author: JUSTICE NASH

text:
    SONJA I. JAMES, Plaintiff-Appellee, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellants.
    Second District
    No. 82—948
    Opinion filed November 15, 1983.

      Neil E Hartigan, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellants.
    Roger C. Herdrich, of Georges & Herdrich, of Naperville, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendants, the Illinois Department of Labor and its Board of Review, appeal from a judgment of the circuit court which, on administrative review, reversed the decision of the Board that plaintiff, Sonja James, was ineligible for unemployment insurance benefits. Defendants contend that the determination of the Board that plaintiff’s principal occupation was as a student, thus disqualifying her from benefits, was not against the manifest weight of the evidence.

Plaintiff was employed by the Associates in Adolescent Psychiatry, S.C. (Associates), from April 1977 until December 9, 1980, when she was discharged. Plaintiff’s claim for unemployment insurance benefits for the period December 14 through December 27, 1980, was denied by a claims adjudicator on the grounds she was ineligible under section 500(CX4) of the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 420(C)(4)) as her principal occupation was as a student. Plaintiff appealed from that determination and, after a hearing, a department referee reached the same conclusion. On further appeal to the Board of Review of the Department of Labor the decision of the referee was affirmed. On administrative review, however, the circuit court reversed the decision of the Board of Review and defendants appeal to this court.

We find that the decision of the Board of Review was not against the manifest weight of the evidence considered by it and reverse the judgment of the circuit court.

Section 500(C)(4) of the Unemployment Insurance Act provides:

“An individual shall be deemed unavailable for work with respect to any week which occurs in a period when his principal occupation is that of a student in attendance at, or on vacation from, a public or private school.” Ill. Rev. Stat. 1981, ch. 48, par. 420(C)(4).

The evidence disclosed that plaintiff had been employed by Associates as a psychological consultant for 3x/2 years prior to her discharge. In September 1979, she executed an employment agreement which provided she would work 20 hours each week for an annual salary of $12,437.50. The agreement also required plaintiff to enter a full-time program of study leading to a doctoral degree in psychology and thus eligible to become a registered psychologist in this State. By December 9, 1980, when she was discharged, plaintiff had completed lx/3 years of doctoral studies with the Illinois School of Professional Psychology and her annual salary with Associates had increased to $14,000.

For her salary, plaintiff testified she spent six hours each week in the Associates’ offices during which she conducted psychological tests. She also spent approximately 10 hours each week in her own home evaluating the results of the tests and an additional three to five hours per week counseling clients on an outpatient basis. In all, approximately 16 to 20 hours each week was directed towards plaintiff’s employment with Associates.

During the weeks for which benefits were sought, plaintiff was on vacation between semesters of her educational program. In the fall semester of 1980, preceding her discharge, plaintiff was enrolled in three courses in her doctoral studies (the school considered four courses to be full-time enrollment), which required her to attend class for three hours on two evenings each week. She was also required to undertake an on-the-job clinical training program in a Chicago hospital from 9 a.m. to 4 p.m. each Monday and Wednesday. In addition to the 18 — 20 hours in which she attended class and engaged in on-the-job training at the hospital, plaintiff spent six to eight hours each week studying for her educational program; the necessary study periods extended to six hours each Saturday and Sunday towards the end of a term. Following the between semesters break, plaintiff resumed her studies in January 1980 on the same educational program and time schedule. After being discharged from Associates, plaintiff talked to a couple of psychiatrists and the operator of the treatment center regarding employment.

Plaintiff advised the claims adjudicator she was a full-time student; that her employment must be flexible in order to accommodate the requirements of her educational program; and, that her former employer had required that she go to school on a full-time basis and work half-time. Before the referee, plaintiff testified that she needed a doctorate in order to get a better job in her profession.

In Illinois, the receipt of unemployment insurance benefits is a conditional right and the burden of proving eligibility before the Board of Review rests with the claimant. (Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 892, 414 N.E.2d 1244.) On review of an administrative decision, the function of a court is limited to ascertaining whether the findings of fact were sustained by the evidence. We will not substitute our judgment for that of the administrative body or disturb its findings unless they are manifestly against the weight of the evidence. (Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 104, 390 N.E.2d 333.) To be eligible for benefits, an unemployed person must be available for work. Generally, availability means the claimant is ready and willing to accept suitable work (Stricklin v. Annunzio (1952), 413 Ill. 324, 109 N.E.2d 183), and such availability depends upon the facts and circumstances of each case. Kocourek v. Bowling (1981), 96 Ill. App. 3d 310, 315-16, 421 N.E.2d 397.

In the administrative hearings, in the circuit court and on review here, plaintiff has argued she is principally occupied as a professional in the field of psychology in which she earned substantial income. She contends that as the time requirements for both employment and continued education in her profession are flexible, she was available for work as required by the Act and eligible for unemployment benefits. The legislature, however, has considered the common circumstance of a claimant who is or has been employed on a part-time basis while attending school and has unambiguously declared that a person who is principally occupied as a student shall be deemed unavailable for employment. (Ill. Rev. Stat. 1981, ch. 48, par. 420(C)(4).) The dispositive question considered by the Board of Review, and presented in this appeal, is not just whether plaintiff was available for work as required by section 500(C) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 420(C); see, e.g., Kocourek v. Bowling (1981), 96 Ill. App. 3d 310, 421 N.E .2d 397; Rosenbaum v. Johnson (1978), 60 Ill. App. 3d 657, 377 N.E.2d 258) and the Board focused, correctly in our view, upon whether plaintiff must be deemed unavailable for work as a person whose principal occupation is as a student as is provided in section 500(CX4) of the Act.

The. evidence demonstrates plaintiff was employed on a part-time basis prior to her discharge and during that period was enrolled in an almost full-time educational program. The time requirements of plaintiff’s employment were less than those necessary to her studies. Plaintiff acknowledged that the requirements of any employment must necessarily be subordinated to and be flexible enough to permit meeting her class schedules; here, that included most of each Monday and Wednesday. The fact plaintiff was able to engage in part-time work in her field while attending school does not require the conclusion urged by her that she was primarily associated with her employment. As the Board of Review found, plaintiff’s employment during the period since she began the doctoral program was geared around and subservient to her educational program.

We conclude the decision of the Board of Review that plaintiff’s principal occupation in the period for which she sought unemployment benefits was as a student is not against the manifest weight of the evidence. The contrary judgment of the circuit court will be reversed.

Judgment reversed.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARON TOWNSEND, Defendant-Appellant.
    First District (4th Division)
    No. 82—1805
    Opinion filed November 17, 1983.
    James J. Doherty, Public Defender, of Chicago (Richard E. Cade, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jane E. Liechty, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Sharon Townsend, was charged with battery and the case proceeded to trial by jury. On May 5, 1982, after the jury had been impaneled, but prior to presentation of any opening remarks, defendant’s motion for a mistrial was granted. On May 6, 1982, defendant’s motion to bar the reprosecution of the case was denied. Defendant brings this interlocutory appeal of the trial court’s ruling of May 6, 1982. The sole issue on appeal is whether the double jeopardy clause bars reprosecution of defendant where the first trial was terminated on defendant’s motion at the point in time indicated.

We affirm.

The facts are undisputed and may be summarized as follows: On May 17, 1981, defendant was charged by complaint with battery. Following a demand for a jury trial, a jury was selected and sworn on May 4, 1982. The following day, the jurors assembled in the jury room prior to the start of trial. One of the jurors arrived after the others. Several uniformed police officers, a plain-clothes officer and two assistant public defenders were standing in the corridor outside the jury room. The juror asked, “Where does the jury go?” In response, one of the uniformed officers asked, “Are you a juror?” The juror answered, “Yes.” The officer directed her to the jury room and as she opened the door the officer said, “Remember, guilty.” The plain-clothes officer also shouted “guilty” to the juror as she entered the room. Defense counsel apprised the court of the incident. Following a brief discussion, the court indicated that it would not declare a mistrial sua sponte, since no prejudice was shown, but would grant one on defendant’s motion. Defendant then made a motion which was granted and the jury was discharged.

The cause was rescheduled to proceed the following day, May 6, 1982. On that date, defendant made a motion to bar reprosecution on the ground that double jeopardy had attached. Following argument on the motion, the court found that there was no prosecutorial misconduct or overreaching and defendant’s motion for a double jeopardy discharge was denied.

On defendant’s motion, the trial court allowed a continuance to afford defendant the opportunity to seek appellate review of the ruling. Defendant contends that it is error for the trial court to allow a second prosecution. She argues that the police officers and the prosecution share a respondeat superior relationship and that the officers’ comments to the juror were intended to provoke a mistrial. Further, under the ruling of Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 1083, a defendant may invoke the bar of double jeopardy where the conduct giving rise to the mistrial was intended to provoke the defendant into moving for a mistrial.

Defendant stresses the agency theory in arguing that the State must be held accountable for the actions of the police officers which denied her the right to be judged by the first jury sworn to hear the cause. Further, as a result of the action of the State, she lost the right to control the progress of the cause.

Our reading of Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, does not support defendant’s contention. In that case, the United States Supreme Court reiterated the constitutional guarantee against repeated prosecutions for the same offense. The double jeopardy clause does not guarantee that the State will vindicate its societal interest in enforcing criminal laws in a single proceeding. (456 U.S. 667, 672, 72 L. Ed. 2d 416, 422, 102 S. Ct. 2083, 2087.) There are limitations on the defendant’s right to invoke the bar against double jeopardy.

