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People Ex Rel. Carey v. Starview Drive-in





APPEAL from the Circuit Court of Cook County; the Hon. HAROLD A. SIEGAN, Judge, presiding.


Rehearing denied September 24, 1981.

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. *fn1 Under section 14-53.(3) of the ordinance (Cook County Ordinances 1979, § 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. *fn2 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." *fn3

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.

• 1 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 (1978), 62 Ill. App.3d 633, 636-37, 379 N.E.2d 1; United States v. An Undetermined Quantity (7th Cir. 1978), 583 F.2d 942, 946 n. 3.) Starview's motion to strike appendix A from the State's Attorney's brief is denied.

• 2 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 counteraffidavits. 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.

• 3 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, 384 N.E.2d 1309.) *fn4 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. (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), ...

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