written “specification of the errors relied

upon for reversal” pursuant to section 3-108 of the Code of Civil Procedure (Code) (735

ILCS 5/3-108 (West 2008)). That order also granted defendants leave to file a written

response to the specification of errors and continued the matter to June 8, 2010. Plaintiff filed

his specification of errors on March 18, 2010, and raised many of the same issues and

arguments, including the constitutional challenges, that he had raised in the administrative

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hearing. Defendants filed their response on April 30, 2010, arguing that the administrative 1

proceedings were proper, the findings of the ALO were supported by the evidence presented,

and the ordinances themselves were constitutional.

¶ 15 On May 24, 2010, and June 7, 2010, plaintiff had subpoenas issued seeking to have two

Chicago park district employees testify at the June 8, 2010, hearing. At that hearing, an

attorney for the park district presented a motion to quash plaintiff’s subpoenas, and that

motion was supported by the defendants. While the written motion itself does not appear in

the record, following oral argument the trial court granted the park district’s motion. The trial

court’s decision was based on its finding that the circuit court was not allowed to hear

additional evidence in administrative review cases. The circuit court therefore rejected

plaintiff’s argument that such an evidentiary limitation should not apply here because he had

specifically pleaded in his complaint–in addition to his two counts seeking administrative

review–two separate counts seeking a declaratory judgment that the two municipal

ordinances involved in the administrative proceeding were unconstitutional.

¶ 16 Despite granting the motions to quash, the circuit court agreed to include language in its

order allowing plaintiff to seek an interlocutory appeal pursuant to Supreme Court Rule

308(a). Ill. S. Ct. R. 308(a) (eff. Feb. 26, 2010). The question certified by the circuit court

was “whether the Circuit Court may hear new evidence in adjudicating a constitutional

challenge.” However, the circuit court denied plaintiff’s request to stay the proceedings

pending resolution of plaintiff’s Rule 308 application for leave to appeal and set the matter

for a future hearing on September 7, 2010. This court denied plaintiff’s application for

interlocutory appeal in an order entered on July 27, 2010. While plaintiff’s application for

leave to appeal was pending in this court, he filed a motion asking the circuit court to

reconsider its June 8, 2010, order. That motion was heard at a final hearing held on

September 21, 2010.

¶ 17 At that hearing, the circuit court first denied plaintiff’s motion to reconsider. In its written

order, the circuit court made it clear that plaintiff would not be permitted to introduce any

evidence in support of either his administrative review counts or the counts seeking

declaratoryjudgment. The circuit court then addressed a petition, filed by plaintiff on the day

of the hearing, requesting a substitution of judge for cause pursuant to section 2-1001(a)(3)

of the Code. 735 ILCS 5/2-1001(a)(3) (West 2008). In that petition, plaintiff asserted that the

circuit court had been biased by being presented with defendants’ written response to his

specification of errors. Plaintiff claimed that this written response was not permitted because

the circuit court only granted defendants leave to file such a response and section 3-108(b)

of the Code only allows parties to file additional pleadings where they are “required by the

court.” (Emphasis added.) 735 ILCS 5/3-108(b) (West 2008).

¶ 18 The circuit court denied plaintiff’s petition, finding it untimely and unfounded. The

We note that, while counts III and IV of plaintiff’s original complaint included a general 1

assertion that the city’s parkway ordinance “is, and had consistently been, arbitrarily enforced,” that

argument was not included inplaintiff’ssubsequently filed written specification of errors. Moreover,

that contention has not been further pursued in either in the circuit court or on appeal.

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circuit court judge also rejected plaintiff’s assertion that he had no authority to rule on the

petition for substitution and that the petition must rather be heard by a different judge. When

the circuit court then asked plaintiff if he was prepared to continue to consideration of the

merits of his complaint, plaintiff indicated that he did not believe he could continue to

participate in the proceedings without waiving his argument that the petition for substitution

of judge should have been heard by a different judge. Plaintiff maintained this position with

respect to the circuit court’s determination of both the two administrative review counts and

the two declaratory judgment counts. After hearing argument from defendants, the circuit

court entered an order affirming the administrative decision and finding the two municipal

ordinances in question constitutional. Plaintiff now appeals.

¶ 19 II. ANALYSIS

¶ 20 On appeal, plaintiff raises a host of procedural, substantive, and constitutional challenges

to both the administrative and the circuit court proceedings. He first asserts that the circuit

court should not have ruled on the petition to substitute without transferring it to another

judge for consideration and that the substitution petition should have been granted on the

merits. He then raises a number of challenges to the administrative proceedings and also

asserts that the ALO’s findings were against the manifest weight of the evidence. Plaintiff’s

next contention is that the circuit court erred in denying him the opportunity to present

evidence in support of his complaint for administrative review and declaratory judgment.

Finally, plaintiff reasserts his arguments that the city’s weed and parkway ordinances are

unconstitutional. We address each of these arguments in turn.

¶ 21 A. Substitution of Judge

¶ 22 Plaintiff’s first contentions on appeal involve his petition for substitution of judge. As

noted above, plaintiff asserts that the circuit court erred by not transferring his petition for

substitution to another judge for consideration and–even assuming that such a transfer was

not required–the circuit court erred by denying that petition on the merits. We review these

contentions first–before further addressing plaintiff’s other challenges to the administrative

and circuit court proceedings–because where a petition for substitution of judge is

erroneously denied, “all orders entered subsequent to the denial are null and void.” Chicago

Transparent Products, Inc. v. American National Bank &Trust Co. of Chicago, 337 Ill. App.

3d 931, 945 (2002) (citing In re Dominique F., 145 Ill. 2d 311, 324 (1991)). Our review of

a circuit court’s ruling on a motion to substitute judge is de novo. Powell v. Dean Foods Co.,

405 Ill. App. 3d 354, 359 (2010).

¶ 23 Here, plaintiff filed a petition to substitute judge “for cause” pursuant to section 2-

1001(a)(3) of the Code, which in relevant part provides:

“(3) Substitution for cause. When cause exists.

(i) Each party shall be entitled to a substitution or substitutions of judge for cause.

(ii) Every application for substitution of judge for cause shall be made by petition,

setting forth the specific cause for substitution and praying a substitution of judge. The

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petition shall be verified by the affidavit of the applicant.

(iii) Upon the filing of a petition for substitution of judge for cause, a hearing to

determine whether the cause exists shall be conducted as soon as possible by a judge

other than the judge named in the petition. The judge named in the petition need not

testify but may submit an affidavit if the judge wishes. If the petition is allowed, the case

shall be assigned to a judge not named in the petition. If the petition is denied, the case

shall be assigned back to the judge named in the petition.” 735 ILCS 5/2-1001(a)(3)

(West 2008).

