Appeal from the Circuit Court of Kendall County; the Hon.
Richard D. Larson, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
On February 28, 1983, the State filed a complaint against the defendants, Sequoia Books, Inc. (Sequoia), and Bruce and Cathy Riemenschneider, seeking an injunction to prohibit the continued sale of allegedly obscene materials and to close Sequoia's adult bookstore for one year. Sequoia's motion to dismiss the complaint was granted by the trial court.
On June 27, 1983, the State filed a two-count amended complaint against Sequoia, alleged operator of an adult bookstore known as Denmark Bookstore, and Bruce and Cathy Riemenschneider, owners and lessors of the property upon which the bookstore is located. Count I is premised upon common law nuisance grounds. Count II alleges violations which closely parallel section 1 et seq. of "An Act regarding places used for purposes of lewdness, assignation, or prostitution, to declare the same to be public nuisances, and to provide for the more effectual suppression thereof." (Ill. Rev. Stat. 1981, ch. 100 1/2, par. 1 et seq.) Although the statute was not cited within the complaint, the parties pleaded and argued this count as if it were.
Count I sought to enjoin the defendants from the exhibition, sale or offering for sale of allegedly obscene movies, video tapes, books or magazines. Count II sought to enjoin the defendants from operating Denmark Bookstore for one year because defendants allegedly permitted fellatio to occur within the business premises. On July 19, 1983, Sequoia filed a motion to dismiss alleging the complaint failed to state a cause of action because defects existed in both counts. The Riemenschneiders did not join in the motion to dismiss nor did they file an appearance. On March 22, 1984, the trial court entered an order dismissing the complaint on the following grounds: (1) the description of the articles sought to be enjoined did not conform with the principles expressed in Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607; (2) the complaint sought relief which would constitute an invalid prior restraint of the defendants' first amendment rights; (3) the complaint did not allege reasons why criminal prosecution is an inadequate remedy; and (4) there was no allegation that the conduct alleged in count II was performed on a commercial basis.
Thereafter, on April 11, 1984, the State and Sequoia, by stipulation, amended paragraph six of count I to include a listing of the criminal actions filed against Sequoia and its employees. The trial court allowed the amendment to paragraph six and reaffirmed its prior dismissal of the amended complaint. The State claims on appeal that the trial court erred in dismissing the complaint because: (a) the complaint, which alleges a common law nuisance, need not allege the definitional elements of the term "obscene" as expressed in Miller v. California; (b) a grant of injunctive relief for a common law nuisance would not constitute an invalid prior restraint; (c) the complaint sufficiently alleges that the criminal law is an inadequate remedy to prevent continuance of a common law nuisance; and (d) statutory public nuisance proceedings may be allowed where the complaint alleges that the defendants permitted fellatio within the bookstore.
• 1, 2 Initially, it is important to keep in mind the purpose and scope of the well-settled principles of law that control the dismissal of a complaint for failure to state a cause of action. A motion to dismiss admits for purposes of review such facts as are well pleaded; it does not admit conclusions of law, the pleader's construction of a statute, or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. A complaint should not be dismissed unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the pleader to relief. (Cain v. American National Bank & Trust Co. (1975), 26 Ill. App.3d 574, 578-79.) An appeal from an order dismissing such a motion preserves for review only a question of law as to the complaint's legal sufficiency. (Gregor v. Kleiser (1982), 111 Ill. App.3d 333, 334.) The factual allegations of a complaint are assumed to be true. Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, 232.
• 3 The first contention raised under the State's assignment of error is that count I need not allege the definitional elements of the term "obscene" in order to be legally sufficient. Specifically, the State asserts that the complaint's allegation in count I, paragraph 5, that "the aforedescribed depictions are obscene" satisfies pleading requirements for common law nuisance when considered with the detailed description of the acts in paragraph 4, and thus a detailed recitation in the pleadings of the definition of "obscene" is unnecessary. Defendant argues that the complaint's dismissal was proper because the complaint failed to allege the three-part test enunciated in Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607.
Depictions of sexual activity may be considered "obscene" when those depictions meet the following three requirements:
"(a) * * * `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, [citations]; (b) * * * the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) * * * the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California (1973), 413 U.S. 15, 24, 37 L.Ed.2d 419, 431, 93 S.Ct. 2607, 2615; see also Ward v. Illinois (1977), 431 U.S. 767, 768-69, 52 L.Ed.2d 738, 743, 97 S.Ct. 2085, 2087, aff'g (1976), 63 Ill.2d 437, 439-40; People v. Ridens (1974), 59 Ill.2d 362, 366-67.
We do not agree that the common law nuisance count is defective by its failure to allege the definitional elements of obscenity. We have previously held that such definitional language constitutes surplusage, as the Illinois obscenity statute, itself, defines the meaning of obscenity. (People v. Bailey (1984), 125 Ill. App.3d 346, 348-49.) Although Bailey involved the dismissal of a complaint charging the accused with the offense of obscenity pursuant to section 11-20(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11-20(a)(1)), and the complaint herein charged the defendants with common law nuisance violations, this distinction does not mandate another result in the present case. Moreover, our supreme court has held that the vagueness difficulty of obscenity in a common law nuisance action is to be restricted to the definition of obscenity in the criminal obscenity statute as judicially construed, which has been recognized as satisfying constitutional requirements. City of Chicago v. Festival Theatre Corp. (1982), 91 Ill.2d 295, 306-07; see also People v. Ridens (1974), 59 Ill.2d 362.
