2021 IL App (1st) 192423-U No. 1-19-2423 Order filed July 9, 2021 Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ RITA LINTZERIS, STEVEN MORAITIS, WILLIAMS ) Appeal from the MORAITIS, ZARON JOSSELL, and CLARENCE ) Circuit Court of DANIELS, individually and on behalf of all others ) Cook County. similarly situated, ) ) No. 17 CH 11365 Plaintiffs-Appellants, ) ) Honorable v. ) Anna M. Loftus, ) Judge, Presiding. CITY OF CHICAGO, a Municipal Corporation, ) ) Defendant-Appellee. )
JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva and Justice Connors concurred in the judgment.
ORDER .==
Held: We affirmed where: (a) Chicago’s section 2-615 (735 ILCS 5/2-615 (West 2016)) motion was properly granted because plaintiffs’ complaint failed to state a claim upon which relief could be granted because Chicago’s impoundment ordinance was not preempted by section 11-208.7 of the Illinois Vehicle Code (625 ILCS 5/11- 208.7 (West 2016)); (b) the circuit court could have properly denied discovery where plaintiffs sought information that was irrelevant to the legal issues raised in the motion to dismiss; and (c) the circuit court properly denied plaintiffs’ leave to No. 1-19-2423
file an amended complaint where they had no statutory right to amend after the circuit court granted the motion to dismiss.
Plaintiffs Rita Lintzeris (Lintzeris), Steven Moraitis (Steven)1, William Moraitis
(William), Zaron Jossell (Jossell), and Clarence Daniels (Daniels) (collectively plaintiffs),
individually and as class representatives filed suit against the City of Chicago (Chicago)
challenging Chicago’s authority to enact an ordinance which authorized the assessment of
administrative penalties on owners of impounded vehicles and established administrative hearing
procedures. The circuit court granted Chicago’s section 2-615 (735 ILCS 5/2-615 (West 2016))
motion to dismiss with prejudice, and plaintiffs appealed.
On appeal, plaintiffs contend that: (1) the impoundment order is preempted by section 11-
208.7 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-208.7 (West 2016)); (2) Daniels
was deprived of his right to a hearing; (3) the circuit court’s stay of plaintiffs’ limited discovery
requests was an abuse of discretion; and (4) the circuit court erred in granting Chicago’s motion
to dismiss and in denying plaintiffs’ motion for leave to amend. For the following reasons, we
affirm.
,i 4 BACKGROUND
,i 5 The underlying facts are not in dispute. Chicago enacted the impoundment ordinance in
1998, which allows it to impound vehicles under certain circumstances and impose administrative
penalties based on the circumstances of the impoundment. The amount of the penalty varies based
on the underlying violation; for example, $2000 when the vehicle contains or is used in the
purchase of drugs; $2000 for driving under the influence of alcohol or other drugs; and $1000 for
1 Steven was dismissed on plaintiffs’ counsel’s request on November 13, 2017.
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driving with a suspended license. After a vehicle is impounded, the owner may within 15 days
request a preliminary hearing to be held within 48 hours. At the hearing, an administrative law
officer (ALO) determines whether there was probable cause to support the underlying violation. If
so, the impoundment continues until the penalty, fees, and any other traffic violation debts owed
to Chicago are paid. If the ALO finds no probable cause, the vehicle is released.
Additionally, the impoundment ordinance requires Chicago to notify the owner within 10
days of impoundment by certified mail of the owner’s right to request a full hearing to challenge
the violation. The owner must submit a written request for hearing within 15 days after the notice
was mailed or otherwise provided, and the hearing must be scheduled no more than 30 days after
a request has been filed. At the hearing, Chicago must show, by a preponderance of the evidence,
that the vehicle was used in the violation. If, however, Chicago does not meet its burden, the
vehicle is returned, and any previously paid penalties and fees are refunded.
In cases where the violation is sustained, the ALO enters an order finding the owner liable
for the penalties and fees. If the owner does not pay or request judicial review within 10 days,
Chicago is authorized to dispose of the impounded vehicle and collect unpaid judgments. When
the owner seeks judicial review, Chicago cannot dispose of the vehicle until 10 days after a final
judgment is rendered in favor of it.
If an owner fails to request or attend a full hearing, the owner is deemed to have waived
his or her right to a hearing and the ALO enters a default order against the owner. Chicago may
then dispose of a vehicle 10 days after the ALO’s default decision becomes final. Nevertheless,
the impoundment ordinance also provides a procedure for setting aside a default.
