2018 IL App (1st) 163120
SIXTH DIVISION JANUARY 19, 2018 No. 1-16-3120 AUSTIN GARDENS, LLC , P laintiff -Appellant,

v.
THE C ITY OF CHICAGO DEPARTMENT OF ADMINISTRATIVE HEARINGS , Defendant -Appellee. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Co ok County.

No. 15 L 050060
Honorable Joseph M. Sconza, Judge Presiding.
JUSTICE CUNNINGHAM deli vered the judgment of the court, with opinion. Justice s Connors and Delort concurred in the judgment and opinion.

O PINION ¶ 1 In this administrative review action, p laintiff -a ppellant Austin Gardens , LLC (Austin Gardens) , appeals the decision of the City of Chicago Department of Administrative Hearings (DOAH) which denied Austin Gardens ’ motion to vacate a 2013 default judgment. For the following reasons, we conclude that the DOAH lacked jurisdiction to consider the motion. ¶ 2 BACKGROUND ¶ 3 This appeal stems from two separate actions brought by the City of Chicago (City) alleging building code violations at real p rop erty owned by Austin Gardens

. In April 2005, t he
C ity initiated an action in the municipal division of the circuit c ourt of Cook County (the circuit court action) alleging certain buil ding code violations at Austin Gar dens’ property at 300 to 308 North Central Avenue in Chicago. The circuit court action remained pending until 2014. ¶ 4 Meanwhile, in May 2013, the City initiated a separate action in the DOAH (the DOAH action) by fil ing an administrative complaint alleging th at a March 2013 inspection revealed 131-16-3120
violations at two properties owned by Austin Gardens, including the same property that was the subject of the circuit court action. Certain of the building code ordinances that were cited in the administrative complaint were also the subject of alleged violations in the circuit court action

. In addition to Austin Gardens, the administrative complaint named each of the company ’ s individ ual members as respondents in the DOAH action

. ¶ 5 Austin Gardens did not appear at subsequent hearing dates in the DOAH action on June 25, 2013, and August 27, 2013

. As a result, o n August 27, 2013 , an administrative law judge (ALJ) en tered a default order i n fa v or of the City in the DOAH action (the default judgment) that specified $500 fine s for each of 12 separate building violations , plus $40 in costs, for a total judgment of $6040. The default judgment , which was mailed to Austin Gardens on August 30, 2013, specified that “ You have 21 days from the abo ve mailing date to file a motio n to set

- aside (vo id) this d efault order for good cause with the [DOAH]. ” ¶ 6 Separately, i n April 2014, the City and Austin Gardens entered into an “ Agreed Order of Injunction and Judgment ” (Agreed Order) resolving the circuit court action

. Under the Agreed
O rder, Austin Gardens agreed to pay $2000 in full settlement of the allegations in th at action

. The Agreed Order provided that the matter was “di smissed by agreement of the p arties ” and that
it was a final order

. The Agreed Order contains no explicit reference to the DOAH action or the default judgment. ¶ 7 Austin Gardens subseq uently discovered the existence of the default judgment. On December 5, 2014, Austin Gardens filed a “ motion to set

- aside ” the default judgment (motion to vacate)

. That motion asserted that Austin Gardens had not appe are d in the DOAH action because
it “thought this case had been taken care of ” due to the circuit court action.

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¶ 8 On December 19, 2014, an ALJ o f t he DOAH held a hearing on Austin Gardens ’ motion

to vacate

. At the hearing, Austin Gardens argued that it was impermissible for the City to initiate
the DOAH action in 2013, while the circuit court action was pending for building code violations at the same property. The ALJ rejected Austin Gardens ’ arg ument and decli ned to disturb the default judgment, to the extent it was entered against Austin Gardens

. However, the ALJ independently concluded that the individual members of the company should not be he ld personally liable for th e fines assessed against Austin Gardens and thus decided to “ dismiss ” the
DOAH ac tion with respect to those individuals. Accor dingly, on December 19, 2014, the ALJ entered an order denying the motio n to vacate that specified , “ Default Judgment stands a s to [Austin Gardens] LLC only. All other parties are dismissed. ” ¶ 9 On January 23, 2015, Austin Gardens filed a complaint in the circuit court of Cook
C ounty, pursuant to the Administrative Review Law (735 ILCS 5/3 -101 et seq

