JUSTICE GARCIA delivered the opinion of the court.
We originally issued our decision as an unpublished order
under Supreme Court Rule 23 (166 Ill. 2d R. 23). The City of
Chicago (the City) filed a petition for rehearing. Joseph Getto
also filed a petition for rehearing, even though he filed no
brief on appeal. We granted both, withdrew our Rule 23 decision,
and now file this opinion in light of the additional filings by
both sides.
This action first arose from a filing by Mr. Getto seeking
to prevent the City from terminating water service to his
property while he disputed a $120,019.49 water bill. Mr. Getto
later amended his complaint, seeking a judicial declaration that
1-07-0673
1 In the caption Mr. Getto is identified as cross-appellant
based on his improperly filed notice of cross-appeal. See City
of Evanston v. Regional Transportation Authority, 209 Ill. App.
3d 447, 456-57, 568 N.E.2d 244 (1991) (cross-appeal not proper
from judgment that was not adverse).
2
he did not have to pay the bill. Following a bench trial, the
trial court enjoined the collection of the $120,019.49 water
bill.1
The City contends the trial court "ignored the requirements
of the Chicago Municipal Code" when it enjoined collection of the
water bill because no evidence was presented at trial that the
water meter was registering incorrectly or had stopped
registering. The City asks that we reverse the judgment of the
circuit court, enter judgment in its favor on its counterclaim,
and remand this cause for any further relief the City is entitled
to under the Municipal Code. We agree with the City; we reverse
and remand.
BACKGROUND
Joseph Getto is the beneficiary of a trust that owns a 14-
unit building on West Marquette Road in Chicago (the Marquette
building). On July 2, 2003, Mr. Getto filed a complaint for
injunctive relief seeking to prevent the City from terminating
water service to the Marquette building while Mr. Getto disputed
a $120,019.49 water bill. He later amended the complaint to seek
1-07-0673
3
a judicial declaration that he was not liable for the amount
billed. The matter proceeded to a bench trial in September 2006.
Mr. Getto testified that he owned multiple residential
buildings managed through his company, Park Management. While
Mr. Getto oversaw the maintenance and capital improvements of the
buildings, he was not directly involved with the routine upkeep
of the properties. A team of three employees was responsible for
day-to-day maintenance and Mr. Getto was only consulted when they
needed approval for a "major repair."
Mr. Getto purchased the Marquette building in 1993. The
building had 10 studio apartments and 4 one-bedroom apartments.
Each unit had a kitchen sink, a bathroom sink, a toilet, and a
tub. The building was surrounded by a locked five-foot-tall
wrought iron fence. Mr. Getto generally visited the Marquette
building every three to four weeks in the summer and up to six
times a month in the winter. Although Mr. Getto sometimes went
into the basement, he never checked the water meter.
Because the Marquette building was surrounded by a locked
fence, Mr. Getto and his staff made appointments with the
electric and gas companies when the electric and gas meters
needed to be read. The water department meter readers, on the
other hand, usually called from the Marquette building asking for
immediate access to the meter. Mr. Getto and his staff could not
always accommodate these requests.
In August 2002, the water department made arrangements to
1-07-0673
4
read the meters in several of Mr. Getto's buildings that had been
receiving estimated bills. The water department then arranged to
reread the Marquette building's water meter.
When Mr. Getto received a water bill for $120,019.49, he
thought the amount was a mistake and called the water department
to request a review of the bill. Mr. Getto had successfully
contested a large water bill for another building in the past.
In December 2002, the water department removed the water
meter from the Marquette building and installed a new meter with
a remote reading device. After the new meter was installed, the
building's water bills were based on actual water usage.
During cross-examination, Mr. Getto was questioned regarding
plumbing problems at the Marquette building. These problems
included (1) a broken outside faucet, (2) a tub faucet that could
not be turned off, (3) a leaking bathtub, (4) leaking bathroom
pipes, (5) "water bugs," (6) leaking radiators, and (7) running
toilets. Tenants also complained about wet, "swollen," and moldy
walls. Mr. Getto did not remember the majority of these plumbing
problems and did not know when many of the problems were fixed.
