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People v. Intercoastal Realty





Appeal from the Circuit Court of Cook County; the Hon. John J. McDonnell, Judge, presiding.


Following a jury trial, defendants, Intercoastal Realty, Inc. (Intercoastal), and Harriet Handy, were convicted of the offenses of criminal housing management (Ill. Rev. Stat. 1981, ch. 38, par. 23-5.1) and reckless conduct (Ill. Rev. Stat. 1981, ch. 38, par. 12-5). Intercoastal was fined $1,000 and $30 in costs. Harriet Handy was placed on one year's supervision and fined $500 plus $30 in costs. Both defendants appeal. We granted leave to the Institute of Real Estate Management to file an amicus curiae brief. Its brief supported the defendants.

At trial, the evidence presented established that Intercoastal was the company responsible for the maintenance, repair and collection of rents for property at 6101-03 South Drexel Avenue, also known as 905-13 East 61st Street in Chicago. Harriet Handy was the company president. The parties stipulated that the legal owner of the premises was the Exchange National Bank & Trust Company, as trustee under trust number 28716, and the beneficial owners of the trust were John and Dorothy Dickey.

Fred Mason, a building inspector for the city of Chicago, testified that, on December 16, 1981, he inspected the building and found pickets missing from a second-floor landing, water standing 4 inches deep in the basement, and broken plaster and peeling paint in some of the upstairs apartments. He made a second inspection on January 28, 1982, and found no change in the conditions at the 6101-03 South Drexel Avenue portion of the building. Although some work had been performed at 913 East 61st Street, he again found water standing in the basement.

Lavergna Rollins, also a city building inspector, inspected the above described premises on April 20, 1982. At that time, he found rotten wood on the rear porches, peeling paint on the building exterior, and broken windows. He testified that he saw garbage, debris and an abandoned refrigerator on the premises. Sewage and garbage odors permeated the building, and rats infested the garbage. Rollins also testified that he found broken plaster on all three floors at 6101-03 South Drexel Avenue as well as mice and roaches on some of the floors. Marble was falling off the walls in the vestibule, paint was peeling, and the door pane was out. He also found damage from a fire that had occurred at the rear of 6101 South Drexel. Upon reinspection of the property on November 23, 1982, and on January 5, 1983, he found no change in the condition of the building.

James Vrchota, a criminal investigator for the Cook County Sheriff's Department, testified that he spoke with Harriet Handy on January 27, 1983, She told him that the company was responsible for the general management of the subject property and that she was aware of the building-code violations, which were being rectified as quickly as possible.

The defendants presented no evidence on their own behalf. After a jury trial, both defendants were found guilty of criminal housing management and reckless conduct. On appeal, defendants contend that: (1) the criminal-housing-management statute is void for vagueness and violates defendants' Federal constitutional rights; (2) the informations charging defendants with criminal housing management and reckless conduct did not sufficiently inform them of the nature and elements of the offenses, and (3) the trial court's instructions did not adequately inform the jury as to the nature and elements of the offenses.

• 1 Defendants first contend that the Illinois criminal-housing-management statute (Ill. Rev. Stat. 1981, ch. 38, par. 12-5.1) is unconstitutionally vague. The statute provides:

"A person commits the offense of criminal housing management when, having personal management or control of residential real estate, whether as a legal or equitable owner of residential real estate or as a managing agent or otherwise, he knowingly permits by his gross carelessness or neglect the physical condition or facilities of the residential real estate to become or remain so deteriorated that the health or safety of any inhabitant is endangered." (Ill. Rev. Stat. 1981, ch. 38, par. 12-5.1(a).)

Defendants urge this court to find that the statute offends due process because it does not provide standards or guidelines which delineate with certainty the conduct proscribed. Specifically, they complain that the statute gives inadequate notice as to those conditions considered to be "deteriorated" which would bring defendants' actions within the statute.