. (West 2014)) for
administrative review of the ALJ ’ s denial of the motion to vacate the 2013 default judgment. The complaint contended that the City ’ s “ filing of an administrative action alleging code violations
while a simultaneous action also alleging code vio lations was currentl y pending in the circuit court should be held to be void and without legal effect.” ¶ 10 On October 24, 2016, the circuit court conducted a hearing

. Austin Gardens argued that

res judicata barred the City from maintaining duplicative actions in the circuit court and the
DOAH , and tha t the 2014 Agreed O rder resolving the circuit court action “ extinguished the jurisdiction of” the DOAH. The circuit c ourt rejected Austin Garden s’ res judicata argument

. However, the circuit court independently no ted that , in reviewing the complaints from the two actions, it found “ some duplication in that some of the exact same ordinances were cited in the administrative review [ complaint] as w [ere] cited in the [circuit court] comp laint. ” The circuit 31-16-3120

court indicated that the City could not maintain separate cases “ on the very same ordinance

. ” The circuit court concluded that the default judgment should be affirmed but reduce d by $2000 so as to remove fines for violations that were alleged in the circuit cour t action

. The circuit court ’s
written order specified that the ALJ ’s decis ion denying the motion to vacate was “ Affirmed except for those violations which wer e duplicative of those con tained ” in the circuit court action, resulting in a $2000 reduction of the amount of the default judgment. ¶ 11 On November 22, 2016, Austin Gardens filed a timely notice of appeal

. Accordingly, we have jurisdiction. ¶ 12 ANALYSIS ¶ 13 On appeal, Austin Garden s argues that the ALJ erred in denying its motion to vacate the
defaul t judgment in the DOAH action because, as a matter of res judicata , the circuit court action
barred the DOAH action. Austin Gardens claims that the require ments for res judicata wer e met
because the re was a final judgment on the merits in the circuit court a ction, the same parties were
involved in both action s , and both case s “ arose from the same set of o perative facts

— the
condition of the Property. ” Austin Gardens contends that it is improper to allow the City to

“ litigate what is substantially the same claim in multiple forums, at the same time. ” ¶ 14 In respo nse, t he City ’ s primary argument is that the DOAH lacked jurisdiction to vacate its 2013 default judgment because Austin Gardens ’ motion to vacate wa s untimely

. The City relies upon s ection 2 -14-1 08(a) of th e Chicago Municipal Code (Code), which provides:

“ An administrative law officer may set aside any order entered by default and set a new hearing date, upon a petition filed within 21 days after the issuance of the order of default, if the administrative law officer determines that the petitioner ’ s failure to appear at the
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hearing was for good cause or, at any time, if the petitioner establishes that the petitioner was not provided with proper service of process. If the petition is granted, the administrative law officer shall proceed with a new hearing on the underlying matter as soon as practical. ” (Emphasis added.) Chicago Municipal Code § 2-14­
108 (a) (added Apr . 29, 1998). The City argues that , since the motion to vacate the 2013 DOAH default judgment was not filed within 21 days (a n d because there is no claim of improper service in the DOAH action), the DOAH lacked jurisdictio n to decide the motion to vacate

. Alternatively, the City argues th at , on the merits, the doctrine of res judicata is inapplicable

. 1 ¶ 15 We first note that , on administrative revi ew, this court “ reviews the administrative
agency ’ s final decision, not the circuit court ’ s decision

. [Citations.] ” Slo per v. City of Chicago, Department of Administrative Hearings , 2014 IL App ( 1st) 140712, ¶ 15. That is, we review the
DOAH ’ s decision on Austin Gardens ’ motion to vacate rather than the circuit court’ s decision
up on administrative review

. ¶ 16 Before we may reach the merits of the agency ’ s decision , we address the City ’ s threshold argument that the DOAH lacked jurisdiction to consider Austin Gardens ’ motion to vacate

. See Modrytzkji v. City of Chicago , 2015 IL App (1st) 141874, ¶ 9 ( “ As a challenge to jurisdiction is a threshold matter we must address it first, before we c an reach the substance ” of the appeal).

“ Whether an administrative agency has jurisdiction is a question of law that is reviewed
de novo

. ” Id.

