People ex rel. Carey v. Starview Drive-In Theatre, Inc.

• Decision Date: 08 September 1981
• Docket Number: No. 80-1538,DRIVE-IN,80-1538
• Citation: 427 N.E.2d 201,100 Ill.App.3d 624,56 Ill.Dec. 121
• Parties: , 56 Ill.Dec. 121 PEOPLE of Cook County, Illinois ex rel. Bernard CAREY, State's Attorney of Cook County, Illinois, George W. Dunne, President of Board of Commissioners of Cook County, Illinois, and Board of Commissioners of Cook County, Illinois, Plaintiffs-Appellees, v. STARVIEWTHEATRE, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 201

427 N.E.2d 201

100 Ill.App.3d 624, 56 Ill.Dec. 121

PEOPLE of Cook County, Illinois ex rel. Bernard CAREY State's Attorney of Cook County, Illinois, George W. Dunne President of Board of Commissioners of Cook County Illinois, and Board of Commissioners of Cook County Illinois, Plaintiffs-Appellees, v. STARVIEW DRIVE-IN THEATRE, INC., Defendant-Appellant.

No. 80-1538.

Appellate Court of Illinois, First District, Second Division.

Sept. 8, 1981.

Rehearing Denied Sept. 24, 1981.

L. Robert Artoe, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Jane Clark Casey, Deputy State's Atty., Chief, Civil Actions Bureau, and John A. Dienner, III, Asst. State's Atty., Chicago, of counsel), for plaintiffs-appellee.

PERLIN, Justice:

This appeal challenges the facial validity of certain provisions of the Cook County Outdoor Movie Theater Ordinance (Cook County Ordinances (1978) chs. 14-47 et seq., as amended), which requires the licensing of all outdoor movie theaters in unincorporated Cook County. ¹ Under section 14-53. (3) of the ordinance (Cook County Ordinances (1979) sec. 14-53. (3)), "every applicant for a license shall covenant and agree * * *:

"To desist from exhibiting any motion picture or film presentation viewable from any private residence or any public street or walkway which contains any scene or scenes depicting any of the following sexually explicit nudity:

(A) Sexual intercourse, masturbation or oral copulation;

(B) Touching, caressing or fondling of the bare female breast or bare male or female buttocks, anus, or genitals;

(C) Erect male genitalia or male ejaculation."

The State's Attorney of Cook County filed an action in the circuit court seeking a declaratory judgment (Ill.Rev.Stat.1979, ch. 110, par. 57.1) that the ordinance is constitutional and an injunction barring defendant, Starview Drive-In Theatre, Inc. (Starview), from operating without a license. ² Subsequent to the filing of the complaint, Starview applied for and received a license to operate as an outdoor theater, thereby rendering moot the State's Attorney's prayer for injunctive relief. The issues relating to the constitutionality of the ordinance were briefed and argued by the parties. On May 23, 1980, the trial court ruled that the ordinance is constitutional, from which judgment Starview appeals.

For the reasons hereinafter stated, we hold that clauses (A) and (C) of section 14-53. (3) of the Cook County Outdoor Movie Theater Ordinance are constitutional. We hold further that clause (B) is constitutional insofar as it applies to the exhibition of films that are viewable from "any private residence"; clause (B) is unconstitutional to the extent it restricts the exhibition of films that are viewable only from "any public street or walkway." ³

Before addressing the merits of the parties' contentions, we must dispose of certain motions which were taken with the case. Starview has moved to strike Appendix A and Appendix B of the State's Attorney's brief.

Appendix A (see footnote 3, below) consists of the decision of the hearing officer who presided at the license revocation proceedings brought against Starview for violation of the ordinance provision here in question. Starview asserts that the decision is not relevant or material to any issue in this appeal. We disagree. The decision is germane because it reveals that the theater is exhibiting films containing scenes of "sexually explicit nudity," as that term is defined in the ordinance, and proves that such films are viewable from private residences and public highways. We may take judicial notice of an administrative decision even though it is subject to further administrative and judicial review. (Rasky v. Anderson (1st Dist. 1978), 62 Ill.App.3d 633, 636-37, 19 Ill.Dec. 486, 379 N.E.2d 1; United States v. An Undetermined Quantity, Etc. (7th Cir. 1978), 538 F.2d 942, 946, n.3.) Starview's motion to strike Appendix A from the State's Attorney's brief is denied.

