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Village of Sugar Grove v. Rich

March 04, 2004

[5] THE VILLAGE OF SUGAR GROVE, PLAINTIFF-APPELLEE,
v.
JAMES RICH, D/B/A J.R.'S RETREAT, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Kane County. Nos. 02--OV--3219; 02--OV--3220; 02--OV--3221; 02--OV--3222; 02--OV--3223; 02--OV--3224; 02--OV--3225; 02--OV--3226; 02--OV--3227 Honorable Robbin J. Stuckert, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Gilleran Johnson

[8]  In this consolidated appeal, the defendant, James Rich, was issued 13 citations for violating the noise control ordinance of the plaintiff, the Village of Sugar Grove (the Village). Following a bench trial, the defendant was convicted on eight of the citations, sentenced to supervision, and fined $50 for each infraction. The trial court dismissed without prejudice the remaining citations. The defendant appeals five of his convictions. He also appeals the dismissal of four of the citations. On appeal, the defendant argues that (1) the Village's noise control ordinance violation is preempted by state law; (2) the trial court erred in refusing to admit into evidence a document that allegedly fell within the business document exception to the hearsay rule; and (3) his multiple convictions violate the one-act, one-crime doctrine.

[9]  The following facts have been discerned from the parties' bystanders report and the common law record.

[10]   The defendant received 13 citations for violating section 4--5--1 of the Village Code of the Village of Sugar Grove (the Village Code). Section 4--5--1 of the Village Code provides:

[11]   "NOISE PROHIBITED: It shall be unlawful for any person to make, continue, or cause to be made or continued any excessive, unnecessary or unusually loud noise or any noise which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety with others within the Village." Sugar Grove Village Code §4--5--1 (1998).

[12]   Section 4--5--4 of the Village Code further provides:

[13]   "PENALTY; REMEDIAL ACTION:

[14]   A. Violation; Penalty: Unless otherwise provided, any person violating any of the provisions of this Chapter shall be deemed guilty of a petty offense and, upon conviction thereof, shall be subject to penalty as provided in Section 1--4--1 of this Code. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such under this Chapter." Sugar Grove Village Code §4--5--4 (1988).

[15]   Three of the defendant's violations occurred on June 8, 2002. One of the defendant's violations occurred on June 14, 2002. The remaining violations occurred on June 15, 2002.

[16]   The trial court conducted a consolidated bench trial on October 18, 2002. The defendant proceeded pro se. The following testimony was admitted. Michael Schoenberger testified that at approximately 9 p.m. on June 8, 2002, he was within his home and all of his windows were closed. He heard extremely loud, excessive, unnecessary, and disturbing music coming from outside his home. Schoenberger determined that the music was being caused by an establishment known as J.R.'s Retreat. The defendant was the owner and operator of J.R.'s Retreat. Schoenberger testified that the music alarmed and disturbed him and his family, caused them great anxiety, and disturbed their comfort, health, repose, and peace. Schoenberger reported the noise to police. Schoenberger testified that the occurrence took place within the Village's boundaries.

[17]   Allen Ratliff testified that at approximately 9:56 p.m. on June 8, 2002, he was inside his home. He heard loud, excessive, unnecessary, and disturbing music coming from outside his home. Ratliff determined that the music was being caused by J.R.'s Retreat, which is owned and operated by the defendant. The music alarmed and disturbed him and his family, caused them great anxiety, and disturbed their comfort, health, repose, and peace. Ratliff notified the police. Ratliff testified that the occurrence took place in the Village.

[18]   After Ratliff testified, the parties stipulated that the remaining witnesses would testify the same as the previous two witnesses, with the exception of the time and date of the occurrences. Marsha Schuster would testify that she heard the disturbing music on June 8, 2002, at 8:32 p.m. and on June 15, 2002, at 9 p.m. Linda Sackett would testify that she heard the disturbing music on June 14, 2002, at 8:17 p.m. Carol Gammas would testify that she heard the disturbing music on June 15, 2002, at 8:39 p.m. Gerry Schuster would testify that he heard the disturbing music on June 15, 2002, at 10:10 p.m. Finally, Diane Schuth would testify that she heard the disturbing music on June 15, 2002, at 10:16 p.m.

[19]   The defendant testified that he agreed with the testimony of the Village's witnesses. He maintained, however, that he did not violate the ordinance. He attempted to offer into evidence a document. The Village objected, claiming that the writing was irrelevant and hearsay. The defendant did not respond to the objection and the trial court sustained it. The defendant did not make an offer of proof and the document is not a part of the record. The defendant then asked for a continuance, which the trial court denied. Lastly, the defendant testified that he would have turned down the music had anyone complained to him directly.

[20]   Following the parties' closing arguments, the trial court found the defendant guilty of eight violations of the Village's noise ordinance. It sentenced the defendant to court supervision and fined him $50 for each offense. As to five of the citations, the Village's complaining witnesses had failed to appear. Accordingly, the trial court granted the Village's motion to dismiss those cases with leave to reinstate.

[21]   Following the denial of his posttrial motions, the defendant timely appealed his convictions in case Nos. 02--OV--3219, 02--OV--3220, 02--OV--3222, 02--OV--3223, and 02--OV--3227, which were based on the testimony of Sackett, Gammas, Marsha Schuster as to the occurrence on June 15, 2002, Gerry Schuster, and Schuth, respectively. Additionally, the defendant appeals from ...


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