As a general rule, where it is the defendant who elects to terminate the proceedings, there is no bar to retrial. There is a narrow exception to this rule. In those instances where the actions of the prosecutor are designed to force the defendant into seeking a mistrial, the defendant may successfully invoke the bar against double jeopardy.

The standard enunciated in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, requires the court to make a finding of whether the prosecutorial conduct complained of was intended to subvert the protections afforded by the double jeopardy clause. (456 U.S. 667, 675, 72 L. Ed. 2d 416, 423-24, 102 S. Ct. 2083, 2088-89.) This may be done by drawing inferences from objective facts, a process common to our courts. (456 U.S. 667, 675, 72 L. Ed. 2d 416, 423-24, 102 S. Ct. 2083, 2088-89.) Thus, in order to invoke the bar against retrial, the defendant must prove that the prose-cutorial misconduct was intended (emphasis added) to cause defendant to seek a mistrial.

In this case, in order for the bar against double jeopardy to be invoked, the conduct of the police officers would have to be imputed to the prosecutor. In a general sense, police officers are officers of the State, as are prosecutors. However, in this case, the police officers responsible for making the remarks to the juror were not involved in the prosecution of defendant’s case.

The facts show that the police officers in question happened to be standing outside the jury room when the remarks were made. The prosecutors who were involved in the case were not present and did not learn of the incident until later.

We believe that the reasoning of the court in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, regarding prosecutorial misconduct which gives rise to a defendant’s motion for a mistrial, refers to those who are actually involved in the prosecution of the particular case. The language used in the opinion itself makes frequent and specific reference to “the prosecution” or “the prosecutor.” It is clear that standard is not applicable to agents of the State in general. Second, logic suggests that the standard must be limited to those involved in the prosecution of the case in question, since the purpose of the rule is to prevent prosecutors from goading a defendant into seeking a mistrial and then getting a second chance to prosecute.

In this case, the occurrence which caused defendant to seek a mistrial had nothing to do with those actually involved in prosecuting the case. We believe the facts show that this case does not fall into that narrow category of cases in which prosecutorial misconduct bars retrial. To adopt defendant’s argument would be to expand the rule beyond the guidelines enunciated in Oregon v. Kennedy.

Accordingly, we hold that the bar against double jeopardy does not apply in this case. Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI, P.J., and LINN, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL J. AHERN, Defendant-Appellant.
    First District (5th Division)
    No. 82—2787
    Opinion filed October 14, 1983.
    Rehearing denied December 13,1983.

      Terrence E. Leonard, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Kip R. Owen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial the defendant, Michael J. Ahern, was convicted of driving under the influence of intoxicating liquor and improper lane usage (Ill. Rev. Stat. 1981, ch. 95 1/2, pars. 11 — 501(a), 11 — 709(a)), and fined in the sum of $100 and $35 respectively. He appeals, contending that the evidence was not sufficient to sustain the convictions, that the statutes allowing him the right to refuse a breath test and then allowing the admission of that refusal into evidence in a criminal prosecution against him are in violation of the Illinois Constitution, and that the admission into evidence that he refused to take a breath test was erroneous and requires reversal.

The defendant was arrested on July 22, 1982, at 12:30 a.m., near the intersection of Waukegan Road and East Lake Avenue in Glen-view, Illinois. Police officer Donald Hohs testified that he was driving eastbound on the four-lane highway of East Lake Avenue when he saw the defendant emerge from the right lane of Wagner Road and make a wide, right turn into the inner westbound lane of East Lake Avenue. The officer turned his squad car around and drove in a westerly direction behind the defendant for eight blocks. He saw the defendant cross the lane markings in the two westbound lanes about eight times without activating his turn signal, and at times straddle both of the lanes. At one point the defendant crossed the double-yellow center line into the eastbound lane of the highway. When the defendant approached a raised median strip, he drove onto it and then swerved his car back into the inner westbound lane. At this time, the officer activated his emergency lights and the defendant then turned southbound into Waukegan Road and stopped. The officer stated that the defendant traveled within the posted speed limits at all times.

When the officer asked defendant for his driver’s license, he detected a strong odor of an alcoholic beverage. He then asked the defendant to step out of the car, noting that defendant swayed forward as he did so. He asked defendant if he had been drinking, and he replied “a couple.” The defendant was then asked to walk heel to toe to the rear of the squad car, a distance of seven to 10 feet, and to walk back. When the defendant tried he appeared unsure and swayed. Then the officer asked the defendant to get into the squad car, and the defendant requested the officer to give him “a break.” The defendant was also indecisive when he was asked if he would like his car parked or towed, so the officer ordered it towed.

At the station, the officer asked the defendant questions on an alcohol influence report form. The defendant told him he had eaten a sausage pizza at 8:30 p.m. the evening before, had slept for two hours, and had several beers between 11 p.m. and 12:30 a.m., but that he knew what he was doing. The defendant then took a finger-to-nose test, but refused to take a breathalyzer test. The officer stated that the defendant’s speech was “thick-tongued,” and that in his opinion the defendant “was in a state of intoxication where he should not operate a motor vehicle properly.”

For the defense, Lynn Schmidt testified she is a member of a softball team which the defendant managed and played on. The team members had met to play a game, but the game was cancelled because of rain. Therefter, they went to the Willow Inn, the sponsors of their team. There she saw the defendant drink several beers at the bar while he watched a ball game on television. Thereafter, the defendant left, and later called them to say he had been arrested for drunken driving. The team then put up money for his bail, and she and her husband drove to the station. She said there was nothing unusual about the defendant’s appearance after his release and that they then drove him home. She admitted she had also had something to drink while at the Willow Inn.

Joseph Schmidt corroborated his wife’s testimony, saying that when the defendant left the Willow Inn there was nothing unusual about him and that the defendant “was not under the influence of alcohol where he could not drive a car *** by any means.”

William Geist testified he was also at the Willow Inn and that during the hour before the defendant left, he observed and talked with him often. He did not think the defendant was under the influence of alcohol when he left.

The defendant testified that prior to the softball game he had worked on his job as a salesman until 2:30 p.m. Thereafter, he slept from 3:30 to 5:30 p.m., and then ate a pizza. He went to the park between 8:30 and 9 p.m., but it rained. He then joined his teammates a little after 10 p.m., at the Willow Inn. He was wearing his softball outfit and shoes. At the inn he drank three or four Lite beers. Defendant asserted that he was not under the influence of alcohol when he left around midnight and had no difficulty in maneuvering his automobile. He said when he approached the four-lane East Lake Avenue, he stopped for a red light. He initially turned west into the right-hand lane, but there was no traffic near him, or behind him, so he pulled over into the inner lane. He admitted he did not use a turn signal because no one was on the road near him. He had no recollection of crossing lanes or crossing the center line into the eastbound lane. He testified he was familiar with the road, and that he was just short of the median strip when he saw the lights of a police car behind him. He recalled that he slowed down to let the arresting officer know that he recognized him and looked for a safe place to stop. He did not recall driving up on the median strip. When he turned off the highway, he proceeded several hundred feet down Waukegan Road and stopped. The officer then asked him to get out of his car and walk an imaginary line from his car to the bumper of the squad car. He admitted he was concentrating on trying to walk the “line” and show the officer he could do it. He asked the officer if he thought he was all right, and the officer replied, “I think you have had too much to drink,” whereupon he was ushered into the squad car. He told the officer that he had made an extra-wide turn onto the four-lane highway because he was trying to light a cigarette and may have changed lanes inadvertently, but he never got to light the cigarette.

Officer Hohs testified in rebuttal that when the defendant told him he was trying to light a cigarette, he searched the car but did not find any. The cigarettes were in the bottom of a closed zipper pocket of the sweatsuit the defendant was wearing. The defendant testified in surrebuttal that he put the cigarette back into the package when the officer turned on his lights, and that he then put the package back into his pocket.

The defendant first contends that the evidence was not sufficient to sustain the conviction. He points out that of the eight times the officer said he crossed the road markings in an eight-block stretch, one occurred when he entered onto the four-lane road and the next three occurred in the block right after turning onto the road during which time the officer was traveling in the opposite direction before making his “U” turn. Defendant argues that the officer’s testimony is insufficient because the officer’s version had him moving from the left westbound lane to the right westbound lane while crossing the double-yellow lines dividing the east and westbound traffic and yet the officer did not then stop him but allowed defendant to travel for threé more blocks before activating his emergency light. Defendant further points out that the officer’s report makes no mention of the multiple crossings, that the officer admitted he did not know whether two sips of beer would give one a strong odor of alcohol on his breath, and that he was cooperative after being stopped and did not act in an unusual manner for one pulled over by a police officer. Also, defendant claims that he had no trouble with the finger-to-nose test; that the officer did not give him the coin test because he “had no coins”; and that he walked in a straight imaginary line in the heel-to-toe test, even though the officer said he was wobbling, swaying and unsure because he was watching his hips. Thus, defendant maintains that the standard of “beyond a reasonable doubt” was not met because the trial court commented several times on the closeness of the evidence and the weakness of the State’s case.

