author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY CREAGH, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—2119
    Opinion filed May 17, 1991.

      Ralph E. Meczyk, of Chicago (Mary Ellen Dienes, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter R Hehner, and Patrick S. Smith, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Anthony Creagh, was charged by information with unlawful possession of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b).) He filed a motion to suppress the physical evidence against him alleging that it had been obtained in violation of his constitutional rights. After an evidentiary hearing, the motion was denied. At trial, the State introduced the evidence that the defendant had sought to suppress. Defendant was found guilty as charged and sentenced to a term of 30 months’ intensive probation, including a minimum of 130 hours of community service and participation in a TASC program. Defendant appeals, contending that the trial court erred in denying his pretrial motion to suppress the physical evidence.

At the hearing on defendant’s motion to suppress, Palos Heights police officer Michael Zaglifa testified that at approximately 1 p.m. on January 5, 1987, he was on patrol in a marked vehicle when he observed an automobile with a loud muffler and an improper display of license plates. When Officer Zaglifa turned his lights on and initiated a routine traffic stop of this automobile, he saw defendant, who was sitting in the front passenger seat, lift his body “off the seat” as if he was “sticking something in his pants.” Zaglifa did not see the defendant’s hands, but only a shifting of his body and movement of his arms and shoulders. Zaglifa did not notice the odor of marijuana or any other contraband in the car.

After the driver stopped and got out of the car, Zaglifa asked the defendant to get out of the car also. Zaglifa asked defendant to stand on the curb of the street next to the car and advised him that he had seen the defendant’s movements. Zaglifa testified further that defendant said he had merely moved a check onto the dashboard of the car. Zaglifa initially testified that he then conducted a pat-down search because he observed a large bulge in the right pocket of defendant’s pants. The bulge was soft, rather than hard, and did not appear to be a gun. Zaglifa testified later that he conducted the pat-down search immediately after defendant got out of the car and before Zaglifa saw the bulge in defendant’s pants pocket. Zaglifa then stated that he saw the bulge in defendant’s pocket as soon as he started to pat him down. Pursuant to that search, Zaglifa recovered several large plastic bags containing a white powder. Zaglifa thereafter took defendant into custody.

The parties stipulated that the substance recovered from defendant was submitted to testing by a forensic scientist for the Joliet crime lab and was found to be 5.6 grams of a substance containing cocaine.

The trial court made a finding of probable cause for the search and denied defendant’s motion to suppress. Defendant subsequently brought a motion to reconsider the denial of his motion. The court also denied the motion to reconsider, and the matter proceeded to a bench trial.

At trial, the parties stipulated that, if called as a witness, Officer Zaglifa would testify to the same facts presented in his testimony at the hearing on defendant’s pretrial motion. The parties stipulated further that, if called as a witness, Kent Riser would testify that he was a forensic scientist for the Joliet crime lab and that after testing the substance recovered from the defendant, he found it to be 5.6 grams of a substance containing cocaine. No other evidence was presented at trial.

The trial court found defendant guilty of possession of a controlled substance and sentenced him to a term of 30 months’ probation, including a minimum of 130 hours of community service and participation in a TASC program. Defendant thereafter brought a motion for a new trial, which was denied by the court.

On appeal, defendant asserts that the trial court erred in denying his pretrial motion to suppress the physical evidence against him.

The fourth amendment requires that any seizure be “reasonable,” and the reasonableness of a seizure depends upon a balancing of the public’s interest and the individual’s right to personal security free from arbitrary interference by police officers. People v. Smithers (1980), 83 Ill. 2d 430, 434, 415 N.E.2d 327, 330.

Although the officer need not have probable cause to arrest or search in order to stop and frisk, he must have knowledge of specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880; Smithers, 83 Ill. 2d at 434, 415 N.E.2d at 330.) In determining whether a stop is reasonable, an objective standard is used (Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; People v. Galvin (1989), 127 Ill. 2d 153, 167, 535 N.E.2d 837, 843), namely, whether the facts available to the police officers warrant a person of reasonable caution to believe that the action taken was appropriate (People v. Worlow (1982), 106 Ill. App. 3d 112, 114, 435 N.E.2d 795, 797).

Police officers may perform pat-down searches only when they reasonably believe that the individual is armed and dangerous. (Smithers, 83 Ill. 2d at 434, 415 N.E.2d at 330.) The sole justification of the search is the protection of the police officer and others nearby, and such a search may not be conducted in order to gather evidence. (Terry, 392 U.S. at 29, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884; Galvin, 127 Ill. 2d at 170, 535 N.E.2d at 845; People v. Lee (1971), 48 Ill. 2d 272, 276, 269 N.E.2d 488, 490-91.) This rule has been codified in section 108—1.01 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 108—1.01).

Although furtive movements may be considered justification for performing a warrantless search when coupled with other circumstances tending to show probable cause (People v. Rodriguez (1987), 154 Ill. App. 3d 401, 403, 506 N.E.2d 1064, 1066; People v. Felton (1974), 20 Ill. App. 3d 103, 106, 313 N.E.2d 642, 645), looks, gestures, and movements taken alone are insufficient to constitute probable cause to search since they may be innocent (Felton, 20 Ill. App. 3d at 106, 313 N.E.2d at 645).