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The Vehicle Code covers a variety of subjects related to vehicles and allows for concurrent
and additional regulation by home rule units in section 11-207 (625 ILCS 5/11-207 (West 2016)).
In July 2011, the General Assembly enacted section 11-208.7, administrative fees and procedures,
for impounding vehicles for specified violations, which became effective January 1, 2012.
~jlO On August 18, 2017, plaintiffs filed the instant case in the circuit court of Cook County,
chancery division, on behalf of themselves and a class of vehicle owners who either paid
administrative penalties or had judgments entered against them for such penalties under Chicago’s
impoundment ordinance.2 Plaintiffs are owners of vehicles that were impounded between August
2016 and April 2017.
Lintzeris owns a vehicle that Chicago impounded after her son was involved in an accident
and subsequently arrested for possessing illegal drugs and driving while intoxicated on April 24,
2016. Two days later, Lintzeris paid the applicable administrative penalties and fees totaling $4210
and retrieved her vehicle. A full hearing was held on August 17, 2016, and the impoundment was
sustained.
,i12 William’s vehicle was impounded after his son, Steven, was arrested for driving on a
suspended license on March 5, 2017. A full hearing was held on August 14, 2017, where Steven
appeared in William’s stead pursuant to a power of attorney, and the impoundment was sustained.
William did not allege that he paid an administrative penalty as a result of the impoundment.
2 Plaintiffs Lintzeris, Jossell and Daniels initially filed a nine-count complaint in federal court, raising fourth and fourteenth amendment challenges to the impoundment ordinance, as well as the state law claims raised in the circuit court. The federal claims were dismissed with prejudice on August 3, 2017; and the state claims were dismissed without prejudice. Lintzeris v. City of Chicago, 276 F. Supp. 3d 845, 852 (N.D. Ill. 2017).
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Jossell owned a vehicle that was impounded when he was arrested for possession of a
controlled substance on August 12, 2016. On August 17, 2016, he paid $2250 for the applicable
penalty and fees and retrieved his vehicle. After a full hearing on October 17, 2016, the
impoundment was sustained.
Daniels owned a vehicle that was impounded when he was arrested for driving while
intoxicated on December 10, 2016. Daniels alleged that the notice he received from Chicago did
not include the date, time and location of the hearing as required under the Illinois Vehicle Code
(625 ILCS 5/11-208.7 (West 2016)). He further alleged that, because of the missing information,
he did not appear for a hearing and a default judgment was entered against him. Daniels has not
paid the penalty and fees required to retrieve his vehicle.
115 Count I of the complaint sought an order declaring that the impoundment ordinance was
unenforceable and that all administrative findings of liability and defaults entered pursuant to the
impoundment ordinance were null and void. Count II sought to enjoin Chicago from collecting
any further administrative penalties. Counts IV and V claimed unjust enrichment and conversion
and sought a refund of all administrative penalties Chicago had collected since 2012, as well as
proceeds from the sale of impounded vehicles.
,116 Chicago filed a motion to dismiss plaintiffs’ complaint pursuant to section 2-619.1 (735
ILCS 5/2-619.1 (West 2016)) on January 8, 2018. In its motion, Chicago argued that under section
2-615 (735 ILCS 5/2-615 (West 2016)) that plaintiffs’ claims failed as a matter of law because the
impoundment ordinance was not inconsistent with state law and was therefore not preempted by
state law. Chicago additionally argued under section 2-619 (735 ILCS 5/2-619 (West 2016)) that
plaintiffs failed to seek administrative review of the ALO’s decisions, and further that Daniels
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failed to exhaust his administrative remedies; accordingly, the circuit court lacked jurisdiction to
hear plaintiffs’ claims.
Plaintiffs sought leave to file a first amended complaint on February 20, 2018. Chicago
filed a motion to stay discovery pending resolution of its motion to dismiss pursuant to Rule
201(c)(1) (Ill. S. Ct. R. 201(c)(1) (eff. May 29, 2014)), because the motion to dismiss was based
on law not fact, therefore there was no purpose for discovery as it could not lead to any admissible
facts. That rule allows the court on its own initiative or on motion of any party or witness to make
a protective order denying, limiting, conditioning or regulating discovery to prevent unreasonable
annoyance, expense, embarrassment, disadvantage, or oppression. Ill. S. Ct. R. 201(c)(1) (eff.
May 29, 2014). On February 26, 2018, the circuit court denied plaintiffs’ motion to amend their
complaint without prejudice, and continued Chicago’s motion to stay discovery. 3
A hearing on Chicago’s motion to dismiss was held on January 17, 2019, after which the
circuit court took the matter under advisement. The circuit court also granted plaintiffs leave to
file the legislative history for section 11-208.7, which was filed on January 18, 2019.
