Appeal from the Circuit Court of Cook County; the Hon. Alan E.
Morrill, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from the dismissal of a complaint based on an alleged violation of the city of Chicago Fair Housing Ordinance (Chicago Municipal Code, ch. 198.7B(1973)).
Plaintiff filed a two-count complaint against defendants, the Albert H. Johnson Realty Company, Albert H. Johnson, its president and general manager, Mary Naylor, an employee thereof and Winosha Calloway, owner of an apartment building located at 715 E. 61st Street in Chicago. In it she alleged, essentially, that defendants had committed an unfair and unlawful housing practice by rejecting her application to rent an apartment in the above-specified building solely because she was a single woman; that she thereafter filed a written complaint with the department of housing charging defendants with a violation of the Fair Housing Ordinance, which prohibits discrimination in the sale or rental of housing on the basis of race, color, sex, marital status, religion, national origin or ancestry (Chicago Municipal Code, ch. 198.7B, pars. 3(A), (C) (1973)); that officials of the department of housing conducted an investigation of her complaint and found that probable cause existed for the allegations contained therein; that although a conciliation hearing was thereafter conducted at the office of the commissioner of housing the matter was not resolved; and that as a result of defendants' unlawful discrimination against her, she was compelled to find other, less suitable housing, for which she sought both compensatory and punitive damages. Defendants filed a motion to dismiss the complaint asserting, as they do in defending this appeal, that the fair housing ordinance does not create a private right of action for civil rights violations. Following a hearing, the motion for dismissal was granted, and this appeal followed.
It is agreed (1) that under the well-settled principle that a motion to dismiss admits all well-pleaded facts (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill.2d 379, 432 N.E.2d 849; Yount v. Hesston Corp. (1984), 124 Ill. App.3d 943, 464 N.E.2d 1214), for purposes of judging the sufficiency of plaintiff's complaint, the factual allegations contained therein, i.e., that defendants refused to rent the subject apartment to her solely because she was a single woman, must be taken as true; and (2) that the Illinois Constitution guarantees that all persons have the right to freedom from discrimination on the basis of sex in the rental of property (Ill. Const. 1970, art. I, sec. 17). Proceeding from these undisputed premises, we turn then to the parties' respective assertions regarding the propriety of the order dismissing plaintiff's complaint for failure to state a cause of action.
Plaintiff contends that dismissal was improper, arguing generally that a private right of action for unlawful discrimination in the rental of housing is expressly allowed by the fair housing ordinance or, in the alternative, may and should be implied therefrom. It is defendants' position that the language of the ordinance does not provide for an action for damages thereunder nor should such a right be implied because the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 1-101 et seq.), is the exclusive vehicle for redress of civil rights violations.
Initially, we note that section 11-11.1-1 of the Illinois Municipal Code, originally enacted in 1968 (Ill. Rev. Stat. 1969, ch. 24, sec. 11-11.1-1), was amended in 1977 to provide:
"The corporate authorities of any municipality may enact ordinances prescribing fair housing practices, defining unfair housing practices, establishing Fair Housing or Human Relations Commissions and standards for the operation of such Commissions in the administering and enforcement of such ordinances, prohibiting discrimination based on race, color, religion, sex, creed, ancestry, national origin or physical or mental handicap in the listing, sale, assignment, exchange, transfer, lease, rental, or financing of real property for the purpose of the residential occupancy thereof, and prescribing penalties for violations of such ordinances." (Ill. Rev. Stat. 1977, ch. 24, sec. 11-11.1-1.)
In 1982, section 11-11.1-1 was further amended by Public Act 82-340, identified as "An Act in relation to prohibiting local governments from limiting the housing choices of any person" (Pub. Act 82-340, eff. Aug. 21, 1981) to add the following provision:
"To secure and guarantee the rights established by Sections 17, 18 and 19 of Article I of the Illinois Constitution, it is declared that any ordinance or standard enacted under the authority of this Section or under general home rule power and any standard, rule or regulation of such a Commission which prohibits, restricts, narrows or limits the housing choice of any person is unenforceable and void." Ill. Rev. Stat. 1983, ch. 24, par. 11-11.1-1.
Pursuant to the authority granted in section 11-11.1-1 of the Illinois Municipal Code, in 1973 the Chicago city council enacted the Fair Housing Ordinance (Chicago Municipal Code, ch. 198.7B (1973)), *fn1 which, in its present form, declares that "it is the policy of the City of Chicago to assure full and equal opportunity to all residents to obtain fair and adequate housing without discrimination against them because of their race, color, sex, marital status, religion, national origin or ancestry (Chicago Municipal Code sec. 198.7B-1, 198.7B-2 (1973)) and that discrimination against any person in the sale or rental of housing based on those distinctions constitutes an unfair and unlawful housing practice (Chicago Municipal Code, sec. 198.7B-3C (1973)). The ordinance also provides that any person aggrieved by a violation of it may file a written complaint (Chicago Municipal Code, sec. 198.7B-7 (1973)) with the commissioner of housing, whose duty it is to investigate such complaints (Chicago Municipal Code sec. 198.7B-6A (1973)) and, if probable cause is found for the allegations therein, to conduct a hearing, interview the parties and "attempt by all proper methods of conciliation and persuasion" to resolve the matter (Chicago Municipal Code sec. 198.7B-8 (1973)). In the event that such conciliation attempts are unsuccessful, the commissioner, within 60 days from the date the complaint was filed, "shall recommend to the Corporation Counsel that an ordinance violation action be taken against the respondent." (Chicago Municipal Code, sec. 198.7B-9 (1973).) Any party found guilty of violating or failing to comply with its provisions is subject to a fine of up to $500. (Chicago Municipal Code, sec. 198.7B-12 (1973).) It is also stated in paragraph 12 that "Nothing herein contained shall be construed so as to preclude any aggrieved person from pursuing such other and further legal and equitable relief to which he may be entitled." Chicago Municipal Code, sec. 198.7B-12 (1973).
It is upon this latter provision in paragraph 12 that plaintiff relies for her assertion that the ordinance expressly authorizes a victim of housing discrimination to seek monetary damages or injunctive relief against the alleged violator in a private civil action. We cannot agree. In our view, the phrase "to which he may be entitled" is a reference to pre-existing legal and equitable rights and remedies outside the purview of the ordinance. Thus, it appears that paragraph 12 does not create any new rights or remedies but merely affirms that the ordinance does not foreclose or otherwise affect those already available to a complainant.
• 1 Disposition of this appeal does not, however, turn on construction of the language of the Fair Housing Ordinance with respect to charges of unlawful housing discrimination. Rather, the determinative question is whether, as defendants assert, the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ...