text:
    THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF WINTHROP HARBOR, Plaintiff-Appellant and Cross-Appellee, v. THE DEPARTMENT OF INSURANCE et al., Defendants-Appellees and Cross-Appellants.
    Second District
    Nos. 2 — 90—0652, 2 — 90—0653 cons.
    Opinion filed March 22, 1991.

      LeRoy W. Gudgeon, of Northfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (William K. Kane and Ann Plunkett-Sheldon, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, the Board of Trustees of the Police Pension Fund of the Village of Winthrop Harbor (Board), appeals from the judgment of the circuit court of Lake County affirming the decision of the Department of Insurance of the State of Illinois (Department) that employee contributions to the Winthrop Harbor Police Pension Fund (pension fund) should have commenced on the date of the census, not on the date of the creation of the pension fund. Defendants, the Department and John Washburn, its director, cross-appeal that portion of the order which reversed the Department’s order requiring further pension contributions from Officer Taft.

The Federal census of April 1, 1980, showed that the population of the Village of Winthrop Harbor (Village) had exceeded 5,000 people. The Village received a certification of the census figures in March 1981. Because section 3 — 103 of the Illinois Pension Code (Pension Code) (Ill. Rev. Stat. 1989, ch. 1081/2, par. 1 — 101 et seq.) mandates the creation of a pension fund in municipalities of population over 5,000, the Village created the pension fund on April 30, 1981.

On June 10, 1987, defendants notified the Board that the pension fund had failed to comply with sections 22 — 501 and 22 — 509 of the Pension Code (Ill. Rev. Stat. 1989, ch. 1081/2, pars. 22 — 501, 22 — 509) during the period of its inception to August 1985. On February 23, 1989, a hearing was held on the matter of the pension fund’s noncompliance.

At the hearing, Dwight Anderson, the assistant deputy director of the pension division of the Department, testified that the pension fund was in compliance with all the items in the Department’s compliance order except that full contributions to the pension fund were not collected retroactive to the date of the Federal census. William Taft, a trustee of the Board and a Winthrop Harbor police officer, testified that prior to 1981 pension contributions were made to the Illinois Municipal Retirement Fund (Municipal Fund) (see Ill. Rev. Stat. 1989, ch. 1081/2, par. 7 — 101 et seq.). After April 30, 1981, the employees made their pension contributions to the pension fund. Taft further testified that he was injured in August 1981 and had been placed on total temporary disability and given a full pension.

The hearing officer found that the Department’s interpretation of section 3 — 109 (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 109), that contributions must be made to the pension fund as of the date of the census, should be followed. The hearing officer recommended sanctions be imposed if the Board failed to comply with the order within 30 days. Washburn adopted the findings and recommendations of the hearing officer and ordered the Board to collect contributions due from April 1, 1980, through March 30, 1981, from eight members of the pension fund, including Taft.

The Board filed a complaint for administrative review in the circuit court, contesting the order on the grounds that the findings of fact, conclusions of law and recommendations were contrary to and in excess of the powers of the Department; the decision made by the Board in 1981 was an administrative decision and, as such, was not subject to review or modification by the Department; defendants lacked the authority to impose sanctions on the Board or to order the Board to comply with a decision of the Department; and the order was against the weight of the evidence. The parties submitted briefs supporting their respective positions.

At the hearing in the circuit court, the Board explained that of the eight pension fund members listed in the order, two had been terminated. The money that the members paid to the Municipal Fund for the time at issue, 41/2% of their salaries, was turned over to the pension fund. The difference between that amount and what the individuals owed, 41/4%, should be sought from the members themselves. Of the eight, two, Richter and Schatzley, had been terminated and one, Bone, had retired. Although Taft was on a pension, the Department still wanted contributions from him and Bone.

In its written memorandum, the trial court determined that the contributions accrued from the date of the census. The court, however, modified the order to reflect that Richter and Schatzley were no longer members of the Winthrop Harbor police department and they had received a refund of their total contributions. Thus, it would have been a useless act to require them to pay in money which they would immediately get back. Similarly, Bone, the retired officer, and Taft were no longer “police officers” required to make contributions. The court affirmed the determination that employee contributions must be made from the date that the municipality’s population exceeded 5,000 people, but it reversed those portions of the order which required the Village to exact further contributions from Richter, Schatzley, Bone and Taft. The Board’s appeal and defendants’ cross-appeal were then filed timely. The appeals were consolidated on defendants’ motion.

The Board contends that it was error for the trial court to adopt the construction of the police pension fund (Police Fund) (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 101 et seq.) advanced by defendants. Generally, a reviewing court will accord deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361.) Although both parties to this action are administrative agencies, in this context, the Department is the agency charged with enforcing a statute. Therefore, its interpretation is entitled to greater weight than the Board’s interpretation. (Board of Trustees of the Firemen’s Pension Fund v. Department of Insurance (1982), 109 Ill. App. 3d 919, 925.) Still, we are not bound by the Department’s interpretation (Carson Pirie Scott & Co. v. State of Illinois Department of Employment Security (1989), 131 Ill. 2d 23, 34), and we will reject it if it is erroneous (American Federation, 122 Ill. 2d at 361).

Under the Illinois Constitution, membership in a local government’s pension system is “an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” (Ill. Const. 1970, art. XIII, §5.) The terms of this contractual relationship are governed by the version of the Pension Code in effect at the time the employee became a member of the system. (Di Falco v. Board of Trustees of the Firemen’s Pension Fund (1988), 122 Ill. 2d 22, 26.) We will examine the relevant sections of the Pension Code in effect in 1981.

Section 3 — 101 of the Police Fund provides:

“In each municipality as defined in Section 3 — 103 the city council or the board of trustees, as the case may be, shall establish and administer a police pension fund, in the manner prescribed in this Article, for the benefit of its policemen as defined in Sections 3 — 106 and 3 — 107 hereof, and of their widows, children and certain other dependants.” (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3-101.)

The Police Fund defines a “municipality” as any city “of not less than 5,000 nor more than 500,000 inhabitants, as determined from the United States Government statistics or a census taken at any time by the city.” (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3 — 103.) Section 3 — 109 provides in relevant part:

“This Article shall not apply to the following persons: *** Any policeman who fails to pay the salary payments or deductions hereinafter defined, computed *** from the date, as determined from the statistics or census provided in Section 3— 103, the municipality became subject to this Article by attaining the minimum population.” Ill. Rev. Stat. 1981, ch. 1081/2, par. 3 — 109(b)(2).

The proper interpretation of a statute must reflect the intent of the legislature. (Carson Pirie Scott, 131 Ill. 2d at 34.) The starting point for this determination is the statutory language itself. (American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 238.) In addition, when the statute at issue is a pension statute, it must be construed liberally in favor of the pensioner. Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1986), 114 Ill. 2d 518, 521.

Defendants argue that section 3 — 109 clearly and unambiguously states that contributions must be made as of the date of the census which showed the municipality achieved the requisite population. The Board asserts that, even if the language of section 3 — 109 is unambiguous, to apply it as written would lead to an absurd and unjust result.

It is presumed that the legislature did not intend absurdity or injustice when it drafted a statute, and if application of the plain language of the statute would lead to an absurd or unjust result, a court may also consider the purpose of the statute. (Carson Pirie Scott, 131 Ill. 2d at 45, 46.) In addition, the entire statute must be considered to ascertain the legislative intent. (American Federation, 122 Ill. 2d at 364.) The Police Fund requires a municipality to create a pension fund for the benefit of its police officers, their surviving spouses, children and other dependents. (Ill. Rev. Stat. 1981, ch. 108%, par. 3 — 101.) Police officers assume a duty to protect the public and are required to respond regardless of the hazards involved. (Johnson, 114 Ill. 2d at 522.) Pension statutes are to be construed broadly in favor of those who benefit under them. (Saffold v. City of Chicago (1989), 192 Ill. App. 3d 827, 831.) In enacting the statute requiring a police pension fund, the legislature sought “to provide for the aged policemen who have served the city for a long period of time.” (Donahue v. Board of Trustees (1931), 263 Ill. App. 568, 572.) Thus, the Police Fund seeks to afford a pension to police officers who have served for many years and does not seek to limit their eligibility for a pension.

According to the Board, strict interpretation leads to an unjust result because it would require the police officers to contribute to the fund for a period during which they derived no benefit from the fund. The Board presents the following example to demonstrate its argument. If a Winthrop Harbor police officer sustained an injury in June 1980, he would only have had those benefits from his membership in the Municipal Fund, not the pension fund, because the latter fund did not exist in June 1980.

Prior to April 1981, the Winthrop Harbor police officers were members of the Municipal Fund. Under its terms, police officers employed by municipalities which are required to have a police pension fund, are excluded from the Municipal Fund. (Ill. Rev. Stat. 1981, ch. 1081/2, par. 7 — 109(2)(b).) According to section 7 — 210(d) of the Municipal Fund, when a member becomes excluded from the Municipal Fund because of eligibility for membership in a Police Fund, that member’s rights under the Municipal Fund do not terminate until the member’s contributions to that fund have been transferred to the Police Fund. (Ill. Rev. Stat. 1981, ch. 1081/2, par. 7 — 210(d).) The provisions of the Police Fund and the Municipal Fund must be read together as part of one statutory scheme. See Holmes v. Illinois Municipal Retirement Fund (1989), 185 Ill. App. 3d 282.