¶ 24 In construing this section, our supreme court has stated that the provisions of this statute:

“are to be liberally construed to promote rather than defeat the right of substitution,

particularly where the ‘cause’ claimed by the petitioner is that the trial judge is

prejudiced against him. [Citations.] The courts have also recognized, however, that a

party’s right to have a petition for substitution heard by another judge is not automatic.

[Citations.] Principles of liberal construction do not excuse the obligation of parties to

adhere to express statutory requirements. [Citation.] Trial courts are required to refer a

petition to another judge for a hearing on whether cause for substitution exists only if the

party seeking that relief is able to bring himself or herself within the provisions of the

law. [Citation.]

In order to trigger the right to a hearing before another judge on the question of

whether substitution for cause is warranted in a civil case pursuant to section 2-

1001(a)(3), the request must be made by petition, the petition must set forth the specific

cause for substitution, and the petition must be verified by affidavit. ***

***

To meet the statute’s threshold requirements, a petition for substitution must allege

grounds that, if true, would justify granting substitution for cause. [Citation.] Where bias

or prejudice is invoked as the basis for seeking substitution, it must normally stem from

an extrajudicial source, i.e., from a source other than from what the judge learned from

her participation in the case before her. A judge’s previous rulings almost never

constitute a valid basis for a claim of judicial bias or partiality.” In re Estate of Wilson,

238 Ill. 2d 519, 553-54 (2010).

¶ 25 Indeed, our supreme court has recently reaffirmed that “actual prejudice” must be

established in any petition seeking substitution of a judge for cause. In re Marriage of

O’Brien, 2011 IL 109039, ¶30. It had also been recognized that opinions “ ‘formed by the

judge on the basis of facts introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion

unless they display a deep-seated favoritism or antagonism that would make fair judgment

impossible.’ ” Eychaner v. Gross, 202 Ill. 2d 228, 281 (2002) (quoting Liteky v. United

States, 510 U.S. 540, 555 (1994)).

¶ 26 In this case, plaintiff’s petition for substitution was premised upon the circuit court’s

handling of his written specification of errors and defendants’ written response thereto.

Plaintiff’s petition asserted that by allowing, but not requiring, defendants to file a response

to his specification of errors, the circuit court had not properly followed section 3-108(b) of

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the Code. 735 ILCS 5/3-108(b) (West 2008).

¶ 27 The petition noted that while section 3-108 of the Code requires a plaintiff seeking

administrative review to file a complaint, requires a defendant administrative agency to file

an answer consisting of the record of the administrative proceedings, and allows the circuit

court to require a plaintiff to file a specification of errors, it further provides: “No pleadings

other than as herein enumerated shall be filed by any party unless required by the court.” 735

ILCS 5/3-108(a), (b) (West 2008). Plaintiff claimed that defendant’s written response to his

specification of errors in this case was not permitted because the trial court only granted

defendants leave to file such a response, and section 3-108(b) of the Code allows parties to

file additional pleadings only where they are “required by the court.” (Emphasis added) 735

ILCS 5/3-108(b) (West 2008). Plaintiff further claims that he was prejudiced by defendant’s

written response, as the circuit court judge had thus “exposed himself to arguments in

support of Defendant’s position that the Legislature did not want him to be exposed to.”

¶ 28 As an initial matter, we fail to see how plaintiff can possibly establish a violation of

section 3-108(b) or any resulting prejudice. While this section clearly limits the ability of the

parties to independently file any additional pleadings in administrative review proceedings,

it also quite clearly grants the circuit court authority to “require” such pleadings. If a circuit

court can compel a party to file additional pleadings, it can certainly grant that party leave

to do so. Moreover, we fail to comprehend plaintiff’s argument that a party’s pleading would

be unprejudicial where “required” by the circuit court, but that same pleading somehow

prejudices a circuit court judge when filed only after leave to do so is granted.

¶ 29 Moreover, even if we assumed that a violation of section 3-108(b) occurred here,

plaintiff’s assertions completely fail to present a case of “actual prejudice” sufficient to

establish the threshold requirements for a petition to substitute for cause. Plaintiff’s petition

contained no assertions of any extrajudicial source of bias or prejudice, and as noted above,

opinions “ ‘formed by the judge on the basis of facts introduced or events occurring in the

course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias

or partiality motion unless they display a deep-seated favoritism or antagonism that would

make fair judgment impossible.’ ” Eychaner, 202 Ill. 2d at 281 (quoting Liteky, 510 U.S. at

555). We see no such evidence of favoritism or antagonism here. Indeed, plaintiff’s petition

did not even include any such allegations, but instead relied on the prejudice allegedly

inherent in what he views as a technical violation of section 1-308(b) of the Code.

¶ 30 These allegations are insufficient to satisfyeven the threshold requirements for a petition

seeking substitution of a judge for cause. We therefore find that the circuit court did not err

in either refusing to transfer plaintiff’s petition to another judge for consideration or in

denying the petition on the merits. As such, the orders entered by the circuit court following

the denial of this petition, including the final order from which plaintiff appeals, were not

rendered null and void.

¶ 31 B. Administrative Proceedings

¶ 32 Having determined that the final circuit court order from which plaintiff has appealed

was validly entered, we may now address plaintiff’s assertions regarding the administrative

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proceedings conducted below.

¶ 33 1. Standard of Review

¶ 34 Pursuant to the Illinois Municipal Code (65 ILCS 5/1-2.1-1 et seq. (West 2008)) and the

city’s municipal code, the final decision entered bythe ALO in the administrative proceeding

below is subject to judicial review. See 65 ILCS 5/1-2.1-7 (West 2008) (“Any final decision

by a code hearing unit that a code violation does or does not exist shall constitute a final

determination for purposes of judicial review and shall be subject to review under the Illinois

Administrative Review Law.”); Chicago Municipal Code § 2-14-102 (added Apr. 2, 1998)

(same). The Illinois Administrative Review Law, in turn, provides that judicial review of an

administrative decision “shall extend to all questions of law and fact presented by the entire

record before the court” and “[t]he findings and conclusions of the administrative agency on

questions of fact shall be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West

2008). Furthermore, our supreme court has stated:

“The applicable standard of review–which determines the extent of deference

afforded to the administrative agency’s decision–depends upon whether the question

presented is a question of fact, a question of law, or a mixed question of law and fact.