Although workmen reported seeing clamped pipes in the basement,
Mr. Getto denied there were leaking pipes in the basement.
The parties stipulated that water department rate takers
Leslie Travis and Nancy Smith would testify that because of a
locked fence at the Marquette building they were unable to read
the water meter between May 1995 and July 2002. The parties also
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5
stipulated that the water bills issued between May 1995 and June
2002 were based on estimated readings of the water meter.
The City presented the testimony of Leonard Caifano, a
supervisor of water meter assessors. Mr. Caifano testified that
a water rate taker notes the reading on the meter, the condition
of the building, "whether the meter is operating," and "any
illegal connections or improper things related to the water
meter, its operation and accessibility."
Sonyia Henry, supervisor of customer accounts at the water
department, testified that she ensures the readings provided by
rate takers are uploaded into the billing system and that bills
are mailed to customers. A bill indicates on its face when it is
based on an estimated reading of the meter. Estimated readings
are based on prior usage. Ms. Henry testified the Marquette
building's estimated bills were based on the building's prior
usage and were issued approximately every two months.
On April 11, 1995, the actual reading on the Marquette
building's water meter was 1856. On August 27, 2002, the actual
reading on the meter was 365. The building's water usage between
the two actual readings was calculated at 7,271,000 cubic feet
(7.27 million cubic feet).
Jim Hjelmgren, a water meter machinist, testified he went to
the Marquette building to examine the water meter on December 5,
2002. During his examination, the meter registered 393.54, its
installation seals were intact, and it was not leaking. Mr.
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6
Hjelmgren returned the next day to replace the meter. The meter
registered 393.9 when it was removed. Mr. Hjelmgren installed a
new meter with a remote reading device and took the old meter to
a water department facility for testing.
Michael Duda, a water rate takers supervisor, testified that
when he read the Marquette building's water meter on August 7,
2002, it registered 360.70. On August 27, 2007, when he reread
the meter it registered at 365.76.
George Galen, a water meter machinist, testified he tested
the water meter removed from the Marquette building on December
9, 2002. Mr. Galen performed two tests on the meter, a high flow
test and a low flow test. For the high flow test, Mr. Galen
placed the meter in a testing device, determined there were no
leaks, and purged the air from the system. He then let water
from a tank holding 10 cubic feet of water flow through the meter
at a rate of 50 gallons per minute. Based on the results of this
test, Mr. Galen determined the meter's accuracy was 100%. Mr.
Galen next performed a low flow test in which the water flowed
though the meter at eight gallons per minute. Based on this
test, the accuracy of the meter was 100.5%.
In rebuttal, Mr. Getto presented the testimony of structural
engineer Michael Allen. Mr. Allen calculated the average monthly
water consumption at the Marquette building as 11,000 cubic feet.
This figure was based on the assumption that each unit in the
building was occupied and that the average daily water usage per
1-07-0673
7
person was 100 gallons. Mr. Allen then "performed some basic
hydraulic calculations to look at different scenarios as to how
the water, the volume of water in question could pass through the
pipes." He also made a physical inspection of the building in
order to look for "signs of *** massive water damage." He did
not find any visible signs of water damage in the basement or the
two apartments he inspected.
In Mr. Allen's opinion, in order for the Marquette building
to have consumed 7.27 million cubic feet of water over the period
in question, a "catastrophic event" would have had to occur.
Examples of a "catastrophic event" included a broken water main,
six faucets running constantly for nine years, and five tub or
shower fixtures running constantly for seven years. Although it
was physically possible for the Marquette building to have
consumed 7.27 million cubic feet of water, in Mr. Allen's opinion
it was not "reasonable or probable that [7.27 million cubic feet
of water] could have been consumed without some evidence" of a
catastrophic event.
During cross-examination, Mr. Allen admitted that he did not
inspect every apartment in the Marquette building for water
damage and that he did not measure the building's flow rate.
Rather, Mr. Allen based his calculations on the flow rate of the
faucets at his home in Lisle and on published data from the
Environmental Protection Agency.
The City presented the testimony of Victor Smith, a
1-07-0673
8
mechanical engineer, to rebut Mr. Allen's testimony. In Mr.