Based on the interaction of the two pension fund acts and the purpose behind them, it is apparent that the Board’s argument is valid. Further support for the position that one cannot be a member of both the Municipal Fund and a Police Fund at the same time is our supreme court’s analysis of the interaction between the Municipal Fund and the Firemen’s Fund in Herhold v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1987), 118 Ill. 2d 436. In that case, the court confronted the issue whether the amendment to the firemen’s pension fund (Firemen’s Fund) (Ill. Rev. Stat. 1985, ch. 1081/2, par. 4 — 101 et seq.) adding “fire paramedic” to the definition of “fireman” provided that the time the paramedic had been employed in that capacity be considered for determining his status for purposes of disability benefits. The court concluded that the disabled paramedic should receive benefits computed on the length of his entire time of service as a paramedic, not just service from the date the paramedic began contributing to the Firemen’s Fund. [Herhold, 118 Ill. 2d at 439-40.) The court explained:

“The Board argues that this interpretation of the statutes gives Herhold a windfall because he received a refund of his contributions to the Municipal Fund while at the same time he was not required to compensate the Firemen’s Fund for the period he was a participant in the former fund. The Firemen’s Fund refused, however, to accept a transfer of Herhold’s contribution to the Municipal Fund because the Firemen’s Fund had not accepted the Retirement Systems Reciprocal Act [citation]. *** [T]here was no procedure under which Herhold, had he wished to do so, could have transferred to the Firemen’s Fund his contributions previously made to the Municipal Fund. At the same time, the Municipal Fund refunded the contributions Herhold had previously made to it based on its position that an employee could not simultaneously participate in that fund and the Firemen’s Fund. There is no justification for penalizing Herhold for the manner in which these two pension funds operated because he had no control over their procedures. Moreover, we find incredible the suggestion that it was the intention of the legislature in conferring upon paramedics the advantage of joining the Firemen’s Fund to leave them at the same time without benefits for the service they accrued as paramedics before the legislature offered them the opportunity to join that fund.” (Herhold, 118 Ill. 2d at 440.)

The situation in the present cause is analogous to that in Herhold.

Here, the officers were members of the Municipal Fund in 1980. They did not know they were eligible for membership in the Police Fund, nor could they have made contributions to such fund at that time because it did not exist. The officers would not have been able to assert any rights under the Police Fund during the relevant time period because there was no body to which the police officer could file a certificate of disability, a prerequisite to receiving a disability pension under the Police Fund (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3 — 115), or to order payments in the event of a disability (Ill. Rev. Stat. 1981, ch. IO8V2, par. 3 — 133), nor any funds from which such payment could have been made. It would be unjust to require police officers to pay for benefits which they did not receive. Thus, strict interpretation of section 3 — 109 does not reflect the intent of the legislature.

If the intent and purpose of the legislature can be determined from the statute, a court is authorized to modify, alter or supply words to avoid any inconsistency with the legislative intention. (Carson Pirie Scott, 131 Ill. 2d at 46.) The Board requests that we insert the phrase “or within a reasonable time thereafter” into section 3 — 109. We do not believe that such language is appropriate. Both the Board and defendants confuse a municipality’s responsibilities under the Pension Code with that of the individual members of a fund. The Police Fund does not require a municipality to contribute to the fund as of the date of the census, unlike the obligation imposed on the individual fund members by section 3 — 109. Compare Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 125, with Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 109(a)(2)(ii).

By reading sections 3 — 109 and 7 — 210 in conjunction, we conclude that in a situation where the fund is mandated by a population increase, the date from which the contributions must be made by an individual officer should be computed from either the date the municipality attained the requisite population, as determined from the census or statistics, or the date that the member’s funds from the Municipal Fund are transferred to the Police Fund, or the date of a police officer’s first appointment, whichever is later. See Ill. Rev. Stat. 1989, ch. IO8V2, pars. 3-109(a)(2)(ii), 7-210(d).

We, therefore, reverse that part of the judgment of the trial court affirming the Department’s order finding that the Winthrop Harbor Police Pension Fund should have commenced on April 1, 1980. Regarding defendants’ cross-appeal, in light of our conclusion that none of the officers are required to make back payments, we affirm that part of the judgment reversing the Department’s ruling which required further pension contributions from Officer Taft.

The judgment of the circuit court of Lake County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

WOODWARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    WILLIAM J. BOLGER, Plaintiff-Appellant, v. ELECTORAL BOARD OF THE CITY OF McHENRY et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0240
    Opinion filed March 22, 1991.
    Michael T. Caldwell, of Caldwell, Berner & Caldwell, of Woodstock, for appellant.
    Bernard Y. Narusis, of Narusis & Narusis, of Cary, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, William J. Bolger, appeals from an order of the trial court affirming the decision of the City of McHenry electoral board to invalidate plaintiff’s nomination papers. Plaintiff raises two arguments on appeal: (1) the Illinois Governmental Ethics Act (Act) (Ill. Rev. Stat. 1989, ch. 127, par. 601 — 107 et seq.) excuses the filing of a statement of economic interests if the candidate has filed a statement within the previous year; and (2) the provision of the Election Code (the Code) (See Ill. Rev. Stat. 1989, ch. 46, par. 1 — 1 et seq.) that prescribes the time limit for filing a receipt from the officer with whom the statement of economic interests was filed does not make it mandatory to file the receipt. We affirm.

Plaintiff was seeking the office of alderman in the City of McHenry. On January 14, 1991, plaintiff filed certain nomination papers with the McHenry city clerk. Plaintiff also filed on that date a statement of economic interests with the McHenry County clerk. (See Ill. Rev. Stat. 1989, ch. 127, par. 604A — 105; ch. 46, par. 10 — 5.) Plaintiff did not file with the city the receipt he received from the county when he filed his statement of economic interests on January 14, nor did he file with the city clerk the receipt he received when he filed his April 1990 statement of economic interests.

On January 26, an objection to plaintiffs nomination papers was filed. The objector noted the lack of the receipt from the county and requested, inter alia, that plaintiff’s petitions be declared null and void and his name be withdrawn from the election ballot. On February 1, the Election Board (Board) conducted a hearing. The Board determined section 10 — 5 of the Code was controlling and the filing of the receipt with the local election official is mandatory. The Board directed the city clerk to refrain from certifying the placement of plaintiff’s name on the ballot. One member of the Board dissented, stating his opinion that the lack of a receipt does not require the invalidation of the nomination papers.

Plaintiff sought judicial review of the Board’s decision. On February 26, the trial court entered an order affirming the decision of the Board. Plaintiff timely appeals from the trial court’s order.

We first determine if section 10 — 5 of the Code imposes a mandatory duty on plaintiff to file with the city the receipt received by plaintiff when he filed his statement of economic interests with the county. The determination of whether a statute is directory or mandatory depends on the legislative intent. (Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 259.) The starting point in determining legislative intent is the language of the statute itself. (Serwinski, 156 Ill. App. 3d at 259.) Plaintiff contends the statutory language at issue in this case is the final sentence of section 10 — 5, which states “[s]uch receipt shall be so filed not later than the last day on which nomination papers may be filed.” (Ill. Rev. Stat. 1989, ch. 46, par. 10 — 5.) Plaintiff argues the legislature’s use of the term “shall” in the above-quoted language does not reflect a mandatory requirement that the receipt be filed.

We note that the sentence immediately preceding the one plaintiff claims is “at issue” provides:

“If the nomination papers of any candidate and the statement of economic interest of that candidate are not required to be filed with the same officer, the candidate must file with the officer with whom the nomination papers are filed a receipt from the officer with whom the statement of economic interests is filed showing the date on which such statement was filed.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 46, par. 10 — 5.)

It is this language that imposes the burden of filing the receipt with the local election official. Plaintiff has wisely made no argument to this court that the term “must” is not reflective of a mandatory requirement. Additionally, our research has not uncovered such an interpretation of the term “must.” The language plaintiff sets forth is only concerned with the time of the filing. For purposes of this case, and stripped to its essentials, the last two sentences of section 10 — 5 can be read as, “the candidate must file *** a receipt *** not later than the last day on which nomination papers may be filed.” Ill. Rev. Stat. 1989, ch. 46, par. 10 — 5.

It is absolutely clear from the language used by the legislature that plaintiff was required to file the receipt he received from the county with the local election official sometime during the period in which his nomination papers could be filed. The failure to do so left his nomination papers incomplete. We agree with the trial court that plaintiff’s failure to comply with this requirement rendered his nomination papers invalid.

Plaintiff also argues on appeal “the Illinois Governmental Ethics Act excuses the filing of a statement of economic interest where a candidate has filed a statement within one year, notwithstanding the provisions of the electoral code.” Plaintiff contends the Act and the Code are in conflict. Plaintiff argues the Act allows an incumbent candidate to refrain from filing a statement of economic interests if he has filed a prior statement within a year preceding the period during which he can take action to attempt to qualify for retention (see Ill. Rev. Stat. 1989, ch. 127, par. 604A — 105). The Code provides for invalidation of nomination papers if the prior statement is not filed within the same calendar year as the year in which the nomination papers were filed. See Ill. Rev. Stat. 1989, ch. 46, par. 10 — 5.

This contention is not pertinent to the resolution of this appeal. Plaintiff failed to file any receipt with the city election officials. As previously determined, the filing of a receipt is required. If plaintiff had attempted to file with the city election official the receipt he received from the county when he filed his April 1990 statement of economic interests and was rebuffed, then this court would have to address plaintiff’s contention. However, these are not the facts before us, and we need not address this issue in order to resolve this appeal.