It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. Where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) A conviction for driving a motor vehicle under the influence of alcohol may be sustained though based entirely upon the arresting officer’s testimony and observation and not upon any scientific evidence of intoxication, such as a breath-analysis test. (People v. Pigg (1974), 17 Ill. App. 3d 568, 308 N.E.2d 190.) A jury’s verdict of guilty will not be disturbed unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346; People v. Miller (1968), 101 Ill. App. 2d 361, 213 N.E.2d 277.

Here, the officer testified to defendant’s erratic lane crossings, his act of swaying and unsure steps when exiting his car and taking the heel-to-toe test, the strong odor of alcohol on his breath, and his “thick-tongued” speech. This evidence, taken as a whole, is not so unsatisfactory, unreasonable, or improbable as to raise a reasonable doubt of the defendant’s guilt. Moreover, the defendant admitted he had consumed several beers, admitted he did not see the officer behind him until he activated his lights, although the officer had been behind him for almost eight blocks, and he conceded that he did not recall crossing lanes or driving on the raised median strip. It is the province of the jury to determine the weight to be given to the evidence presented and the inferences to be drawn therefrom (People v. Akis), and we hold that the alleged inconsistencies here are minor in nature and do not detract from the jury’s verdict.

Defendant next contends that the implied consent statute, which allows him the right to refuse to take the breath test but also allows the admission of his refusal into evidence, is a violation of his right under article I, section 10 of the 1970 Illinois Constitution which provides that a person shall not be compelled in a criminal case to give evidence against himself. He maintains that under the implied consent statute (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11 — 501.2(c)) there is no true choice for an accused, and that the only two inferences to be drawn by a fact finder from a refusal to take the test are: (1) the defendant was intoxicated otherwise he would have taken the test; or (2) he was so intoxicated he was unable to take the test.

The State replies that the United States Supreme Court addressed this very issue in South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916, which involved a South Dakota statute permitting a person suspected of driving while intoxicated to refuse to submit to a blood-alcohol test. The statute then authorized revocation of the driver’s license of a person refusing the test and permitting such refusal to be used against him at trial. The Supreme Court held the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test did not offend his fifth amendment right against self-incrimination and that the refusal to take such a test is not an act coerced by the officer and therefore is not protected by the privilege against self-incrimination. The Court stated that “the inference of intoxication arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test.” (459 U.S. 553, 564, 74 L. Ed. 2d 748, 759, 103 S. Ct. 916, 923.) It concluded that the right to refuse the blood-alcohol test is simply a matter of grace bestowed by the legislature. We agree, and believe that the rationale above stated is applicable here.

Finally, the defendant contends that the trial court erroneously admitted evidence that he refused to take the breathalyzer test because such evidence was prejudicial to his defense where the evidence was not overwhelmingly against him, as here. It is the province of the legislature to enact the laws and that of the courts to construe them. (People v. Williams (1969), 116 Ill. App. 2d 332, 252 N.E.2d 555.) Here, the legislature specifically provided that evidence of refusal to submit to a breathalyzer test shall be admissible in any civil or criminal action. We therefore hold that this contention has no merit.

The judgment of the circuit court of Cook County is affirmed.

As part of our judgment we grant the State’s request that defendant be assessed $50 as the cost of this appeal.

Judgment affirmed.

SULLIVAN and MEJDA, JJ., concur.


author: JUSTICE CAMPBELL

text:
      In re MARRIAGE OF MYRON THADEN, Petitioner-Appellant, and JUDITH L. THADEN, Respondent-Appellee.
    First District (1st Division)
    No. 83—898
    Opinion filed November 14, 1983.
    Howard Levine and Ross Shugan, both of Harvey, for appellant.
    Kaufman, Litwin & Zurla, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

On August 23, 1977, a judgment for divorce was entered between Judith Thaden and Myron Thaden. The parties had two minor children, ages 15 and 11 respectively, at the time of the divorce and custody was granted to the wife. On October 4, 1982, the husband, Myron Thaden, filed his petition for modification, which petition was dismissed on motion of the wife, and this appeal followed:

The issue presented on appeal is whether the trial court’s holding that the support provision was nonmodifiable and its resultant dismissal of the petition to modify support was improper.

The judgment for divorce predated the enactment of the Illinois Marriage and Dissolution of Marriage Act which became effective on October 1,1977. Section 502(f) of the Act provides as follows:

“(f) Except for terms concerning the support, custody, or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the separation agreement so provides. Otherwise, terms of a separation agreement set forth in the judgment are automatically modified by modification of the judgment.” (Ill. Rev. Stat. 1981, ch. 40, par. 502(f).)

The judgment for dissolution entered on August 23, 1977, incorporated a settlement agreement which provided in part as follows:

“5. That the Counter-Defendant (Husband) shall pay to the Counter-Plaintiff as and for a lump sum settlement in lieu of Alimony for the Counter-Plaintiff and including child support for the two minor children of the parties, the sum of $1,000.00 per month for a period of 121 months, said sum not to be de-feasible upon any condition whatsoever except the death of the Counter-Plaintiff. And shall not terminate upon the emancipation of the parties children, or a change in their physical custody.
6. That any unpaid balance on the aforesaid lump sum settlement shall be a claim against the estate of the Counter-Defendant in the event of his death.
7. That the Counter-Plaintiff shall have the right to remarry without any defeasance in the lump sum settlement.
8. That the Counter-Plaintiff may hereafter derive income from employment or from other sources; and the fact that the Counter-Plaintiff may derive such income shall not be grounds for a diminution in child support.”

The husband filed his petition for modification of the judgment for divorce almost five years later on October 4, 1982, alleging in part that there was a material and substantial change in circumstances consisting of a reduction in his income, the coming to majority of the older child, with the husband paying a portion of her college expenses, and the wife’s increased income.

The wife filed a response to said petition by way of a motion to dismiss claiming,

“4. That while it is true that child support is always modifiable, it was the intention of the parties that in the event child support was modified and reduced, notwithstanding that fact, that a like sum of money would be given to the Defendant and Counter-Plaintiff herself in terms of her support so that she would always receive the sum of One Thousand Dollars ($1,000.00) per month for a period of 121 months which is why paragraph five (5) provided that even if the children were not residing with the Defendant and Counter-Plaintiff or had become emancipated so that she no longer needed any money for their support, she would still receive the stipulated sum of One Thousand Dollars ($1,000.00).”

The husband contends that there was no language in the agreement mandating a reimbursement to the wife of any reduction in support and that Powers v. Powers (1979), 69 Ill. App. 3d 485, 388 N.E.2d 76, Weber v. Weber (1979), 77 Ill. App. 3d 383, 396 N.E.2d 43, and In re Support of Burks (1981), 100 Ill. App. 3d 700, 427 N.E.2d 353, stand for the proposition that despite any language purporting to limit or preclude modification, any agreement which includes child support is modifiable. The husband also argues that section 502(f) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 502(f)) may preclude the modification of all types of provisions in property settlement agreements except those concerning the support, custody or visitation of children.

The wife argues that none of the cases cited are applicable to the instant case because in none of the cited cases did the father agree that in the event child-support payments were to be terminated or reduced that he would pay a like amount to his former spouse as maintenance. Here, the husband did make such an agreement and the provisions of a property settlement are interpreted by the normal rules regarding the construction of contracts. Halper v. Halper (1978), 57 Ill. App. 3d 588, 373 N.E.2d 598; Waggoner v. Waggoner (1978), 66 Ill. App. 3d 901, 383 N.E.2d 795.

The intention of the parties must be determined from the instrument itself and the construction to be placed on the instrument, where the instrument is unambiguous, is solely a matter of law. (In re Marriage of Adams (1981), 92 Ill. App. 3d 797, 416 N.E.2d 316.) It is the court’s function to interpret the provisions in question in a reasonable manner and to ascertain the intention of the parties in a fair and reasonable manner. (Benninghoven v. Benninghoven (1976), 39 Ill. App. 3d 286, 349 N.E.2d 421.) Here, the trial court concluded that “it is clear from the language of the judgment regarding paragraphs five (5), six (6), seven (7), and eight (8), that the intention of both parties was that it was not to be modified by him under any circumstances.” The wife, while conceding that child support is always modifiable, correctly asserts that the agreement provides that even if the children were emancipated during the 10-year period or even if a change of custody occurred where she no longer had custody of the children so that there would be no child support to pay whatsoever, she was still entitled to get the $1,000 per month. We agree with the trial court’s analysis of the issue in this case, and the plain meaning of the terms and language employed evidences the intention of the parties as found by the trial court. In view of this holding, the court found it unnecessary to reach the issue of section 502(f) of the Illinois Marriage and Dissolution of Marriage Act urged by petitioner.

We have examined the provisions of the agreement in question and the cases cited by petitioner may be distinguished. We are not persuaded by petitioner that the ruling of the trial court was incorrect. Accordingly, we find that the trial court properly granted the wife’s motion to dismiss.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREGORY SETTECASE, Defendant-Appellee.
    First District (4th Division)
    No. 82—2084
    Opinion filed November 17, 1983.
    Rehearing denied December 7, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Thomas A. Rieck, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County sustaining defendant’s motion to suppress physical evidence which was obtained during an inventory search of defendant’s person at the police station following his arrest for disorderly conduct. In this appeal the State contends that the search, which uncovered various controlled substances, was valid as incident to a lawful arrest and as an inventory of defendant’s possessions while in police custody as a result of a lawful arrest. Although defendant has not filed a brief in this case, we elect to consider the merits of the State’s appeal in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, and People v. Turner (1982), 105 Ill. App. 3d 393, 434 N.E.2d 428, and reverse and remand for further proceedings.