On November 8, 2019, in a written memorandum opinion and order, the circuit court
granted Chicago’s motion to dismiss plaintiffs’ complaint in its entirety and with prejudice. The
court found that section 11-208.7 of the Vehicle Code did not restrict Chicago’s imposition of
administrative penalties because that section governed fees, not penalties, and therefore did not
interact with the impoundment ordinance’s penalty provisions. The court additionally found that
section 11-208.7 did not restrict Chicago, as a home rule entity, from implementing its own hearing
3 The record does not indicate any disposition of Chicago’s motion to stay discovery.
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and notice scheme. The court further stated that, even if section 11-208.7 applied, its notice
provisions were directory, and no violation was actionable. The circuit court concluded that,
because the remaining claims were derivative, once the core declaratory judgment claim is
dismissed with prejudice, so too must the rest. The court added that its decision did not preclude
plaintiffs from challenging their specific impoundments through the administrative process if they
desired to do so.
,120 Plaintiffs filed their timely notice of appeal on November 26, 2019.
,r 21 DISCUSSION
,122 On appeal, plaintiffs contend that: (1) the impoundment order is preempted by 625 ILCS
5/11-208.7 (West 2016); (2) Daniels was deprived of his right to a hearing; (3) the circuit court’s
stay of plaintiffs’ limited discovery requests was an abuse of discretion; and (4) the circuit court
erred in granting Chicago’s motion to dismiss and in denying plaintiffs’ motion for leave to amend.
,r 23 A. Overall Standard of Review
,124 This is an appeal from the trial court’s grant of Chicago’s section 2-615 (735 ILCS 5/2-
615 (West 2016)) motion to dismiss plaintiffs’ complaint in its entirety with prejudice. A section
2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent
on its face. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). A cause of
action should not be dismissed pursuant to a section 2-615 motion unless it is clearly apparent that
no set of facts can be proved that would entitle the plaintiff to relief. Id. In ruling on such a motion,
only those facts apparent from the face of the pleadings, matters of which the court can take judicial
notice, and judicial admissions in the record may be considered. Id. We accept as true all well-
pleaded facts and all reasonable inferences that may be drawn from those facts. Id. However, a
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plaintiff may not rely on mere conclusions of law or facts unsupported by specific factual
allegations. Id. We review de novo an order granting a section 2-615 motion to dismiss. Id.
B. Preemption of Chicago’s Impoundment Ordinance by the Illinois Vehicle Code
Plaintiffs first contend that the impoundment ordinance as a whole is preempted by section
11-208.7 of the Vehicle Code (625 ILCS 5/2-11.208.7 (West 2016)), and further that its notice
provisions conflict with, and are preempted by it. They make several arguments in support of
these contentions, namely that: (1) any inconsistent exercise of home rule power is preempted; and
(2) the impoundment ordinance is inconsistent with section 11.208.7.
In order to address plaintiffs’ issue on appeal, we must construe the statutory and ordinance
provisions at issue. We construe statutes and municipal ordinances under the same principles.
Sullivan v. Village of Glenview, 2020 IL App (1st) 200142, ¶ 23. We must ascertain and give effect
to the intent of the legislative body. Id. at ¶ 24. We start with the plain language of the ordinance,
given its ordinary meaning. Id. If the statute or ordinance is unambiguous, the judicial inquiry
ends; we apply the language as written. Id. If, however, we find ambiguity in the language, we
may resort to extrinsic aids to determine legislative intent. Id.
One of the fundamental principles of statutory construction is to view all provisions of an
enactment as a whole. Brucker v. Mercola, 227 Ill 2d 502, 514 (2007). Accordingly, words and
phrases must be interpreted in light of other relevant provisions of the statute and not construed in
isolation. Id. Additionally, we interpret statutes as a whole, rejecting an interpretation that exalts
one provision of a statutory scheme over another. Van Milligan v. Department of Employment
Security, 373 Ill. App. 3d 523, 538-39 (2007).
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In the case at bar, our determination involves a purely legal question. Pure questions of
law, including questions of statutory construction, are reviewed de novo. Solomon v. Scholefield,
2015 IL App (1st) 150685, ¶ 15.
1. Home Rule Jurisprudence
Plaintiffs contend that the impoundment ordinance is an invalid exercise of Chicago’s
home rule, while Chicago contends that it is not. Home rule is based on the assumption that
municipalities should be allowed to address problems with solutions tailored to their local needs.
Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 29. The home rule
provisions of the 1970 Illinois Constitution were designed to drastically alter the relationship
between our local and state governments. Id. Article VII, section 6(a) of the Illinois Constitution
provides:
“Except as limited by this Section, a home rule unit may exercise any power and
perform any function pertaining to its government and affairs including, but not limited to,
the power to regulate for the protection of the public health, safety, morals and welfare; to
license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, §6(a).
,132 Section 6(a) was intended to give home rule units the broadest powers possible. Palm, 2013
IL 110505, ¶ 30. The Illinois Constitution also provides that the powers and functions of home
rule units shall be construed liberally. Ill. Const. 1970, art. VII, §6(m).
However, the General Assembly may preempt the exercise of a municipality’s home rule
powers by expressly limiting that authority. Palm, 2013 IL 110505, ¶ 31. Under article VII, section
6(h), the General Assembly “may provide specifically by law for the exclusive exercise by the
State of any power or function of a home rule unit.” Ill. Const. 1970, art. VII, §6(h). If the
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legislature intends to limit or deny the exercise of home rule powers, the statute must contain an
express statement to that effect. Palm, 2013 IL 110505, ¶ 31. If a statute does not expressly limit
or deny home rule authority, a municipal ordinance and a state statute may operate concurrently
as provided in article VII, §6(i):
“Home rule units may exercise and perform concurrently with the State any power
or function of a home rule unit to the extent that the General Assembly by law does not
specifically limit concurrent exercise or specifically declare the State’s exercise to be
exclusive.” Ill. Const. 1970, art. VII, §6(i).
Under that section, home rule units may continue to regulate activities even if the state has
also regulated those activities. Palm, 2013 IL 110505, ¶ 32. To restrict the concurrent exercise of
home rule power, the General Assembly must enact a law specifically stating home rule authority
is limited. Id. The General Assembly has codified that principle in section 7 of the Statute on
Statutes, providing:
“No law enacted after January 12, 1977, denies or limits any power or function of
a home rule unit, pursuant to paragraphs (g), (h), (i), (j) or (k) of section 6 of Article VII of
the Illinois Constitution, unless there is specific language limiting or denying the power or
function and the language specifically sets forth in what manner and to what extent it is a
limitation on or denial of the power or function of a home rule unit.” 5 ILCS 70/7 (West
2016).
Our supreme court has formally adopted section 7 as part of its home rule jurisprudence in
Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281, 287 (2001). Moreover, the
legislature has enacted the Home Rule Note Act, which provides that “[e]very bill that denies or
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limits any power or function of a home rule unit shall have prepared for it before second reading
in the house of introduction a brief explanatory note that includes a reliable estimate of the probable
impact of the bill on the powers and functions of home rule units.” 25 ILCS 75/5 (West 2016). Our
supreme court has interpreted that provision as the legislature’s recognition of its principal role in
determining whether to preempt or limit home rule power and its responsibility to use specific
language when doing so. Palm, 2013 IL 110505, ¶ 33.
ii 36 Further, our supreme court has consistently recognized that the home rule provisions of the
Illinois Constitution are intended to “ ‘eliminate or at least reduce to a bare minimum the
circumstances under which local home rule powers are preempted by judicial interpretation of
unexpressed legislative intention.’ ” Palm, 2013 IL 110505, ¶ 34 (quoting Scadron v. City of Des
Plaines, 153 Ill. 2d 164, 186 (1992), [Citation.]); Schillerstrom Homes, 198 Ill. 2d at 288. As such,
our supreme court has concluded that if the constitutional design is to be respected, the courts
should step in only in the clearest cases of oppression, injustice, or interference by local ordinances
with vital state policies. Scadron, 153 Ill. 2d at 190.
i! 37 2. Relevant Statutory Framework
ii 38 We now turn our attention to the relevant ordinance and statutory framework at issue in
the case at bar.
Section 1-2.1-2 of the Illinois Municipal Code (Municipal Code) provides as follows:
“Administrative adjudications of municipal code violations. Any municipality may
provide by ordinance for a system of administrative adjudication of municipal code
violations to the extent permitted by the Illinois Constitution. A “system of administrative
adjudication” means the adjudication of any violation of a municipal ordinance, except for
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(i) proceedings not within the statutory or the home rule authority of municipalities; and
(ii) any offense under the Illinois Vehicle Code or a similar offense that is a traffic
regulation governing the movement of vehicles and except for any reportable offense under
section 6-205 of the Illinois Vehicle Code. 65 ILCS 5/1-2.1-2 (West 2016).