[Citations.] Rulings on questions of fact will be reversed only if against the manifest

weight of the evidence. [Citation.] In contrast, questions of law are reviewed de novo

[citation], and a mixed question of law and fact is reviewed under the clearly erroneous

standard [citations]. We further note that, under any standard of review, a plaintiff to an

administrative proceeding bears the burden of proof, and relief will be denied if he or she

fails to sustain that burden.” Marconi v. Chicago Heights Police Pension Board, 225 Ill.

2d 497, 532-33 (2006).

Finally, “[i]n administrative cases, our role is to review the decision of the administrative

agency, not the determination of the circuit court.” Id. at 531.

¶ 35 2. Pleading Requirements

¶ 36 Plaintiff first contends the administrative proceedings against him were void because

there is no indication that they were initiated by the filing of a “written pleading.” We

disagree.

¶ 37 In support of this argument, plaintiff cites to section 1-2.1-4 of the Illinois Municipal

Code, which initially provides that a municipality may establish a “system of administrative

adjudication” and that any such system “shall provide for a code hearing unit within an

existing agency or as a separate agency in the municipal government.” 65 ILCS 5/1-2.1-4(a)

(West 2008). Of particular relevance here, the Illinois Municipal Code also states that any

“proceeding before a code hearing unit shall be instituted upon the filing of a written

pleading by an authorized official of the municipality.” (Emphasis added.) 65 ILCS 5/1-2.1-

4(d) (West 2008). On appeal, plaintiff notes that he asked the ALO to see the city’s “original

complaint” at the administrative proceeding below but was rebuffed. He therefore contends

there is no evidence that a written pleading was ever filed, and the administrative

proceedings were therefore void because they did not comport with section 1-2.1-4(d) of the

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Illinois Municipal Code.

¶ 38 However, section 1-2-1 of the Illinois Municipal Code provides: “[t]he corporate

authorities of each municipality may pass all ordinances and make all rules and regulations

proper or necessary, to carry into effect the powers granted to municipalities.” 65 ILCS 5/1-

2-1 (West 2008). In turn, the city’s municipal code provides: “[a]ny authorized department

or agency of the city may institute an administrative adjudication proceeding with the

department of administrative hearings by forwarding a copy of a notice of violation or a

notice of hearing, which has been properly served, to the department of administrative

hearings.”ChicagoMunicipal Code § 2-14-070 (amended Apr. 29, 1998). It is therefore clear

that, pursuant to the authority granted by section 1-2-1 of the Illinois Municipal Code, the

city’s municipal code properly treats a filed and served notice of violation as the “written

pleading” required to institute an administrative proceeding.

¶ 39 Moreover, plaintiff does not challenge the fact that both he and the ALO had copies of

the “ADMINISTRATIVE NOTICE OF ORDINANCE VIOLATION” at the administrative

hearing, a copy of this notice had been properly served upon plaintiff, and the

“DEPARTMENT OF ADMINISTRATIVE HEARING COPY” of that document appears

in the administrative record originally filed in the circuit court. As such, we find that the

pleading requirements of both the Illinois Municipal Code and the city’s municipal code

were fully complied with in this case.

¶ 40 3. Notice Requirements

¶ 41 Plaintiff next contends the administrative proceeding against him was improper because

he did not receive proper notice.

¶ 42 The Illinois Municipal Code provides: “[p]arties shall be given notice of an adjudicatory

hearing which includes the type and nature of the code violation to be adjudicated, the date

and location of the adjudicatory hearing, the legal authority and jurisdiction under which the

hearing is to be held, and the penalties for failure to appear at the hearing.” 65 ILCS 5/1-2.1-

5(b) (West 2008). In implementing this provision of the Illinois Municipal Code, section 2-

14-074(a) of the city’s municipal code provides: “[b]efore any administrative adjudication

proceeding may be conducted, the parties shall be afforded notice in compliance with this

section.” Chicago Municipal Code § 2-14-074(a) (amended Apr. 29, 1998). That section

further provides:

“Unless otherwise provided by law or rule, the issuer of a notice of violation or notice

of hearing shall specify on the notice his or her name and department; where known, the

name and address of the person or entity charged with the violation; the date, time and

place of the violation; and the section of the code or departmental rule or regulation

which was allegedly violated; and shall certify the correctness of the specified

information by signing his or her name to the notice. A notice of hearing shall also

include the date, time and location of the hearing and the penalties for failure to appear

at the hearing.” Chicago Municipal Code § 2-14-074(b) (amended Apr. 29, 1998).

¶ 43 Plaintiff’s argument focuses on that portion ofsection 2-14-074(b) of the city’s municipal

code that requires that “the issuer of a notice of violation or notice of hearing shall specify

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on the notice his or her name and department.” Plaintiff complains that the notice of violation

he received contained only the issuer’s illegible signature, the notice therefore violated the

requirements of section 2-14-074(b), and the notice he received thus failed to confer proper

jurisdiction upon the city’s department of administrative hearings.

¶ 44 We disagree. Even if we were to find that the notice plaintiff received contained a

technical violation of section 2-14-074(b), the Administrative Review Law provides:

“[t]echnical errors in the proceedings before the administrative agency or its failure to

observe the technical rules of evidence shall not constitute grounds for the reversal of the

administrative decision unless it appears to the court that such error or failure materially

affected the rights of any party and resulted in substantial injustice to him or her.” 735 ILCS

5/3-111(b) (West 2008); see also McCleary v. Board of Fire & Police Comm’n of the City

of Woodstock, 251 Ill. App. 3d 988, 993 (1993) (“the appellate court may reverse an

administrative ruling only if there is error which prejudiced a partyin the proceeding”). Here,

plaintiff does not even attempt to allege anyprejudice resulting from this purported violation,

relying solely on his assertion that the requirements of section 2-14-074(b) are mandatory

and may not be disregarded.

¶ 45 Nor do we perceive how plaintiff could allege any prejudice. The record reflects that, in

addition to the issuing officer’s signature, the notice served upon plaintiff also included the

officer’s unit and badge number. The notice therefore contained all of the information needed

for plaintiff or the ALO to determine the issuing officer’s identity, and plaintiff cannot

establish that any possible deficiency in the notice of violation materially affected his rights

or resulted in any substantial injustice.