The evidence adduced at the hearing on defendant’s motion to suppress showed that defendant was arrested about 7:30 p.m. on September 27, 1980, in the vicinity of 4640 Lawn Avenue in Western Springs, Illinois. Defendant testified that to his knowledge he was not violating any laws at the time of his arrest, and that the officer did not have a search warrant or a warrant for his arrest. He did admit, however, that he had been dropped off in the vicinity and was fairly well intoxicated at the time. He did not recall being on the porch at that address and stated that he was arrested on the sidewalk.

Officer Harry Gustafson testified that he responded to a call from a citizen that there was an intoxicated man on her property. When he arrived at that address, in uniform, he observed defendant on the front porch of the residence with his hand on the front door apparently attempting to open it. The officer asked defendant for identification and to explain what he was doing there. Defendant, however, could not produce any identification and told the officer to get out of his way or he would knock him off the porch. The officer then grabbed defendant by the arm, handcuffed him, and placed him in a squad car which just arrived on the scene. Defendant was then arrested for disorderly conduct and transported to the Western Springs police station.

Before being placed in a cell at the station, the police conducted an inventory of defendant’s belongings in accordance with their standard procedure. Gustafson stated that this was done to ascertain what property defendant had on his person, in order to protect his interests and those of the police department. During this inventory, a small closed metal box resembling an aspirin container was recovered from defendant’s shirt pocket. An inspection of its contents revealed a small quantity of tablets and capsules and a chunk of green material, which the police suspected were controlled substances. Defendant was subsequently charged with two counts of possession of a controlled substance, i.e., valium and pentobarbital. Ill. Rev. Stat. 1979, ch. 56V2, par. 1402(b).

Prior to trial defendant filed a motion to suppress the evidence found in the metal container. In that motion he alleged that he had a legitimate expectation of privacy in the container, and that the search made without his consent or without a warrant was unlawful.

After hearing the evidence and the arguments and citations of authority from opposing counsel, the trial court found that the arrest was proper, but held that under the Illinois Supreme Court decision in People v. Helm (1981), 89 Ill. 2d 34, 431 N.E.2d 1033, the search of the closed container as part of an inventory search was improper. The trial court sustained the motion to suppress, and the State filed notice of appeal from that order.

The State now contends that the search was valid as incident to defendant’s lawful arrest, and as a routine inventory of defendant’s personal possessions prior to being placed in a detention facility following his lawful arrest. In view of a recent pronouncement by the United States Supreme Court on custodial inventory searches, which will be discussed below, we reverse.

As noted above, the trial court based its decision in this case on the Illinois Supreme Court holding in People v. Helm. In Helm defendant was arrested for battery and carried a purse with her to the police station. There the purse was searched pursuant to the Decatur police department’s normal booking procedure of inventorying an arrestee’s belongings, and placing them in a locked strong box under the counter. Amphetamines were discovered in a coin purse located inside of the larger purse, and defendant was subsequently charged with possession of a controlled substance. The trial court granted her motion to suppress, and this judgment was affirmed on direct appeal in an unpublished Rule 23 order. People v. Helm (1980), 89 Ill. App. 3d 1206.

A majority of the Illinois Supreme Court in Helm rejected the State’s argument that the search was justified as incident to an arrest. (People v. Helm (1981), 89 Ill. 2d 34, 36-37.) The majority also rejected the State’s attempt to justify the search as a valid inventory of defendant’s possessions incident to a lawful custodial arrest (89 Ill. 2d 34, 37-39), holding that the purposes of the inventory could have been accomplished in a less intrusive way, i.e., the purse could have been sealed in the presence of witnesses without examination of its contents and then stored. The court concluded that rummaging through defendant’s purse under these circumstances constituted an impermissible search. 89 Ill. 2d 34, 39.

The continuing validity of the result reached by the majority in Helm and the reasoning upon which it is based has been called into question by the recent United States Supreme Court decision in Illinois v. Lafayette (1983), 462 U.S. _, 77 L. Ed. 2d 65, 103 S. Ct. 2605. In Lafayette, defendant was arrested for disturbing the peace and was transported to the police station. There the contents of his shoulder bag were examined pursuant to the standard police procedure to inventory “everything” in the possession of an arrested person. Amphetamines were found inside of a cigarette package, and defendant was charged with possession of a controlled substance. Defendant’s motion to suppress the evidence was granted, and this decision was affirmed on appeal. People v. Lafayette (1981), 99 Ill. App. 3d 830, 425 N.E.2d 1383.

The appellate court in Lafayette initially found that the State had waived its argument that the search was justified as incident to a valid arrest for failing to raise it at the suppression hearing, then concluded that the station house search of the shoulder bag did not constitute a valid search incident to a lawful arrest. (99 Ill. App. 3d 830, 832-33.) The court also concluded that the warrantless search was not a valid inventory of defendant’s belongings, and opined that the State’s legitimate interests in preserving defendant’s property and protecting police from claims of lost or stolen property could have been achieved in a less intrusive manner. 99 Ill. App. 3d 830, 834-35.

The Illinois Supreme Court denied discretionary review of the case, and the United States Supreme Court granted certiorari and reversed the decision of the Illinois Appellate Court. In doing so, the United States Supreme Court held that “it is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.” (Illinois v. Lafayette (1983), _U.S__,_, 77 L. Ed. 2d 65, 73, 103 S. Ct. 2605, 2611.) In reaching this conclusion the Supreme Court noted that the justification for these searches does not rest upon probable cause and that the absence of a warrant is immaterial to the reasonableness of the search. (462 U.S. _, _, 77 L. Ed. 2d 65, 69, 103 S. Ct. 2605, 2608.) It also discussed the range of governmental interests which support an inventory process of an arrestee’s belongings prior to confinement and rejected the “less intrusive means” rationale applied by the appellate court in Lafayette stating: “The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means.” 462 U.S. _, _, 77 L. Ed. 2d 65, 72,103 S. Ct. 2605, 2610.

Applying these principles to the case at bar, we conclude that the search of the container found on defendant’s person following his lawful arrest and pursuant to a standard inventory procedure at the police station prior to his detention was reasonable and therefore valid. As a consequence, we conclude that the trial court erred in ordering the suppression of the contraband seized from defendant’s person and reverse its judgment.

In view of our finding that the search was reasonable as a valid inventory search, we need not comment on the State’s further argument that the search was valid as incident to a lawful arrest. Additionally, we deny the State’s request that defendant be assessed $50 as costs for the State’s prosecuting this appeal. People v. Brown, (1983), 98 Ill. 2d 374.

The order of the trial court granting defendant’s motion to suppress is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    NORTHWEST DISPOSAL COMPANY et al., Plaintiff-Appellant, v. THE VILLAGE OF FOX LAKE et al., Defendants-Appellees.
    Second District
    No. 82—970
    Opinion filed November 10, 1983.

      John T. Jursich, of Waukegan, for appellant.
    Henry E. Mueller, of Ancel, Clink, Diamond, Murphy & Cope, of Chicago, and Sofietti, Johnson & Teegen, of Fox Lake, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Northwest Disposal Company, a partnership, and its individual partners (Northwest) sought a declaratory judgment and injunctive relief against the village of Fox Lake and its trustees. Northwest alleged in its amended complaint that although qualified and the lowest bidder, it was denied a contract for garbage disposal. Count I of the complaint sought to void the contract which the village entered into with a competitor as an alleged violation of its own ordinance; count II sought a mandatory injunction to award the contract to Northwest based on count I; and count III sought relief based upon deprivation of constitutional rights under 42 U.S.C. sec. 1983 (Supp. Ill 1979). On defendants’ motion, counts II and III were dismissed with language of appealability added to the order. Northwest appeals solely from the order dismissing count III.

In count III, Northwest alleged that it entered a sealed bid, in accordance with published notice, for a four-year contract for garbage pickup and disposal from the village and that it did so pursuant to the specifications obtained from the village. It alleged that its bid of $12,092.56 per month was lower than $13,520.70, the bid of H.O.D. Disposal, to whom the contract was awarded. The complaint further alleged that Northwest is a responsible bidder with extensive experience in the area and that it had complied with all of the specifications entitling it to the award under the Fox Lake ordinance which required that the contract be given to the “lowest responsible bidder.” It then alleged that H.O.D. was not the lowest responsible bidder and that the award therefore violated the plaintiff’s constitutional rights in that it denied a business opportunity to the plaintiff based on discriminatory practices; that it perpetuated a long-standing practice in the village by accommodating “friends” of the village, irrespective of whether or not they were the lowest responsible bidder; that the village failed to inquire into the ability of the plaintiffs; that it denied the right of the plaintiffs to address the board of trustees of the village on the subject matter of responsibility; and that it manipulated the rules of order for that purpose. Under the complaint Northwest sought $70,000 in compensatory damages and $1,000,000 in punitive damages against the village and its trustees and officers in their respective capacities.