Chicago’s impoundment ordinance is codified in Chicago Municipal Code section 2-14-
132. The portions of the impoundment ordinance relevant to this appeal provide as follows:
“(a)(1) Whenever the owner of a vehicle seized and impounded pursuant to * * *
(for purposes of this section, the ‘status-related offense sections’), or * * * (for purposes of
this section, the ‘use-related offense sections’) requests a preliminary hearing in person and
in writing at the department of administrative hearings, within 15 days after the vehicle is
seized and impounded, an administrative law officer of the department of administrative
hearings shall conduct such preliminary hearing within 48 hours of request, excluding
Saturdays, Sundays and legal holidays, unless the vehicle was seized and impounded
pursuant to Section 7-24-225 and the department of police determines that it must retain
custody of the vehicle under the applicable state or federal forfeiture law. If, after the
hearing, the administrative law officer determines that there is probable cause to believe
that the vehicle was used in a violation of this Code for which seizure and impoundment
applies, or, if the impoundment is pursuant to Section 9-92-035, that the subject vehicle is
eligible for impoundment under that section, the administrative law officer shall order the
continued impoundment of the vehicle as provided in this section unless the owner of the
vehicle pays to the city the amount of the administrative penalty prescribed for the code
violation plus fees for towing and storing the vehicle.
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***
(b)(1) Within ten days after a vehicle is seized and impounded the department of
streets and sanitation or other appropriate department shall notify by certified mail the
owner of record (other than a lessee who does not hold title to the vehicle), the person
who was found to be in control of the vehicle at the time of the alleged violation, and any
lienholder of record, of the owner’s right to request a hearing before the department of
administrative hearings to challenge whether a violation of this Code for which seizure
and impoundment applies has occurred or, if the impoundment is pursuant to Section 9-
92-035, whether the subject vehicle is eligible for impoundment under that section. In the
case where an owner of record is a lessee who does not hold title to the vehicle, the notice
shall be mailed to such lessee within ten days after the department of streets and
sanitation receives a copy or other satisfactory evidence of the vehicle lease or rental
agreement, indicating the name, address, and driver’s license number of the lessee
pursuant to subsection (i). However, no such notice need be sent to the owner of record if
the owner is personally served with the notice within ten days after the vehicle is seized
and impounded, and the owner acknowledges receipt of the notice in writing. A copy of
the notice shall be forwarded to the department of administrative hearings. The notice
shall state the penalties that may be imposed if no hearing is requested, including that a
vehicle not released by payment of the penalty and fees and remaining in the city pound
may be sold or disposed of by the city in accordance with applicable law.
(2) The owner of record seeking a hearing must file a written request for a hearing
with the department of administrative hearings no later than 15 days after notice was
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mailed or otherwise given under this subsection. The hearing date must be no more than
30 days after a request for a hearing has been filed.
(3)(A) If, after the hearing, the administrative law officer determines by a
preponderance of the evidence that the vehicle was used in the violation, or, if the
impoundment is pursuant to Section 9-92-035, that the subject vehicle was properly
impounded under that section, the administrative law officer shall enter an order finding
the owner of record liable to the city for the amount of the administrative penalty
prescribed for the violation, plus towing and storage fees.
(4) If the owner of record requests a hearing but fails to appear at the hearing or
fails to request a hearing in a timely manner, the owner of record shall be deemed to have
waived his or her right to a hearing and an administrative law officer of the department of
administrative hearings shall enter a default order in favor of the city in the amount of the
administrative penalty prescribed for the violation, plus towing and storage fees.
However, if the owner: (i) redeemed the vehicle by payment of the appropriate penalty
and fees, and (ii) was notified of the owner’s right to request a hearing, and (iii) failed to
timely request a hearing, then the payment shall be deemed an acknowledgment of
liability and no adjudication shall be required.
(5) For the purposes of this section and those sections referenced in subsection
(a), the terms “seizure and impoundment” and “seized and impounded” shall be deemed
to also refer to a vehicle that a police officer or other authorized city agent or employee
determines is subject to impoundment because there is probable cause to believe it was
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used in violation of one or more of those sections listed in subsection (a), regardless of
whether the vehicle is actually towed to and held at a city facility.