¶ 46 4. ALO’s Failure to Issue Subpoena

¶ 47 Plaintiff next asserts that the ALO improperly denied his request to issue a subpoena

requiring the testimony of the city officer that issued the notice of violation. In the

administrative proceeding below, and again on appeal, plaintiff contends the ALO’s refusal

was improper because: (1) he had an absolute right to cross-examine the witnesses against

him pursuant to the Illinois Municipal Code; and (2) the officer’s testimony was necessary

to bring clarity to the city’s otherwise vague allegations regarding a violation of the weed

ordinance, and in turn allow plaintiff to mount a proper defense to that charge.

¶ 48 First, we note that the Illinois Municipal Code provides: “[p]arties shall be provided with

an opportunity for a hearing during which they may be represented by counsel, present

witnesses, and cross-examine opposing witnesses. Parties may request the hearing officer to

issue subpoenas to direct the attendance and testimony of relevant witnesses and the

production of relevant documents.” 65 ILCS 5/1-2.1-5(c) (West 2008). Furthermore, the

city’s municipal code provides: “[u]pon the timelyrequest of anypartyto the proceeding, any

person,who the administrative law officer determines mayreasonablybe expected to provide

testimony which is material and which does not constitute a needless presentation of

cumulative evidence, shall be made available for cross-examination prior to a final

determination of liability.” Chicago Municipal Code § 2-14-076(j) (amended Apr. 29, 1998).

The city’s code therefore further provides: “[t]he administrative law officer may issue

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subpoenas to secure the attendance and testimony of relevant witnesses and the production

of relevant documents. Issuance of subpoenas shall be subject to the restrictions contained

in Section 2-14-080.” Chicago Municipal Code § 2-14-076(f) (amended Apr. 29, 1998).

Section 2-14-080 of the code in turn provides:

“(a) An administrative law officer may issue a subpoena only if he or she determines

that the testimony of the witnesses or the documents or items sought by the subpoena are

necessary to present evidence that is:

(i) relevant to the case; and

(ii) relates to a contested issue in the case.” Chicago Municipal Code § 2-14-

080(a) (amended Apr. 29, 1998).

¶ 49 We find nothing in these provisions to indicate that a subpoena must be issued to allow

for cross-examination when requested by a party to an administrative hearing. Indeed, the

Illinois Municipal Code quite clearly provides that while “[p]arties shall be provided with

an opportunity” for an administrative hearing, at any such hearing parties “may”

cross-examine opposing witnesses and “may request the hearing officer to issue subpoenas.”

(Emphasis added.) 65 ILCS 5/1-2.1-5(c) (West 2008). In turn, the city’s municipal code

provides that witnesses will be made available for cross-examination only after the ALO

determines that they“mayreasonablybe expected to provide testimonywhich is material and

which does not constitute a needless presentation of cumulative evidence.” Chicago

Municipal Code § 2-14-076(j) (amended Apr. 29, 1998). As such, the ALO is only

authorized to issue a subpoena after a determination has been made that the requested

subpoena is “necessary to present evidence” that is relevant. (Emphasis added.) Chicago

Municipal Code § 2-14-080(a) (amended Apr. 29, 1998). We again note that these municipal

code provisions were adopted under the authority granted by section 1-2-1 of the Illinois

Municipal Code. 65 ILCS 5/1-2-1 (West 2008). As such, we reject plaintiff’s argument that

either the Illinois Municipal Code or the city’s municipal code provides that–upon receiving

plaintiff’s request–the ALO was required to issue a subpoena and provide plaintiff with an

opportunity to cross-examine the officer that issued the notice of violation.

¶ 50 Next, we address plaintiff’s argument that the officer’s testimony was necessary for

plaintiff to defend against the city’s assertion that he violated the weed ordinance.

Specifically, plaintiff contends he:

“was given a notice of violation that Plaintiff had ‘weeds’ on his property, but Plaintiff

did not know which plants were the alleged ‘weeds’, and which were not; and Plaintiff

needed to know this, in order to be able to mount a defense. Thus, if the issuing officer

were to say, ‘these plants are weeds, and those plants are not weeds’, then Plaintiff could

present an appropriate defense (‘these plants are not weeds’, or, ‘these plants are not ten

inches tall’, or ‘these plants are not on my property’).” (Emphases in original.)

¶ 51 We reject plaintiff’s argument on this point. Here, plaintiff was issued a notice of

violation indicating that he was in violation of the weed ordinance because of

“WEEDS–GRASS OVER 10” TALLFRONT–AND BACK YARD.” At the hearing on this

notice of violation, the city also presented photographic evidence of these allegations. We

fail to see how plaintiff was unable to present a defense without the officer’s testimony about

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which specific plants on plaintiff’s property were or were not weeds. Plaintiff was free to

present testimony and any other evidence of his own to rebut the city’s allegations and

evidence, including evidence supporting his assertion that none of the plants on his property

were weeds. Indeed, plaintiff did so in part by specifically testifying at the hearing that some 2

of the plants on his property were not weeds but rather were mulberry or elm saplings.

¶ 52 As this court hasrecognized “[a]n administrative agency’s decision regarding the conduct

of its hearing and the admission of evidence is governed by an abuse of discretion standard

and is subject to reversal only if there is demonstrable prejudice to the complaining party.”

Matos v. Cook County Sheriff’s Merit Board, 401 Ill. App. 3d 536, 541 (2010). Here, the

ALO ultimately denied plaintiff’s request for a subpoena only after considering plaintiff’s

arguments and finding, “I think I can make a decision with the evidence I have.” We find no

abuse of discretion in that decision.

¶ 53 5. Notice of Violation

¶ 54 Plaintiff next contends the administrative proceedings violated his due process rights

because he was not adequately apprised of what, exactly, he had done to violate the weed

ordinance. Specifically, he contends the city was required to tell him exactly which plants

on his property were weeds. We disagree.

¶ 55 “Administrative complaints are not required to state the charges with the same precision,

refinements, or subtleties as pleadings in a judicial proceeding.” Vuagniaux v. Department

of Professional Regulation, 208 Ill. 2d 173, 195 (2003). Indeed, “charges filed before an

administrative agency ‘need only be drawn sufficiently so that the alleged wrongdoer is

reasonably apprised of the case against him to intelligently prepare his defense.’ ” Id. at 196

(quoting Siddiqui v. Department of Professional Regulation, 307 Ill. App. 3d 753, 757

(1999)). As noted above, in this case plaintiff was provided with a notice of violation

specifically indicating that he was charged with violating the weed ordinance because of

“WEEDS–GRASS OVER 10” TALL FRONT–AND BACK YARD.” We fail to

comprehend how plaintiff was not sufficiently put on notice of the allegations against him,

and therefore reject his assertions with respect to this issue.