I

Section 1983 of the United States Code Title 42 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ***” 42 U.S.C. sec. 1983 (Supp. Ill 1979).

In support of its claim under this section Northwest first alleges that the village violated its rights under the fourteenth amendment of the United States Constitution and similar provisions of the Illinois Constitution proscribing deprivation of property without due process of law. To prevail on a section 1983 claim Northwest was required first to establish that, based on State statutory provisions and customs, it possessed “a legitimate claim of entitlement” that was infringed by defendants. (Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.) In Roth the court noted that procedural due process under the fourteenth amendment does not create property interests but is a safeguard of the security of interests that a person has already acquired in specific benefits (Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2708-09), and further noted that an abstract need or desire or a unilateral expectation does not establish a “property interest in a benefit” (Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709). In the present case, Northwest contends that the protected interest of which it was deprived was a property right to have the garbage disposal contract awarded in accordance with the requirements and specifications of the village’s ordinances and State law, particularly under the provision that the award shall be made to the “lowest responsible bidder” as set forth in the Fox Lake ordinance and the further provision that any contract entered into in violation of that provision would be held null and void.

There is, however, no property interest in the adherence by the village to the procedures outlined in the ordinance; if there is a protected interest, it must be found in the benefit, that is, the award of the contract. (Three Rivers Cablevision, Inc. v. City of Pittsburg (W.D. Pa. 1980), 502 F. Supp. 1118, 1128-29.) The Seventh Circuit Court of Appeals has held that if a State agency does not have laws requiring the award of a contract to the low bidder, or if the laws are not enforced because of “political considerations,” the constitution is not thereby violated. (LaFalce v. Houston (7th Cir. 1983), 712 F.2d 292, 294.) Although not in the context of a section 1983 claim, both the Illinois Supreme Court and the Seventh Circuit have held that parties dealing with a State agency have no legally protected property interest in bidding for the sale of goods and services to the State. The specification of a competitor’s product and the exclusion of another bidder does not infringe a property interest so as to entitle an unsuccessful bidder to a due process hearing to determine whether the State action in specifying a competitor’s product had a rational basis. See Coyne-Delany Co. v. Capital Development Board (7th Cir. 1980), 616 F.2d 341, 343; Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 294-96, appeal dismissed (1980), 444 U.S. 1062, 62 L. Ed. 2d 744, 100 S. Ct. 1001.

Northwest places its principal reliance on the case of Three Rivers Cablevision, Inc. v. City of Pittsburg (W.D. Pa. 1980), 502 F. Supp. 1118. In Three Rivers the district court concluded that under the fourteenth amendment a due process interest in benefits sought to be obtained in the awarding of a contract “may arise out of the very provisions regulating their disbursement.” 502 F. Supp. 1118,1129.

Thus, Three Rivers concluded that the interest of the lowest responsible bidder in compliance with the specifications to be awarded the contract was a property right and that the possessor was entitled to the nonarbitrary exercise of the city’s discretion in making the award; thus, the deprivation of the benefit in the protected property interest without due process could be an actionable wrong. (501 F. Supp. 1118, 1131.) It notes that its conclusion was contrary to the holding of the Northern District of Illinois in Estey Corp. v. Matzke (N.D. Ill. 1976), 431 F. Supp. 468. (502 F. Supp. 1118, 1132 n. 15.) In Estey the court concluded that the losing bidder on a State contract had no property interest in the award of the contract. (431 F. Supp. 468, 470.) In Three Rivers, the district court concluded, however, that in the circumstances of its case the interest was of “relatively narrow dimension.” 502 F. Supp. 1118,1131.

In a subsequent case, Kendrick v. City Council (S.D. Ga. 1981), 516 F. Supp. 1134, the court concluded that it was pertinent to an understanding of the rationale in Three Rivers to review the allegations of the Three Rivers complaint. The plaintiff there alleged that its competitor, which was eventually awarded the contract, failed in a significant and material respect to comply with bid requirements of the city ordinance, and thereafter met privately with certain officials for the purpose of amending the bid deficiencies. Kendrick concluded that the Three Rivers rationale required the factual allegations that there was (1) a regulated bidding procedure, (2) material compliance with the procedure by the unsuccessful bidder, and (3) material and significant noncompliance with the procedure by the successful bidder. (516 F. Supp. 1134, 1139.) The Kendrick court noted that in its case, contrary to Three Rivers, there was no showing that the previous competitor had failed to conform with the “rules or understandings’ ’ of the bidding procedure and no evidence of any material deviation from the prescribed bidding procedure. While the bid was not the lowest bid submitted, the court nonetheless found that the municipality was not bound by any rule or law to accept the lowest bid “when perceived countervailing considerations were presented.” (516 F Supp. 1134, 1139.) The court noted that the city had undertaken an investigation of the prospective bidders, held a hearing on the comparative qualifications of the services and afforded the losing bidder a fair opportunity to present its case. It further noted that “even if the City Council had not acted within the bounds of its discretionary authority, such a breach would not, by itself, amount to a deprivation of a protected property interest, since plaintiff has no property interest in the City Council procedure.” 516 F. Supp. 1134,1139.

Northwest has argued that the allegations which take this case out of Kendrick and align it more closely with Three Rivers are the refusal by the village to inquire into the ability of Northwest and the denial of the right to address the board on the subject of responsibility. This, of course, would not show that the winning bidder had failed to comply with the bidding procedure, a showing necessary to create even the limited property interest afforded procedural due process protection in Three Rivers.

The fact situation before us in this case is unlike that in Three Rivers. There, all of the initial bids were rejected by the city and upon the second submission of bids, the winning bidder, Warner Communications, was allegedly materially deficient with respect to some of the specifications and Three Rivers was allegedly in compliance with all bidding requirements and specifications. Further, the city employees had been admonishing all bidders that no amendments were permitted; it was alleged that municipal employees nevertheless held meetings with Warner to provide an unfair advantage and to advise Warner on corrections that needed to be made in its bid, and subsequently Warner was allowed to correct some bidding deficiency. Here, as in Kendrick, Northwest has failed to plead that the successful bidder in any way failed to comply with the requirements and procedures of the bidding process. While the bid accepted was not the lowest bid submitted, the village board has the discretion to determine who is the “lowest responsible bidder” and it need not be the lowest bidder in terms of contract price, the presumption being that the decision of the board is regular and valid. (Hallett v. City of Elgin (1912), 254 Ill. 343, 349-50; Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 963-64.) The claim that a State law or an ordinance of a municipality has been violated states no cause of action under section 1983; a violation of the Federal Constitution or laws is the requirement. Ream v. Handley (7th Cir. 1966), 359 F.2d 728, 731.

We recognize the very limited due process right for unsuccessful bidders as established under the rationale of Three Rivers.

The complaint, however, has not stated the limited due process right essential to a cause of action under section 1983. In the absence of facts alleging that H.O.D., the successful bidder, failed to meet the qualifications under the bidding procedure, no cause of action has been stated nor can be stated which would entitle plaintiff to relief under count III. A complaint will not be dismissed for failure to plead a cause of action unless it appears that a party could not recover under any facts which could be proved under the pleadings. See, e.g., Wilczynski v. Goodman (1979), 73 Ill. App. 3d 51, 54.

The judgment of the circuit court of Lake County dismissing count III of plaintiff’s amended complaint is affirmed.

Affirmed.

REINHARD and HOPF, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    LAURIE WILLSON, Plaintiff-Appellant, v. DONALD PEPICH et al., Defendants-Appellees.
    Second District
    No. 82—989
    Opinion filed November 15, 1983.

      Lester E. Munson, Jr., of Smith & Munson, Ltd., of Wheaton, for appellant.
    Kenneth L. Popejoy, of Huck & Walsh, of Wheaton, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Laurie Willson, filed suit against her landlords, Donald and Patricia Pepich, seeking damages for injuries resulting from a fall in the common area outside of their apartment building. The trial court submitted the case to the jury on the issues of comparative negligence, proximate cause and damages. The jury returned its verdict in favor of defendants and against plaintiff. Plaintiff’s post-trial motion was denied, and plaintiff has appealed the judgment entered on the verdict in favor of defendants and the denial of her post-trial motion.

Plaintiff, Laurie Willson, shared an apartment with another woman in a two-unit apartment building owned by defendants Donald and Patricia Pepich under a lease beginning in November 1978. With the landlord’s permission, she had moved into the apartment 10 to 14 days prior to November 1. On November 4, 1978, plaintiff testified, she fell in the front yard of the building. She said she was walking along a worn path between the driveway and the sidewalk"when her foot teetered on something and went off, at which time she fell and felt pain in her ankle. In the apartment, it started to swell, and she put ice on it. In the first part of January she sought medical help. In the summer she saw another doctor, who informed her that the bone was fractured and referred her to a specialist. At the time of trial the left ankle was larger than the right, the heel was hard to the touch, and she could not rise upon the toes of that foot. She testified she was quite active on that foot and was employed driving rental trucks prior to the fall.

On cross-examination, she admitted that she was receiving Social Security disability payments for low blood pressure at and three years prior to the fall. The condition caused lightheadedness or dizziness when she stood from a sitting position, which, she said on redirect, was under control for three months prior to the fall. She said she had no numbness but did have some pain and aches in her legs in that three-year period. She also admitted that, as a diabetic, she had decreased feeling in her legs but had testified on direct that she had no dizziness, blackouts, pain, numbness or vision problems as a result of her diabetes in the three months preceding and following the fall. On the day of her fall, she walked along a path she had walked several times before, was looking down on the ground ahead of her that had dirt, rocks and bumps, teetered on something loose that she was unable to identify, fell and got up and went into the house.

