dissenting:
The majority correctly states the standard to be employed in determining whether a second prosecution violates the prohibitions against double jeopardy contained in the Constitution of the United States (U.S. Const., amend. V), and the Constitution of the State of Illinois (Ill. Const. 1970, art. I, § 10). But I believe the majority has misapplied that standard under the facts of this case.
Although the prosecution of a municipal ordinance violation is considered civil in nature, successive State and municipal prosecutions for the same conduct can constitute double jeopardy (People v. Allison (1970), 46 Ill. 2d 147, 263 N.E.2d 80), when the potential penalty for the ordinance violation is punitive in nature (see United States v. Halper (1989), 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892). In this case, the defendant was prosecuted and found guilty of 113 violations of the Municipal Code of Chicago (Code). His fines totaled $3,625,050. After he was convicted of violating the Code, the defendant was found guilty and sentenced for violating section 6 of the Litter Control Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 86 — 6).
One of the sections of the Code that the defendant was found to have violated and for which he was fined was section 7 — 28—450(b), which provides:
"The owner, occupant, agent or person in possession or control of any residence or business (owner) shall remove or cause to be removed any garbage, debris, refuse, litter and miscellaneous waste located upon his property or place of business. Unremoved material of such nature is hereby declared to be a public nuisance. Any owner or other person found in violation of this section shall be fined not less than $200.00 and not more than $1,000.00 for each offense. Each day on which such an offense shall continue shall constitute a separate and distinct offense.” (Chicago Municipal Code § 7 — 28—450(b) (1990).)
In finding the defendant guilty, the court held: "From May 21, 1991 to July 22, 1992, defendant is guilty of violating the following provisions of the Code: *** section 7 — 28—450(b) in that defendant has failed to remove garbage, abandoned vehicles, lumber, wood, bricks and electrical parts from the subject property ***.”
Nothing in this record suggests that the potential fines provided in section 7 — 28—450(b) are remedial in nature or intended to defray the city’s costs of enforcement. To the contrary, the Code provides, in addition to the penalties that may be assessed, whenever any work such as "cleaning up” is done at city expense, the city’s buildings commissioner shall issue a warrant for collection from the owner of the property. (Chicago Municipal Code § 13 — 8—120 (1990).) From an examination of the record and the applicable ordinances, I conclude that the penalties provided for a violation of section 7 — 28—450(b) are punitive in nature.
Guided by the standard articulated in Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180, the next step is to determine if a violation of section 7 — 28—450(b) of the Code has the same elements as a violation of section 6 of the Act, or if one offense is the lesser included offense of the other.
The majority concludes that the defendant’s prosecution for a violation of section 6 was not an impermissible successive prosecution for the same offense for which he was fined for violating section 7 — 28—450(b). This conclusion rests on a finding that a violation of either section requires proof of an element not required for a violation of the other. I disagree.
The owner of real property violates section 6 of the Act by allowing litter to accumulate upon the property in such a manner as to constitute a public nuisance or by allowing litter to accumulate in such a manner that it may be blown or otherwise carried onto the real property of another by natural elements. (111. Rev. Stat. 1989, ch. 38, par. 86 — 6.) The Act does not define the term "public nuisance,” but it does define the term "litter.” Litter may include:
"any garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste, newspaper, magazines, glass, metal, plastic or paper containers or other packaging construction material, abandoned vehicle ***, motor vehicle parts, furniture, oil, carcass of a dead animal, any nauseous or offensive matter of any kind, any object likely to injure any person or create a traffic hazard, or anything else of an unsightly or unsanitary nature, which has been discarded, abandoned or otherwise disposed of improperly.” Ill. Rev. Stat. 1989, ch. 38, par. 86 — 3.
Section 7 — 28—450(b) declares that a violation of its provisions is a public nuisance, and the defendant was found guilty of a violation of that section for having failed to remove garbage and abandoned vehicles from the property at 1651-1653 West Hubbard Street. Section 6 prohibits an accumulation of litter, which includes debris and abandoned vehicles, in such a manner as to constitute a public nuisance. The defendant was found guilty of a violation of section 6 in part upon the testimony of a Chicago building inspector that he maintained junk cars and debris on the property and that the accumulation was a "nuisance to the public.”
The majority draws a distinction between the enactments because section 7 — 28—450(b) is violated by one who fails to remove litter from the property, whereas section 6 proscribes its accumulation. I find the distinction to be without a difference. One allows litter to accumulate by failing to remove it. The majority finds a further distinction based on the language of section 6 which prohibits the accumulation of litter that may be blown or otherwise carried by natural elements onto the real property of another. However, there was no testimony in this record relating to litter blowing onto the property of another. Because the statute is stated in the disjunctive, merely allowing litter to accumulate in such a manner as to constitute a public nuisance is sufficient to constitute a violation.
In sum, I disagree with the majority in its finding that the elements necessary for a violation of section 7 — 28—450(b) are different from those necessary to constitute a violation of section 6. If a violation of section 7 — 28—450(b) is established against the owner of property, nothing more need be proven to establish a violation of section 6. Further, the State’s own witness in the instant action testified that the property conditions that he testified to were the same as those he testified to in the proceeding in which the defendant was fined for violating section 7 — 28—450(b).
Based upon the foregoing analysis, I find that the defendant was subjected to successive prosecutions for the same conduct under an ordinance and a statute, neither of which required proof of any additional fact which the other did not, in violation of the prohibition against double jeopardy in the United States and State Constitutions. Therefore, I respectfully dissent.