Smith's opinion, the Marquette building could have consumed 7.27
million cubic feet of water through "a combination of scores of
small events" rather than one catastrophic plumbing event.
The trial court determined there was "sufficient evidence in
this record that indicates that there was an excessive amount of
water read on that meter, but no basis for an understanding of
how that might have occurred," which "in and of itself" shifted
the burden of explanation to the City. The trial court ruled in
Mr. Getto's favor because, in the court's words, "the city cannot
explain why that amount of excessive water would have been read
on that meter assuming that the meter, although it was tested,
was accurate." The court commented that the City cannot use its
failure to read the water meter "as an excuse for coming up with
a bill that is thousands of times greater than the normal
average." This timely appeal followed.
ANALYSIS
The City contends the trial court "ignored" the Chicago
Municipal Code when it ruled for Mr. Getto because under the
Municipal Code a customer is liable for the amount of water
registered by a water meter except when the meter is registering
incorrectly or has stopped registering. The City further
contends that because all evidence presented at trial indicated
the meter was registering correctly, Mr. Getto was "liable for
the full amount of water registered by the meter."
1-07-0673
9
As we stated, Mr. Getto did not file a brief on appeal. He
has filed a petition for rehearing, an answer to the City's
petition for rehearing, and a reply to the City's answer to his
petition. In our Rule 23 decision, we cited to First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,
133, 345 N.E.2d 493 (1976), for the proposition that we could
address the merits of the City's appeal because "the record is
simple and the claimed errors are such that [we] can easily
decide them without the aid of an appellee's brief." In its
answer to Mr. Getto's petition for rehearing, the City asserts
that Mr. Getto "has waived all of his arguments because he did
not file a brief." See 210 Ill. 2d R. 341(i) (brief for appellee
shall comply with rules for brief of appellant); 210 Ill. 2d R.
347(h)(7) ("Points not argued are waived and shall not be raised
in the reply brief, in oral argument, or on petition for
rehearing"); People v. Exson, 384 Ill. App. 3d 794, 803, 896
N.E.2d 844 (2008) ("Rule 341(i) applies Rule 347(h)(7) to
appellee brief"). We agree. We consider the claims Mr. Getto
raises in his petition for rehearing only as to points we may
have "overlooked or misapprehended" in our initial decision,
while keeping in mind that "[r]eargument of the case shall not be
made in the petition." 210 Ill. 2d R. 367(b).
The Municipal Code addresses the manner in which the City
charges for water:
1-07-0673
10
"City water supplied *** through service
pipes controlled by water meter shall be
charged and paid for on the basis of the
amount registered by such meter, except in
cases where it shall be found that such meter
is registering incorrectly, or has stopped
registering." Chicago Municipal Code §11-12-
320 (12/04/02).
The Municipal Code also excludes claims for deductions or
rebates for water measured, but not used by a customer:
"No deduction shall be made or rebate
allowed to any consumer of water under meter
control by or on account of any leakage or
alleged leakage in any water pipe, tank or
other apparatus or device. The amount of
water registered by any meter controlling the
water supply to any building, structure or
premises, shall be charged and paid for in
full, irrespective of whether such water,
after having been registered, was lost by
leakage, accident or otherwise ***." Chicago
Municipal Code §11-12-460 (12/04/02).
Municipal ordinances are construed no differently than
statutes. Daley v. American Drug Stores, 312 Ill. App. 3d 1133,
1-07-0673
11
1135, 728 N.E.2d 725 (2000). The construction of an ordinance
presents a question of law, subject to de novo review. MD
Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 286, 888
N.E.2d 54 (2008). Our goal when construing an ordinance is to
ascertain and give effect to the drafter's intent. Daley, 312
Ill. App. 3d at 1135-36. The "simplest" way to reach this goal
is to give the words in the ordinance their plain and ordinary
meaning. MD Electrical Contractors, 228 Ill. 2d at 287. When
the language is clear and unambiguous, we apply the ordinance as
written. MD Electrical Contractors, 228 Ill. 2d at 287-88. Once
construed, the terms are applied to the facts of a particular
case to determine the outcome under the ordinance. See Price v.
Philip Morris, Inc., 219 Ill. 2d 182, 235, 848 N.E.2d 1 (2005).