Dr. Kelikian, a treating orthopedic surgeon testified that he first saw plaintiff on September 10, 1979, that she had a crushing of the calcaneus (apparently a smashing of an ankle bone into the heel bone) at that time, and that such injuries are generally trauma-initiated. He said diabetes aggravates such a fracture, and he opined that her condition will not improve and the foot will eventually be amputated. On cross-examination, he stated that he had no way of knowing when the bone was fractured, that the damages he saw in September 1979 could have been increased or worsened by the patient’s walking on the fractured bone, that an operation could have been done when the fracture was less crumbled, or even at the time of trial, but that diabetics do not heal well and he would not operate because of the diabetes.

Defendant Donald Pepich testified that he and his son did routine maintenance and yard work on the property. He said that the area of the yard between the driveway and the sidewalk was green grass like the rest of the yard and that there was no worn pathway there. He contradicted the testimony of plaintiff and her roommate that he was promptly informed of the fall.

Kenneth Ferestad, next door neighbor and friend of defendant Donald Pepich, testified that they had agreed to watch each other’s property. Until June 1982, the witness testified, he saw the Pepich property every few days and went to the property about once every three to four months. He could not say how many times he observed defendant and his son working on the lawn, and he could not say what the condition of the front yard was in the first week of November 1978. After questioning by defense counsel and the court, and over plaintiff’s objections, the witness finally stated he was on the property in fall 1978 and that the area between the gravel driveway and the sidewalk was just grass with no worn areas. Plaintiff’s counsel continually objected to the witness’ testimony on that subject because it did not specifically pertain to the first week of November, and, on cross-examination, the witness stated that he “would be lying” if he attempted to describe the condition of defendants’ front yard at that specific time.

Defendants’ last witness, a treating physician, testified that he had treated plaintiff for diabetes since 1971. Over plaintiff’s continuing objection, he was allowed to testify regarding plaintiff’s diabetic symptoms over the entire course of treatment. Specifically, he said that in 1975 plaintiff had numbness, tingling and pain in both legs and that such a condition can result in imbalance, dizziness or blacking out. He went on to say that those conditions continued throughout her treatment, that she had good times and bad times regarding those conditions, and that they will continue to exist in plaintiff. He said that in 1976 the low blood pressure condition (dizziness in rising from a sitting position or vice versa) began, it was severe in 1976-77, and it is likely to continue in the future. Regarding the November 4, 1978, injury, the doctor said the injury would not aggravate or accentuate plaintiff’s diabetes, the diabetes would slow down her healing process, and diabetics can undergo successful surgery for minor, compared to extensive, fractures.

On cross-examination he testified that plaintiff’s diabetes was “fairly well controlled” in August 1978 so that she could perform her job as a truck driver, that he did not see her again until February 1979, and that she did customarily see him if her diabetes was moving out of control. Regarding the postural hypotension (low blood pressure), he testified that he recorded in his notes that plaintiff had “[n]o difficulty with postural hypotension” at her August 1978 visit. On redirect, he stated it was possible for plaintiff to have had dizziness and imbalance between her August 1978 and February 1979 visits, but a defense objection was sustained to the question on recross as to whether it was probable inasmuch as she did not come to see him about those problems during that time.

Plaintiff first contends on appeal that the trial court improperly instructed the jury on the meaning of proximate cause. More specifically, she asserts that the trial court erred in giving defendants’ instruction No. 13 rather than plaintiff’s instruction No. 11. Both of these instructions are versions of Illinois Pattern Jury Instruction (IPI), Civil, No. 15.01 (2d ed. 1971) (“Proximate Cause-Definition”).

IPI Civil No. 15.01 reads as follows:

“When I use the expression ‘proximate cause’, I mean [that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]”

Defendants’ instruction No. 13 read as follows:

“When I use the expression ‘proximate cause’, I mean a cause which, in natural or probable sequence, produced the injury complained of.”

Plaintiff’s instruction No. 11 included the bracketed material contained in the last two sentences of the pattern instruction and read as follows:

“When I use the expression ‘proximate cause’, I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”

Plaintiff’s basic argument is that the phrase “a cause” in defendants’ instruction No. 13 limited the jury charge to one of a singular cause and that pure form comparative negligence principles require that two causes be considered — plaintiff’s conduct and defendants’ conduct. She also strongly urges that we place our blessing on her version of IPI Civil No. 15.01 which, as shown above, was couched in terms of “any cause” in the first sentence and also included the last two sentences contained in the bracketed material in IPI Civil No. 15.01, which she asserts makes clear that there can be more than one concurring or contributing cause of plaintiff’s injury.

We agree that the principal reason for not permitting the inclusion of the bracketed material in IPI Civil No. 15.01 is no longer present under the doctrine of comparative negligence. So long as the doctrine of contributory negligence was a viable doctrine in this State, the negligence of the defendant had to be the sole cause of the injury to the plaintiff when the only other possible contributing cause was the conduct of the plaintiff herself, and it was for this reason that the bracketed material was held to be improper in such cases. (See Budovic v. Eschbach (1953), 349 Ill. App. 163, 167.) On the other hand, it is equally clear that the bracketed material containing the last two sentences was included in IPI Civil No. 15.01 to address the situations where there was evidence that something or acts of someone other than the negligence of the parties was also a possible proximate cause of the injury. (See Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 91.) In the absence of such evidence, we agree with the trial court that the additional language contained in the last two sentences can be confusing. We find no error in the trial court’s refusal to give plaintiff’s version of IPI Civil No. 15.01 under the circumstances of this case and in view of the instructions which were given.

We turn then to the issue of whether or not the giving of defendants’ instruction No. 13 was error. The principal flaw in this argument is that the record does not support the plaintiff’s contention that defendants’ instruction No. 13 was given. Plaintiff as appellant had the burden of filing with this court a sufficient record for us to make a determination of the issues. (Maborn v. Moyers (1975), 26 Ill. App. 3d 231, 233.) Plaintiff has not filed a report of proceedings, or any permissible substitute therefore, of the judge’s reading of the instructions to the jury, and, therefore, we have no direct record before us of what instructions were actually read.

Our examination of the instructions contained in the common law record was not helpful. While we did find a copy of defendants’ instruction No. 13, the original of that instruction, which ordinarily would have gone to the jury, is not included. The notations on the copy in the record are ambiguous in that there are notations which would indicate that the instruction was to be given as well as notations that it would not be given.

The report of proceedings of the conference on jury instructions is not ambiguous and discloses that, while the trial judge understandably vacillated as to which version of IPI Civil No. 15.01 he would give, he eventually, and in no uncertain terms, advised the parties that he would not give plaintiff’s instruction No. 11 because he found it to be confusing, but he would give a modified version of defendants’ instruction No. 13 that would use the word “any” in lieu of the word “a” in the first sentence of IPI Civil No. 15.01 if requested to do so by plaintiff. Plaintiff thereupon requested that it be done, and defendant thereupon withdrew both of his versions of IPI Civil No. 15.01, which he had offered as defendants’ instructions No. 13 and 14. While there is some confusion still remaining because neither the original nor a copy of this modified instruction is contained in the common law record, we do conclude from an examination of the record that the trial court did give IPI Civil No. 15.01 in a modified form which read as follows:

“When I use the expression ‘proximate cause’, I mean any cause which, in natural or probable sequence produced the injury complained of.”

The court did not err in giving this version of IPI Civil No. 15.01. It in no way suggests to the jury that they are limited to a determination of a single cause for plaintiff’s injuries. The evil which plaintiff perceived in defendants’ instruction No. 13 is not present in this instruction.

Further, even if we were to assume arguendo that the trial court did give the instruction in the form suggested by plaintiff on appeal, we would find the error to be harmless.

The purpose of instructions is to convey to the minds of the jurors the correct principles of law applicable to the evidence submitted to them. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 1019.) The proper approach in considering the propriety of an instruction is whether the instructions when considered as a whole were sufficiently clear so that the jury was not misled. Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 646.

In this case, at the request of the plaintiff, a burden of proof instruction was given which included the proposition to be proved “that the negligence of the defendant was a proximate cause of the injury to the plaintiff” (emphasis added) (IPI Civil No. 21.02). Of more importance, and also at the request of plaintiff, the court gave IPI Civil No. A10.03 (spec. supp. 1981), which defined both contributory aiid comparative negligence and instructed the jury that plaintiff’s contributory negligence, if any, would not bar her recovery, but that the total amount of damages to which she would otherwise be entitled would be reduced in proportion to the amount of her negligence. In addition, verdict form No. 45.06 for judgment in favor of plaintiff called for the jury to assume “that 100% represents the total combined negligence of the plaintiff and of the defendant” and for a finding as to “the percentage of negligence that was a proximate cause of plaintiff’s injury attributable solely to the plaintiff.” The proximate cause instruction, even given in the form contended by the plaintiff, considered in combination with all the other instructions given the jury would not have misled them but adequately instructed the jury that they were to consider both defendants’ conduct and plaintiff’s conduct as to proximate causes of the injury. Taken as a whole and regardless of which of the contested forms of the proximate cause instruction was given, the jury was instructed adequately as to the issues and the applicable law, and there is no reversible' error herein. Marshall v. Metropolitan Life Insurance Co. (1950), 405 Ill. 90; Sphatt v. Talley (1962), 38 Ill. App. 2d 229.

