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07/14/88 the City of Urbana, v. Michael Fuerst

July 14, 1988

THE CITY OF URBANA, PLAINTIFF-APPELLEE

v.

MICHAEL FUERST, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

526 N.E.2d 907, 172 Ill. App. 3d 570, 122 Ill. Dec. 514 1988.IL.1099

Appeal from the Circuit Court of Champaign County; the Hon. Jeffrey B. Ford, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On January 2, 1987, plaintiff the City of Urbana filed a five-count complaint against defendant Michael Fuerst charging him with numerous violations of building code ordinances in regard to his ownership of rental property. After a bench trial at which much evidence was received by stipulation, defendant was found guilty on September 3, 1987, of counts I, II, IV, and V of the complaint, count III having been dismissed. After a sentencing hearing, the court imposed various fines on October 1, 1987. After reconsideration, the court entered an order on December 10, 1987, vacating the judgment as to count V and confirming the other fines imposed. Those fines were as follows: count I, $5,800; count II, $5,800; and count IV, $4,960. Defendant has appealed. We modify the fines and affirm.

On appeal defendant claims error only in the amount of the fines. He contends: (1) the court imposed fines for each day of violation of count I without having given the type of notice required to authorize such a cumulative fine; (2) the total fines imposed were excessive, arbitrary and an abuse of discretion; and (3) the court failed to consider defendant's financial resources and circumstances before imposing the fines.

As to each count upon which defendant stands convicted, the court imposed an additional fine for each day of the violation. The conviction as to count I was for a violation of the BOCA Basic Property Maintenance Code (Property Maintenance Code) (Urbana, Ill., Urbana City Code ch. 5, art. IX (1980)). Amended subsection PM -- 109.2 of the Property Maintenance Code states:

"Subsection PM -- 109.2. Penalty.

Any person who violates the provisions of this article shall, upon conviction thereof, be fined not more than two hundred dollars ($200.00) and in addition shall pay all costs and expenses involved in litigation. A separate offense shall be deemed committed upon each day during or on which a violation occurs or continues after due notice is served." (Emphasis added.) Urbana, Ill., Urbana City Code ch. 5, art. IX, § 5 -- 359 (1980).

Subsection PM -- 106.1 of the Property Maintenance Code further provides as follows:

"Whenever the code official determines that there has been a violation of this code or has reasonable grounds to believe that a violation has occurred, . . . he shall give notice to the owner . . . in the manner prescribed below." (Emphasis added.) Urbana, Ill., Urbana City Code ch. 5, art. IX, § 106.1 (1980).)

Subsection PM -- 106.3 of the Property Maintenance Code states that notices "other than dangerous building notices are properly served" if a copy of the notice is delivered to the person to be served " personally," with provision for substituted service if personal service is not obtained. (Emphasis added.) Urbana, Ill., Urbana City Code ch. 5, art. IX, § 5 -- 359 (1980).

The record is clear that plaintiff obtained personal service of the notice required by subsection PM -- 109.2 only on defendant's secretary, and not on defendant, and did not comply with any of the provisions of subsection PM -- 106.3 of the Property Maintenance Code for substituted service. Defendant maintains compliance with the foregoing notice requirements was a condition precedent to the imposition of consecutive penalties for each day of violation, and a failure to comply makes the imposition of those additional penalties erroneous. Defendant does not object to the imposition of a maximum penalty of $200 for the violation even though the proper notice was not given. Defendant concedes the notice was required as a condition of consecutive penalties only in regard to count I. Counts II and IV involved violation of the NFPA Life Safety Code ...


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