The clear and unambiguous language of section 11-12-320 of
the Municipal Code requires a customer to pay for the water
registered by his water meter except when the water meter is
registering incorrectly or has stopped registering. Accordingly,
under the Municipal Code, whether Mr. Getto could avoid liability
for the $120,019.49 water bill turned on the accuracy of the
Marquette building's water meter.
Based on our review of the record, Mr. Getto did not
directly challenge the meter's accuracy or question the
reliability of the tests performed upon the meter to establish
its accuracy. Rather, Mr. Getto's challenge, made through his
1-07-0673
12
expert, was circumstantial: "[It was not] reasonable or probable
that [7.27 million cubic feet of water] could have been consumed
without some evidence [of a catastrophic event]." Absent
evidence of a catastrophic event, Mr. Getto concluded the reading
on the meter was simply wrong.
The City, on the other hand, presented the results of two
tests of the water meter which indicated the meter was
registering at 100%. To further support its position that the
meter accurately registered the amount of water supplied to the
building, the City cross-examined Mr. Getto regarding the
building's numerous plumbing problems and presented its own
expert that the building could have consumed the large amount of
water through numerous small plumbing problems rather than by way
of a catastrophic event.
The trial court ruled for Mr. Getto based on the City's
inability to adequately explain how the water meter registered
7.27 million cubic feet of water. While we understand the trial
court's frustration with the parties' efforts to blame each other
for the gap of 7 1/2 years between actual readings of the water
meter, we are aware of no authority that holds such a delay
between actual readings gives rise to a legal obligation on the
part of the City to explain how the Marquette building consumed
7.27 million cubic feet of water. The trial court's judgment
entered in favor of Mr. Getto was based on its determination that
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13
the City bore the burden of explaining the amount of water
registered by the meter, even "assuming that the meter *** was
accurate" as the trial court noted, and the City's failure to do
so excused Mr. Getto from paying the $120,019.49 bill. The trial
court cited Tepper v. County of Lake, 233 Ill. App. 3d 80, 598
N.E.2d 361 (1992), as authority that the burden shifted to the
City to explain the large amount of water usage registered by the
meter. Tepper is a case where the trial ended with a "granting
[of] a directed finding in plaintiff's declaratory judgment
action." Tepper, 233 Ill. App. 3d at 81. The plaintiff
appealed, and the appellate court agreed, that "he presented a
prima facie case that *** a bill for water service [was sent]
based on an inaccurate water meter." Tepper, 233 Ill. App. 3d at
81. Accordingly, the trial court's entry of the directed finding
was error. Tepper, 233 Ill. App. 3d at 81. Tepper, 233 Ill.
App. 3d at 87. No similar contention involving a prima facie
case can be made here. A full bench trial was conducted, the
only focus of which was the accuracy of the water meter; the
burden of proof never shifted. See Morrison v. Flowers, 308 Ill.
189, 195, 139 N.E. 10 (1923) (Prima facie "rule does not change
the burden of proof, for when all the evidence introduced in the
case is submitted the case is to be determined upon the whole
evidence").
We are aware of no requirement in the Municipal Code that
1-07-0673
14
the City must explain an "excessive" amount of water registered
by a meter. Rather, section 11-12-320 of the Municipal Code
requires that a customer pay for all water registered by meter
except when the meter is found to be registering inaccurately or
has stopped registering. Additionally, section 11-12-460 permits
no reduction to a water bill where the water meter accurately
measures the flow of water even though the water is lost through
a leak or accident. Here, because the evidence presented at
trial conclusively established that the meter was registering
correctly, Mr. Getto cannot escape liability for the amount of
water registered by the meter.
We briefly address the evidence presented at the bench trial
to demonstrate Mr. Getto's claim that the final meter reading was
wrong is unpersuasive. The Marquette building's water bill for
the actual reading of April 11, 1995, was for $1,378.26. For the
next 37 billing periods, Mr. Getto was billed based on estimated
readings. No actual reading of the water meter was performed
again until August 7, 2002. During those 7 1/2 years, the
Marquette building's water bills varied greatly. Between August
28, 1995, and October 20, 1999, the estimated bills ranged from
$13.19 to $601.28. The bill dated December 20, 1999, was for
$1,161.30. The bill dated June 16, 2000, was for $326.67. The
next bill, dated August 18, 2000, was for $610.49. Thereafter,
the building was billed around $770 every two months for its
1-07-0673
2 Mr. Getto's records indicate the bill was $118,347.15,
which reflects a discount of $1,672.34 if full payment was
received by September 20, 2002.