¶ 56 6. Presentation of the City’s Case

¶ 57 We next address plaintiff’s assertion that the ALO improperly violated that portion of the

city’s municipal code which provides: “[i]n no event shall the case for the city be presented

by an employee of the department of administrative hearings.”Chicago Municipal Code § 2-

14-076(c) (amended Apr. 29, 1998). Plaintiff claims that this provision was violated because

the ALO:

We also note that plaintiff was aware of the type of evidence that would be presented by 2

the city, as the five-page written memorandum he presented at the hearing in support of his request

for a subpoena included the assertion that “[o]n information and belief, the inspector bases his case

upon certain photographs.”

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“was presented with photographs which did not specify the nature of the accusation

against the Plaintiff. The [ALO] looked at the photographs, and constructed his own

accusation from them, saying to himself, ‘those plants, and those plants, and those plants,

and those plants, are weeds, and those other plants, over there, are not weeds’. This is

something the [ALO] may not do, because to construct his own accusation from an

ambiguous set of photographs is to present the case for the city.” (Emphasis in original.)

¶ 58 We disagree with plaintiff’s contention. The city’s municipal code provides that ALOs

“shall have all powers necessary to conduct fair and impartial hearings including, but not

limited to, the power to *** hear testimony; *** rule upon motions, objections, and the

admissibility of evidence; *** preserve and authenticate the record of the hearing and all

exhibits and evidence introduced at the hearing; [and] *** issue a final order which includes

findings of fact and conclusions of law.” Chicago Municipal Code § 2-14-040 (amended Apr.

29, 1998). Indeed, the very provision plaintiff cites goes on to specifically provide that

“documentary evidence, including the notice of violation, which has been prepared by

another department or agency of the city, may be presented at the hearing by the

administrative law officer.” Chicago Municipal Code § 2-14-076(c) (amended Apr. 29,

1998).

¶ 59 In this case, the ALO properly entered into the record, pursuant to the above-referenced

authority, the notice of violation and photographic evidence prepared by the city. The ALO

then adjudicated the city’s claim in light of that evidence and the testimony provided by

plaintiff. In no waydid the ALO construct his “own accusation” from the city’s presentations,

nor did he violate that portion of the city’s municipal code precluding him from presenting

the city’s case.

¶ 60 7. Violation of Plaintiff’s Right to Be Heard

¶ 61 Plaintiff next argues that the ALO denied him his right to be heard on the parkway

ordinance violation at the administrative hearing. Plaintiff contends the ALO thus violated

section 1-2.1-5(c) of the Illinois Municipal Code (65 ILCS 5/1-2.1-5(c) (West 2008)), which

as noted above provides: “[p]arties shall be provided with an opportunityfor a hearing during

which they may be represented by counsel, present witnesses, and cross-examine opposing

witnesses.” We disagree.

¶ 62 The record reflects that on the day of the hearing in this case, plaintiff had actually been

scheduled for administrative hearings on three separate municipal ordinances violations, i.e.,

the two violations contained in the notice of violation at issue in this appeal and a separate

notice of violation containing another unrelated violation. During plaintiff’s presentation of

his defense, the ALO told plaintiff that, because plaintiff had arrived late to the hearing, the

ALO would only address the two violations at issue in this case. Specifically, the ALO

stated: “We’ll make a decision on this ticket, and on the second ticket I’m going to have to

continue. Ok?” Plaintiff responded, “All right.”

¶ 63 Plaintiff was then given over an hour to present his defense, which notably did include

some defense to the parkway violation. However, the ALO ultimately indicated that plaintiff

would have to complete his presentation due to other pending cases on the docket. Plaintiff

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did so, and the ALO proceeded to rule on both ordinance violations contained in the notice

of violation at issue here. When he did so, plaintiff indicated that he did not understand that

the ALO would be proceeding on both the weed and parkway violations.

¶ 64 Now on appeal, plaintiff contends: “if he had known that he was going to be judged on

both charges after his time expired, he would have abridged his defense of the first charge,

and spent some time defending himself from the second charge. The [ALO] therefore

conducted the hearing in such a way so as to deny Plaintiff his right to be heard.” (Emphasis

added.) However, the record does not support this assertion. Plaintiff was clearly informed

of the ALO’s decision as to how the hearing would proceed, and it is plaintiff himself that

apparentlymisunderstood this decision despite responding, “All right.” Moreover, the record

indicates that the length of plaintiff’s administrative hearing was truncated, at least in part,

because he arrived late. In no way does this record reflect that the ALO somehow denied

plaintiff his rights under the Illinois Municipal Code.

¶ 65 8. Evidentiary Support for ALO’s Decision

¶ 66 Having addressed plaintiff’s procedural challenges to the administrative proceedings, we

now address his substantive challenge to the ALO’s ultimate finding that plaintiff had

violated the city’s weed and parkway ordinances.

¶ 67 As noted above, plaintiff was alleged to have violated the city’s weed and parkway

ordinances. The weed ordinance provides: “[a]ll weeds which have not been cut or otherwise

controlled, and which exceed an average height of ten inches, are hereby declared to be a

public nuisance.” Chicago Municipal Code § 7-28-120(b) (amended Dec. 4, 2002). As such,

the ordinance further provides: “[a]ny person who owns or controls property within the city

must cut or otherwise control all weeds on such property so that the average height of such

weeds does not exceed ten inches.” Chicago Municipal Code § 7-28-120(a) (amended Dec.

4, 2002). In turn, the parkway ordinance provides: “[t]he owner or person in control of

property contiguous to the parkway shall be responsible for watering and fertilizing parkway

trees *** and for routine care of the parkway lawn. Routine care of the parkway lawn shall

include periodic watering, weeding and mowing, as well as replacement of vegetation that

dies.” Chicago Municipal Code § 10-32-050 (amended July 10, 2002).

¶ 68 In support of its assertion that plaintiff had violated these two provisions, the city’s notice

of violation and the photos of plaintiff’s property were presented at the administrative

hearing and entered into the record. The notice itself includes the issuing officer’s assertion

that plaintiff’s property exhibited “WEEDS–GRASS OVER 10” TALL FRONT–AND

BACK YARD.” It also asserted that plaintiff had demonstrated a “FAILURE TO

MAINTAIN PARKWAY.” The photos showed two views of plaintiff’s front yard, a view

of his backyard, and a view of the parkway in front of his property. These photos depict a

host of various plants growing on both plaintiff’s property and the parkway, many of which

are quite obviously several feet tall.