For the above reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

REINHARD, P.J., and BOWMAN, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM P. YANT, Defendant-Appellee.
    Second District
    No. 2 — 89—1059
    Opinion filed March 27, 1991.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph P. Callahan, of Allegretti & Ryan, of Chicago, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

In this prosecution for driving with blood-alcohol concentration greater than or equal to .10 (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501(a)(1)), the court granted the motion of the defendant, William P. Yant, to suppress the evidence of his blood test. The State appeals from the suppression order. We reverse.

According to the stipulated statement of facts, on the evening of July 14, 1988, the defendant was in an automobile accident, then was transported by ambulance to Hinsdale Hospital. At the scene of the accident the defendant was combative and uncooperative; ambulance personnel “felt a need to restrain” him in leather restraints. The defendant remained in restraints when he was brought to the emergency room and while he was treated there for facial trauma. He refused treatment and refused requests that he give a blood sample for treatment and diagnostic purposes. Nevertheless, the physician on duty ordered a blood test in the course of the emergency medical treatment, and blood was drawn against the defendant’s will.

The defendant sought to suppress the results of that blood test. Following a hearing where it relied upon the fact that the blood sample had been nonconsensual, the court granted the defendant’s motion to suppress the results of the test. The State brought this appeal, contending that the court erroneously granted suppression, that the blood test was minimally intrusive, and that, under the law, consent is not a prerequisite for admissibility.

As the State notes, this court recently has observed that a blood test taken without the donor’s consent does not violate any constitutional right of the donor and that, absent a more limiting statutory provision, the test result may be admitted as evidence of intoxication. (People v. Giere (1989), 192 Ill. App. 3d 520, 524.) We have further observed that there is no statutory requirement of consent before blood-alcohol test results may be admitted in a driving under the influence (DUI) prosecution. 192 Ill. App. 3d at 524; People v. Brown (1988), 175 Ill. App. 3d 725, 728.

In arguing that the blood test results here were properly suppressed, the defendant relies largely upon sections 11 — 501.1(c) and 11 — 501.2(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501.1(c), 11 — 501.2(c)). Those sections are part of the Illinois “implied consent” statutes. In pertinent part, they provide that a driver who is arrested for a covered drug or alcohol offense and refuses to submit to a request that he submit to a chemical blood test should be warned of the statutory summary suspension consequences of his refusal. The statutes further provide that the evidence of the driver’s refusal shall be generally admissible. The defendant emphasizes that these statutes, by their terms, contemplate the possibility that a driver can refuse chemical testing, albeit with consequences.

The defendant’s reliance on those Vehicle Code sections is misplaced. Those two sections, as well as the decision in People v. Monckton (3d Dist. 1989), 191 Ill. App. 3d 106, upon which the defendant also mistakenly relies, address a driver’s implied consent to chemical testing and the statutory summary driver’s license suspension that may be a consequence if the driver refuses testing. In the case before us, the issue of implied consent is not involved. The blood test here was not ordered under implied-consent authority but, rather, under medical order of a treating emergency physician. Furthermore, the Appellate Court for the Third District has since called into question Monckton’s engrafting of section 11.501.1(c) implied-consent protections onto the admissibility of chemical tests for DUI prosecution. People v. Woznik (3d Dist. 1990), 199 Ill. App. 3d 1088, 1091.

The defendant’s other authorities, People v. Romano (1985), 139 Ill. App. 3d 999, and People v. Frazier (1984), 123 Ill. App. 3d 563, are similarly unpersuasive. Those cases, which recognized a requirement of consent before the taking and admission of a blood test, predate statutory change and were rejected by Giere. 192 Ill. App. 3d at 525; see also Wozniak, 199 Ill. App. 3d at 1019; People v. Kohl (1989), 192 Ill. App. 3d 556.

In both Giere and Kohl, the defendant initially was charged with driving under the influence of alcohol but ultimately was prosecuted only for reckless homicide. The defendant would distinguish those cases on that fact. Although Department of Public Health standards relate differently to DUI proceedings than they do to reckless homicide proceedings (see Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2; People v. Hamilton (1987), 118 Ill. 2d 153, 161), a distinction to which the defendant refers, we find the distinction here to be one without a difference.

In Giere, we specifically relied upon People v. Brown (1988), 175 Ill. App. 3d 725, where we had concluded that consent was not a prerequisite to admissibility of a breath-alcohol test in a DUI prosecution. (175 Ill. App. 3d at 728.) Given the substantive differences between civil implied-consent proceedings and criminal DUI prosecutions, and the absence of an express legislative intent to extend implied-consent provisions to DUI prosecutions, we find that only fourth amendment constraints and specifically legislated provisions for test admissibility (see Ill. Rev. Stat. 1989, ch. 951/2, pars. 11— 501.2, 11 — 501.4) apply to admissibility of blood-alcohol tests in a DUI prosecution. See Wozniak, 199 Ill. App. 3d at 1091.

As an alternative argument, the defendant asserts that this case is an instance of State conduct which is “shocking to the conscience” in violation of the United States Supreme Court decision in Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826. He notes that he refused all medical treatment for his injuries and that there was no evidence that he was unable to refuse. According to the defendant, the facts that he was placed in leather restraints while he continued to refuse treatment and that, while he was restrained, he was forced to give a blood sample showed an unreasonable search and seizure supporting the trial court’s decision to suppress. We disagree.

As the State points out, Schmerber specifically held that the taking of a blood sample under reasonable medical circumstances does not violate the fourth amendment right to be free of unreasonable searches and seizures. We do not find that the conduct surrounding the defendant’s blood test in this case is “shocking to the conscience,” as the defendant asserts.

Here, according to the agreed statement of facts, the defendant’s injury was significant enough to require ambulance transportation to a hospital. Because of his uncooperative behavior, emergency personnel felt it was necessary to continue restraining him in leather restraints. Thereafter, during emergency treatment the emergency treating physician ordered a blood test. We note also that there is no indication in the record that either the emergency restraints or the physician’s blood test order here was a subterfuge procured by the police or any form of State action. Despite the defendant’s continuing refusal to consent, we do not find that these circumstances place the case outside the Schmerber parameters.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County.

Reversed.

BOWMAN and McLAREN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    SYLVIA LAYNE, Plaintiff-Appellant, v. BUILDERS PLUMBING SUPPLY COMPANY, INC., Defendant-Appellee.
    Second District
    No. 2 — 90—0787
    Opinion filed March 27, 1991.

      Anthony G. Scariano, of Scariano, Kula, Ellch & Himes, Chartered, of Chicago (Daniel M. Boyle, of counsel), for appellant.
    Tressler, Soderstrom, Maloney & Priess, and Terry J. Smith, of Schiff, Hardin & Waite, both of Chicago (Francis A. Spina, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Sylvia Layne, brought a five-count complaint in the circuit court of Du Page County seeking damages from defendant, Builders Plumbing Supply Company, Inc., her former employer. According to the complaint, plaintiff had worked for defendant since 1982. On June 13, 1989, defendant had related to the Addison police department that plaintiff had threatened, harassed, and assaulted a coworker. Plaintiff was subsequently discharged from defendant’s employment on June 14,1989.

Count I of plaintiff’s complaint pleaded a cause of action for common-law defamation. Count II purported to state a cause of action for false-light invasion of privacy. In count III, plaintiff alleged a cause of action for intentional infliction of emotional distress and in count IV, a claim for retaliatory discharge. Count V alleged a cause of action for self-compelled defamation, a previously unrecognized tort in Illinois.

Defendant filed motions to dismiss all counts. The court granted the motions to dismiss counts I and II, accepting defendant’s argument that the statements made to Addison police were absolutely privileged and not actionable. The court also granted defendant’s motion to dismiss count III, finding that defendant’s conduct was not so outrageous as to state a cause of action for intentional infliction of emotional distress. As to count IV, the trial court declined to expand the tort of retaliatory discharge to include the discharge of an employee about whom an employer has made false statements to police prior to the employee’s discharge. The court also dismissed count V of the complaint, refusing to recognize the tort of compelled self-defamation.

Plaintiff appeals, contending: (1) that the trial court erred in finding that an absolute privilege barred plaintiff’s claims based upon defamation and false-light invasion of privacy; (2) that the trial court erred in dismissing plaintiff’s claim for intentional infliction of emotional distress for failure to state a cause of action; (3) that the trial court erred in dismissing plaintiffs cause of action for wrongful discharge; and (4) that the trial court erred in failing to recognize a cause of action for compelled self-defamation.

In determining the propriety of an order granting a defendant’s motion to dismiss a complaint, the standard of review is whether the allegations of the complaint, when viewed most favorably to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. (Smith v. County of White (1989), 191 Ill. App. 3d 569, 574.) Facts alleged in a plaintiff’s complaint will be taken as true for purposes of a motion to dismiss. (Mount Prospect State Bank v. Village of Kirkland (1984), 126 Ill. App. 3d 799, 800.) Although a motion to dismiss admits all facts well pleaded, the pleadings are to be construed strictly against the pleader. Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 688.

Plaintiff first contends that the trial court erred in dismissing her claims based upon defamation (count I) and false-light invasion of privacy (count II). Due to the similarities between these torts, the trial court applied the identical legal theory in dismissing counts I and II, finding that an absolute privilege barred the claims alleged in those counts. It is plaintiff’s position that statements made to law enforcement officials are privileged, but the privilege is only conditional, or qualified, and not absolute.

Whether a defamatory statement is protected by an absolute or a qualified, or conditional, privilege is a question of law for the court. (Thomas v. Petrulis (1984), 125 Ill. App. 3d 415, 417.) Generally, the class of occasions where a defamatory statement is absolutely privileged is narrow. (Allen v. Ali (1982), 105 Ill. App. 3d 887, 890.) The privilege embraces actions required or permitted by law in the course of judicial or quasi-judicial proceedings as well as actions “necessarily preliminary” to judicial or quasi-judicial proceedings. (Parrillo, Weiss & Moss v. Cashion (1989), 181 Ill. App. 3d 920, 928; see also Starnes v. International Harvester Co. (1989), 184 Ill. App. 3d 199, 203-05.) An absolute privilege provides complete immunity from civil action, even though the statements are made with malice, as plaintiff contends here, because public policy favors the free and unhindered flow of such information. (Starnes, 184 Ill. App. 3d at 203.) In light of these principles and under the facts of the instant case, we find defendant was immune from plaintiff’s defamation and false-light invasion of privacy claims. In so finding, we rely on two cases cited by the defendant, Starnes v. International Harvester Co. (1989), 184 Ill. App. 3d 199, and Dean v. Kirkland (1939), 301 Ill. App. 495.

In Starnes, plaintiff was a State court judge who had presided over a lengthy and controversial product liability trial brought against International Harvester. International Harvester’s counsel considered plaintiff remiss in his role as presiding judge and presented allegations of impropriety to Federal law enforcement officials as well as to the State Judicial Inquiry Board. Plaintiff considered the allegations defamatory and filed suit for libel and slander. The only persons plaintiff could identify as the recipients of the allegedly defamatory statements were Federal law enforcement officials, and the trial court determined communications to these officials were absolutely privileged.

On appeal, plaintiff contended that statements to law enforcement officials should not be accorded complete immunity because immunity condoned and encouraged malicious harassment through police investigations. Plaintiff maintained that a qualified privilege provided adequate protection for reporting incidents of alleged wrongdoing to law enforcement authorities. The appellate court rejected plaintiff’s argument and affirmed the lower court. In so doing, the court first stated that whatever is said or written in a legal proceeding, which is pertinent or material to the matter in controversy, is absolutely privileged and no action for libel or slander can be maintained thereon. The court went on to state that Illinois has applied this rule to statements made prior to the commencement of trial, including communications made to prosecuting authorities concerning alleged criminal activities. Included in these communications were statements made to police alleging criminal activities. Relying on Dean v. Kirkland (1939), 301 Ill. App. 495, and other authorities, the court determined that statements made to Federal law enforcement officials should be absolutely privileged.

In Dean, plaintiff filed an action against, among others, an investigator, Jacob Manassa, retained by the Kirkland law firm. Plaintiff sought to recover damages for alleged slanderous remarks. As to Manassa, plaintiff alleged that he had slandered her when he had a conversation with a member of the Chicago police department and invited the officer to come to Kirkland’s law offices where Manassa would prove to the officer that plaintiff was a woman of bad repute and not worthy of credit or belief and that she was a blackmailer and a crook. The court dismissed plaintiff’s complaint, finding as to Manassa that the alleged false statement he made to the police officer was privileged. The court stated:

“It was a communication to the public authorities charged with the enforcement of criminal justice, of information concerning an alleged crime, and was privileged.” Dean, 301 Ill. App. at 510-11.

Plaintiff here maintains that Dean is factually distinguishable because, unlike the instant case, the parties there were involved in a judicial proceeding when the alleged defamatory statement was made to the police and, therefore, the statement was protected by the absolute privilege. At the time Manassa made his statement to the police, however, Dean was a prosecuting witness in a criminal perjury trial against defendant, Florabella Pack; she was not the subject of the pending criminal trial. Moreover, Manassa was not a party to that action. Thus, plaintiffs contention that Manassa’s statement was absolutely privileged because it was made during a judicial proceeding is misleading since Dean and Manassa were not parties in that particular judicial proceeding. Further, as defendant points out, there is no indication in Dean that the Chicago police department played a role or had any prosecutorial interest in the State’s case against Florabella Pack. Consequently, we conclude that the fact that Dean was involved as a witness in a criminal proceeding at the time Manassa made his alleged slanderous remarks had no bearing on the court’s finding that Manassa’s statement was absolutely privileged. Rather, the absolute privilege appears to have arisen strictly from the fact that Manassa’s communication alleged the commission of a crime and was made to the public authority charged with investigating such crimes.

Plaintiff relies on Fascian v. Bratz (1981), 96 Ill. App. 3d 367, to support her position that the statements in the case at bar were protected by a conditional, or qualified, privilege and not by an absolute privilege. Fascian, however, as defendant points out, does not even address the issue of absolute privilege. No evidence exists there that either party raised the absolute privilege defense. The fact that the parties failed to assert the privilege and the court did not apply it instead of applying a qualified privilege does not establish that the defense cannot be used by one making statements to police regarding the alleged criminal activity of another. Therefore, we find Fascian unconvincing as support of plaintiff’s position.

Like the court in Starnes, we find “well-respected secondary sources” provide support for the position that statements to police pertaining to alleged criminal activities should be absolutely privileged. Section 587 of the Restatement (Second) of Torts states:

“A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.” (Restatement (Second) of Torts, §587 (1977).)

Comment b to section 587 explains that the privilege extends to communications such as those in question in the instant case.

“The rule stated in this Section is applicable to protect parties to any action before a judicial tribunal. *** It applies to *** information given and informal complaints made to a prosecuting attorney or other proper officer preliminary to a proposed criminal prosecution whether or not the information is followed by a formal complaint or affidavit.” Restatement (Second) of Torts §587, comment 6, at 249 (1977).

Likewise, in his discussion of absolute privilege in his treatise on torts, Dean William Prosser states:

“Although there is some authority to the contrary, the better view seems to be that an informal complaint to a prosecuting attorney or a magistrate is to be regarded as an initial step in a judicial proceeding, and so entitled to an absolute, rather than a qualified immunity.” W. Prosser, Torts §114, at 780-81 (4th ed. 1971).

The defense of absolute privilege rests upon the idea “ ‘that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance [here, the investigation of crimes allegedly committed by plaintiff against another], which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation.’ ” (Thomas v. Petrulis (1984), 125 Ill. App. 3d 415, 418, quoting W. Prosser, Torts §114, at 776 (4th ed. 1971).) We conclude that in the context of the facts of this case the trial court did not err in dismissing plaintiff’s claims based on defamation and false-light invasion of privacy, as the statements concerning plaintiff’s alleged criminal conduct made to the Addison police were absolutely privileged.

In her second contention plaintiff maintains that the trial court erred in dismissing her claim for intentional infliction of emotional distress as set forth in count III of her complaint. It is plaintiff’s position that the allegations in count III were sufficient to plead a cause of action based on this theory.

To plead sufficiently a cause of action for intentional infliction of emotional distress, a plaintiff must allege the facts which establish: (1) defendant’s conduct was extreme and outrageous; (2) the emotional distress suffered by plaintiff was severe; and (3) defendant knew that severe emotional distress was certain or substantially certain to result from such conduct. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90; Miller v. The Equitable Life Assurance Society of the United States (1989), 181 Ill. App. 3d 954, 956.) With these requirements in mind and accepting all well-pleaded facts as true (181 Ill. App. 3d at 957), we examine count III of plaintiff’s complaint.

In count III of her complaint plaintiff essentially alleged that defendant through its agents made statements to the police that plaintiff harassed, assaulted, and verbally threatened a co-worker either with the knowledge that such statements were false or with a reckless disregard for the truth and that such conduct was intended to cause plaintiff extreme and severe emotional distress and harm.

While it is not unlikely that defendant’s alleged conduct created some distress and embarrassment for plaintiff and may have subjected plaintiff to some indignities, we do not believe the conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,” as required in stating a cause of action for intentional infliction of emotional distress. (Public Finance, 66 Ill. 2d at 90.) Recovery under this theory does not extend to conduct involving mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (66 Ill. 2d at 89-90; Miller, 181 Ill. App. 3d at 956.) Nor does it even extend to conduct “characterized by ‘malice’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Public Finance, 66 Ill. 2d at 90, quoting Restatement (Second) of Torts §46, comment d (1965).) Rather, the distress inflicted must be so severe that no reasonable man could be expected to endure it. Here, the conduct alleged by plaintiff does not meet that requirement.

When the tort of intentional infliction of emotional distress was first recognized by our supreme court in Knierim v. Izzo (1961), 22 Ill. 2d 73, the court observed that not every claim would be actionable and that determining whether a complaint states a cause of action basically involves drawing a line “between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility.” (22 Ill. 2d at 85.) Where that line should be drawn depends on the particular facts of each case. (22 Ill. 2d at 86.) Based upon our review of plaintiff’s complaint, we conclude that the facts alleged in count III are insufficient to satisfy the criteria for a cause of action for intentional infliction of emotional distress.

We note parenthetically that at the time the trial court found count III to be insufficient, the court gave plaintiff the opportunity to replead the allegations contained therein. Plaintiff, however, failed to remedy the deficiencies in count III by repleading. Having elected to stand on the original allegations, plaintiff assured the dismissal of her claim for intentional infliction of emotional distress.

