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County of Peoria v. Schielein

OPINION FILED AUGUST 7, 1980.

THE COUNTY OF PEORIA, PLAINTIFF-APPELLEE,

v.

CLARENCE SCHIELEIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT A. CONEY, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

On September 19, 1979, the defendant, Clarence Schielein, was charged with a violation of the Peoria County Zoning Ordinance by the plaintiff, County of Peoria. The complaint alleged that the defendant permitted a commercial activity upon his property in violation of chapter 30, section 4(a) of the Code of Peoria County. A violation of the zoning ordinance is a Class B misdemeanor which is punishable by a fine not to exceed $500 and/or imprisonment in other than a penitentiary to a maximum of six months.

On October 19, the county of Peoria moved for purposes of discovery for leave of court to serve interrogatories upon the defendant. The motion was granted and the defendant was ordered to answer the interrogatories. Leave of court was granted to the defendant for the purpose of filing further motions.

Thereafter, the defendant filed a motion to vacate the order of discovery and a memorandum of law in support thereof. A hearing was held upon the defendant's motion on December 21, 1979, and the motion was denied. From this interlocutory order, the defendant appeals, pursuant to Illinois Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308).

The issue raised on appeal is whether a complaint filed against a person for an alleged violation of a county zoning ordinance is a civil proceeding or a criminal proceeding. The defendant contends that it is a criminal proceeding, thus precluding discovery against him, since to allow discovery would violate his fifth amendment right against self-incrimination. We agree with the defendant's position.

The Peoria County Zoning ordinance states that any violation of the ordinance is a Class B misdemeanor:

"(b) Violations of Ordinance — Misdemeanors. The violation of the terms of this ordinance is hereby declared to be a Class B misdemeanor" (Peoria County Code 1976, ch. 30, par. 15(b).)

This provision is in accord with section 7 of "An Act in relation to county zoning":

"Any person who violates the terms of any ordinance adopted under the authority of this Act shall be guilty of a Class B misdemeanor." (Ill. Rev. Stat. 1979, ch. 34, par. 3160.)

Clearly, the classification of a violation of the Peoria County Zoning ordinance as a Class B misdemeanor is proper. The penalties for a Class B misdemeanor are set forth in the Unified Code of Corrections as follows:

"(b) The particular classification of each misdemeanor is specified in the law or ordinance defining the misdemeanor.

(2) Any offense not so classified which provides a sentence to a term of imprisonment of 6 months or less but in excess of 30 days shall be a Class B misdemeanor." Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-2(b)(2).

"Authorized fines. (a) An offender may be sentenced to pay a fine which shall not ...


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