¶ 69 In response to the city’s evidence, plaintiff testified at the hearing that “a weed is a plant

growing where you don’t want it. All of the plants on my land are growing exactly where I

want them.” Plaintiff testified that he tended to all of his plants, some of which included

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mulberry saplings and an elm tree sampling. Plaintiff further testified that he also generally

tended his property and the parkway by cleaning it of garbage and other rubbish, and that

none of the plants on his property harbored rodents. Finally, plaintiff challenged the

photographs presented by the city on the grounds that they did not show his entire property,

and therefore no conclusions about the average height of all the “weeds” on his property

could be drawn from that evidence. On appeal, defendant reasserts these assertions and

challenges to the city’s case.

¶ 70 We reject plaintiff’s contention that the ALO improperly found violations of the city’s

weed and parkway ordinances. We reiterate that the notice of violation itself was “prima

facie evidence of the correctness of the facts specified therein.” Chicago Municipal Code

§ 2-14-076(i) (amended Apr. 29, 1998). This included the fact that plaintiff’s property

exhibited “WEEDS–GRASS OVER 10” TALL FRONT–AND BACK YARD” and that

plaintiff had demonstrated a “FAILURE TO MAINTAIN PARKWAY.” These alleged

violations need only have been established upon “proof by a preponderance of the evidence”

(id.), and “[t]he findings and conclusions of the administrative agency on questions of fact

shall be held to be prima facie true and correct” (735 ILCS 5/3-110 (West 2008)). On appeal,

we review these findings to determine if they are against the manifest weight of the evidence,

which exists:

“ ‘only if the opposite conclusion is clearlyevident.’ [Citation.] Therefore, the ‘mere fact

that an opposite conclusion is reasonable or that the reviewing court might have ruled

differentlywill not justifyreversal of the administrative findings.’ [Citation.]We are also

mindful that, ‘[i]n examining an administrative agency’s factual findings, a reviewing

court does not weigh the evidence or substitute its judgment for that of an administrative

agency.’ [Citation.] If the record contains evidence to support the agency’s decision, that

decision should be affirmed. [Citation.]” Marconi, 225 Ill. 2d at 534.

¶ 71 The city’s notice of violation and the photos presented at the hearing clearly provided

sufficient evidentiary support for the ALO’s finding that plaintiff had violated the weed and

parkway ordinances. We note that the photos themselves were clearly admissible, even if

they could be considered hearsay. See 65 ILCS 5/1-2.1-6 (West 2008) (“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.”); Chicago

Municipal Code § 2-14-076(h) (amended Apr. 29, 1998) (same). Moreover, other than

asserting that the city was required to provide additional photos of his entire property,

plaintiff never contended that the four photos presented below did not accurately reflect the

condition of that portion of his property and the parkway actually depicted therein.

¶ 72 Furthermore, plaintiff’s own testimony and other challenges to this evidence were

insufficient to call the city’s evidence into question. For example, the fact that plaintiff

cleared his property and the parkway of rubbish was irrelevant to the question of the height

of the weeds on his property or whether plaintiff did not periodically water, weed, and mow

the parkway. Moreover, the city was not obliged to offer photographs of every square inch

of plaintiff’s property–as plaintiff appears to assert in his brief–in orderto prove its allegation

of a weed ordinance violation by a preponderance of the evidence. This standard simply

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requires that “the evidence presented renders a fact more likely than not.” J.M. v. Briseno,

2011 IL App (1st) 091073, ¶ 41.

¶ 73 We cannot say, in light of all the evidence, that the ALO’s findings were so unsupported

by evidence that the opposite conclusion is clearly evident. As such, we affirm the ALO’s

administrative determination that plaintiff violated the city’s weed and parkway ordinances.

¶ 74 C. Circuit Court Proceedings and Constitutional Challenges

¶ 75 We now return to plaintiff’s remaining challenges to the circuit court proceedings. First,

plaintiff specifically contends the circuit court erred by quashing his two subpoenas, and

erred more generally by refusing to allow him to present any evidence in support of his

challenges to the two ordinances he was found to have violated. Plaintiff also contends the

circuit court improperly rejected his constitutional challenges to those two ordinances on the

merits. Because of the interrelated nature of the issues involved, our discussion of plaintiff’s

right to present evidence in support of his constitutional challenges will necessarily also

involve a discussion of the ultimate merits of those constitutional challenges. Forthat reason,

we will address all of these issues together in this section.

¶ 76 As an initial matter, and as plaintiff himself recognizes, section 3-110 of the Code

provides that upon the filing of a complaint for administrative review “[n]o new or additional

evidence in support of or in opposition to any finding, order, determination or decision of the

administrative agency shall be heard by the court.” 735 ILCS 5/3-110 (West 2008). As such,

the circuit court properly refused to allow plaintiff to introduce any new evidence in support

of the two counts of his complaint seeking administrative review. Moreover, as we have

already discussed above, plaintiff’s request for administrative review was also properly

denied on the merits.

¶ 77 However, plaintiff contends the situation is otherwise with respect to his constitutional

challenges. Plaintiff’s constitutional challenges include: (1) facial constitutional challenges

to the weed and parkway ordinances asserting they were void for vagueness because they

each contain fatally unspecific terms and invite arbitrary enforcement; (2) an as-applied

challenge to the weed ordinance asserting that this ordinance had, in fact, been arbitrarily

enforced in this case; and (3) an assertion that the weed ordinance was unconstitutional for

its failure to satisfy either the strict scrutiny or rational basis standard. We find that plaintiff

has not demonstrated any reversible error with respect to the circuit court’s refusal to hear

any additional evidence in support of these challenges, nor has he demonstrated that the

circuit court improperly rejected his constitutional challenges to the weed and parkway

ordinances.

¶ 78 1. Standard of Review

¶ 79 Our supreme court has recently summarized the relevant principles applicable to

plaintiff’s constitutional arguments, stating:

“In construing the validity of a municipal ordinance, the same rules are applied as

those which govern the construction of statutes. [Citation.] Statutes are presumed

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constitutional, and the burden of rebutting that presumption is on the party challenging

the validity of the statute to clearly demonstrate a constitutional violation. [Citation.]

This court has a duty to uphold the constitutionalityof a statute when reasonably possible

[citation], and, therefore, if a statute’s construction is doubtful, a court will resolve the

doubt in favor of the statute’s validity. [Citation.]” Napleton v. Village of Hinsdale, 229

Ill. 2d 296, 306-07 (2008).

¶ 80 Moreover, it is within the discretion of the circuit court to make evidentiary rulings, and

such determinations are not to be overturned absent a clear abuse of discretion. Simmons v.

