dissenting:
After considering the City of Chicago’s petition for rehearing and the first division of the First District’s decision in City of Chicago v. Cotton, 356 Ill. App. 3d 1 (2005), I respectfully dissent from the majority’s decision with which I earlier concurred.
The evidence in this case demonstrates that the condition of the building’s roof and exterior walls violated the Building Code’s provision that “[t]he foundation, exterior walls, and exterior roof *** shall be kept in sound condition and repair.” Chicago Municipal Code § 13— 196 — 530 (1999). Under the plain language of section 13 — 196—530, the City did not need to prove that the building’s exterior admitted water or was dangerous and hazardous.
Similarly, the evidence in this case demonstrates that the subject building’s fire escape was in violation of sections 13 — 160—070 and 13 — 160—080 of the Chicago Municipal Code. The evidence showed that the fire escape would not lower to street level because it was blocked by a canopy attached to an adjacent building. The majority are technically correct that “the cause of the condition was not attributable to defendants, who took prompt measures to alleviate the problem.” 357 Ill. App. 3d at 347. However, the Building Code provides that “the owner, his agent *** and any other person managing or controlling a building *** shall be liable for any violation therein, existing or occurring, or which may have existed or occurred, at or during any time when such person is or was the person owning or managing, controlling, or acting as agent in regard to said buildings or premises.” Chicago Municipal Code § 13 — 12—020 (2000). Under this provision, a building owner or manager is liable for any violation on the premises, regardless of who created the violation. The City acknowledges this is a form of strict liability, but argues that it “makes particular sense when fire exits are obstructed. Even if a building’s owner or manager did not create an obstruction, they are properly placed under an obligation to ensure that the obstruction is removed promptly, before a fire or other emergency, requires an evacuation.” I agree.
In its petition for rehearing, the City also relies on the holding in City of Chicago v. Hadesman, 17 Ill. App. 2d 150 (1958), which addressed the same ordinances that are at issue here and held that they
“merely afford a course of procedure for administrative officials in the enforcement of city building, fire and health regulations and were not intended to supplant the historic right of a municipality to sue for a penalty for violation of its ordinances. There is nothing in the Municipal Code of Chicago which would give defendant the right to violate provisions of the Code until notified; its provisions clearly make a violation subject to fine. If we were to accept defendant’s theory it would serve to encourage noncompliance without fear of suffering penalties until notice of violation had been served.” Hadesman, 17 Ill. App. 2d at 156.
I completely concur with the holding and analysis of Hadesman.
Section 13 — 12—040 of the Chicago Municipal Code provides that “[a]ny violation of *** any of the provisions of this code *** shall be punished by a fine of not less than $200.00 and not more than $500.00, and each day such violation shall continue shall constitute a separate and distinct offense for which a fine as herein provided shall be imposed.” Chicago Municipal Code § 13 — 12—040 (2005).
Section 13 — 12—040 was recently analyzed by this court in City of Chicago v. Cotton, 356 Ill. App. 3d 1 (2005). In upholding the mandatory nature of the fines imposed by section 13 — 12—040, the Cotton court relied on a long line of cases requiring courts to enforce statutes and ordinances as written and prohibiting courts from reading exceptions, limitations or conditions into the statutes and ordinances. Cotton, 356 Ill. App. 3d at 4-7, citing Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 10 (2001); In re D.L., 191 Ill. 2d 1, 9 (2000); Village of Spring Grove v. Kubat, 201 Ill. App. 3d 991, 993 (1990); City of Naperville v. Bernard, 139 Ill. App. 3d 784 (1985); City of Chicago v. Roman, 184 Ill. 2d 504, 510 (1998); City of De Kalb v. White, 227 Ill. App. 3d 328, 330-31 (1992); and City of Chicago v. Alessia, 348 Ill. App. 3d 218 (2004). As do the majority, Cotton addressed the holding in Village of Glenview v. Ramaker, 282 Ill. App. 3d 368, 372 (1996): “Where cooperation is shown, compliance has come about, and imposition of a fine would not aid enforcement, a fine is improper.” Ramaker considered at length whether a Vietnamese potbellied pig fell under the meaning of “swine” in a village ordinance and whether the ordinance was a proper exercise of the village’s home rule powers. The court only briefly considered the amount of the fine and then relied on an Environmental Protection Agency case, which itself relied on cases interpreting an entirely different statutory scheme than the building code. At the time we heard oral arguments on this case, we did not have the advantage of the well-reasoned decision in Cotton. After considering it, I believe that it controls. Accordingly, I respectfully dissent.