1 The City’s brief explicitly declines to challenge the portion of the circuit court’s decision reducing the amount of the default judgment by $2000. 51-16-3120
¶ 17 We briefly note Austin Gardens ’ claim that the City waived this argument because “ [t] he
record is devoid of the City having challenge d the timeliness of Austin Ga r dens ’ Moti on to
Vacate in fr ont of the DOAH. ” We disagree. A ch allenge to an agency ’ s jurisdiction “ can be raised at any time, ” including on appeal

. Id. ; see also Robinson v. Human Rights Comm ’n , 2 01 Ill. App. 3d 722, 726 (1990) (“ A lack of jurisdiction may b e raised at any time, either directly or collaterally. ”). Thus, we consider whether the DOAH had jurisdiction to consider Austin
Gardens ’ motion to vacate. ¶ 18 “ [A]n administrative agency has no inherent or common law power and may only act in accordance with the power conferred upon it by the legislature

. *** Like a court of limited jurisdiction, an administrative agency can only act in conformity with the procedure set forth in the statute which empowers it. [Citation.] ” Robinson , 201 Ill. App. 3d at 728 . “ Since an administrative agency *** is a creature of statute, its jurisdiction or authority must be found within the provisions of the statute by which it acts. [Citations.] Thus, parties seekin g review of an agency decision must ‘ strictly comply ’ with the procedures set forth in the statute or
ordinance. [Citation.] ” Modrytzkji , 2015 IL App (1st) 141874, ¶ 10. ¶ 19 “ The City [ of Chicago ] has the authority under its home rule powers to establish
administrative agencies. Ill. Const. 197 0, art. VII, § 6(a). ” Modrytzkji , 2015 IL App (1st) 141874, ¶ 11. Pursuant to this power, the City created the DOAH “ to conduct administrative adjudication proceedings for departments and agencie s of the city. ” Chicago Municipal Code § 2-14-010 (amended Feb. 15, 2012 ). Section 2 -14-150 of the Code specifies that the DOAH “shall operate a system of administrative adjudication of violation s of building code provisions ” withi n a buildings hearings divisio n. Chicago Municipal Code § 2-14-150 ( amended July 29 , 199 8). T he
director of the DOAH is empowered to appoint administrative l aw officers to conduct hearings , 61-16-3120

make findings of fact and conclusions of law, and “ impose penalties and fines *** consistent
wi t h applicable code provision s. ” Chicago Municipal Code §§ 2-14-030 ( amended Feb. 15, 2012), 2-14-040 (amended Apr. 29, 1998). ¶ 20 I f a party accused of building code violations fails to appear at a properly noticed DOAH hearing , “ the administrative law officer may find the recipient [of a notice of violation] in default and proceed with the hearing and accept evidence relevant to the existence of a code violation
and conclude with a fin d ing, decision, and order. ” Chicago Munici pal Code § 2-14-078(a) ( amended Apr. 29, 1998 ). “ The re cipient of a notice of violation or a notice of hearing who is
found to be in defau lt may petition the administrative law officer to set aside the order of default
and set a new hearin g date in accordance with Section 2 -14-108. ” Chicago Municipal Code § 2­ 14-078(b) (amended Apr. 29, 1998). In turn, section 2 -14-108 provides:

“ An administrative law officer may set aside any order entered by default and set a new hearing date, upon a petition filed within 21 days after the issuance of the order of default, if the administrative law officer determines that the petitioner ’ s failure to appear at the hearing was for good cause or, at any time, if the petitioner establishes that the petitioner was not provided with proper service of process. ” Chicago Municipal Code § 2-14-108(a) (added Apr

. 29, 1998). ¶ 21 “ Illinois has consistently held that time limitations upon bringing actions before administrative agencies are matters of jurisdiction which cannot be tolled. ” (Intern al quotation marks omitted.) Modrytzkji , 2015 IL App ( 1st ) 141874, ¶ 13. Thus, in Modrytzkji , our court held
that an analogous time limit in a Code provision was jurisdictional

. In that case, the plaintiff
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requested a DOAH hearing to challenge determinations by the Cit y’ s Commission on Anima l
Care and Control (Commission) tha t two of his dogs were “dangerous animals ” under the Code

. Id. ¶ 5. The DOAH he ld a hearing an d affirmed the Commission ’ s determinations. Id. ¶ 6. T he
circuit court then affirme d the DOAH decision

. Id. ¶ 7. ¶ 22 On appeal to this court, the City argued that the DO AH lacked jurisdiction to condu ct the hearing, as the plai nt iff ’s requ est for DOAH review of the Commission ’ s determinations was untimely

. We agreed , relyi ng on the Code provision that animal owners must be informed of the right to appeal Commission determination s “ by filing a written request for a hearin g within seve n days of service of the notice. ” Id. ¶ 11 (quoting Chicago Municipal Code § 7-12- 050(d) (ad ded Oct. 2, 1995)). We reasoned :