Garces, 198 Ill. 2d 541, 570 (2002). Furthermore, reversal on appeal is not required unless

an erroneous evidentiary ruling was substantially prejudicial, and the burden of establishing

prejudice is on the party seeking reversal. DiCosolo v. Janssen Pharmaceuticals, Inc., 2011

IL App (1st) 093562, ¶ 40. As such, any improper evidentiary rulings may be considered

harmless error. Wade v. City of Chicago, 364 Ill. App. 3d 773, 784 (2006).

¶ 81 2. Vagueness: Facial Challenge

¶ 82 First, we address plaintiff’s facial challenge to the two ordinances on vagueness grounds.

Plaintiff’s complaint and specification of errors assert that the weed ordinance was facially

invalid because the term “weed” is inherently subjective and thus fatally unspecific. He

similarly challenges the “periodic” care requirement in the parkway ordinance as being

fatally unspecific. Finally, plaintiff contends both ordinances are void for vagueness on the

grounds that they invite arbitrary enforcement.

¶ 83 We find that plaintiff’s facial challenges on vagueness grounds are untenable. As our

supreme court has stated:

“Void for vagueness is a concept derived from the notice requirement of the due

process clause. A statute can be impermissibly vague for either of two independent

reasons: (1) if it fails to provide people of ordinary intelligence a reasonable opportunity

to understand what conduct it prohibits; and (2) if it authorizes or even encourages

arbitrary and discriminatory enforcement. [Citations.] As a general rule, a litigant whose

conduct falls squarely within a statute’s prohibition cannot complain of the vagueness

of the law as applied to others. [Citation.] Moreover, in order to succeed on a vagueness

challenge that does not involve a first amendment right, a party must establish that the

statute is vague as applied to the conduct for which the party is being prosecuted.”

Maddux v. Blagojevich, 233 Ill. 2d 508, 544 (2009).

Stated differently, unless a municipal ordinance “implicates first amendment rights, plaintiff

may not, as he did here, challenge the ordinance as vague on its face. [Citation.] If [the

ordinance] does not implicate first amendment rights, plaintiff can only argue that the

ordinance is vague as applied to himself, as applied to conduct for which he is being

targeted.” O’Donnell v. City of Chicago, 363 Ill. App. 3d 98, 105 (2005).

¶ 84 Here, plaintiff has asserted that the weed and parkway ordinances are unconstitutionally

vague on their face. However, plaintiff’s conduct–his alleged failure to control weeds on his

property or to maintain the parkway– clearly fall within the terms of the two ordinances and

it is equally clear that these two ordinances do not implicate any first amendment rights. As

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such, plaintiff had no “standing” to make a facial challenge to those ordinances. See Owens

v. Department of Human Rights, 403 Ill. App. 3d 899, 927 (2010). It necessarily follows that,

with plaintiff’s facial vagueness challenges being themselves invalid, these constitutional

challenges were properly rejected on the merits by the circuit court. Moreover, no prejudice

can therefore have resulted from the circuit court’s refusal to allow plaintiff to present any

evidence in support of them.

¶ 85 3. Vagueness: As-Applied Challenge

¶ 86 We next consider plaintiff’s as-applied vagueness challenge to the weed ordinance.

Plaintiff asserts that he should have been allowed to present additional evidence in support

of his “as-applied” challenge that the weed ordinance had actually been arbitrarily enforced

in this case, and that this constitutional challenge should not have been denied on the merits.

¶ 87 Specifically, plaintiff contends in his specification of errors, he indicated to the circuit

court that he intended to present evidence that 11 other properties near his were also in

violation of the weed ordinance but had not been cited with a violation. He further indicated

that he would present evidence that he had himself complained to the city about these

properties, but no action was taken. Plaintiff contends if this evidence would have been

presented, his as-applied challenge would have been successful.

¶ 88 It is well established that where “a statute is challenged on the grounds that it violates the

constitution, the constitutional issues may be raised in the context of a complaint for

administrative review.” Chicago Bar Ass’n v. Department of Revenue, 163 Ill. 2d 290, 297

(1994) (citing Howard v. Lawton, 22 Ill. 2d 331, 333 (1961)). However, it has also been

“quite established that if an argument, issue, or defense is not presented in an administrative

hearing, it is procedurally defaulted and may not be raised for the first time before the circuit

court on administrative review.” Cinkus v. Village of Stickney Municipal Officers Electoral

Board, 228 Ill. 2d 200, 212 (2008). More specifically:

“This rule of procedural default encompasses a litigant’s right to question the validity of

a statute. To be sure, an administrative agency lacks the authority to declare a statute

unconstitutional, or even to question its validity. Nonetheless, this court has repeatedly

advised that a party in an administrative proceeding should assert a constitutional

challenge on the record before the administrative tribunal, because administrative review

is confined to the evidence offered before the agency. Such a practice avoids piecemeal

litigation and, more importantly, allows opposing parties a full opportunity to refute the

constitutional challenge.” Id. at 214.

¶ 89 Notably, these principles are equallyapplicable to declaratoryjudgment actions, and even

where such a claim for declaratory judgment alleges that “a facially valid statute, ordinance,

or administrative rule ‘is applied in a discriminatory or arbitrary manner, the rule generally

prevails that recourse must be had in the first instance to the appropriate administrative

board.’ ” Beahringer v. Page, 204 Ill. 2d 363, 374 (2003) (quoting Bank of Lyons v. County

of Cook, 13 Ill. 2d 493, 495 (1958). As such, it has been recognized that “a challenge to a

statute as applied to a litigant relies upon certain factual bases. Thus, when a litigant presents

an as-applied challenge, ‘an evidentiary record is indispensable because administrative

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review is confined to the record created before the agency.’ ” Gruwell v. Department of

Financial & Professional Regulation, 406 Ill. App. 3d 283, 298 (2010) (quoting Arvia v.

Madigan, 209 Ill. 2d 520, 528 (2004)).

¶ 90 In light of the above, it is clear that the circuit court properly rejected plaintiff’s request

to introduce any additional evidence in support of this argument. Plaintiff’s as-applied

challenge to the weed ordinance was necessarily a factual one, and the facts supporting that

challenge could only be presented in the administrative proceeding.

¶ 91 Moreover, we also find that the trial court properly rejected this challenge on the merits.

Again, the general thrust of plaintiff’s as-applied challenge to the weed ordinance is that the

citydid not enforce the ordinance against other properties in his neighborhood and, therefore,

the city’s enforcement in this case was arbitrary. Indeed, he testified at the administrative

hearing that there were several properties near his which had “plants growing on them in

excess of 10 inches” but were not subject to any enforcement.

¶ 92 Plaintiff cites to no authority supporting the notion that such evidence would support his

contention that the weed ordinance was actually enforced against him in an arbitrary or

discriminatory way, nor is this court aware of any. Indeed, “in an ‘as-applied’ challenge, the

party challenging the statute contends that the application of the statute in the particular

context in which the challenger has acted, or in which he proposes to act, would be

unconstitutional. An ‘as-applied’ challenge requires a party to show that the statute violates

the constitution as the statute applies to him.” (Emphases added.) People v. Brady, 369 Ill.

App. 3d 836, 847 (2007). Thus, plaintiff’s argument is, as a whole, without merit.

¶ 93 Furthermore, the evidence presented here established that plaintiff had many tall weeds

on his property. The administrative record also includes evidence that plaintiff was a repeat

offender in this regard, and that the condition of his property was attracting rodents.

Plaintiff’s testimony to the contrary was, as we have already discussed, rejected by the ALO

in a proper exercise of his discretion. On the basis of this record, plaintiff cannot establish

that the city’s weed ordinance was improperly enforced against him.

¶ 94 4. Strict Scrutiny and Rational Basis 

¶ 95 Finally, we address plaintiff’s remaining constitutional challenge to the weed ordinance.

Plaintiff asserts that the distinction the ordinance makes between plants that are “weeds” and

plants that are not weeds bears no rational relationship to the ordinance’s “ostensible”

purpose, which he describes as public heath, safety, or sanitation. Indeed, plaintiff further

asserts that because this ordinance interferes with private property rights, it must actually

pass the strict scrutiny test for constitutionality. Lastly, plaintiff asserts that he was prepared

to introduce evidence to support these assertions, and that the circuit committed reversible

error by refusing to allow the presentation on any such evidence.

¶ 96 In order to properly analyze plaintiff’s claim that the weed ordinance is unconstitutional,

we must first determine the nature of the right alleged to be infringed. Napleton, 229 Ill. 2d

at 307. Indeed, it is recognized:

“Classification of the right affected is critical because the nature of the right dictates the

level of scrutiny a court must employ in determining whether the statute in question

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comports with the constitution. [Citation.] Courts examining the constitutional validity

of a statute will ordinarily apply the rational basis test. [Citation.] Under this test, a

statute will be upheld if it bears a rational relationship to a legitimate legislative purpose

and is neither arbitrary nor unreasonable. [Citations.] In contrast, where a classification

has been made based upon race or national origin [citation], or the constitutional right

at issue is one considered to be ‘fundamental’ [citation], the presumption of

constitutionality is weaker, and courts must subject the statute to the more rigorous

requirements of strict scrutiny analysis. [Citation.] In order to survive strict scrutiny, the

measures employed by the government body must be necessary to serve a compelling

state interest, and must be narrowly tailored thereto, i.e., the government must use the

least restrictive means consistent with the attainment of its goal. [Citation.]” Id.

¶ 97 We first reject plaintiff’s contention that this matter requires the application of the strict

scrutiny standard because the weed ordinance interferes with his right to use his property,

which plaintiff describes as a “fundamental constitutional right.” Our supreme court has only

recently rejected just such an argument in Napleton. In that case, the court first noted that it

had previously recognized that “fundamental rights include the expression of ideas (i.e.,

freedom of speech), participation in the political process, travel among the states and privacy

with regard to the most intimate and personal aspects of one’s life.” Id. at 307-08.

¶ 98 In rejecting the argument that a municipal zoning ordinance was subject to heightened

constitutional scrutiny because it impacted on private property rights, the court held that “the

rights plaintiff alleges to be infringed by the enactment of the zoning code amendments do

not fall within the category of fundamental rights set forth above, nor do they involve a

suspect classification. Therefore, strict scrutiny does not apply.” Id. at 308-09. The court

went on to apply the rational basis standard to the constitutional challenge in that case (id.

at 309), and we will similarly apply that same standard to plaintiff’s challenge here.

¶ 99 As has been repeatedly recognized, the rational basis standard is highly “limited and

deferential.” Hudson v. YMCA of Metropolitan Chicago, LLC, 377 Ill. App. 3d 631, 638

(2007). Indeed, our supreme court has stated that a law will be found constitutional under this

standard:

“so long as it is reasonably designed to remedy the evils the legislature has determined

to be a threat to the public health, safety, and general welfare. [Citation.] The statute need

not be the best means of accomplishing the legislature’s objectives. [Citation.] As long

as the statute is rationally related to a legitimate state interest, it will be upheld.

[Citation.]

Whether a statute is wise [or] whether it is the best means to achieve the desired

result are matters left to the legislature, and not the courts. [Citation.] The judgments

made by the legislature in crafting a statute are not subject to courtroom fact finding and

may be based on rational speculation unsupported by evidence or empirical data.

[Citation.] Under the rational basis test, the court may hypothesize reasons for the

legislation, even if the reasoning advanced did not motivate the legislative action.

[Citation.] If there is any conceivable basis for finding a rational relationship, the law

will be upheld. [Citation.]” People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 124

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(1998).

¶ 100 We find that the weed ordinance easily passes this standard, even if solely on the grounds

of aesthetics. The United States Supreme Court long ago recognized that the “concept of the

public welfare is broad and inclusive. [Citation.] The values it represents are spiritual as well

as physical, aesthetic as well as monetary. It is within the power of the legislature to

determine that the community should be beautiful as well as healthy, spacious as well as

clean ***.” Berman v. Parker, 348 U.S. 26, 33 (1954). That court has more recently

reiterated that it is “well settled that the state may legitimately exercise its police powers to

advance esthetic values.” Members of City Council of the City of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 805 (1984).

¶ 101 We find the city’s prohibition on properties containing weeds averaging over 10 inches

tall to be rationally related to a legitimate interest in aesthetics. See City of Montgomery v.

Norman, 816 So. 2d 72, 79 (Ala. Crim. App. 1999) (upholding similar municipal weed

ordinance as constitutional exercise of police power in support of legitimate public interest

in aesthetics). Moreover, because the ordinance could be properlybased, at a minimum, upon

the city’s “rational speculation unsupported by evidence or empirical data,” no evidence

plaintiff might have introduced could have altered this finding. We therefore find that the

circuit court correctlyrejected this constitutional challenge on the merits, and also committed

no reversible error by refusing to allow plaintiff to introduce any supporting evidence.

¶ 102 III. CONCLUSION

¶ 103 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 104 Affirmed.

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