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City of Chicago v. Scandia Books

OPINION FILED NOVEMBER 12, 1981.

THE CITY OF CHICAGO, PLAINTIFF-APPELLEE,

v.

SCANDIA BOOKS, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 29, 1981.

Defendants appeal from the order for a permanent injunction issued by the circuit court restraining them from operating or permitting the operation of an adult bookstore as defined in the Chicago Adult Use Ordinance (Ordinance) (Municipal Code of the City of Chicago 1977, ch. 194C, §§ 2, 3, 4.1(4)).

On appeal, defendants present the following issues for review: (1) whether chapter 194C of the Municipal Code of the City of Chicago or, in the alternative, section 3A thereof, is unconstitutionally vague and indefinite so as to violate the due process clauses of the Illinois and the United States constitutions; (2) whether the trial court's order of January 23, 1981, amending its order of August 20, 1980, is void as being an invalid exercise of judicial authority; and (3) whether the trial court erred by granting a permanent injunction against defendants. We affirm.

On September 24, 1979, the City of Chicago (City) filed a complaint for injunctive and other relief against defendants. The complaint alleged that Scandia Books, Inc., doing business as Broadway Book Shop, located at 3120-22 North Broadway, was doing business as an adult bookstore within the definitions of sections 3A, 3E, and 3F of the Ordinance. The City prayed for a preliminary injunction and permanent injunction to enjoin defendants from operating and maintaining an adult bookstore in any zoning district other than a C-2 zoning district. Municipal Code of the City of Chicago 1977, ch. 194C, § 4.1(4).

On October 19, 1979, defendants filed a motion to dismiss. On December 18, 1979, after a hearing, plaintiff's motion for a preliminary injunction was denied. On March 25, 1980, the court denied defendants' motion for dismissal.

On August 13, 1980, an evidentiary hearing was held on plaintiff's motion for a permanent injunction. At that hearing, Harry Manley, the zoning administrator for the city of Chicago, testified that the zoning for the property in question is B4-4, and that the zoning for an adult use is C-2 commercial district.

Thomas Bohling, a policeman for the Chicago Police Department, testified that on August 24, 1979, he visited Scandia-Broadway Book Shop at 3120-22 North Broadway. He observed magazines in racks along the walls in the store. Arthur Martinez was working as a clerk at the store. At the entrance to the bookstore, magazines such as Time, Life and Newsweek were displayed. As the witness walked through the store, the magazines on display depicted human nudity and sex acts between human beings. After browsing through several magazines, Bohling selected one of the sex-illustrated magazines, Hustler. When he attempted to pay for the magazine, Martinez refused his money. Bohling gave him a receipt for the magazine. The magazine was admitted into evidence over defendants' objection.

In an affidavit attached to plaintiff's complaint, Officer Bohling stated that on August 27, 1979, he issued a complaint against Arthur Martinez, employee of Scandia Books, Inc., owner of Broadway Book Shop. The complaint alleged a violation of the Ordinance (Municipal Code of the City of Chicago 1977, ch. 194C, § 4.1(4)), which provides that no adult use shall be located in any zoning district except a C-2 zoned area. Subsequently, on August 29, 1979, Bohling arrested Martinez, charging him with a violation of the obscenity statute (Ill. Rev. Stat. 1977, ch. 38, par. 11-20(a)(1)).

Robert Eggert testified that he is a police officer of the city of Chicago, and that he was sent to investigate the bookstore in question in June 1980. The store was divided into two parts by a swinging door and a counter. The front area of the store has racks containing magazines such as Time and Life, and Bibles and paperback books. In the back area, there were rubber paraphernalia, magazines and books pertaining to sexual acts between members of the same sex and the opposite sex. On June 13, 1980, Officer Eggert returned to the bookstore to have an evidence technician take pictures of the interior of the store. Those photos were taken with the cooperation of the office of the corporation counsel and Adam Bourgeois, attorney for defendants.

Eggert identified photo group exhibit 2 as a depiction of the front part of the store on June 13, 1980. Photo group exhibit 1 showed the outside of the store front and the entrance. Photo group exhibit 3 was identified by Eggert as the back area of the bookstore. The photos showed the different booths which contained adult films, the south wall with books on lesbianism, and the area where rubber products are displayed.

On redirect examination, Eggert indicated that the peep show he viewed portrayed a female and a male engaged in intercourse. Two peep shows per booth were offered at the bookstore and there were six booths.

The defense presented Arthur Martinez as their witness. He testified that on August 15, 1979, he was the manager of the Scandia Book Shop. He also stated that exhibit 2 did not accurately portray the store as it existed in August 1979. In the front section of the store were popular titles and in the rear, the store was being remodeled. Martinez indicated that during the months of August and September 1979, 20 to 25 percent of the bookstore material was adult material.

On cross-examination, Martinez indicated that during August and September 1979, the store had about 125 pieces of film depicting sexual activities, and the floor area used to display condoms and other ...


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