A criminal statute violates due process if it does not give adequate notice regarding the prohibited conduct or action. (People v. Vandiver (1971), 51 Ill.2d 525, 530, 283 N.E.2d 681.) In many situations, however, it is not possible to precisely define statutory terminology, and there is no constitutional requirement that a statute be more specific than is possible under the circumstances. (See People v. Raby (1968), 40 Ill.2d 392, 396-97, 240 N.E.2d 595 (disorderly conduct), cert. denied (1969), 393 U.S. 1083, 21 L.Ed.2d 776, 89 S.Ct. 867; People v. Caliendo (1980), 84 Ill. App.3d 987, 993, 405 N.E.2d 1133 (aggravated battery).) Under the United States and Illinois constitutions, statutes need only convey sufficiently definite warnings that can be understood when measured by common understanding and practices. (People v. Caffrey (1983), 97 Ill.2d 526, 530, 455 N.E.2d 60; People v. Dednam (1973), 55 Ill.2d 565, 567-68, 304 N.E.2d 627.) Due process calls for an interpretation of statutory language according to its ordinary and popularly understood meaning. (People v. Schwartz (1976), 64 Ill.2d 275, 280, 356 N.E.2d 8, cert. denied (1977), 429 U.S. 1098, 51 L.Ed.2d 545, 97 S.Ct. 1116; People v. Khan (1985), 136 Ill. App.3d 754, 757, 483 N.E.2d 1030.) Further, the constitutionality of statutes is presumed. People v. Taylor (1984), 102 Ill.2d 201, 464 N.E.2d 1059.

In People v. Khan (1985), 136 Ill. App.3d 754, 483 N.E.2d 1030, this court for the first time addressed the constitutionality of the criminal-housing-management statute and found that its language passed constitutional muster. The Khan court indicated:

"[N]either the enumeration of specific types of deterioration, the time period of this deterioration, nor the manner or extent to which inhabitants might be endangered are necessary for purposes of constitutionality here. Due process does not require such precision or `laundry list' of conditions, since such a task would be impossible. [Citations.] It is clear that the legislature enacted the subject statute in order to prevent persons who control residential property from permitting it to deteriorate such that it posed a danger to the health and safety of residents. Since the enumeration of all such conditions was impractical, the legislature reasonably chose sufficiently broad language to encompass all such situations therein." 136 Ill. App.3d 754, 757-58, 483 N.E.2d 1030.

Defendants maintain that Khan was improperly decided and that the supreme court's holding in People v. Sholem (1920), 294 Ill. 204, 128 N.E. 377, controls. The Sholem court held unconstitutional a statute which gave a State fire marshal the arbitrary power to fine a property owner because the owner's building was liable to catch fire "for want of proper repair, or by reason of age and dilapidated condition, or for any cause." 294 Ill. 204, 207, 128 N.E. 377.

• 2 The defendants in the instant case urge this court to find that the word "deteriorated" in the criminal-housing-management statute, like the word "dilapidated" in Sholem, is so vague that it violates due process because potential defendants do not have fair warning of statutory violations. The defendants, however, misconstrue the Sholem holding, which is distinguishable from the case before us. The Sholem court did not find the statute unconstitutional because terms such as "dilapidated" and "for want of proper repair" were vague and overbroad. Rather, the concern of the court was that the determination of statutory violations was left to the discretion of a deputy fire marshal; the property owner's only recourse was an appeal to a fire marshal whose powers were the same as those of the deputy and were exercised in substantially the same manner. The owner's liability, therefore, was absolute if he failed to carry out the fire marshal's orders for which there was no judicial or administrative review. (People v. Sholem (1920), 294 Ill. 204, 212, 128 N.E. 377.) We believe that Khan was correctly decided and that the Illinois criminal-housing-management statute is constitutional.

• 3 Defendants next contend that their constitutional rights were violated because the informations charging them with criminal housing management and reckless conduct did not adequately inform them of the nature and elements of the offenses. They assert that the trial court thus erred in denying their motion to dismiss the informations and in arrest of ...

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