In the instant case, Zaglifa’s testimony clearly established that the bulge in defendant’s right pants pocket was soft, rather than hard, and did not resemble a gun or any other weapon. Zaglifa did not testify that he was in fear of his safety, and there was absolutely no evidence that Officer Zaglifa had reason to believe that the defendant was armed and dangerous. Thus, the pat-down search of the defendant could not be justified by Zaglifa’s belief that his safety or that of others was in jeopardy or that the defendant was armed.

Zaglifa testified only that he saw defendant lift his body “off the seat” as if he was “sticking something in his pants,” and the evidence established that the controlled substance was recovered from defendant’s right pants pocket. Even if defendant’s movements may be characterized as “furtive,” there was no evidence of other circumstances tending to show probable cause. (See Felton, 20 Ill. App. 3d at 106, 313 N.E.2d at 645.) Consequently, defendant’s act of putting something in his pants pocket can clearly be viewed as innocent, and the search cannot be justified on this basis.

Moreover, even if the pat-down was proper under Terry, its scope was clearly limited to a search for weapons which would place the life of the officer or of others in danger. A Terry stop and frisk may not be used as a general search for evidence of criminal activity. Once Zaglifa determined that the bulge in defendant’s pocket was soft and that defendant was not carrying a weapon, his seizure of the contents of defendant’s pocket was beyond the limited scope of the search and was an unlawful intrusion. Terry, 392 U.S. at 29, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884; Galvin, 127 Ill. 2d at 170, 535 N.E.2d at 845; Lee, 48 Ill. 2d at 276, 269 N.E.2d at 490-91.

We also note that during the course of his testimony, Zaglifa offered three different and inconsistent accounts of when he first observed the bulge in defendant’s pocket, making this critical evidence entirely unreliable.

We hold that the trial court erred in denying the defendant’s motion to suppress the physical evidence against him. Consequently, we reverse the judgment of conviction.

Reversed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    JOHN HAYDEN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Track Service, Inc., Appellee).
    First District (Industrial Commission Division)
    No. 1—90—1577WC
    Opinion filed May 17, 1991.

      Michael P. Casey, of Calumet City, for appellant.
    Sweeney & Riman, Ltd., of Chicago (John P. Connolly, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, John Hayden, sought worker’s compensation for lower back and left arm injuries sustained in the course of employment with respondent, Track Service, Inc. An arbitrator awarded petitioner medical benefits and $513.33 per week for a period of 40/v weeks as temporary total disability. The arbitrator found that petitioner was not temporarily and totally disabled after May 30, 1988, when it became clear that he was unwilling to cooperate with rehabilitation efforts. The Industrial Commission (Commission) upheld that finding and the circuit court of Cook County confirmed the Commission’s decision. Petitioner appeals.

Petitioner, age 41, was hired by respondent as a structural iron-worker on August 21, 1987. Petitioner sustained an injury to his lower back and left arm on the first day of employment while riding as a passenger in the back of a pick-up truck. The truck unexpectedly struck a large ditch, and petitioner struck his lower back on a wheel cover and was hit in the left arm by a metal tool box. There is no dispute that the accident arose out of and in the course of petitioner’s employment with respondent.

On August 24, 1987, petitioner sought medical treatment at a hospital. X rays of the lumbar spine and left elbow proved negative. Petitioner’s condition was diagnosed as a contusion of the lower back and left elbow.

On August 25, petitioner was examined by Dr. Garvin, who diagnosed his condition as acute lumbar and cervical myositis and left elbow abrasion. Dr. Garvin treated petitioner with osteopathic manipulation, physical therapy, and anti-inflammatory agents.

Petitioner was next referred to Dr. Heyer, an osteopath associated with the Glenwood Medical Center. On September 28 Dr. Heyer conducted an examination of the petitioner. Petitioner underwent physical therapy for his lower back and left arm, and participated in a work-hardening program from February 2 through April 1,1988.

On February 22, 1988, petitioner was examined by Dr. Robert R Kazan, a neurosurgeon. Upon review of petitioner’s medical records, Dr. Kazan opined that petitioner had a low back pain syndrome with right leg pain. Dr. Kazan did not recommend surgery because of the very slight finding on the myelogram. Petitioner did not have a herniated disc.

On March 11, 1988, petitioner was examined by Dr. Michael Morgenstern, an orthopedic surgeon. Dr. Morgenstern’s examination indicated the following: normal gait, normal heel and toe gaits, no evidence of any muscle spasms, shifting or tilting and normal motion of the spine. Dr. Morgenstern diagnosed petitioner’s condition as a healing and musculoligamentous sprain of the lumbosacral spine and healing soft tissue trauma involving the left upper extremity. Petitioner’s subjective complaints included pain in his left elbow, left shoulder, and back of his neck as well as lower back pain with intermittent radiation of pain to his right buttock and to the back part of his thigh, ending in the midportion of his right thigh. Objective examination of petitioner was normal. Dr. Morgenstern concluded that from an orthopedic standpoint, petitioner was able to return to work.

Upon completion of the work-hardening program, Dr. Heyer released petitioner to resume employment on April 14, 1988, in any environment with the exception of unprotected heights. Dr. Heyer placed no restrictions on petitioner’s ability to lift, kneel, bend, or squat.

On May 9, 1988, petitioner was examined by Dr. I. Joshua Speigel, who performed a detailed neurological, low back and cervical spine examination on petitioner. Dr. Speigel found that petitioner’s gait and station were normal; there was moderate lumbosacral paravertebral muscular spasm; and tenderness to percussion over the spinous processes of L4, L5 and SI. Dr. Speigel concluded that the protruded intervertebral disc at L4 and L5 was nonsurgical. Dr. Speigel advised continued conservative therapy, and opined that for the foreseeable future petitioner’s low back will be at risk. Dr. Speigel recommended that petitioner do no acute back-bending, weight-lifting, protracted walking, standing, sitting or straining.

On July 5, 1988, Dr. Heyer confirmed that as a result of the work-hardening program, occupational therapy, physical therapy, medications and osteopathic manipulative therapy, petitioner showed marked improvement. Petitioner’s condition had improved to the point where he was capable of performing almost any type of employment except that of a structural ironworker. (Petitioner had experienced three sudden, severe, paralyzing psoas muscle spasms that caused him to collapse. Dr. Heyer expressed his concern that if petitioner were to return to his normal duties as a structural ironworker, he could conceivably experience an acute psoas muscle spasm while many floors above the ground, causing a fall.)

On April 25, 1989, petitioner was again examined by Dr. Morgenstern. Dr. Morgenstern concluded that petitioner needed no further medical care for his back and left arm. Like Dr. Heyer, Dr. Morgenstern found that petitioner could return to gainful employment with the condition that he could not work at unrestricted heights.

On April 5, 1988, concurrent with petitioner’s release to return to work, petitioner was referred by respondent to James Boyd of Rehabilitation Management, Inc., for job development and placement services. Petitioner had worked as a structural ironworker for the past 17 years. His college education consisted of 2xk years in the areas of marketing, management, and accounting. Petitioner served three years in the U.S. Marine Corps, during which time he sustained an injury resulting in the loss of the two middle fingers on his left hand. Prior to beginning employment as a structural ironworker, petitioner worked as a payroll clerk and personnel interviewer for United States Steel.

Boyd met with Dr. Heyer, who informed him that petitioner had been released to return to work with no specific restrictions except to avoid working at unprotected heights, which would preclude him from returning to structural ironwork. Petitioner’s previous duties as an ironworker included welding. Boyd agreed to concentrate petitioner’s initial job search to welding. However, with petitioner’s educational background and work experience at U.S. Steel, he qualified for a variety of managerial positions. Boyd assisted him in preparing a resume which was distributed to various employers.

Petitioner applied for welding positions with several companies, including Chicago Bridge & Iron, Steel Structures, and FSC Alsip. Petitioner was also interviewed by Precision Lens Grafters for an entry-level manager trainee position and was considered a very appropriate candidate.

Boyd arranged an interview for a training position with the machinists union. This union sponsored a skill-training program for severely disabled young adults. The job skills were primarily clerical in nature and involved a very individualized format. Starting salary would have been $10 per hour. Boyd considered petitioner to be an excellent candidate for this job and scheduled an interview for him. Initially, petitioner appeared very interested in this job possibility because he had always had a strong interest in teaching and coaching. On May 26, 1988, petitioner was interviewed by Jill Radke and Jan Daniels of the machinists union.

Boyd followed up with Radke and Daniels immediately after the interview. Within the first few minutes of the interview, petitioner stated that he would not be interested in the job; that he would be “bored” and would not want to take the job and then quit shortly afterward. Petitioner stated that his primary interest was in working outdoors and finding a welding job. Petitioner also indicated that he planned to return to school and complete his degree if he did not get a welding job. According to Radke, petitioner was pleasant, but made no effort to sell himself. Petitioner was also tentative about his medical status, claiming the possibility of future surgery. Under the circumstances, Radke did not consider petitioner for the position, although she believed that he would have definitely been a contender if he were interested in it.

Boyd confronted petitioner after the interview. Petitioner admitted that he told Radke that he would not take a job in which he was not interested. Petitioner intended to wait for a final hiring decision from Chicago Bridge & Iron, Steel Structures, and FSC. If an offer did not materialize, he was considering returning to school on a full-time basis to obtain his degree. Boyd asked petitioner whether he would be interested in the management trainee position with Precision Lens Grafters. Petitioner declined, stating that he would not be interested in that type of work. Boyd recommended that further rehabilitation efforts be withheld until petitioner made a commitment to pursue jobs for which he is currently qualified.

On May 31, 1988, respondent terminated petitioner’s temporary total disability because of petitioner’s failure to cooperate with placement efforts. On January 17, 1989, petitioner filed a petition under section 19(b—1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b—1)) for an emergency hearing to determine petitioner’s right to continued benefits.

On June 16, 1989, the emergency hearing was held. An arbitrator found that petitioner was temporarily totally disabled as a result of accidental injuries which arose out of and in the course of employment from the date of his injury and the date when his condition reached a state of permanency, April 14, 1988. After that point, he was entitled to temporary total disability until May 30, 1988, when it became clear that he was unwilling to cooperate with placement efforts. In total, these two time periods consisted of 403/? weeks of temporary total disability at the rate of $513 per week. Petitioner’s medical bills were also paid from the date of the accident through May 30, 1988.

The arbitrator determined that petitioner substituted his judgment for that of the physician in advising the machinists union personnel that he would be returning to structural iron work within three to six months. Based upon petitioner’s lack of cooperation with the vocational efforts of Boyd and Rehabilitation Management, temporary total disability benefits were terminated. The Commission upheld the arbitrator’s decision.

The sole issue on appeal is whether the Commission’s decision terminating temporary total disability and medical benefits because of petitioner’s unwillingness to cooperate with vocational placement was against the manifest weight of the evidence.

At the outset, we note that whether a claimant is entitled to compensation for temporary total disability generally is a question of fact, and the reviewing court will only disturb the findings of the Commission if contrary to the manifest weight of the evidence. Phillips Getschow Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 769, 527 N.E.2d 114, citing United States Steel Corp. v. Industrial Comm’n (1985), 133 Ill. App. 3d 811, 478 N.E.2d 1108.

Review of the record in this case supports the Commission’s conclusion that petitioner was no longer entitled to temporary total disability and medical benefits. An employee is totally disabled when he cannot perform any service except those for which no reasonably stable labor market exists. (Archer Daniels Midland Co. v. Industrial Comm’n (1990), 138 Ill. 2d 107, 561 N.E.2d 623; Ceco Corp. v. Industrial Comm’n (1983), 95 Ill. 2d 278, 447 N.E.2d 842; Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 427 N.E.2d 103.) Section 8(b) of the Act provides that “weekly compensation *** shall be paid *** as long as the total temporary incapacity lasts.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(b).) An employee is temporarily totally incapacitated from the time an injury incapacitates him for work until such time as he is as far recovered or restored as the permanent character of the injury will permit. (Archer Daniels, 138 Ill. 2d 107, 561 N.E.2d 623; McKay Plating Co. v. Industrial Comm’n (1982), 91 Ill. 2d 198, 437 N.E.2d 617; Brinkmann v. Industrial Comm’n (1980), 82 Ill. 2d 462, 413 N.E.2d 390.) Thus, once an injured employee’s physical condition stabilizes, he is no longer eligible for temporary total disability benefits.

In this case, sufficient evidence exists to support the Commission’s finding that petitioner’s condition had reached a state of permanency by the time he was released to return to work by Dr. Heyer on April 14, 1988. Dr. Heyer, petitioner’s treating physician, placed no restrictions on petitioner’s ability to lift, kneel, bend or squat. After examining petitioner on March 11, 1988, and again on April 25, 1989, Dr. Morgenstern found that petitioner could return to gainful employment with the condition that he could not work at unrestricted heights. Similarly, Dr. Kazan’s examination indicated that petitioner did not require surgery and that he did not have a herniated disc. Although Dr. Speigel’s opinion conflicts with that of Dr. Heyer with respect to petitioner’s limitations and inability to do acute back-bending, weight-lifting, protracted walking, standing, sitting or straining, it is the province of the Commission to resolve disputed questions of fact, resolve conflicts in the evidence, and draw reasonable inferences from the evidence. Board of Education v. Industrial Comm’n (1983), 96 Ill. 2d 239, 449 N.E.2d 839.

At the emergency hearing, petitioner testified that his current activities on a day-to-day basis include getting his four sons (ages 15 through 3) ready for school, and that he took care of his youngest son during the day with some assistance from his wife’s parents. Petitioner’s wife was a school teacher. Petitioner also loaded the washing machine, prepared dinner, cleaned the garage, and performed minor electrical work around the house as part of his day-to-day activities.

Petitioner played basketball on several occasions between August 21, 1987, and March 15, 1988. Petitioner also coached basketball in April and May of 1988, and coached Little League baseball from May through July 1988.

We conclude that the medical testimony of Drs. Kazan, Heyer and Morgenstern, as well as petitioner’s own testimony as to the household duties he was able to perform and participation in sports activities, are sufficient to establish that the Commission was correct in concluding that he was no longer entitled to temporary total disability because his condition had reached a state of permanency.

Next, we turn to petitioner’s contention that the Commission’s finding of a lack of cooperation regarding placement was based solely on his statements to Jill Radke at the machinists union interview. Petitioner told Radke that he was not completely satisfied with office work and found it rather “boring”; that he was unable to type because he lost two fingers while in the military; and that he would leave the position if another construction job became available.

We find ample additional evidence, however, that petitioner was unwilling to cooperate with vocational placement efforts. In addition to expressing no interest in the machinists union training position, he declined to pursue the manager trainee position with Precision Lens Grafters. Petitioner’s only medical restriction, that he not work at unprotected heights, did not preclude him from accepting any of these positions for which he was qualified. We also note that the training position at the machinists union paid a comparable salary to the welding positions that petitioner hoped to secure.

At the emergency hearing, petitioner testified that he had not been doing anything lately to secure a job, and that his last job contact was in February 1989. Petitioner was not currently enrolled in any school program. Petitioner also stated that he did not submit any employment applications or seek employment during August through December of 1988.

We agree with the Commission’s determination that petitioner’s absence of good faith in cooperating with the vocational rehabilitation efforts justified respondent’s termination of his temporary total disability benefits. In attempting rehabilitation of the injured employee, the Commission should establish boundaries which reasonably confine the employer’s responsibility including a requirement that the claimant make good-faith efforts to cooperate in the rehabilitation effort. Archer Daniels Midland Co. v. Industrial Comm’n (1990), 138 Ill. 2d 107, 561 N.E.2d 623, citing National Tea Co. v. Industrial Comm’n (1983), 97 Ill. 2d 424, 454 N.E.2d 672.

For the foregoing reasons, the judgment of the circuit court of Cook County finding that the decision of the Commission is not against the manifest weight of the evidence is affirmed.

Judgment affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: JUSTICE DiVITO

text:
    HYON WASTE MANAGEMENT SERVICES, INC., Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2242
    Opinion filed May 21, 1991.
    Rehearing denied June 18, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Ruth M. Moscovitch, and Mardell Nareim, Assistant Corporation Counsel, of counsel), for appellant.
    J. Barton Kalish & Colleagues, of Chicago (J. Douglas Weingarten, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Hyon Waste Management Services, Inc. (Hyon), filed suit in the circuit court of Cook County pursuant to 42 U.S.C. §1983 (1988) against the City of Chicago (the City), alleging that the City violated its right to procedural due process by sealing its hazardous waste incinerator without prior notice or hearing. After the circuit court granted summary judgment to Hyon on the issue of liability, a jury awarded Hyon $3,797,000 in damages and the court entered judgment upon this amount. The City appeals both the grant of summary judgment and the jury’s award of damages, raising as issues (1) whether Hyon’s complaint for the alleged violation of due process was barred by the five-year statute of limitations; (2) whether Hyon had a protected property interest in operating its incinerator and whether the City deprived Hyon of this interest without due process; (3) whether the City can be held liable for the decision of the Commissioner of the Department of Environmental Control (the Commissioner) to seal Hyon’s incinerator; (4) whether the jury was properly instructed on the issue of damages; and (5) whether the jury’s verdict is supported by the evidence.

In 1970, Hyon leased land in Chicago in order to build a hazardous waste incinerator. In 1972, the City issued Hyon an installation permit and Hyon thereafter operated its incinerator until 1977.

During this period of operation, the Hyon waste facility experienced a number of problems. In May 1972, 4,300 gallons of sulfuric acid spilled onto the ground at Hyon. In October 1972, Hyon acknowledged to the City that strong, objectionable odors were emanating from the facility. In December 1972, an oil spill at the facility caused oil to run into Lake Calumet. Because of structural problems during construction, the incinerator could not operate during most of 1973 and 1974. During 1973 and 1975, Hyon used biological effluent, rather than lake water, in the incinerator scrubber, which caused the incinerator stack to produce odors. In June 1976, the City’s Department of Environmental Control (the Department) spread bleach onto the biobeds at Hyon because of problems with a skunk-like chemical odor coming from Hyon.

Due to the number of regulatory problems at the Hyon facility, the Department issued a notice of violation in July 1976. The notice stated that Hyon had violated the City’s environmental control ordinance by emitting noxious odors and smoke, and operating in an unsafe condition. It ordered Hyon to cease accepting any waste, to begin the cleanup of the facility by lowering the levels of liquid in basins and tanks, to remove all drums containing wastes, and to refrain from operating the rotary kiln incinerator. The notice warned that failure to comply within 10 days would result in the revocation of all permits.

On August 3, 1976, two inspectors from the Department examined Hyon’s facility. Based upon the notice of violation and the inspector’s subsequent report revealing lack of compliance, the Commissioner of the Department notified Hyon that all permits were revoked as of August 4,1976.

After the August 4, 1976 revocation, Hyon’s officers met with members of the Department staff, and on August 20, 1976, Hyon proposed an improvement schedule which would allow Hyon to reopen and continue to operate. On August 25, 1976, Hyon appealed the Department’s revocation of all of Hyon’s permits to the Department appeal board. On September 1, 1976, while the appeal was pending, Hyon and the Department entered into an agreement settling the appeal.

The agreement required Hyon to reduce its drum storage at the facility to 1,000 by October 31, 1976, and to keep the inventory at or below 1,000 drums. The agreement further stipulated that the drums stored at the Hyon facility were to have their contents clearly marked on the outside and that Hyon was to construct a drum storage area by November 15, 1976. In addition, Hyon was required to take immediate steps to eliminate odors, to stop accepting wastes if it was unable to correct the odor problems, and to operate the plant so as not to create environmental problems. Installation permits would be issued to Hyon for a period of 90 days at which time field inspection reevaluation would be made prior to issuance of a certificate of operation. If Hyon did not meet the requirements of the agreement, the Department could order Hyon to stop receiving wastes.

On September 10, 1976, the Department sent Hyon a telegram stating that Hyon was the source of objectionable skunk-like odors reported by citizens and that, pursuant to the agreement, Hyon must eliminate those odors immediately. Later, on October 4, 1976, the Commissioner wrote to Hyon stating that when he had visited the facility he had been “unhappy” about the odors still lingering there. On October 5, 1976, the Department issued Hyon a citation for producing smoke. Again, on October 22, 1976, and on November 18, 1976, Hyon was issued citations for smoke emissions which did not meet environmental standards.

During October 1976, Hyon and the Department met to discuss ways in which Hyon could eliminate its odor problem; Hyon proposed a program on October 15, 1976, which was unsatisfactory to the Department. On October 19, 1976, the Commissioner wrote to Hyon stating that Hyon had failed to take sufficient positive steps to eliminate odors; in his letter, the Commissioner ordered Hyon to stop accepting wastes pursuant to the agreement. On October 21, 1976, the Commissioner revoked Hyon’s biological waste treatment installation permit. Hyon appealed the revocation, and on November 10, 1976, the Department’s appeal board upheld the revocation, stating that Hyon’s odors violated City ordinances.

On December 7, 1976, the Commissioner informed Hyon that its installation permits would expire on December 14, 1976, and that operation after that date would violate the Municipal Code of Chicago. On December 13, 1976, Hyon sent a telegram to the Commissioner requesting operating permits pursuant to the September 1, 1976, agreement. Although Hyon did not receive a permit to operate, it continued to operate its incinerator and received several citations from the Department for operating its incinerator without a permit.

On January 3, 1977, the Department inspected the Hyon facility in accordance with the September 1, 1976, agreement. The inspection stated that Hyon was not complying with the agreement: approximately 300 drums were not marked with their contents; a drum storage area was not built; and, although Hyon had no permits, it was operating its incinerator one week per month and was still receiving burnable waste.

On January 5, 1977, the Department informed Hyon that it was denying operating permits because Hyon had no effective means of controlling the smoke and odors emanating from its facility. Hyon did not appeal the Department’s decision to the appeal board. On January 11, 1977, the Department sealed Hyon’s incinerator and ordered Hyon to stop using it.

On January 21, 1977, Hyon filed a chancery action in the circuit court of Cook County seeking injunctive relief from the seal. When the circuit court denied Hyon a preliminary injunction, Hyon appealed, and the appellate court reversed and directed the circuit court to issue a preliminary injunction pending the City’s compliance with the notice and hearing provisions of section 17—2.56 of the Municipal Code of Chicago. (Hyon Waste Management Services, Inc. v. City of Chicago (1977), 53 Ill. App. 3d 1013, 369 N.E.2d 179.) On December 28, 1977, the seal was removed.

On April 14, 1982, Hyon filed a civil rights action under 42 U.S.C. §1983 (1988) against both the City and the Commissioner of the Department. The City filed a motion to dismiss the complaint because it was filed after the five-year statute of limitations had run; however, on September 13, 1982, Judge Thomas O’Brien denied the City’s motion to dismiss.

On May 17, 1983, Hyon filed a motion for summary judgment on the issue of liability which was granted by Judge Myron Gomberg on January 20, 1984. Thereafter, the City filed a motion to vacate the summary judgment against it based upon recent case law that there was no right to procedural due process unless a plaintiff shows that it has a constitutionally protected property interest. (See Superdawg Drive-In, Inc. v. City of Chicago (1987), 162 Ill. App. 3d 860, 516 N.E.2d 272.) On February 23, 1988, Judge Gomberg vacated summary judgment against the City. In so ruling, Judge Gomberg stated that he could not find that Hyon had a property interest because its permits had expired in December 1976, prior to the sealing of the incinerator.

On March 10, 1988, the City filed a motion for summary judgment and, in response, Hyon filed for partial summary judgment on the issue of liability. On April 13, 1988, Hyon filed a motion to amend its complaint to include a claim that the City violated its due process rights by refusing to issue a certificate of operation on January 5, 1978. On April 21, 1988, Judge Walter Kowalski granted Hyon leave to file its amended complaint. The City then filed a motion to dismiss the amended complaint as time barred by the statute of limitations.

On May 26, 1988, Judge Kowalski denied the City’s motion to dismiss the amended complaint, denied the City’s motion for summary judgment, and granted Hyon partial summary judgment on the issue of liability.

On March 16, 1989, after a trial on the issue of damages, a jury returned an award for Hyon of $3,797,000.

It is from this award of damages and from the circuit court’s grant of summary judgment on the issue of liability that the City appeals.

I

The City initially argues that Hyon’s section 1983 claim is barred by the five-year statute of limitations. Specifically, the City contends that the alleged due process violation took place on January 11, 1977, and Hyon’s suit for damages under section 1983 was instituted on April 14, 1982, more than five years after the violation.

In Illinois, the “purpose of a statute of limitations is certainly not to shield a wrongdoer; rather it is to discourage the presentation of stale claims and to encourage diligence in the bringing of actions.” (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 137, 334 N.E.2d 160.) Generally, a limitations period begins “when facts exist which authorize one party to maintain an action against another.” (Davis v. Munie (1908), 235 Ill. 620, 622, 85 N.E. 943. See Kozasa v. Guardian Electric Manufacturing Co. (1981), 99 Ill. App. 3d 669, 673, 425 N.E.2d 1137.) Thus, a plaintiff’s cause of action accrues at the time its interest is invaded; the mere fact that the extent of its damages is not immediately ascertainable does not postpone the accrual of a plaintiff’s claim. Del Bianco v. The American Motorists Insurance Co. (1979), 73 Ill. App. 3d 743, 747, 392 N.E.2d 120.

Where a tort involves a continuing or repeated injury, however, the statute of limitations does not begin to run until the date of the last injury or when the tortious acts cease. (City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 364, 300 N.E.2d 331.) A continuing violation, however, is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation. (Ward v. Caulk (9th Cir. 1981), 650 F.2d 1144.) Moreover, “where there is but one overt act from which subsequent damages may flow, it is held that the statute begins to run on the date the defendant invaded the plaintiff’s interest and inflicted injury, and this is so despite the continuing nature” of the injury. Austin v. House of Vision, Inc. (1968), 101 Ill. App. 2d 251, 255, 243 N.E.2d 297.

In the instant case, the City maintains that the single act of sealing the incinerator does not comprise a “continuous” injury to Hyon. In support of its contention that Hyon’s cause of action accrued at the moment its incinerator was sealed, the City relies upon several cases: Ward v. Caulk (9th Cir. 1981), 650 F.2d 1144; Pontarelli Limousine, Inc. v. City of Chicago (N.D. Ill. 1989), 704 F. Supp. 1503; Illinois National Bank & Trust Co. v. City of Rockford (1950), 406 Ill. 11, 92 N.E.2d 166; Kozasa v. Guardian Electric Manufacturing Co. (1981), 99 Ill. App. 3d 669, 673, 425 N.E.2d 1137 (“The statute of limitations begins to run when facts exist which authorize the bringing of an action”); and Austin v. House of Vision, Inc. (1968), 101 Ill. App. 2d 251, 255, 243 N.E.2d 297 (“where there is but one overt act from which subsequent damages may flow, *** the statute begins to run on the date the defendant invaded the plaintiff’s interest”).

In Pontarelli, a limousine company sued the City of Chicago for depriving them of their livery license without due process; the company asserted that the City’s violation continued until the City allowed them to use a dispatch booth. The court, however, found that “the plaintiff’s claim that the system deprived them of property *** without due process of law clearly accrued on the date the livery dispatch system prohibiting them from using the dispatch booths went into effect.” (Pontarelli Limousine, Inc. v. City of Chicago, 704 F. Supp. at 1510.) The court further held that “the loss of a property right accrues at the moment the property right is lost.” Pontarelli Limousine, Inc. v. City of Chicago, 704 F. Supp. at 1510.

The City also relies upon Illinois National Bank & Trust Co. v. City of Rockford (1950), 406 Ill. 11, 92 N.E.2d 166, for the proposition that damages are ascertainable on the date of the discreet act. In Illinois National Bank, the plaintiff brought suit for damages resulting from the loss of use of property abutting a public alley. The defendant city had raised the grade of the surrounding streets, but not the alley, thereby prohibiting any traffic into the alley. The plaintiff argued that the suit was not barred by the statute of limitations because the city’s failure to keep the alley in use was a continuing violation. The court disagreed, holding that the damage occurred when construction was completed. Illinois National Bank v. City of Rockford (1950), 406 Ill. 11, 23, 92 N.E.2d 166.

In Ward v. Caulk (9th Cir. 1981), 650 F.2d 1144, the plaintiff brought a suit for damages against his former employer, alleging numerous statutory and constitutional violations. He argued that the subsequent harm (16 months of unemployment) was due to the defendant frustrating his job effort and, thus, was a continuing violation. The court, however, held that continuing nonemployment resulting from an original action was not a continuing violation; “[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Ward v. Caulk, 650 F.2d at 1147.

In response, Hyon argues that the City’s violation of its due process was a continuing violation which did not end until December 1977, when the City removed the seal. Hyon maintains that the circuit court properly held the due process violation to be a continuing violation when it stated:

“My ruling was that the conduct of the City on January 5th by refusing to issue a operating permit without any type of theory and, then, subsequently closing or sealing the Hyon Waste Management incinerator was really part and parcel of one continuing violation of due process, one act.”

Notwithstanding the City’s contention that the alleged violation was not continuing, Hyon argues that the act of sealing its incinerator was not a separate and completed wrong but simply the first step in a course of wrongful conduct that continued until the seal was removed. (See Taylor v. Meirick (7th Cir. 1983), 712 F.2d 1112.) For support, Hyon relies upon Poe v. Lynchburg Training School & Hospital (W.D. Vir. 1981), 518 F. Supp. 789, 794 (“[sjince the alleged deprivation is of a continuing nature, the action *** is obviously not time barred”); Hampton v. Hanrahan (N.D. Ill. 1981), 522 F. Supp. 140, 143 (“[wjhere the conspiracy is ‘continuous’ the limitations period does not begin to run until the final overt act causing injury is completed”); and City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 364, 300 N.E.2d 331 (“[w]here a tort involves a continuing or repeated injury, the statute of limitations does not begin to run until the date of the last injury or when the tortious acts cease”).

In Rock Falls, the defendant city and its mayor had continuously engaged in various acts of tortious interference with the utilization of plaintiff’s property over a period of three years. Accordingly, the court held that the violation of plaintiff’s rights was a continuing violation that did not cease until the date of the last injury or when the tortious acts ceased. City of Rock Falls v. Chicago Title & Trust Co., 13 Ill. App. 3d at 364.

In both Poe and Hampton, the courts held that the statute of limitations did not begin to run until continuing wrongs ceased. In Hampton, the court held that the continuing wrong consisted of three conspiracies, the first was the carrying out of a raid, and the other two were cover-ups of the raid. (Hampton v. Hanrahan (N.D. Ill. 1981), 522 F. Supp. 140.) In Poe, the continuing violation was the failure of the defendant to notify the plaintiffs of their involuntary sterilization. Poe v. Lynchburg Training School & Hospital, 518 F. Supp. 789.

In the instant case, by contrast to those cases offered by Hyon, the City sealed Hyon’s incinerator only once. Rather than a series of acts, the act of sealing the incinerator was a single, discreet event. Although Hyon attempts to portray the sealing of the incinerator as a continuous violation, we find that any alleged damages resulting from the City’s act were instead continued ill effects from a single alleged due process violation. Because a continuing violation is occasioned by continuing unlawful acts and not from the continued ill effects from an initial violation, Hyon’s complaint, filed more than five years after the City sealed its incinerator, is time barred.

II

Notwithstanding our disposition of the first issue, we find it salutary to address the City’s contention that Hyon did not have a protected property interest in operating its incinerator. Specifically, the City maintains that Hyon did not have a valid operating permit or a valid expectation of one. Accordingly, the City argues that Hyon did not have a protected property interest in receiving a permit to operate or in operating its incinerator. See Kraft v. Jacka (9th Cir. 1989), 872 F.2d 862.

As a threshold requirement to a due process claim, the plaintiffs must demonstrate that they have a protected property or liberty interest. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 569-72, 33 L. Ed. 2d 548, 556-58, 92 S. Ct. 2701, 2705-06.) These property rights are “not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ***.” (Board of Regents v. Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.) “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Board of Regents v. Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.) Accordingly, procedural protection of property “is a safeguard of the security of interests that a person has already acquired in specific benefits.” Board of Regents v. Roth, 408 U.S. at 576, 33 L. Ed. 2d at 560, 92 S. Ct. at 2708.

In the instant case, the City maintains that Hyon never acquired the permits necessary to operate an incinerator and, thus, has no expectation or interest in such a permit. Consequently, the City’s refusal to grant an operating permit and its seal on the incinerator do not violate Hyon’s property interest.

For support, the City relies upon La Salle National Bank & Trust Co. v. City of Chicago (1984), 128 Ill. App. 3d 656, 470 N.E.2d 1239 (holding that a permit to connect to municipal sewers is a license but not a vested right), and Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564, 415 N.E.2d 1290 (an occupational license conferred by the Illinois Racing Board constitutes a property interest). The City distinguishes the cases it cites from the instant case by arguing that, in the instant case, Hyon never held a permit to operate.

In the instant case, Hyon operated its incinerator, albeit without an operating permit, against the provisions of the agreement with the City. Moreover, based upon the agreement that it had with the City, Hyon had no expectation of receiving operating permits for its facility unless it complied with the terms of the agreement. (See Reed v. Village of Shorewood (7th Cir. 1983), 704 F.2d 943; Ciechon v. City of Chicago (7th Cir. 1982), 686 F.2d 511.) Consequently, because Hyon was unable to comply with the agreement and because the Department notified Hyon of its noncompliance, Hyon did not have a protected property interest within the purview of the constitution in operating its facility.

The September 1, 1976, agreement between the Department and Hyon stipulated that Hyon was required to reduce its drum storage to 1,000 and clearly mark the drums with their contents; the agreement further stipulated that Hyon was to take immediate steps to eliminate odors, to stop accepting wastes if it was unable to correct its odor problems, and to operate the plant so as not to create environmental problems. The agreement also provided that installation permits would be issued to Hyon for 90 days, after which an inspection would be made prior to the issuance of an operating permit; if Hyon failed to comply with the agreement, the City could order it to stop accepting wastes.

Despite the clear mandates of the agreement, Hyon was unable to comply. Numerous citations were issued to Hyon for violating environmental standards; further, Hyon continued to accept wastes and burn wastes in its incinerator notwithstanding its lack of an operating permit.

On January 3, 1977, the City inspected Hyon’s facility in accordance with the agreement, and on January 5, 1977, the City informed Hyon that it was denying operating permits because Hyon had no effective means to control the smoke and odor problems.

We therefore find that Hyon has not demonstrated that it has a protected property interest in operating its incinerator. The agreement between the City and Hyon clearly stipulated that, prior to issuance of any permits of operation, Hyon must comply with all the terms of the agreement. Because Hyon failed to comply with the terms and because Hyon was made aware of its noncompliance, Hyon did not have a “legitimate claim of entitlement” in receiving a permit to operate or in operating its incinerator.

Although the City presents several other issues for our review, our determination that the action is barred by the applicable statute of limitations and that Hyon did not have a protected property interest is dispositive of this appeal. It is therefore unnecessary to address the additional issues raised.

The judgment of the circuit court of Cook County is reversed and remanded with directions to dismiss the cause.

Reversed and remanded with directions.

SCARIANO, P.J., and HARTMAN, J., concur.

       The Municipal Code of Chicago provides that an installation permit allows the installation, construction, or alteration of an incinerator; however, a certificate of operation is necessary to allow its operation. See Municipal Code of Chicago, ch. 17, §§17— 2.28,17-2.42.

       The Commissioner was later dismissed as a defendant pursuant to Hyon’s motion.

       At the time of the commencement of this suit, the applicable statute of limitations for section 1983 actions was five years. See Beard v. Robinson (7th Cir. 1977), 563 F.2d 331, 336-38.