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Ciampa v. City of Chicago

MAY 29, 1973.

MARTHA CIAMPA, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 24, 1973.

Plaintiff, Martha Ciampa, was the holder of a Food Purveyor License No. 1386 issued by the City of Chicago. After notice and hearings, the plaintiff's license was revoked by the Mayor of the City of Chicago.

Plaintiff subsequently filed a petition for a writ of mandamus in the circuit court of Cook County seeking to compel the Mayor to reinstate her Food Purveyor License. After having heard the testimony of the witnesses and having examined the evidence, the trial court denied plaintiff's petition. Plaintiff appeals.

On June 9, 1970, Officer James McGuinness of the Chicago Police Department purchased the magazine entitled "Sybil No. 1" from plaintiff for $3.50. The sale took place at plaintiff's store at 1908 West Belmont Avenue, Chicago, the front portion of which was utilized by her as a food store where she sold ice cream, milk, cookies, candy, and school supplies. In the rear portion of the store plaintiff sold books and magazines. The Officer testified that he entered the store and proceeded to the rear where plaintiff had a book rack. He stated that he browsed through the rack and picked up the magazine "Sybil No. 1" which he purchased from plaintiff.

On June 10, 1970, Officer McGuinness appeared before Judge Robert J. Collins of the circuit court of Cook County and verified a complaint charging the plaintiff with a violation of Ill. Rev. Stat. 1969, ch. 38, par. 11-20 and the Judge issued a warrant for plaintiff's arrest.

On July 1, 1970, a hearing on the criminal complaint was conducted before Judge Jack A. Welfeld of the circuit court of Cook County. At this hearing, plaintiff entered a plea of not guilty. The Court, without making a finding as to whether or not the magazine "Sybil No. 1" was obscene, sentenced the plaintiff to six months supervision and released plaintiff's bond.

Subsequently on August 20, 1970, a notice to revoke plaintiff's Food Purveyor License was issued by the Mayor of the City of Chicago based upon the charge that the plaintiff had been "dispensing obscene literature contrary to the Ordinances of the City of Chicago and the Statutes of the State of Illinois." The specific violations with which plaintiff was charged are embodied in Section 192.9 of the Municipal Code of Chicago and Ill. Rev. Stat. 1969, ch. 38, par. 11-20 (a) (1) which provide respectively:

Section 192.9 of the Municipal Code of Chicago:

"It shall be unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing, or other article which is obscene. Any person violating any provisions of this section shall be fined not less than $20.00 nor more than $200.00 for each offense.

Obscene for the purpose of this section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests."

Ill. Rev. Stat. 1969, ch. 38, par. 11-20(a) (1)

"A person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:

(1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other ...


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