Plaintiffs third contention is that the trial court erred in dismissing plaintiff’s cause of action for retaliatory discharge. In this contention plaintiff urges this court to extend the tort of retaliatory discharge to include a new cause of action for “wrongful discharge” where an employer makes knowingly false statements to the police about an employee and uses those statements as a reason to discharge the employee.

The Illinois Supreme Court first recognized a retaliatory discharge cause of action in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172. Since that time, the supreme court has expressed a narrow interpretation of the tort of retaliatory discharge and has not supported the expansion of the tort. (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525.) To sustain a cause of action for retaliatory discharge, the plaintiff must allege that he was discharged in retaliation for his or her activities and that the discharge violated a clearly mandated public policy. Bray v. Stan’s Renta), Inc. (1990), 196 Ill. App. 3d 384, 386.

Retaliatory discharge actions are allowed in two settings: (1) when an employee is discharged for filing a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.; see, e.g., Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1; Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172; Colley v. Swift & Co. (1984), 129 Ill. App. 3d 812), and (2) when an employee is discharged for reporting illegal or improper conduct, sometimes referred to as “whistle blowing” (see, e.g., Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124; Shores v. Senior Manor Nursing Center, Inc. (1988), 164 Ill. App. 3d 503; Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746). The only other situation recognized by Illinois courts as giving rise to a claim of retaliatory discharge is when an employee was discharged after refusing to work with an improperly functioning radioactive machine. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502.) Here, plaintiff’s cause of action does not fall within the parameters of any of these settings. Moreover, it does not allege a violation of public policy. Plaintiff maintains that in its efforts to discharge her defendant violated public policy by making false statements to the police, in violation of a criminal statute pertaining to disorderly conduct. That statute provides:

“A person commits disorderly conduct when he knowingly: * * *

(4) Transmits in any manner to any peace officer, public officer or public employee a report to the effect that an offense has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense has been committed.” (Ill. Rev. Stat. 1987, ch. 38, par. 26 — 1(a)(4).)

As defendant points out, however, nothing in the allegations of count IV of plaintiff’s complaint demonstrates any causal connection between defendant’s communication to the Addison police department and defendant’s decision to terminate plaintiff. Thus, even were we to extend the tort of retaliatory discharge to include a cause of action for wrongful discharge based upon a violation of section 26 — 1 of the Criminal Code of 1961, no cause of action on this basis was stated.

We conclude that the trial court did not err in dismissing count IV of plaintiff’s complaint for failure to state a cause of action.

In her final contention, plaintiff argues that the trial court erred in failing to recognize a cause of action for compelled self-defamation, which plaintiff alleged in count V of her complaint. Thus far, the tort of compelled self-defamation has not gained widespread acceptance, having been recognized in only 16 jurisdictions. Nevertheless, plaintiff urges this court to adopt this minority view which allows the plaintiff to recover for the foreseeable republication of a defamatory statement made by the person defamed to a third party.

Publication is an essential element of a claim for defamation. (Beauvoir v. Rush-Presbyterian-St. Lukes’s Medical Center (1985), 137 Ill. App. 3d 294, 300.) In order to establish publication, there must be a communication of the allegedly defamatory statement to someone other than plaintiff. (Ely v. National Super Markets, Inc. (1986), 149 Ill. App. 3d 752, 761-62.) “Ordinarily the defendant is not liable for any publication made to others by the plaintiff himself, even though it was to be expected that he might publish it.” (W. Prosser, Torts, §113, at 771 (4th ed. 1971).) Some jurisdictions, however, have held that an exception to this rule exists under certain circumstances, such as where an allegedly defamatory statement made by an employer about an employee was communicated to prospective employers when the employers inquired why the employee had left her previous employment. (See, e.g., Lewis v. The Equitable Life Assurance Society of the United States (Minn. 1986), 389 N.W.2d 876; Churchey v. Adolph Coors Co. (Colo. 1988), 759 P.2d 1336; McKinney v. County of Santa Clara (1980), 110 Cal. App. 3d 787, 168 Cal. Rptr. 89.) Courts dealing with these particular circumstances have recognized that if a defamed person was in some way compelled to communicate the defamatory statement to a third person, and if it was foreseeable to the defendant that the defamed person would be so compelled, then the defendant could be held liable for the defamation.

We believe that recognition of a cause of action for compelled self-defamation under circumstances similar to this case might discourage plaintiffs from mitigating damages. Rather, the availability of increased damages from such a claim might encourage publication of a defamatory statement by a plaintiff who reasonably could have avoided such republication or could have tried to explain to a prospective employer the true nature of the situation and to contradict the defamatory statement. Moreover, the only way an employer could seemingly avoid litigation and the possible liability for substantial damages in situations such as the instant one would be to deter from communicating to an employee, as well as to a third person, the reason the employer felt justified in terminating employment. Both employers and employees have significant interest in open communication about job-related problems. Further, it is in the public interest that information regarding an employee’s discharge be readily available to the discharged employee and to prospective employers. (Lewis, 389 N.W.2d at 888.) In our opinion, the doctrine of compelled self-defamation unduly burdens the free communication of views and unreasonably broadens the scope of defamation liability. (See Lewis, 389 N.W.2d at 893 (Kelley, J., dissenting).) Accordingly, the trial court did not err in ruling that count V of plaintiff’s complaint fails to state a cause of action.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

DUNN and GEIGER, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM JACK NELSON, Defendant-Appellant.
    Second District
    No. 2 — 90—0067
    Opinion filed March 29, 1991.

      John C. Banbury, of Banbury, Davis & Erschen, of Aurora, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, William Jack Nelson, appeals from a judgment of the circuit court of Kane County which found him guilty of driving under the influence of alcohol pursuant to section 11 — 501(a) of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501(a)). Defendant was sentenced to 12 months’ probation, was ordered to pay court costs of $155 and was required to attend treatment counseling. On appeal, defendant contends that: (1) the trial court erred in finding him guilty of driving under the influence of alcohol where he was charged with violating section 11 — 501(a)(1) of the Vehicle Code but was found guilty of violating section 11 — 501(a), given that the State failed to present any evidence at trial that defendant’s blood-alcohol content was 0.10 or higher; and (2) he was not proved guilty beyond a reasonable doubt of driving with a blood-alcohol content of 0.10 or greater. We reverse.

On June 4, 1989, at approximately 2:40 a.m., defendant was stopped by Officer Marshal McQuinley of the Aurora police department. Officer McQuinley testified that defendant’s car was stopped at a stop sign. The officer approached defendant’s car and noticed that defendant appeared to be asleep; however, the car was still running, and defendant’s foot was on the brake pedal. The officer woke defendant and proceeded to administer field sobriety tests to him. According to McQuinley, defendant failed these tests and was arrested. Officer McQuinley prepared a uniform traffic ticket which indicated that defendant was being charged with “driving while under the influence of alcoholic beverage” in violation of “Chap. 951/2 Sec. 11 Par. 501A1.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(1).) Thereafter, defendant was transported to the Aurora police department, where Officer Robin Trettenero attempted to perform a breathalyzer test. According to Officer Trettenero, defendant agreed to take the test but was unable to register a reading on the breathalyzer machine due to a “deficient sample.”

Because the breathalyzer sample was deficient, the State only offered evidence at trial to show that defendant was driving under the influence of alcohol. (See Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501(a)(2).) The State did not present any evidence that defendant was driving with a blood-alcohol content of 0.10 or more. See Ill. Rev. Stat. 1989, ch. 951/2, par. ll-501(a)(1).

Defendant did not testify or present any witnesses at trial but argued during closing arguments that the State had not proved him guilty beyond a reasonable doubt. Defendant claimed that the State’s evidence was not sufficient to prove that he was driving an automobile while under the influence of alcohol.

Following closing arguments, the trial court pointed out a discrepancy in the uniform traffic ticket. Specifically, the court noted that the ticket informed defendant that he was being charged with “driving under the influence of alcoholic beverage” but cited section 11 — 501(a)(1) of the Vehicle Code, which applies to driving with a blood-alcohol content of 0.10 or better. The court asked both sides to present arguments on how the matter should be resolved. After arguments by both counsel, the trial court found defendant guilty of violating section 11— 501(a) of the Vehicle Code, but did not determine which specific subsection of this section applied in this case.

Defendant’s motion for a new trial or, in the alternative, a finding of not guilty was denied. This appeal followed.

Defendant first contends that the ticket issued by Officer McQuinley was fatally insufficient in that it failed to specify the offense with which defendant was charged. Section 111 — 3(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3(a)) requires, inter alia, that a charge: (1) state the name of the offense; (2) cite what statutory provision has been alleged to have been violated; and (3) list the nature and the elements of the offense that is charged. Defendant argues that the State charged him with violating section 11 — 501(a)(1) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(1)), which involves driving with a blood-alcohol content of 0.10 or greater, and then did not offer any evidence of this violation. Instead, defendant asserts that the State only offered evidence that he was guilty of driving while under the influence of alcohol. See Ill. Rev. Stat. 1989, ch. 951/2, par. 11-501(a)(2).

We first note that the uniform traffic ticket at issue in this case described two offenses under section 11 — 501(a) of the Vehicle Code. The ticket charged defendant with “driving under the influence of alcoholic beverage” (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)), but then listed section 11 — 501(a)(1) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(1)) as the section of the Vehicle Code which he violated. Section 11 — 501(a)(1) of the Vehicle Code involves the offense of driving with a blood-alcohol content of 0.10 or greater.