3 We do not consider any increase in the water usage charge
by the City that may have occurred over the 7 1/2-year period,
which would undermine further Mr. Getto's claim.
15
water usage. The actual reading of the meter for the period
ending August 27, 2002, resulted in the bill for $120,019.49.2
The $120,019.49 bill averaged over the 37 billing periods of
estimated readings is an additional $1,333.55 per month.3 This
average increase would have raised the first estimated bill Mr.
Getto received in August 1995 of $13.19 to $1,346.74, an amount
less than the bill he received for April 1995 of $1,378.26, based
on an actual reading. Upon seeing a drop of more than $1,300
from an actual-reading billing period to an estimated-reading
billing period, we question how Mr. Getto could not have realized
there was a discrepancy between the building's actual water usage
and the estimated bills he received. Looking at the amounts
billed over the estimated-readings period, we do not believe that
the $120,019.49 water bill Mr. Getto received was outside
reasonable bounds, such that only a "catastrophic event" could
explain it.
In accordance with the clear and unambiguous language of the
Municipal Code, we hold a customer must pay for the water
1-07-0673
16
registered by water meter except when the meter is shown not to
be registering accurately or not registering at all. Here, the
evidence conclusively established that the water meter for the
Marquette building registered at 100% accuracy. Accordingly, Mr.
Getto is liable for the water supply registered by his meter and
the trial court erred when it concluded otherwise.
CONCLUSION
We reverse the order of the circuit court enjoining the city
from collecting the August 2002 water bill of $120,019.49. We
remand to the circuit court with directions that judgment be
entered on the City's counterclaim and that the City be granted
any additional relief it may be entitled to under the Municipal
Code.
Reversed and remanded.
Wolfson, J., concurs.
Gordon, P.J., dissents.
1-07-0673
17
JUSTICE ROBERT E. GORDON, dissenting:
I respectfully dissent.
This court has repeatedly held that a reviewing court will not substitute its
judgment for that of the trial court in a bench trial, unless the trial court’s judgment
is against the manifest weight of the evidence. First Baptist Church of Lombard v.
Toll Highway Authority, 301 Ill. App. 3d 533, 542 (1998); Chicago Pizza, Inc., et
al. v. Chicago Pizza Franchise Limited, U.S., f/k/a Pizza U.S.A., Inc., et al., 384 Ill.
App 3d 849, 859 (2008) citing Dargis v. Paradise Park, Inc., 354 Ill. App. 3d 171,
177 (2004). “A judgment is against the manifest weight of the evidence only when
the opposite conclusion is apparent or when findings appear to be unreasonable,
arbitrary, or not based on evidence.” Judgment Services Corp. v. Sullivan, 321 Ill.
App. 3d 151, 154 (2001).
The trial judge is in a superior position to judge the credibility of the
witnesses and to determine the weight to be given their testimony. Buckner v.
Causey, 311 Ill. App. 3d 139, 144 (1999). When a bench trial contains
contradictory testimony that could support conflicting conclusions, an appellate
court will not disturb the trial court’s factual findings, unless a contrary finding is
1-07-0673
18
clearly apparent. Buckner, 311 Ill. App. 3d at 144.
In the case at bar, the majority concludes on page 11 of its slip opinion that
“[b]ased on our review of the record, Mr. Getto did not directly challenge the
meter’s accuracy ***.” I disagree.
Estimated water reads are based on prior usage. When Getto received a
$120,019.49 water bill, far above what the previous usage had been, he knew
something was wrong, and he called the water department and requested a review.
