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March 30, 1994


Appeal from the Circuit Court of Cook County. Honorable Walter B. Bieschke, Judge Presiding.

As Corrected August 5, 1994.

Greiman, Tully, Rizzi

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff, Congress Care Center Associates, Inc. (Congress), a licensee and operator of a Chicago nursing home, brought this action for administrative review of a decision by defendant, Chicago Department of Health (Department), citing a violation and assessing a fine against Congress pursuant to provisions of the Chicago Nursing Home ordinance (Ordinance) (Chicago Municipal Code §§ 4-96-010 through 4-96-370 (1990)), which the trial court affirmed.

On appeal, Congress argues that the Ordinance exceeds the constitutional limitations on the home rule power of the City of Chicago (Chicago) on grounds that: (1) the State regulatory scheme set out in the Nursing Home Care Act (Act) (Ill. Rev. Stat. 1989, ch. 111 1/2, par. 4151-101 et seq.) preempts local concurrent regulation; or alternatively, (2) the Ordinance does not "fully comply" with the Act and thus Chicago cannot assess a penalty against it.

We affirm the trial court.

On August 6, 1990, an inspector from the Department surveyed Congress' nursing home and found two violations of Department regulations: (1) Congress had no written policy showing the duties of nursing staff on the night shift; and (2) Congress had no reports on file of physical examinations of several employees 10 days before or after their first days of employment. Later that month the Department served notice upon Congress of these violations and levied a fine against Congress for $1,000, $500 for each violation.

Congress requested a hearing pursuant to the Ordinance to contest the alleged violations and fine assessment, and filed a motion to dismiss. After a hearing, the hearing officer dismissed one charge because Department regulations did not require written policies detailing duties of the night nursing staff, and upheld the other charge concerning lack of evidence of employees' physical examinations. The Department Commissioner adopted the hearing officer's findings and Conclusions, and reduced Congress's fine to $500.

Congress filed an action for administrative review in the trial court pursuant to the Administrative Review Act. (Ill. Rev. Stat. 1991, ch. 110, par. 3-101 et seq.) After hearing and oral argument, the court entered an order finding the Ordinance constitutional and affirming the Commissioner's decision.

The Ordinance regulates nursing homes to protect the health and safety of nursing home residents within Chicago boundaries. (Chicago Municipal Code §§ 4-96-010 through 4-96-370 (1990).) Congress recognizes Chicago's interest in regulating nursing homes but contends that the Act preempts municipal regulation of this field. Congress argues that because nursing homes are subject to considerable State regulation, they are of statewide concern; hence, concurrent municipal regulation constitutes an ultra vires exercise of home rule power. See, e.g., People ex. rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1, 16, 520 N.E.2d 316, 117 Ill. Dec. 155 (home rule unit exceeded constitutional authority to regulate "government and affairs" by refusing to comply with State regulatory scheme regarding wages).

The Illinois Constitution grants Chicago as a home rule municipality the authority to "exercise any power and perform any function pertaining to its government and affairs." (Ill. Const. 1970, art. VII, § 6(a).) This provision was intended to give home rule units the broadest powers possible. Scadron v. City of Des Plaines (1992), 153 Ill. 2d 164, 174-75, 606 N.E.2d 1154, 180 Ill. Dec. 77.

Because the grant of home rule power is broad yet "imprecise," courts have a duty to interpret whether any power exercised by a home rule unit exceeds its constitutional limitations. ( Kirwin v. Peoples Gas Light & Coke Co. (1988), 173 Ill. App. 3d 699, 703, 528 N.E.2d 201, 123 Ill. Dec. 656 (statute regulating public utilities preempts concurrent local regulation due to State's strong interest in uniform utility laws), citing Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 539-40, 338 N.E.2d 15.) In so doing, courts must determine whether the legislature has preempted the area by adopting a scheme of regulation over the subject matter of the legislation involved. ( Kirwin, 173 Ill. App. 3d at 703.) In the context of State versus local action, "preemption means the end of local legislative control over a given subject where the legislature has adopted a scheme of regulation over the same subject." Kirwin, 173 Ill. App. 3d at 703.

Contrary to Congress' contention, home rule units are free to carry on activities that relate to their communities even if the State is also interested and active in regulating the particular area. ( County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 510-11, 389 N.E.2d 553, 27 Ill. Dec. 489, quoting Baum, A Tentative Survey of Illinois Home Rule: Powers and Limitations (pt. 1), 1972 U. Ill. L.F. 137, 155; see Scadron, ...

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