This situation is similar to the case of People v. Tammen (1968), 40 Ill. 2d 76, in which a traffic ticket stated that the defendant was being charged with “drag racing” but cited to the statutory section which prohibits reckless driving. In Tammen, the defendant also argued that the traffic ticket was legally insufficient. The court stated:

“Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State’s Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged. Under section 111 — 6 [citation] the accused may request a bill of particulars which will enable him ‘to prepare his defense.’ We hold that a conviction based on a Uniform Traffic Ticket naming an offense and citing the statutory provision, where there is no objection to the sufficiency of the ticket or request for a bill of particulars, will not be set aside for failure to comply with section 111 — 3[a](3).” (Tammen, 40 Ill. 2d at 78-79.)

The court also stated that the defendant was not misled by the discrepancy in the ticket because he was well aware of the facts surrounding the issuance of the ticket. Tammen, 40 Ill. 2d at 79.

In People v. Askeland (1988), 166 Ill. App. 3d 78, the defendant was charged with driving under the influence of alcohol in violation of section 11 — 501(a) of the Vehicle Code. However, the trial court found her guilty of violating subsection 2 of this section. On appeal, the defendant contended that the failure to specify which subsection the State was proceeding on constituted a fatal defect in the charging process. (Askeland, 166 Ill. App. 3d at 79.) This court disagreed, noting that, pursuant to Tammen, the defendant was required to make a pretrial objection to the uniform traffic ticket in order to challenge the sufficiency of the charge. Askeland, 166 Ill. App. 3d at 80; see also People v. Sikes (1986), 141 Ill. App. 3d 773, 777; People v. Domovich (1980), 91 Ill. App. 3d 870, 873-74.

This court has gone on to hold that, since section 111 — 6 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 6) allows a defendant to request a bill of particulars to prepare a defense, the defendant’s constitutional right to demand the nature and cause of the accusation, along with his statutory right to be informed of the nature and the elements of the offense with which he is charged, are fully protected; therefore “in this narrow class of traffic cases these rights must be exercised prior to trial.” (Domovich, 91 Ill. App. 3d at 873.) Where the defendant has failed to file a bill of particulars or challenge the sufficiency of the uniform traffic ticket, the traffic citation will be considered sufficient. Domovich, 91 Ill. App. 3d at 874.

In the present case, defendant did not make a pretrial motion either to challenge the sufficiency of the uniform traffic ticket or to file a bill of particulars. In fact, defendant was apparently not aware of the discrepancy in the traffic ticket until the trial court mentioned it after both sides had presented their closing arguments. Defendant based his defense on the State’s evidence and challenged whether the State had proved beyond a reasonable doubt that he was driving under the influence of alcohol. In making his closing argument, defendant never questioned whether the State was required to prove that he had a blood-alcohol level of 0.10 or more; therefore, defendant clearly understood that the offense charged against him was driving under the influence of alcohol, as set forth in section 11 — 501(a)(2) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(2).) Thus, it is our opinion that the uniform traffic ticket was sufficient to inform defendant of the nature and cause of the accusation, as section 111 — 3 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3) requires. See Askeland, 166 Ill. App. 3d at 81.

Defendant next contends that the trial court erred in finding him guilty under section 11 — 501(a) of the Vehicle Code. After viewing the uniform traffic ticket, the trial court was unclear on how to enter judgment. The trial court’s oral pronouncement found defendant “guilty of a violation of Chapter 95V2, Section 11 — 501(a).” The court indicated that “[t]he finding also ought to reflect that the specific offense is driving under the influence of alcohol.” In its judgment order, the trial court stated that defendant was guilty of “DUI ch. 95V2 sec. 11 — 501.” In neither the report of proceedings nor the judgment order did the court determine which offense of the four offenses included under section 11 — 501(a) applied to defendant.

At the time of defendant’s conviction, section 11 — 501(a) of the Vehicle Code stated:

“§11 — 501. Driving while under the influence of alcohol, other drug, or combination thereof, (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration of such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2;
2. Under the influence of alcohol;
3. Under the influence of any other drug or combination of drugs to a degree that renders such person incapable of safely driving; or
4. Under the combined Influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving. Ill. Rev. Stat. 1989, ch. 951/2, pars. 11— 501(a)(1) through (a)(4).

The trial court relied upon Askeland when it found defendant guilty of violating section 11 — 501(a) of the Vehicle Code without actually specifying the subsection involved. As we previously stated, Askeland involved a defendant being charged on her traffic ticket with violating section 11 — 501(a) but instead was found guilty of driving under the influence of alcohol in violation of section 11 — 501(a)(2). Askeland, 166 Ill. App. 3d at 78-79.

Although Askeland and the present case both involve defendants challenging uniform traffic tickets as being fatally insufficient for failing to state an offense, the trial court’s determination of each defendant’s guilt was different. In Askeland, the trial court found the defendant guilty of driving under the influence of alcohol in violation of section 11 — 501(a)(2). However, in the present case, the trial court did not make a determination as to which subsection of section 11 — 501(a) defendant violated. This section states that “[a] person shall not drive or be in actual physical control of any vehicle within this State while.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a).) In finding defendant guilty of violating only this section, the trial court apparently determined that defendant was guilty of either all four subsections or none at all, because section 11 — 501(a) does not describe a particular offense. Instead, one of the four subsections must be added to the statement to derive a complete description of the offense.

Under the constitution and statutes of this State (see Ill. Const. 1970, art. I, §§2, 7, 8; Ill. Rev. Stat. 1989, ch. 38, pars. 111 — 3, 113 — 1, 113 — 4), no one may be convicted of a crime which he has not been charged with having committed. (People v. Lewis (1980), 83 Ill. 2d 296, 300; People v. Rivers (1990), 194 Ill. App. 3d 193, 195.) A violation of due process also occurs when there is a conviction of a crime which does not exist. (People v. Kessinger (1985), 133 Ill. App. 3d 831, 833.) However, under section 2 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9), a defendant may be convicted of an “included offense” where it “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9(a).

Section 11 — 501(a)(1) of the Vehicle Code, which prescribes the offense of driving with a blood-alcohol content at or above 0.10, is a separate statutory offense from driving under the influence of alcohol, as stated in section 11 — 501(a)(2) of the Vehicle Code. (People v. Ziltz (1983), 98 Ill. 2d 38, 43.) A defendant cannot be convicted of both driving under the influence of alcohol and driving with a blood-alcohol content of 0.10 or greater when both convictions would be based on the same physical act. (People v. Pena (1988), 170 Ill. App. 3d 347, 350.) Furthermore, a defendant cannot be convicted of two driving under the influence charges where the offenses are based on the same physical act. See People v. King (1977), 66 Ill. 2d 551, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Atwell (1984), 129 Ill. App. 3d 724, 728.

In People v. Utt (1983), 122 Ill. App. 3d 272, the State argued that section 11 — 501(a) essentially defined a single offense of “ ‘driving under the influence.’ ” (Utt, 122 Ill. App. 3d at 275.) The court rejected this argument and, relying upon Ziltz, held that driving under the influence of alcohol and driving with a blood-alcohol content of 0.10 were separate offenses. Utt, 122 Ill. App. 3d at 275.

In the present case, defendant was found guilty of driving under the influence of alcohol, in violation of section 11 — 501(a) of the Vehicle Code. The court made no determination of which subsection of this section defendant violated. The trial court made this decision because it was concerned about the discrepancy in the uniform traffic ticket being used as the charging instrument. While the discrepancy in the uniform traffic ticket was not enough to make the ticket fatally insufficient to charge defendant, the discrepancy did cause the trial court to err in determining of which offense defendant was convicted.

As noted above, section 11 — 501(a) is not a single offense of driving under the influence of alcohol or some other drug. Instead, one of the four subsections must be specified before a person can be convicted of an offense. Also, a defendant may be convicted of only one of the four subsections when the offenses are based on the same physical act. See Pena, 170 Ill. App. 3d at 350; Atwell, 129 Ill. App. 3d at 728.

At best, the uniform traffic ticket charged defendant with violating both section 11 — 501(a)(1) and section 11 — 501(a)(2) of the Vehicle Code. The evidence presented at trial reveals that defendant was guilty of violating section 11 — 501(a)(2), driving under the influence of alcohol, and this should have been the offense of which he was convicted.

However, the trial court attempted to find defendant guilty of violating section 11 — 501(a) of the Vehicle Code, without specifying which subsection defendant actually violated. This had the effect of convicting defendant of either all of the offenses under section 11 — 501(a) or, alternatively, none of the offenses. This is the case because section 11 — 501(a) does not state an offense until it is combined with one of the four subsections.

Defendant’s conviction cannot stand under either of the alternatives. Defendant cannot be convicted of violating all four subsections of section 11 — 501(a) because the offense at issue simply involved one physical act. Furthermore, defendant cannot be convicted of driving under the influence of alcohol without first being found guilty of one of the subsections, as section 11 — 501(a) does not, by itself, state an offense.

For these reasons, the decision of the circuit court of Kane County is reversed. In addition, we need not consider defendant’s other appellate contention due to our resolution of this issue.

Reversed.

WOODWARD and UNVERZAGT, JJ., concur.


author: JUSTICE DUNN

text:
    JOSEPH P. MONAHAN, Plaintiff and Counterdefendant-Appellant, v. THE VILLAGE OF HINSDALE, Defendant and Counterplaintiff-Appellee (William Wilcox et al., Defendants-Appellees; Judy Waldherr et al., Defendants).—JOSEPH P. MONAHAN, Plaintiff-Appellee, v. THE VILLAGE OF HINSDALE, Defendant-Appellant.
    Second District
    Nos. 2 — 90—0576, 2 — 90—0667, 2 — 90—0740 cons.
    Opinion filed March 28, 1991.

      John R. Wimmer, of State Appellate Defender’s Office, of Downers Grove, for appellant Joseph P. Monahan.
    Clifford L. Weaver and Matthew Ei Norton, both of Burke, Bosselman & Weaver, of Chicago (Mark E. Burkland, of counsel), for Village of Hinsdale and other appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Joseph P. Monahan, appeals the denial of the relief sought by him in a complaint for an injunction and a declaratory judgment against defendants, the Village of Hinsdale (hereinafter Village) and William Wilcox, Colleen Wilcox, Joseph Bardusk, Mrs. Joseph Bardusk, Norman Waldherr, Judy Waldherr, Cynthia Langlois and David Geiman. Plaintiff sought to enjoin the Village from enforcing the Hinsdale Zoning Code’s six-foot side yard requirement to the north side of his property where the residence had been altered and enlarged. Plaintiff also sought a declaration that the doctrine of estoppel precluded enforcement of the six-foot side yard requirement. The Village filed a counterclaim for injunctive relief against Joseph Monahan to enforce the six-foot side yard requirement.

Following a bench trial, the trial court entered an order denying the relief sought by the plaintiff and granting judgment in favor of the defendants on the Village’s counterclaim. In addition, the trial court entered an order mandating specific injunctive relief against Monahan on the Village’s counterclaim. Monahan appeals the specific injunctive relief. Subsequently, the Village filed a motion for sanctions against Monahan under Supreme Court Rule 137 (134 Ill. 2d R. 137). The court denied the motion for sanctions. The Village appeals the denial of its motion. We affirm both the grant of injunctive relief in favor of the Village and the denial of the Village’s motion for sanctions. The facts of this case are as follows.

The property involved in this action is located at 113 South Quincy, Hinsdale, Illinois. In the spring of 1989, Joseph Monahan purchased this property from Kenneth Peterson and Susan Arbanas. The Monahans took possession of the property in June 1989. At that time the property was improved with a one-story house. The front of the house faced west. The back of the house had an open wooden deck at the northeast corner.

The property was zoned in a single-family residential district under the Hinsdale Zoning Code. As such, the property is required to have a minimum six-foot side yard on each side of the house. However, the entire north wall of the house and the northern edge of the wooden deck are within three feet of the north lot line. Because the house was built before the effective date of the Village’s zoning code, it is a legally nonconforming structure.

Late in spring 1989 plaintiff contacted an architect, Mark Ridolphi, to discuss his plans to expand and remodel the house from a one-story to a two-story residence. On May 10, 1989, Mr. Ridolphi and the plaintiff went together to inspect the house. Mr. Ridolphi took photographs of the house and the wooden deck that day. The photographs were to serve to record the current condition of the house and to chart the progress of construction. Plaintiff also videotaped the house for this same purpose.

On July 14, 1989, plaintiff submitted building plans along with a building permit application to the Village for the proposed expansion and remodeling project. The Village rejected these plans because they violated the Village’s floor area ratio and building coverage requirements. On July 27, 1989, plaintiff submitted a new application and a second set of plans to the Village. The revised plans called for the addition of a second story to the house, in addition to the removal of the enclosed back porch and wooden deck and the replacement of it with an enclosed, roofed, one-story addition to the house.

On July 31, 1989, the Village building commissioner, Charles Schmidt, called plaintiff to discuss the building permit application and plans. Schmidt told the plaintiff that construction of the enclosed, roofed addition-to the house in place of the deck would increase the existing side yard nonconformity. Under the Village’s interpretation of subsection 10 — 104B of the Hinsdale Zoning Code, an open, unenclosed, roofed structure which does not conform to existing zoning requirements cannot be replaced with an enclosed, roofed structure on a foundation because it would increase the nonconformity.

Plaintiff assured building commissioner Schmidt there was a roof over the deck even though the building plans did not show one. In addition, plaintiff told building commissioner Schmidt that he had photographs or a videotape depicting the roof over the deck. On August 25, 1989, plaintiff again assured Schmidt that the deck had a roof over it. Based on plaintiff’s representations, building commissioner Schmidt determined that the approved plans did not violate subsection 10— 104(B). A budding permit was issued on August 25,1989.

Plaintiff demolished the existing deck on Labor Day weekend 1989 and began construction on the house expansion on September 5, 1989. On October 12, 1989, during an inspection of the construction, building commissioner Schmidt discovered that the north wall of the house, which included the new one-story roofed addition at the northeast corner, extended approximately two feet farther than had the old “roofed” deck. Thus, the new structure increased the side yard nonconformity because a greater portion of the new structure fell within the minimum required six-foot side yard. Schmidt ordered the plaintiff to stop work on the rear two feet of the house. Plaintiff applied for a variation before the Zoning Board of Appeals (ZBA). The ZBA denied the plaintiff’s request for a variation.

The plaintiff filed a complaint for an injunction and declaratory judgment against the Village and several neighbors seeking to enjoin the Village from enforcing the six-foot side yard requirement. Plaintiff claimed the Village was estopped from applying the ordinance because it had issued the building permit. In paragraph 5 of his complaint, the plaintiff alleged that the property was improved with a “wooden deck partially covered with a roof of wooden slats with spaces between the slats.” The Village filed an answer and counterclaim seeking an order by the court for plaintiff to remove the portion of the house that violated the side yard requirement. At that time the Village still believed a roof existed over the deck.

During discovery, the Village deposed the plaintiff at which time he described the roof in detail. The Village also deposed the plaintiff’s architect, Mr. Ridolphi. Mr. Ridolphi produced the photographs taken on May 10, 1989, which depict the deck. The photographs show no roof over the deck. Similarly, the plaintiff’s videotape, which was admitted into evidence at trial, showed no roof over the deck before it was demolished.

At trial, the former owner of the house, Susan Arbanas, testified that the deck did not have a roof over it at any time while she lived there or when she and her husband sold the house to the plaintiff. In addition, neighbors Colleen Wilcox and Joseph Bardusk, also defendants in this case, testified at trial that the photographs accurately depicted the deck without a roof.

The trial court entered judgment against the plaintiff and in favor of the Village, finding that before the issuance of the building permit, plaintiff had represented to the Village that the deck had a roof, and the Village issued the permit for construction of the proposed replacement in reliance on the plaintiffs representations. Further, the court found no roof existed and, therefore, the expansion violated the Village’s side yard requirement. The trial court ordered specific injunctive relief, requiring plaintiff to remove the offending portion of the structure.

In addition, the Village filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 (134 Ill. 2d R. 137). The Village alleged the plaintiff’s complaint, motion for preliminary injunction and verified amended answer and affirmative defense contained intentionally false allegations. The Village alleged it spent more than $51,330.95 as a result of the plaintiff’s false allegations. The trial court denied the Village’s motion.

On appeal, plaintiff contends the trial court erred in finding the house as altered violated the Village’s side yard requirement. Plaintiff also contends the trial court erred by denying his claim of estoppel on the basis of the incorrect representations he made to the building commissioner because those representations were immaterial to that claim. The Village contends the trial court did not have jurisdiction to review the plaintiff’s ordinance interpretation argument because the plaintiff had not exhausted his administrative remedies. Lastly, the Village contends the trial court erred in denying the Village’s motion for sanctions. We affirm.

The Village claims the addition to the back of plaintiff’s house which replaced the wooden deck violates the Village zoning ordinance because the deck did not have a roof, as plaintiff represented it did. The Village asserts building an addition where a previously unroofed structure stood increases the nonconforming use of the side yard as prohibited by the ordinance. The plaintiff, however, amended his answer and added an affirmative defense claiming the word “roof” did not appear in the ordinance at issue. The Village now contends on appeal that the trial court did not have jurisdiction to hear this argument because plaintiff had not followed the means for review of the Village’s zoning ordinance provided by the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 102).

The Illinois Municipal Code authorizes a municipality’s zoning board of appeals to hear and decide appeals. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—12.) The Municipal Code also provides all final decisions of the zoning board of appeals shall be subject to judicial review pursuant to the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—13.) If an owner wishes to challenge a Village official’s interpretation of a zoning ordinance, the owner must do so by appealing the interpretation to the zoning board of appeals. (Hinsdale, Ill., Zoning Code §11 — 502(A).) The ZBA’s decision would then be a final administrative determination subject to judicial review under the act.

The Village contends plaintiff is prohibited from now raising the ordinance interpretation requirement because he failed to appeal building commissioner Schmidt’s interpretation of the ordinance before the ZBA. The Village claims plaintiff chose to file an independent action for equitable relief instead of following the established administrative procedures and, as such, should be prohibited from raising the ordinance interpretation argument for the first time in the trial court. The Village cites the Bright doctrine in support of this contention. Bright v. City of Evanston (1956), 10 Ill. 2d 178.