Plaintiff next contends on appeal that the admission of witness Ferestad’s testimony regarding the condition of defendants’ premises constituted reversible error because the witness admitted in his deposition and at trial that he could not describe the condition of the defendants’ front yard during the first week of November 1978 and that this error was given impact by the conduct of the trial judge in personally questioning the witness. Plaintiff argues that Ferestad did not actually observe the property through his own senses at or near the time of the occurrence (McCormick, Evidence sec. 10, at 20 (2d ed. 1972)) and therefore had no personal knowledge upon which to base his testimony regarding a fact of consequence in the litigation (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 601.1, at 229 (3d ed. 1979)). His testimony, according to plaintiff, consisted of impermissible vague impressions (Rounds v. McCormick (1882), 11 Ill. App. 220).

Basically, plaintiff’s objection is based upon the premise that testimony concerning the condition of the yard should have been limited to the date of the fall or a short period immediately preceding the fall. However, one of the critical factual issues in this case was the existence or nonexistence of a worn path. A reasonable inference could be drawn that if a worn path existed, it would have existed for some period of time.

Ferestad testified that no such pathway existed during the entire fall season. The basis for this testimony was established by his testimony that he observed the property several times a week during that time. The facts that he actually set foot on the property only every few months, that he could not recall being on the property during October, November or December 1978, and that he could not specifically recall the condition of the property in the first week of November 1978 affect the weight to be afforded his testimony, not its admissibility. Ferestad’s testimony was relevant and properly admitted.

Regarding the judge’s comments during the testimony to which plaintiff takes exception, it is clear that the trial judge intervened in order to move the trial along and clarify the testimony. The court properly refrained from expressing an opinion concerning Ferestad’s credibility or the weight to be accorded his testimony, and the judge’s remarks were not of such a nature as would ordinarily create prejudice in the minds of the jury. The trial judge was trying to clarify the testimony of the witness, and there appears to have been no prejudicial error in so doing. Bebb v. Yellow Cab Co. (1970), 120 Ill. App. 2d 454, 465-67, and cases cited therein; 37 Ill. L. & Prac. Witnesses sec. 87 (1958).

Finally, plaintiff argues on appeal that the court committed reversible error in admitting evidence regarding her prior medical problems. She maintains that generalized evidence of diabetic symptoms was improperly allowed to come in despite the fact that she testified that she was symptom-free for three months prior through three months after the fall. She also contends, in substance, that evidence about her medical problems and symptoms up to six years prior to her fall was not relevant since such evidence would not establish a causal relationship between these problems and her fall.

However, plaintiff testified that she was receiving Social Security disability payments for low blood pressure (postural hypotension) from 1975 through the time of the fall, although her doctor did note that she had no postural hypotension problem in his notes in August 1978. Also, she stated that she sometimes had shooting pains in her legs from 1975 through the date of the fall, even though she had stated in her deposition that she had no left leg problem prior to the fall. While her doctor testified that her diabetes was “fairly well controlled” in August 1978, he said at trial that the dizziness and pains in the legs do not reduce in intensity in accordance with the amount of control of diabetes even though he had written in his report in August 1978 that the leg pain was so affected.

Most damaging to plaintiff’s position, however, was her doctor’s testimony that it was possible that she could have had these problems between the two times that he saw her, August 1978 and February 1979. She alleged and had the burden of proving that her fall resulted from defendants’ negligence; evidence that a long-standing medical condition might have caused her to teeter and fall has obvious relevance and probative value. (See Mueller v. Yellow Cab Co. (1982), 110 Ill. App. 3d 504, 508.) The fact that her testimony contradicted that cause and that there was impeachment of both plaintiff and her doctor affects the weight to be accorded the testimony, not its admissibility. 37 Ill. L. & Prac. Witnesses sec. 236 (1958).

The judgment of the trial court is affirmed.

Affirmed.

REINHARD and HOPF, JJ., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    First District (2nd Division)
    No. 82—2728
    Opinion filed November 15, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Philip C. Parenti and H. Alfred Ryan, Assistant Attorneys General, of counsel), for petitioner.
    E. William Hutton and David L. Rieser, Special Assistant Attorneys General, of Springfield, for respondent Illinois Environmental Protection Agency.
    Allen S. Lavin, of Chicago (James B. Murray and Phillip Rothenberg, of counsel), for respondent Metropolitan Sanitary District of Chicago.
    Michael J. Wilson, of Bloomington, for respondent Bloomington-Normal Sanitary District.
   JUSTICE PERLIN

delivered the opinion of the court:

The People of the State of Illinois have petitioned this court for review of a final administrative order of the Pollution Control Board (the Board) entered on October 14, 1982. The order repealed two of the Board’s water pollution regulations setting water quality standards for the State’s surface waters and relaxed the requirement for the discharge of sewage treatment plant effluents into the State’s surface waters. The People contend that the Board’s repeal of the water quality standards for primary contact waters violated State and Federal law; that the Board’s decision to modify the effluent disinfection requirements rests upon an arbitrarily chosen 20-mile limit; and that the Board’s second notice of adoption of proposals submitted to the Board by the Illinois Environmental Protection Agency (the Agency) violated section 28 of the Illinois Environmental Protection Act. (Ill. Rev. Stat. 1981, ch. 111½, par. 1028.) For the reasons hereinafter stated, we affirm in part and reverse in part.

On October 14, 1982, the Illinois Pollution Control Board, over the dissent of its chairman, Jacob D. Dumell, entered a final order with respect to three regulatory proposals which the Illinois Environmental Protection Agency submitted to the Board in 1977. The order deleted fecal coliform bacteria as a water quality standard for general use waters (35 Ill. Admin. Code sec. 302.209) and secondary contact waters (35 Ill. Admin. Code sec. 302.406) and modified the requirements for disinfecting sewage treatment plant effluents prior to discharge into receiving bodies of water (35 Ill. Admin. Code sec. 304.121).

The Agency proposed deletion of the fecal coliform standard and modification of the effluent discharge requirement because it concluded that the disinfection process practiced in Illinois, chlorination, is harmful to the environment and that the fecal coliform standard does not indicate water quality but only the presence of fecal coliform bacteria.

The Board modified the effluent requirements so that no disinfection is required of sewage treatment plant discharges outside of the swimming season; disinfection of wastewaters is required only for those discharges whose effluent outfall to a waterway lay within 20 miles upstream of a public water supply, a food processing supply, a licensed bathing beach during the swimming season, or where such a discharge would violate the standard of another State’s water. According to the Attorney General, more than 1600 of the approximately 1700 dischargers to the State’s general use waters would not require disinfection at any time of the year.

The Board’s order was to become effective upon its filing with the Secretary of State on November 6, 1982. The People of the State of Illinois filed a timely petition for review on November 16, 1982. On February 1, 1983, this court entered an order staying the regulatory change until further notice.

The text of the two sections of the water pollution rules and regulations deleted by the Board’s order are as follows:

“Section 302.209 Fecal Coliform
Based on a minimum of five samples taken over not more than a thirty day period, fecal coliform *** shall not exceed a geometric mean of 200 per 100 ml, nor shall more than 10% of the samples during any thirty day period exceed 400 per 100 ml.” 35 Ill. Admin. Code sec. 302.209.
“Section 302.406 Fecal Coliform
Based on a minimum of five samples taken over not more than a thirty day period, fecal coliforms *** shall not exceed a geometric mean of 1,000 per 100 ml, nor shall more than 10% of the samples during any thirty day period exceed 2,000 per 100 ml.” 35 Ill. Admin. Code sec. 302.406.

Former section 304.121 provides that “[n]o effluent governed by this Part shall exceed 400 fecal coliform per 100 ml.” (35 Ill. Admin. Code sec. 304.121.) The text of the revised section is as follows:

“No person shall cause or allow fecal coliform *** to exceed 400 per ml in any effluent which discharges to the following locations:
a) During the months of May through September, within 20 stream miles (statute miles) upstream of a public bathing beach licensed under the ‘Illinois Swimming Pool and Bathing Beach Act’ (Ill. Rev. Stat. 1979, ch. 111½, pars. 1201-1227);
b) Within 20 stream miles (statute miles) upstream of a water intake used for public or food processing water supply;
c) Any location where it may cause or contribute to violation of another state’s water quality standards in interstate waters.” 35 Ill. Admin. Code sec. 304.121.

I

The Attorney General’s initial argument is that the deletion of the fecal coliform standard is violative of Federal and State environmental law.