“ [The ordinance ] does not provide for written requests fo r hearings
that are file d beyond seven days of the notice and there is nothing in the Chicago Municipal Code that authorizes the Department to
condu ct hearings when a request for a hearin g is untimely

. Bec au se the Department only has limite d statutory authority , its power s cannot be expanded beyond wh at is authorized by the Chicago Municipal Code. ” Id. ¶ 12.
We conclude d that as “ plaintiff ’ s request for a hearin g w as untimely , the [DOAH] di d not have authority” to review the Commission ’ s determinations , and so the DOAH ’ s decision was void

. Id. ¶ 14. In turn, “ the circuit cour t did not have th e authority to consi der the merits of plaintiff ’ s appeal ” but was “ lim i ted to revi ewing th e [DOAH] ’s d ecision for wheth er the decision w as void. ” Id

. ¶ 15. Accordingly , we vacated both the judgment of the circuit court and the order of
the DOAH

. Id. 81-16-3120
¶ 23 Austin Gardens ’ reply brief asserts that Modrytzkji is distinguishable from the instant
case because “ [t] he provision in Modryt zkji did not set a time for th e DOAH to act as [section] 2­
14- 108(a) does. Instead, it set a requirement for the party to act. ” Austin Garden s is incorrect.
T he Code provisions at issue in Modrytzkji and in this case set limit s on when parties must act in
order to obtain review from the DOAH : the Code provision in Modrytzkji allowed an animal

owner seven days to seek review of the Commission ’ s dangerous animal d eterminations and, in this case, section 2-14-108(a) of the Code required Austin Gardens to seek review of the default judgment entered against it within 21 days. Thus, our reasoning in Modrytzkji applies here. ¶ 24 Our conclusion that the 21- day limit in section 2- 14 -108(a) of the Code constitutes a limit

on the DOAH ’ s jurisdiction is also consistent with our disc ussion of that provision in Stone
Street Partners , LLC v. City of Chicago Department of Administrative Hearings , 2014 IL App (1st) 123654 ( affirmed in part and reversed in part on other grounds , 2017 IL 1177 20 ), which
also concerned a property owner ’ s attempt to vacate a DOAH judgment

. In that case, fines for building violations were assessed against the plaintiff, Stone Street, following a 1999 hearing at
which a non att orney purported to represent Stone Stree t. Id. ¶¶ 3-4. In 2011, Stone Street moved

to v a cate the 1999 DOAH order, but an ALJ determined that the DOAH lacked j urisdiction to do

so because “[t] he governing ordinance [section 2 -14-108(a)] only allowed it to c onsider vacating default judgment s within 21 days of their entry. ” Id. ¶ 5. Stone Street ’ s circuit court complaint seeking administrative review was dismissed , and Stone Street appealed to our court . Id. ¶ 6. ¶ 25 On appeal, Stone Street argued that the DOAH was authorized to consider its motion to
vacate the 1999 order , pursuant to sec tion 2 -14-108(a) of the Code

. Our court recognized that
because “ an administrative agency is a creature of statute, any power or au thority claimed by it
must find its source wit hin the provision s of the statute by which it is created. ” (Internal 91-16-3120
quotation marks omitted.) Id. ¶ 24. However, because the 1999 order at issue was not a “default” order, we held t hat section 2 -14-108(a) did not apply and “ the DOAH correctly determined it had no jurisdiction to consider Stone Street’ s motion to vacate.” Id. ¶ 25. ¶ 26 Stone Street illustrates that the DOAH ’ s jurisdiction is defined by the Code and that
section 2-14- 108(a) defines the DOAH ’s authority to review default judgments. In this case, there is no question that Austin Gardens did not file its motion to vacate the August 2013 default judgment until Dec ember 2014 , well beyond the 21

- day time limit in section 2 -14-108 (a)

. As the
motion to vacate was too late , the DOAH lacked authority to consider it. ¶ 27 Austin Garden s’ reply brief asserts that the 21

- day time limi t in section 2 -14-108(a) did

not affect the DOAH ’ s jurisdiction, because that provision is merely “ directory ” rather than “mandatory. ” Austin Gardens relies on Cooper v. Departm ent of Children & Family Services , 234 Ill. App. 3d 474 (1992). In that case , the Department of Children and Family Services (DCFS) failed to hold a hearing within 30 days, as required by the Child Care Act of 1969 (Ill. Rev. Stat. 1989, ch. 23, par. 2219(a)), after the agency notified the owners of a daycare center
that DCFS sought to revoke their license to operate