Under the Bright doctrine, where a plaintiff is merely claiming the enforcement or application of a particular classification to the plaintiff’s property is unlawful and void, judicial relief is only available after administrative remedies have been exhausted. (Bright, 10 Ill. 2d at 185.) However, our supreme court has found an exception to the Bright doctrine. In County of Lake v. MacNeal (1962), 24 Ill. 2d 253, 260, the court held that if a government institutes an action against the owner for an ordinance violation, the owner should be entitled to defend on the ground of the invalidity of the ordinance and have the issue determined.

The Village argues the MacNeal “defense exception” should not apply in this case because the plaintiff initiated this action in the first instance. We disagree. It is true the plaintiff instituted this action, but the action was filed not to obtain judicial review of the Village’s interpretation of the ordinance, but to obtain equitable relief to prevent the ordinance from being enforced against the plaintiff’s property. Plaintiff previously went before the ZBA to ask for a variation on his property, but his request was denied. Now, plaintiff is claiming the Village is equitably estopped from enforcing the ordinance against his property because the Village issued the plaintiff a building permit and he acted in reliance on it.

The Village, in turn, counterclaimed against the plaintiff to enforce the ordinance against his property claiming the plaintiff misrepresented the facts necessary under the ordinance to obtain a building permit. In noting the differences between a property owner who initiates an action to declare an ordinance invalid and one who is charged with illegally violating it, the court in MacNeal stated:

“Whereas, in the first instance, it is the view that zoning litigation should not be initiated until the local authority has a chance to correct the errors that may have occurred in broad comprehensive ordinances, in the latter instance the very act of filing a complaint reflects a judgment on the part of the local authority that, as to the property concerned, they see no particular hardship and no necessity to correct the zoning regulation. To compel a property owner to first seek local relief in the face of a demonstrated attitude of the local authority, would be a patently useless step which would increase costs, promote circuity of action and delay the administration of justice.” Mac-Neal, 24 Ill. 2d at 260.

The same reasoning applies to the present situation. The Village has indicated by filing its counterclaim its intention to enforce the ordinance as interpreted by building commissioner Charles Schmidt against the plaintiff’s property. Just as in MacNeal, the interests of justice are not served by prohibiting the plaintiff from defending himself against the counterclaim.

The Village contends the court’s decision in City of Chicago v. Zellers. (1965), 64 Ill. App. 2d 24, supports its interpretation of the MacNeal exception. We disagree. In that case, the city revoked a building permit after learning it was issued wrongfully and then instituted an action to enforce its nuisance ordinance prohibiting the maintenance of the excavation. The owner, by counterclaim, responded that the city’s zoning ordinance area and yard requirements were invalid as applied to his property. The court held that because the city was seeking to enforce its nuisance ordinance, the property owner was the first to bring an action involving the validity of the zoning ordinance rendering the MacNeal “defense exception” inapplicable. (Zellers, 64 Ill. App. 2d at 32.) As stated previously, circumstances surrounding this case are substantially different.

The plaintiff sought equitable relief based on a claim of reliance. The Village sought to enforce the ordinance as interpreted by building commissioner Charles Schmidt against the plaintiff. Plaintiff is clearly entitled to defend against the Village's interpretation of the ordinance it is seeking to enforce against the plaintiff in accordance with the MacNeal doctrine.

We turn now to the ordinance interpretation issue. Plaintiff asserts the trial court erred in finding the plaintiff’s house, as altered and enlarged, was in violation of the Village ordinance requiring a six-foot side yard because the ordinance did not specify that a “pre-code structure” must have a roof to allow for alteration and enlargement without increasing the nonconformity. The Village claims its interpretation of the ordinance is now and has always been that the definition of a “pre-code structure” includes roofed structures only.

The ordinance at issue is section 10 — 104(B) of the Hinsdale Zoning Code. It provides, in pertinent part, as follows:

“Any pre-code structure may be *** altered, [or] enlarged *** provided, however, that no such *** alteration, [or] enlargement *** shall either create any new *** yard *** nonconformity or increase the degree of any *** yard *** nonconformity of all or any part of such structure as it existed on the effective date of this Code ***.
For the Purposes of this Subsection B, the vertical extension of a structure within the limits of applicable height regulations shall not be construed to increase the degree of an existing nonconformity related to a required yard ***.” (Hinsdale, Ill., Hinsdale Zoning Code §10 — 104(B).)

Plaintiff is correct when he asserts the word “roof” does not actually appear under the definition of the words “pre-code structure” or “structure” in the ordinance. (Hinsdale, Ill, Hinsdale Zoning Code §§12 — 206(S), (P).) However, the Village asserts its interpretation that an open, unroofed structure in violation of a zoning regulation may not be replaced with an enclosed, roofed structure because it would increase the nonconformity has been the rule in the Village for at least 16 years.

This court has held the construction of a statute, ordinance or constitutional provision is a question of law. Accordingly, the reviewing court may make an independent determination and need not defer to the decision of the trial court. (County of Lake v. Zenko (1988), 174 Ill. App. 3d 54, 60.) Zoning ordinances are to be construed the same way as statutes. (La Salle National Bank v. The Thresholds (1975), 27 Ill. App. 3d 635.) Effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance. (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510; Zebulon Enterprises, Inc. v. County of Du Page (1986), 146 Ill. App. 3d 515, 518.) Because agencies can make informed judgments on the issues based upon their experience and expertise, it is generally recognized that courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152-53.

Building commissioner Schmidt testified that building a roofed structure where none previously existed expands the nonconformity of a precode structure. Although subsection 10 — 104(B) and its predecessor have been in existence only since 1988, the Village’s interpretation of what increases the nonconformity of a precode structure is a long-standing one. Building commissioner Schmidt testified at trial that this has been the rule in the Village for at least 16 years, the duration of his employment as Village building commissioner. Moreover, building commissioner Schmidt informed plaintiff on more than one occasion that in order to build the addition where the deck had once stood, it was necessary that a roof had once covered the deck. Plaintiff, aware of this requirement, misrepresented to the Village that the deck had been covered with a roof made up of wooden slats spaced a number of inches apart.

A reviewing court will defer to the administrative entity’s practical construction of the ordinance unless it is clearly erroneous, arbitrary or unreasonable. (Foster & Kleiser v. City of Chicago (1986), 146 Ill. App. 3d 928, 933.) In this case, considering the goals sought to be advanced by the Village in regulating nonconforming structures, the Village’s interpretation of the ordinance cannot be deemed clearly erroneous, arbitrary or unreasonable.

The ordinance was designed to prevent any increase in the degree or expansion of the existing nonconformity of precode structures. The ordinance allows a property owner to expand the precode structure vertically, but prohibits any expansion which would further decrease the mandatory six-foot side yard requirement. As such, we find the Village’s interpretation of the ordinance to be valid. Accordingly, the trial court was correct in finding the plaintiffs house, as altered and expanded, increased an already existing nonconformity.

Plaintiff also contends on appeal that the trial court erred in denying plaintiffs claim of estoppel. The trial court denied this claim on the basis of plaintiff’s representation that a roof existed over the deck. Plaintiff asserts his representations concerning the existence of a roof were not material to the issue of estoppel. Such a claim is absurd. The Village informed the plaintiff he could only build an enclosed, roofed structure where a roofed structure already stood. Plaintiff, in turn, represented to the Village that the deck had a roof, and the Village issued a building permit in reliance on this fact. Plaintiff cannot now claim the Village is estopped from enforcing the very requirement he misrepresented to the Village to be met. A person who has defrauded his adversary is barred from seeking equitable relief. Fruhling v. County of Champaign (1981), 95 Ill. App. 3d 409, 417.

The “clean hands” doctrine holds that one seeking equitable relief cannot take advantage of his own wrong or, as otherwise stated, he who comes into equity must come with clean hands. (Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc. (1984), 128 Ill. App. 3d 763, 767-68.) The trial court found ample evidence that a roof had never existed above the deck. The plaintiff’s own architect photographed the deck before construction began. Those photographs show no roof over the deck. The plaintiff’s own videotape of the deck shows no roof existed. In addition, the court heard testimony from a number of individuals familiar with the deck, including the former owner of the house. All claim no roof ever existed over the deck. The evidence is sufficient to warrant a finding that the plaintiff misrepresented the fact that the deck had a roof over it before construction began. Accordingly, the plaintiff cannot now come before the court and ask to take advantage of his own wrong.

The last issue before this court is whether the trial court erred in denying the Village’s motion for sanctions and attorney fees under Supreme Court Rule 137. (134 Ill. 2d R. 137.) Rule 137 provides for the imposition of sanctions for pleadings not well grounded in fact. The standard for evaluating conduct is one of reasonableness under the circumstances existing at the time of filing. Couri v. Korn (1990), 202 Ill. App. 3d 848, 855.

In the present case, the Village claims the trial court erred in denying its motion for sanctions because the plaintiff filed this action for an improper purpose and at the very least plaintiff failed to make a reasonable inquiry into the facts before filing his complaint. However, the decision whether to award attorney fees and expenses rests within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Couri v. Korn, 202 Ill. App. 3d at 855.

While it is true the trial court found the facts to be ultimately adverse to the pleadings, that alone is not enough to warrant an award of attorney fees. (Couri v. Korn, 202 Ill. App. 3d at 855.) We find no abuse of discretion on the part of the trial judge in denying the Village’s motion for sanctions. There is no evidence that the plaintiff’s pleadings contained intentionally false allegations. The plaintiff testified consistently as to what he believed constituted a roof, i.e., wooden slats with spaces between the slats. The trial court’s denial of the Village’s motion was within its sound discretion.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.