(c)(1) An administrative penalty, plus towing and storage fees, imposed pursuant
to this section shall constitute a debt due and owing to the city which may be enforced
pursuant to Section 2-14-103 or in any other manner provided by law. Any amounts paid
pursuant to this section shall be applied to the penalty. Except as provided otherwise in
this section, a vehicle shall continue to be impounded until:
(A) the payment of the administrative penalty, plus any applicable towing and
storage fees, plus all amounts due for outstanding final determinations of parking,
standing compliance, automated traffic law enforcement system or automated speed
enforcement system violations incurred by the owner, including all related collection
costs and attorney’s fees authorized under Section 1-19-020. Upon payment, possession
of the vehicle shall be given to the person who is legally entitled to possess the vehicle;
or
(B) the vehicle is sold or otherwise disposed of to satisfy a judgment or enforce a lien as
provided by law. * * *” Municipal Code of Chicago, Ill. §§ 2-14-132 (a)(1), (b)(1)-(5),
(c)(1) (Amend Coun. J. November 11, 2016).
Several sections of the Vehicle Code are also applicable to our discussion.
Section 11-207 provides as follows:
“Provisions of this Chapter uniform throughout State. The provisions of this
Chapter shall be applicable and uniform throughout this State and in all political
subdivisions and municipalities therein, and no local authority shall enact or enforce any
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ordinance rule or regulation in conflict, with the provisions of this Chapter unless expressly
authorized herein. Local authorities, may, however, adopt additional traffic regulations
which are not in conflict with the provisions of this Chapter, but such regulations shall not
be effective until signs giving reasonable notice thereof are posted.” 625 ILCS 5/11-207
(West 2016).
Section 11-208.2 provides as follows:
“Limitations on home rule units. The provisions of this Chapter of this Act limit
the authority of home rule units to adopt local police regulations inconsistent herewith
except pursuant to Sections 11-208, 11-209, 11-1005.1, 11-1412.1, and 11-1412.2 of this
Chapter of this Act.” 625 ILCS 5/11-208.2 (West 2016).
ii 44 Section 11.208.7 provides as follows:
“Administrative fees and procedures for impounding vehicles for specified
violations. (a) Any county or municipality may, consistent with this Section, provide by
ordinance procedures for the release of properly impounded vehicles and for the imposition
of a reasonable administrative fee related to its administrative and processing costs
associated with the investigation, arrest, and detention of an offender, or the removal,
impoundment, storage, and release of the vehicle. The administrative fee imposed by the
county or municipality may be in addition to any fees charged for the towing and storage
of an impounded vehicle. The administrative fee shall be waived by the county or
municipality upon verifiable proof that the vehicle was stolen at the time the vehicle was
impounded.
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(b) An ordinance establishing procedures for the release of properly impounded
vehicles under this Section may impose fees only for the following violations:
(2) driving under the influence of alcohol, another drug or drugs, an intoxicating
compound or compounds, or any combination thereof, in violation of Section 11-
501 of this Code; or
(6) driving while a driver’s license, permit, or privilege to operate a motor vehicle
is suspended or revoked pursuant to Section 6-303 of this Code;
(f) Any ordinance establishing procedures for the impoundment and release of
vehicles under this Section shall include a provision providing that the registered owner
or lessee of the vehicle and any lienholder of record shall be provided with a notice of
hearing. The notice shall:
(1) be served upon the owner, lessee, and any lienholder of record either by
personal service or by first class mail to the interested party’s address as
registered with the Secretary of State;
(2) be served upon interested parties within 10 days after a vehicle is impounded
by the municipality; and
(3) contain the date, time, and location of the administrative hearing. An initial
hearing shall be scheduled and convened no later than 45 days after the date of the
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mailing of the notice of hearing. * * *” 625 ILCS 5/11-208.7(a)-(b)(2), (6), (f)
3. Analysis
We begin by noting, as pointed out by Chicago, that plaintiffs did not contest Chicago’s
ability to enact the impoundment ordinance in 1998, only that it was subsequently preempted by
the enactment of section 11-208.7. We disagree.
ii 47 The impoundment ordinance at issue was adopted by Chicago, which is a home rule unit
of local government. Ill. Const. 1970, art. VII, §6(a). Home rule is based on the assumption that
municipalities should be allowed to address problems with solutions tailored to their local needs.