• 4 The State next claims that the trial judge erred by finding the injunction prayed for would operate as a prior restraint. In this case an injunction was never entered, and we, therefore, need not consider the question of prior restraint.
We note, however, that freedom of speech and press from prior restraint is not absolutely unlimited. (See, e.g., Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 441, 1 L.Ed.2d 1469, 1474, 77 S.Ct. 1325, 1328; City of Chicago v. Festival Theatre Corp. (1982), 91 Ill.2d 295, 311.) There are legitimate State interests at stake in "stemming the tide of commercialized obscenity" including the interest of the public in the quality of life, the total community environment, the tone of commerce in city centers, and perhaps public safety itself. Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 57-58, 37 L.Ed.2d 446, 457, 93 S.Ct. 2628, 2635.
In Kingsley, the Supreme Court upheld a New York statute authorizing the chief executive or legal officer of the municipality to maintain an action for an injunction against the sale and distribution of any written or printed matter of an indecent character. Comparing the statute which provided for an injunction to a criminal statute, the court found that, rather than subjecting the book seller to fear that the offer for sale of a book may, without warning, warrant criminal prosecution with the hazard of imprisonment, a civil procedure assures that such consequences will not occur unless the issued injunction is ignored. (Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 442, 1 L.Ed.2d 1469, 1474-75, 77 S.Ct. 1325, 1328.) The court concluded that the injunction procedure provided a less restrictive and narrower restraint. 354 U.S. 436, 444, 1 L.Ed.2d 1469, 1475-76, 77 S.Ct. 1325, 1329.
In Vance v. Universal Amusement Co. (1980), 445 U.S. 308, 63 L.Ed.2d 413, 100 S.Ct. 1156, the Supreme Court held that a Texas nuisance statute, when coupled with a Texas rule of civil procedure, authorized prior restraints of indefinite duration on the exhibition of motion pictures that had not been adjudicated to be obscene. The court stated that an exhibitor would be required to obey such an order pending review of its merits and would be subjected to contempt proceedings even if the film should ultimately be found to be nonobscene. Such prior restraints, in the court's opinion, would be more onerous and objectionable than the threat of criminal sanctions after a film has been shown, since nonobscenity would be a defense to any criminal prosecution. (445 U.S. 308, 316, 63 L.Ed.2d 413, 420-21, 100 S.Ct. 1156, 1161-62.) The court, however, did not find that an injunction in the nature of a prior restraint was always prohibited. (See 445 U.S. 308, 317, 63 L.Ed.2d 413, 421, 100 S.Ct. 1156, 1162, and 445 U.S. 308, 321, 63 L.Ed.2d 413, 424, 100 S.Ct. 1156, 1164 (White, J., dissenting).) Here, nonobscenity would be a complete defense to contempt, and the procedural deficiency lacking in the Texas statute would not occur.
The Illinois Supreme Court held that an injunction issued by the trial court which restrained the defendants from presenting obscene live exhibitions did not present a problem of prior restraint. (City of Chicago v. Festival Theatre Corp. (1982), 91 Ill.2d 295, 311.) The court stated that, considering the evidence presented in the trial court, the applicable State statutes to which the trial court referred in its injunction order obviously are the obscenity provisions of the criminal code; the injunction does no more than order the defendants not to violate the laws against obscenity. The court continued: "Unlike the order in Vance, the defendants here could not be held in contempt unless it were shown that they staged a performance that was obscene. In short, the order did not touch protected expression. Any effect it could have produced relating to the first amendment was no greater than that produced by the obscenity provisions of the Criminal Code." 91 Ill.2d 295, 311.
• 5, 6 The State next maintains that the complaint sufficiently alleges that the criminal law is an inadequate remedy to prevent continuance of a common law nuisance. Specifically, the State asserts that the criminal law is ineffective in this case because: (1) many criminal charges have been brought against Sequoia's employees, including several instances of repeated charges against the same employee; (2) 9 of the charges filed have not resulted in the arrest of named defendants; and (3) 10 of the charges were dismissed by the trial court and were pending on appeal when the complaint was dismissed. Those 10 were later reversed and remanded for further proceedings by this court in People v. Bailey (1984), 125 Ill. App.3d 346.
It is a principle of equity that an injunction will not issue except where there is no adequate remedy of law. (City of Chicago v. Festival Theatre Corp. (1982), 91 Ill.2d 295, 312.) Although the criminality of the conduct is a relevant factor in determining whether an injunction should issue, the purpose of giving equity jurisdiction in a common law nuisance action is to offer remedies more complete than those available at law. (91 Ill.2d 295, 313.) Equitable jurisdiction to abate public nuisances is said to be of "ancient origin," existing even where not conferred by statute, where the offender is amenable to the criminal law, and where no property rights are involved. (City of Chicago v. Festival Theatre Corp. (1982), 91 Ill.2d 295, 303.) Obscenity is not a form of expression protected by the first amendment and, therefore, may be regulated. (91 Ill.2d 295, 305.) Civil injunctive procedures constitute permissible means for regulating obscenity. (91 Ill.2d 295, 305.) To consider a criminal remedy to be adequate, the remedy "must be clear, complete, ...