. Cooper , 234 Ill. App. 3d at 481. The ci rcuit
court concluded that the failure to hold a timely hearing caused DCFS to lose ju risdiction

. Id. On appeal, our court discussed whether the statutory 30 -day t ime frame was “ mandatory, thus leaving DCFS without jurisdiction ” or “ merely directory. ” Id. We concluded that the provision

was only directory :

“ Here, by allowing a mandatory interpretation o f this provision

*** , the persons whom the statute was intended to protect , children, will be adversely affected. *** Moreover , there is no negative language in th e sta t ute den ying pe rformance by DCFS for 101-16-3120
failure to comply with the statute. It appear s that this provision is

one that merely dire c ts a manner of condu ct for the guidance of the
official s and specif ie s the time for pe r fo rmance o f an official duty. Thus, *** we ho ld this provision is directory. ” Id. at 483. In turn, we held that DCFS did not lose jurisdiction by failing to hold the license revocation hearing within 30 days. Id. ¶ 28 Austin Gardens relies on Cooper to argue that section 2 -14- 108 of the Code is directory
and does n ot impact DOAH ’s jurisdiction. This argument is without merit, as the distinction
between “di rectory ” and “mandatory” concerns provisions directing government officials, not limits upon parties

. As explained b y our supreme court:

“ the law presumes that statutory language issuing a procedur al
command to a government official is directory rather than mandatory , meaning that the failure to comp ly with a particular procedural step will not have the effect o f invalidating the governmental action to which th e procedural requirement relates.
That pre sumptio n can be overcome un d er either of two conditions : (1) when ther e is negative language prohibiting further action in the case of noncompliance or (2) when the right the provision is designed to protect would gen era lly be injured under a directory reading.” (Emphasis added.) In re James W. , 2014 IL 114483, ¶ 35. ¶ 29 This inquiry also applies to Code provisions governing acts by DOAH officials

. Sloper , 2014 IL App ( 1st ) 140712, ¶ 19 ( “ An ordinance including language that dictates a procedural
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command to a government al official is presumed directory rather than mandatory, which means the failure to comply *** does not invalid ate the governmental action to which the procedural requirement relates. ”). Thus, the DOAH ’s failure to act within a time period set forth by the
Code will not cause the a gency to lose jurisdiction, if the Code provision is merely directory. See
id. ¶ 20 ( DOAH ’ s failure to conduct vehicle impoundment hearing within 30 days of party ’ s request , as required by section 2 -14- 132(2) of t he Code , did not deprive DOAH of jurisdiction ,

as the ordinance was “ directory rather than ma ndatory”). ¶ 30 Although “ [a] n ordinance *** that dictates a procedural command to a government official is presumed directory rather than mandatory ” ( id. ¶ 19), that principle is not relevant to the analysis in this case. T he 21

- day time limit ation in section 2 -14-108 (a) is not a procedural
directive to government officials , but it specifies when a party must act to obtain review of a default judgment. T hus, we reject Austin Gardens ’ argument that the provision i s mer el y directory . Rather, consistent with the precedent discussed , it limit s the DOAH ’s authority to act

. ¶ 31 Because Austin Gardens did not move to vacate the default judgment within the 21

- day limit set by the Code, the DOAH lacked jurisdiction to consider that motion, and its December 19, 2014 , order is void. Modrytzkji , 2015 IL App ( 1st ) 141874, ¶ 14. In t urn, the circuit court
should not have reached the merits of Austin Gardens ’ complaint for administrative review , but

“ was limited to reviewing the [DOAH ’ s] decision for whether the decision was void. ” Id. ¶ 15 (citing Kyles v. Maryville Academ y , 359 Ill. App. 3d 423, 432 (2005)). 2 Accordingly, the order of
the DOAH denying the motion to vacate , as well as the judgment of the circuit court affirming
that decision , must be vacated.

2 We note that the voidness of the DOAH’s decision on the motion to vacate does not deprive our court of jurisdiction although “we are limited on review to considering whether the [DOAH] had authority to act.” Modrytzkji , 2015 IL App (1st) 141874, ¶ 16. 121-16-3120
¶ 32 For the foregoing reasons, the October 24, 2016 , judgment of the circuit court of Cook County, as well as the December 19, 2014, order of the DOAH, are vacated. ¶ 33 Orders vacated.

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