Getto’s expert opined that it was not “reasonable or probable” that 7.27 million
cubic feet of water could have been consumed “without some sort of catastrophic
event that would have been noticed by someone.” Getto’s expert explained that
“that volume of water would fill the building in question 52 times from basement to
roof.” To provide an example of a catastrophic event, Getto’s expert stated that, if
a water main broke and were allowed to flow unrestricted, for 24 hours a day, seven
days a week, it would take “a couple of months” to deliver the volume of water at
issue. Getto’s expert observed that “74 million gallons of water is not going to
happen through a toilet leak in this period of time.”
Yet there was no evidence of a catastrophic event. Getto’s expert testified
1-07-0673
19
that he saw “no signs of anything to indicate that any sort of rupture of the
magnitude that would have been required for that amount of water to enter the
building.”
Getto’s expert earned his degree in civil engineering from Northwestern
University and worked for several companies, including eleven years for
Commonwealth Edison. During the Chicago Flood of 1992, the president of the
Board of Trade asked the president of Commonwealth Edison to send an engineer to
cope with the flooding in their building. The Commonwealth Edison president
selected Getto’s expert, who calculated the water flow, devised a method to stem it,
and kept the Board of Trade operational during the emergency.
The city’s expert admitted that he had never inspected the property.
Therefore, all of the city’s expert testimony was given without ever having been at
the property. Although the city’s expert opined that “it was possible” for the
building to have consumed 7.27 million cubic feet of water through “a combination
of scores of small events,” there was no evidence of “scores” of events in the
building. As an example of a “combination of scores of small events,” the city’s
expert stated that there were “60 fixtures and pipes and hose bibs” in the building,
1-07-0673
20
and this volume of water could have been consumed if there was leakage “in each
and every one of those.” Yet, the city expert never went to the premises to see if
there was any evidence of these “events.” Based on that, the trial court could
reasonably infer that the city knew that there was no evidence of “scores of small
events” in the building.
I agree with the majority that, under the ordinance, liability turned on
evidence of the water meter’s accuracy. I disagree with the majority that “the
evidence presented at trial conclusively established that the meter was registering
correctly.” Slip op. at 13. The city’s machinist opined that water meter tests
indicated the meter was registering at 100%, but the testimony of both experts that
7.27 million cubic feet of water usage could not occur without a catastrophic event -
- or “scores” of small catastrophes -- is much more compelling. As noted, there was
no evidence of either a catastrophe, or scores of small catastrophes; therefore, the
trial court could have reasonably found that the water meter was defective. The trial
court stated that he ruled for Getto based on the City’s inability to explain how the
water meter registered 7.27 million cubic feet of water. This is the same as ruling
that the evidence proved that the meter was defective. I agree with the majority that
there is no requirement in the Municipal Code that the City explain the amount of
1-07-0673
21
water registered by a meter or explain what happens to water once it has been
registered by a meter. However, the Municipal Code does not control the rules of
evidence, and we presume the trial court took all the evidence into consideration in
rendering its decision .
In this case, I cannot say that the trial court’s decision is against the manifest
weight of the evidence. Surely, the opposite conclusion is not apparent (Buckner,
311 Ill. App. 3d at 144); and the trial court’s findings do not “appear to be
unreasonable, arbitrary or not based on evidence.” Judgment Services, 321 Ill. App.
3d at 154. I would affirm the trial court.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
JOSEPH D. GETTO, Beneficiary of Standard Bank and Trust No. 16091,
Plaintiff and Counterdefendant-
Appellee and Cross-Appellant,
v.
THE CITY OF CHICAGO,
Defendant and Counterplaintiff-
Appellant and Cross-Appellee.
________________________________________________________________
No. 1-07-0673
Appellate Court of Illinois
First District, First Division
Filed: June 1, 2009
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
WOLFSON, J., concurs.
GORDON, ROBERT E., P.J., dissents.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable James F. Henry, Judge Presiding
_________________________________________________________________
1-07-0673
23
For DEFENDANT- Benna Ruth Solomon,
APPELLANT Myriam Zreczny Kasper,
Suzanne M. Loose,
MARA S. GEORGES, Corporation Counsel of the City of
Chicago
30 N. LaSalle Street, Suite 800
Chicago, Illinois 60602
For PLAINTIFF- William B. Kohn,
APPELLEE Law Offices of William B. Kohn
150 N. Wacker Drive, Suite 1400
Chicago, Illinois 60606
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