Palm, 2013 IL 110505, ¶ 29. As such, a home rule unit may exercise any power and perform any
function pertaining to its government and affairs, including activities regulated by the State. Id. at
¶ 32. The Illinois Constitution gives home rule units the broadest powers possible, to the extent
that the General Assembly does not specifically limit the concurrent exercise of those powers or
specifically declare the State’s exercise to be exclusive. City of Chicago v. Roman, 184 Ill. 2d 504,
513 (1998). Additionally, those powers are to be construed liberally. Ill. Const. 1970, art. VII, §
6(m); Shachter v. City of Chicago, 2016 IL App (1st) 150442, ¶ 40.
ii 48 Also as noted above, if the legislature did not specifically limit or deny home rule authority,
a municipal ordinance and a state statute may operate concurrently as provided by the Illinois
Constitution. Ill. Const. 1970, art. VII, § 6(i). Additionally, such limitation or denial of home rule
authority must be expressly stated. Shachter, 2016 IL App (1st) 150442, ¶ 41.
ii 49 Section 11-208.7 expressly provides that any county or municipality may, consistent with
its provisions, enact ordinances with procedures for the release of properly impounded vehicles
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and for the imposition of a reasonable administrative fee, in addition to any towing or storage fees
for impounded vehicles. 625 ILCS 5/11-208.7 (West 2016). By its plain language, Section 11-
208.7 allows a county or municipality to impose administrative fees. However, contrary to
plaintiffs’ assertion, nowhere in that section is there an explicit limitation on the power of a home
rule unit to charge an administrative penalty or fine for the underlying violation that led to the
impoundment of the vehicle. As noted above, when construing a statute, we give words their plain
and ordinary meaning and if the statute is unambiguous, we apply the language as written.
Sullivan, 2020 IL App (1st) 200142, ¶ 24. The plain language of section 11-208.7 provides for the
collection of an administrative fee and does not preclude a home rule unit from imposing a fine.
This conclusion is further supported by the Municipal Code, which grants municipalities
the ability to create a system of administrative adjudication of municipal code violations by
ordinance in sections 1-2.1-2. 65 ILCS 5/1-2.1-2 (West 2016). Moreover, our supreme court has
previously found that home rule units have the power to impose fines under the Illinois
Constitution. See Roman, 184 Ill. 2d at 513-14 (home rule units do not have the power to define
and punish felonies but are free to impose fines and jail sentences for less serious offenses). The
impoundment ordinance is not inconsistent with the Vehicle Code and operates concurrently with
the Vehicle Code. Accordingly, we hold that Chicago, as a home rule unit, was not preempted by
the Vehicle Code from imposing an administrative penalty or fine in its impoundment ordinance,
and further that enactment of such ordinance was a valid exercise of is home rule powers.
i1s1 The same conclusion is warranted for plaintiffs’ contention that the impoundment
ordinance’s notice provisions are inconsistent with section 11-208.7. The impoundment ordinance
provides that the owner will be notified within 10 days by certified mail that the vehicle has been
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impounded as well as their right to have a hearing. Section 11-208.7 similarly provides that there
should be a reasonable attempt to notify the owner or lessee of the facts of the seizer and of their
right to an administrative hearing; no time period is specified. The impoundment ordinance further
allows the owner or lessee to request a hearing, within 15 days after the notice of impoundment
was given, with such hearing to be no more than 30 days later. Section 11-208.7 provides that
notice of a hearing shall be served by first class mail within 10 days after the impoundment and
that the hearing shall be held no later than 45 days after the date of mailing of such notice. A
reading of the plain language of the two provisions yields the conclusion that they are not
inconsistent with one another.
i1 s2 Moreover, we find, as did the circuit court, that the notice provisions of section 11.208.7
are directory rather than mandatory where there is an absence of language specifying a particular
consequence of noncompliance with the provision. Lakewood Nursing and Rehabilitation Center,
LLC v. Department of Public Health, 2019 IL 124019, ¶ 33. A mandatory construction is supported
only where the statute precludes further action and imposes a specific consequence in the event of
noncompliance. Id. at ¶ 36. We also look to whether the right that the statute is designed to protect
will be injured by a directory construction. Id. at ¶ 44. Here, the only rights referenced in section
11-208.7 are those of owners or lessees to receive notice of the right to a hearing and notice of the
hearing upon impoundment of their vehicles, and we do not find those rights to be generally injured
by a directory construction.
i1 s3 We further disagree with plaintiffs’ argument that the circuit court failed to consider the
application of the limitation on home rule units in section 11-208.2 to section 11-208.7. Plaintiffs
contend that Chapter 11 applies uniformly throughout the State pursuant to two uniformity
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provisions, and further that there is an express limiting provision on home rule units set forth in
section 11-208.2 which excludes five specific sections that does not include section 11-208.7.
Plaintiffs concede that none of the five exceptions are applicable to the present case.
