Appeal from the Circuit Court of Cook County. No. 98 CH 3942 Honorable Ellis Reid, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
We need not resort to the oft-repeated observation of United States Supreme Court Justice Stewart:
"I could never succeed in intelligibly (defining pornography) *** but I know it when I see it". Jacobellis v. State of Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 803-4, 84 S. Ct. 1676, 1683 (1964) (Stewart, J., concurring).
The trial court reversed the findings and orders of the Zoning Board of Appeals of the Village of Lyons (hereinafter the Board or the Village) that denied a use and occupancy permit to Dottie's Dress Shop, Inc. (hereinafter Dottie's), when Village authorities discovered that Dottie's principal items for sale were plastic replica female genitals, dildos, blow-up dolls, vibrators, nipple clamps, spiked collars, masks, whips, and an extensive inventory of condoms and riding crops and that, prior to opening the store, a sign was erected identifying the enterprise as Seka's Exotica, "Seka" being the name of a female porn star.
For the reasons expressed below, we reverse.
Dottie's applied for a business license and occupancy permit in the Village of Lyons within a B-1 zoning district in the Village and in its written application represented that its business was to be "retail clothing, apparel, accessories."
Thereafter the zoning administrator of the Village observed that a sign had been erected without a permit which did not identify the enterprise as Dottie's Dress Shop but, instead, the sign advertised "Seka's Exotica Life Style Clothing and Accessories."
Seka is apparently a well-known porno film star of the 1970s and 1980s. Thereafter, at the Village's request, the sign was removed.
Some time thereafter Dottie's requested a final occupancy inspection, and the Village zoning administrator and Village manager toured the premises and testified that on the west wall of the premises were shelves holding as many as 500 items of sexual paraphernalia.
The rear wall of the premises revealed that approximately 20 to 24 pieces of lingerie were on hangers on a single standing rack. The east wall of the premises revealed "leather goods such as spiked leashes, masks, whips, riding crops, collars, lubricants, stimulants, [and] blow-up dolls." They also encountered a counter that contained "hand-cuffs, massage oils, lubricants, stimulants and condoms of all shapes, sizes and colors."
It was not surprising that the zoning administrator denied the occupancy permit after concluding that the premises he had viewed was definitely not a dress shop.
The owners of Dottie's thereafter requested a reinspection of the premises, and although the zoning administrator testified that there were more items of lingerie, the premises was not being used as a dress shop but, rather, it was being used for the sale of sexual paraphernalia.
In his testimony, the zoning administrator stated that the number of clothing items was increased to approximately 100 items; however, all of the sexual paraphernalia encountered on his first inspection remained in the store.
The Village concluded that Dottie's was not a retail clothing store and did not fall within the 93 commercial enterprises - antique shops to veterinary clinics - permitted as a matter of ...