Appendix B is an affidavit of Robert Napora, a Cook County Sheriff's Police investigator. The affidavit, which was attached to a memorandum of law which the State's Attorney filed with the trial court on February 11, 1980, reports Napora's detailed observations of two films presented at the Starview theater on July 21, 1978. The films included scenes of sexually explicit nudity and were viewable "from Routes 59 and 20 and from nearby private residences." Starview contends that Napora's affidavit contains "highly prejudicial" material not relevant to this appeal and was based on observations made before the present corporate owner came into possession of the theater. Starview, however, did not object to the exhibit when it was submitted to the trial court, did not move to strike it or offer counter-affidavits Starview's present motion to strike the affidavit is untimely and is denied.

As an alternative to its motion to strike Appendix A and Appendix B, Starview has moved to file a copy of Investigator Napora's testimony given in September 1980 before the Cook County Board of Commissioners, which was four months after the trial court upheld the ordinance on May 2, 1980. In his testimony before the County Board, Napora stated that as of June 16, 1980, the screen of the Starview theater could be seen from only one location outside the theater. From that location Napora was able to discern that there was a picture on the screen. Napora observed colors and movement but he could not make out a specific shape or form.

We cannot take judicial notice of Napora's testimony before the County Board unless Starview was offering it to prove that the issues in this appeal have become moot subsequent to the trial court's judgment because no scenes of sexually explicit nudity are now viewable from outside the theater. (See Bluthardt v. Breslin (1979), 74 Ill.2d 246, 250, 24 Ill.Dec. 151, 384 N.E.2d 1309.) ⁴ Starview, however, has not asked that this appeal be dismissed on grounds of mootness. In the absence of an allegation of mootness, judicial notice cannot be extended to permit the introduction of new factual evidence not presented to the trial court. (Ashland Savings & Loan Association v. Aetna Insurance Co. (1st Dist. 1974), 18 Ill.App.3d 70, 78, 309 N.E.2d 293.) We therefore deny Starview's motion to file a copy of Investigator Napora's testimony.

We now reach the merits of this cause. Starview maintains that section 14-53. (3) of the Cook County Outdoor Movie Theater Ordinance is unconstitutional because it imposes an impermissible prior restraint on materials protected by the first amendment and because it discriminates on the basis of a film's content in violation of the equal protection clause of the fourteenth amendment. Motion pictures, of course, constitute a form of expression entitled to protection under both the first and the fourteenth amendments to the United States Constitution. Jenkins v. Georgia (1974), 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642; Joseph Burstyn, Inc. v. Wilson (1952), 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098.

Under the Cook County Outdoor Movie Theater Ordinance, films that depict scenes of "sexually explicit nudity" may not be exhibited if the films are "viewable from any private residence or any public street or walkway." The County does not dispute that the definition in the ordinance of "sexually explicit nudity" satisfies neither the minimum federal constitutional standards for obscenity enunciated in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, nor the more stringent requirements imposed by section 11-20 of the Illinois Criminal Code (Ill.Rev.Stat.1979, ch. 38, par. 11-20) as that section has been interpreted by our supreme court. (See People v. Ridens (1974), 59 Ill.2d 362, 372-73, 321 N.E.2d 264, where the supreme court retained the stricter "redeeming social value" obscenity criterion announced in Memoirs v. Massachusetts (1966), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1.) ⁵ It is apparent, therefore, that if the ordinance had attempted to ban the exhibition of all movies that contain scenes of "sexually explicit nudity," it would not pass constitutional muster. The ordinance, however, does not reach that far.

Films containing the scenes defined in the ordinance are prohibited only if they are "viewable from any private residence or any public street or walkway." Thus, the initial constitutional question raised by this ordinance is whether the County may use a film's contents as the basis for imposing regulations that fall short of complete suppression. Relying principally on Police Department of Chicago v. Mosley (1972), 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, Starview asserts that such content based discrimination is never permissible.

In Mosley, the Supreme Court struck down a Chicago city ordinance that prohibited all peaceful picketing in the vicinity of a school except peaceful labor picketing. "The central problem with Chicago's ordinance," according to the Court, "is that it describes permissible picketing in terms of its subject matter." (408 U.S. at 95, 92 S.Ct. at 2290.)

"But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. (Citations.) To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, (376 U.S. 254) at 270 (84 S.Ct. 710 at 721, 11 L.Ed.2d 686)

Necessarily, then, under the Equal Protection...