Plaintiffs’ conclusion that Chicago’s ordinance is inconsistent with any provision of
Chapter 11 is misplaced. Plaintiffs have not shown how the impoundment ordinance conflicts with
any portion of Chapter 11, including section 11-208.2. Further, we have already concluded that
section 11-208.7 did not preclude Chicago from enacting an ordinance to collect administrative
penalties. We therefore find that the impoundment ordinance did not preclude Chicago from
enacting the impoundment ordinance.
In light of our conclusion that the impoundment ordinance is not preempted by or
inconsistent with section 11-208.7, it follows that Chicago’s motion to dismiss was properly
granted pursuant to section 2-615 (735 ILCS 5/2-615 (West 2016)) where plaintiffs have not
asserted claims for which relief could be granted as a matter of law.
C. Stay of Discovery
Plaintiffs also contend that the circuit court abused its discretion in staying discovery on
Chicago’s motion. As noted above, the record contains no record of an order of the circuit court
granting Chicago’s motion to stay discovery.
Even assuming that the circuit court had granted Chicago’s motion to stay discovery, a
circuit court may properly stay or quash a discovery request when it has sufficient information
upon which to rule on a motion to dismiss. Evitts v. DaimlerChrysler Motors Corp., 359 Ill. App.
3d 504, 513 (2005). A court should not refuse a discovery request and grant a motion to dismiss
where it reasonably appears discovery might assist the nonmoving party. Id. at 513-14. Discovery
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is not necessary where a cause of action has not been stated. Id. at 514. Decisions concerning
discovery motions are reviewed for an abuse of discretion. Id. at 513.
Here, Chicago filed a section 2-619.1 (735 ILCS 5/2-619.1 (West 2016)) motion to dismiss
based on the pleadings, which alleged grounds for dismissal under 2-615 (735 ILCS 5/2-615 (West
2016)), failure to state a claim, and section 2-619 (735 ILCS 5/2-619 (West 2016)), the existence
of an affirmative defense. The decision in this case turned on whether plaintiff’s complaint was
sufficient to state a cause of action, and whether an affirmative defense existed, regardless of any
extrinsic evidence produced by discovery. Plaintiffs’ discovery request sought Chicago’s report to
the legislature regarding the actual costs incurred by Chicago for administrative functions
associated with the impoundment of vehicles, which would not supply evidence to support its
cause of action as to whether section 11-208.7 preempted the impounded ordinance or contradict
Chicago’s affirmative defense. Such evidence would not have assisted plaintiffs in surviving the
motion to dismiss, and the grant of such stay would not have been an abuse of the circuit court’s
discretion.
i! 60 D. Leave to File First Amended Complaint
,161 Finally, plaintiffs contend that the circuit court erred by denying their motion for leave to
amend their complaint and for finding that no set of facts can be proven as a predicate to relief.
Plaintiffs’ proposed first amended complaint sought to add an additional plaintiff, and raised count
I (declaratory judgment that the impoundment ordinance was preempted by section 11-208.7);
count II (declaratory judgment that the City lacked jurisdiction to hold administrative hearings
based on the impoundment ordinance if section 11-208.7 did not apply to home rule jurisdictions);
count III (injunctive relief); count IV (unjust enrichment); count V (unjust enrichment based on
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lack of jurisdiction if section 11-208.7 did not apply to home rule jurisdictions); and count VI
(conversion). The record indicates that the circuit court initially denied plaintiffs’ motion to amend
without prejudice before ultimately granting Chicago’s motion to dismiss with prejudice. The
record does not indicate that plaintiffs refiled their motion for leave to amend the complaint; nor
did they file a motion to reconsider prior to filing their notice of appeal.
When a complaint is dismissed with prejudice and does not include a statement allowing
the plaintiff leave to amend, an involuntary dismissal order is final. Compton v. Country Mutual
Insurance Co., 382 Ill. App. 3d 323, 332 (2008). Where the circuit court’s dismissal of plaintiffs’
complaint constituted a final judgment, they had no statutory right to amend. Id. Additionally, as
previously noted, the record does not indicate that plaintiffs ever renewed their motion for leave
to amend, despite verbal discussion before the circuit court. Further, the grant of Chicago’s motion
to dismiss on the basis that the complaint failed to state a cause of action was a determination that
there was no claim on which relief could be granted as a matter of law. Plaintiffs’ adding of an
additional plaintiff and additional counts based on the City’s lack of jurisdiction to hold
administrative hearings under the impoundment ordinance would, therefore, not cure a defective
pleading, but would create an entirely different pleading. Id. at 333. We conclude that it was not
error for the circuit court to deny plaintiff leave to file a first amended complaint.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
Affirmed.
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