Both Federal and State law require the Board to designate uses for various waters and to prescribe water quality standards to protect those uses. (33 U.S.C. sec. 1313(c)(2) (1976); 40 C.F.R. sec. 35.1550(b) (1982); Ill. Rev. Stat. 1981, ch. 111½, par. 1011(b); 35 Ill. Admin. Code sec. 301.102; Mississippi Commission on Natural Resources v. Costle (5th Cir. 1980), 625 F.2d 1269, 1271-72, 1275-77.) With certain exceptions, the Board has designated all waters of the State as “general use waters” which must meet the general use standards of the Board’s water pollution regulations. (35 Ill. Admin. Code secs. 302.101(a), (b), 302.201, 303.200, 303.201.) The purpose of these standards is to “protect the State’s water for aquatic life, agricultural use, primary and secondary contact use and most industrial uses and ensure the aesthetic quality of the State’s aquatic environment.” (35 Ill. Admin. Code sec. 302.202.) The Board’s rules define “primary contact” as “[a]ny recreational or other water use in which there is prolonged and intimate contact with the water involving considerable risk of ingesting water in quantities sufficient to pose a significant health hazard, such as swimming and water skiing.” 35 Ill. Admin. Code sec. 301.355.

The Board’s order of October 14, 1982, repealed the fecal coliform indicator for general use waters (35 Ill. Admin. Code sec. 302.209), which include all primary contact waters in Illinois except Lake Michigan. (35 Ill. Admin. Code secs. 302.101(e), 302.501 through 302.509, 303.443.) The fecal coliform indicator for Lake Michigan (35 Ill. Admin. Code sec. 302.505) was not affected. In our judgment, the Board, in repealing the fecal coliform indicator for general use waters and in not replacing that indicator with another microbiological indicator, has contravened the regulatory scheme mandated by Federal and State law.

As we have noted, the Board is required to designate uses for various waters and to prescribe water quality standards to protect those uses. Except for those waters into which the Metropolitan Sanitary District discharges its effluents (35 Ill. Admin. Code sec. 303.441), all waters of the State are designated as general use waters. This use includes “primary contact” in which there is “prolonged and intimate contact with the water involving considerable risk of ingesting water in quantities sufficient to pose a significant health hazard ***.” (35 Ill. Admin. Code sec. 301.355.) By virtue of its repeal of section 302.209, the Board has eliminated the water quality standard designed to avoid that health hazard for all general use waters except Lake Michigan. While the Board has taken the position that fecal coliform is not a reliable indicator of the presence of pathogens in water, this position, in our opinion, logically cannot be reconciled with the Board’s retention of fecal coliform as a water quality standard for Lake Michigan (35 Ill. Admin. Code sec. 302.505), as a general effluent standard (35 Ill. Admin. Code sec. 304.121) and as a raw water quality standard for public water supplies (Illinois Pollution Control Board Rules and Regulations, ch. 6: Public Water Supplies, R. 307C). Moreover, the Board has not replaced that indicator with any other microbiological indicator to protect the uses designated for general use waters. We believe this action exceeded the Board’s authority.

In A.E. Staley Manufacturing Co. v. Environmental Protection Agency (1972), 8 Ill. App. 3d 1018, 290 N.E .2d 892, the court stated:

“[Administrative agencies are limited to the powers vested in them by statute and their rules and regulations are valid only when they are in the furtherance of the intention of the legislature as stated within the four corners of the statute. [Citation.] A rule or regulation to be valid may only implement the law, and regulations are valid only as subordinate rules and when found to be within the framework of the policy which the legislature has sufficiently defined. They are valid and binding only when they are in the furtherance of the intention of the legislature as evidence by its Act. [Citation.]” (8 Ill. App. 3d 1018, 1022-23.)

Rules for which the Board lacks statutory authority to promulgate are void. (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 553, 387 N.E .2d 258.) In our judgment, therefore, that portion of the Board’s order which repealed section 302.209, the fecal coliform water quality standard for general use waters, is void because it violates the legal requirement that the Board prescribe water quality standards to protect designated uses.

In its final order, the Board also repealed section 302.406, the fecal coliform water quality standard for secondary contact and indigenous aquatic life waters. The repeal of this section presents somewhat different questions than the repeal of section 302.209.

Waters designated as “secondary contact and indigenous aquatic life waters” are not required to meet the water quality standards for general use waters. (35 Ill. Admin. Code secs. 302.101(d), 302.401, 302.402, 303.200, 303.204.) The standards for secondary contact and indigenous aquatic life waters are “intended for those waters not suited for general use activities but which will be appropriate for all secondary contact uses and which -will be capable of supporting an indigenous aquatic life ***.” (35 Ill. Admin. Code sec. 302.402.) “Secondary contact” is defined as “[a]ny recreational or other water use in which contact with the water is either incidental or accidental and in which the probability of ingesting appreciable quantities of water is minimal, such as fishing, commercial and recreational boating and any limited contact incident to shoreline activity.” (35 Ill. Admin. Code sec. 301.380.) “Acquatic life” is defined as “[n]ative populations of fish and other aquatic life.” 35 Ill. Admin. Code sec. 301.220.

The only waters in Illinois designated by the Board as “secondary contact and indigenous aquatic life waters” are those waters into which the Metropolitan Sanitary District discharges its effluents. (35 Ill. Admin. Code sec. 303.441.) The Attorney General does not dispute this designation. In secondary contact waters, “contact with the water is either incidental or accidental and *** the probability of ingesting appreciable quantities of water is minimal ***.” (35 Ill. Admin. Code sec. 301.380.) The Attorney General has not argued and we find no evidence in this record that the deletion of fecal coliform as a water quality standard for secondary use will affect the purposes for which secondary waters are used. Consequently we find no error in that portion of the Board’s order which repealed section 302.406, the fecal coliform indicator for secondary contact and indigenous aquatic life waters. As a result of this conclusion, disinfection of fecal coliform bacteria will no longer be required of secondary contact and indigenous aquatic life waters.

II

The Attorney General next contends that the order of the Board modifying the effluent disinfection requirement relies on an arbitrarily chosen 20-mile limit. The new rules state:

“No person shall cause or allow fecal coliform *** to exceed 400 per 100 ml in any effluent which discharges to the following locations:
a) During the months of May through September, within 20 stream miles (statute miles) upstream of a -public bathing beach licensed [by the Illinois Department of Health] under the ‘Illinois Swimming Pool and Bathing Beach Act’ (Ill. Rev. Stat. 1979, ch. 111½, pars. 1201-1227);
b) Within 20 stream miles (statute miles) upstream of a water intake used for public or food processing water supply;
c) Any location where it may cause or contribute to violation of another state’s water quality standards in interstate water.” (35 Ill. Admin. Code sec. 304-121.

Voluminous expert testimony would appear to establish that a single, statewide uniform mileage criterion for disinfection of sewage effluents has no technical justification. The rule modifying the effluent standard adopted by the Board fails to take into account individual stream characteristics. Thus, in some instances, a 20-mile limit would provide more protection against downstream contamination than is necessary while in other instances, a 20-mile limit would be inadequate. Even those witnesses who supported a modification of the existing effluent standard agreed that a uniform rule of 20 miles is unsound. Moreover, in oral argument, counsel for the Board admitted that there is very little rational or scientific merit for the 20-mile limit. This limit, according to the Board, merely represents an accommodation among alternative distances.

The majority of expert witnesses, as well as the Board’s chairman, Jacob D. Dumell, who dissented from the Board’s order modifying the effluent standard, indicated that the decision to modify the effluent standard should be made on a case-by-case basis. This would not require, as the Board’s opinion suggests, 1,500 separate site specific rulemaking proceedings. Instead, the effluent standard could be maintained, and the Agency could allow individual dischargers to omit or reduce disinfection where appropriate.

One of the difficulties with the Board’s order modifying the effluent standard is that it does not protect the many recreational areas in Illinois which do not happen to be licensed by the Illinois Department of Health. The effect of the Board’s rule is to shift responsibility for protecting waters used for recreational purposes to the Department of Health. This, in our opinion, is improper.

The Board’s order modifying the effluent standard was apparently based on its concern that the disinfection method presently used in Illinois, chlorination, is harmful to the environment. The Board, however, was presented with alternative disinfection technologies (e.g., ultraviolet treatment) which were demonstrated to be workable, economically feasible and adaptable to existing Illinois treatment plants. The Board’s stated objective of reducing Illinois’ dependence on chlorine as a disinfectant for effluents could have been attained without relaxing the effluent standard. We conclude, therefore, that the modification of section 304.121 was arbitrary and unreasonable.

For the foregoing reasons, we reverse that portion of the Board’s order deleting fecal coliform as a water quality standard for general use waters (35 Ill. Admin. Code sec. 302.209) and modifying the requirements for disinfecting sewage treatment plant effluents prior to discharge into receiving bodies of water (35 Ill. Admin. Code sec. 304.121). We affirm that portion of the Board’s order which deleted fecal coliform as a water quality standard for secondary contact and indigenous aquatic life waters (35 Ill. Admin. Code sec. 302.406). In light of this disposition we need not address the Attorney General’s remaining contention.

Affirmed in part and reversed in part.

DOWNING, P.J., and STAMOS, J., concur.

      We hasten to point out that this case does not involve the chlorination of potable water. We are aware of no proposals to change the current techniques for purifying our drinking water supplies.

      Under the Illinois Environmental Protection Act, the Agency has authority to propose rules and regulations to the Board which then conducts hearings and determines whether such proposals should be adopted.

      Fecal coliform bacteria are bacteria found in the waste materials of warm blooded animals.

      The former rule provided that “fn]o effluent governed by this Part shall exceed 400 fecal coliform per 100 ml.” 35 Ill. Admin. Code sec. 304.121.