author: Mr. JUSTICE HEIPLE Mr. JUSTICE ALLOY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA FRIG, Defendant-Appellant.
    Third District
    No. 80-645
    Opinion filed September 30,1981.

      ALLOY, J., dissenting.
    Edward J. Kuleck, Jr., of Ottawa, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Kenneth A. Fedinets, Mark L. Rotert, Melbourne A. Noel, Jr., and Herbert Lee Caplan, Assistant Attorneys General, of counsel), for the People.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Barbara Frig, appeals from her conviction for theft following a bench trial in the Circuit Court of La Salle County. The court sentenced her to two years’ probation and ordered her to pay restitution in the amount of $8,259.48.

On appeal, Mrs. Frig argues, inter alia, that she was not proved guilty beyond a reasonable doubt. The facts reveal that Mrs. Frig was employed as an office manager for the State’s Attorney’s office since 1975, when she was 19 years old. She was promoted to the position of office manager in September of 1978. She earned between $7,000 and $8,000 per year. The office of the State’s Attorney was located on the fourth floor of the County Courthouse in downtown Ottawa. However, in November 1979, the office was moved to a new location near Interstate 80. Mrs. Frig had personal charge of the restitution fund. She handled the books and the day-to-day work involving the fund. She deposited the fund’s receipts from time to time in an account at the Ottawa National Bank. Checks were written to restitution fund recipients from this account. Between deposits, cash and checks received were kept by Mrs. Frig in envelopes in a drawer of her desk. There was no office policy concerning the frequency of deposits. Deposits were often made weekly, although sometimes the funds might remain in her drawer from four days to three weeks between deposits. In December of 1978 (the beginning of the 1979 fiscal year), the account contained $14,095.57. For the first five months of the fiscal year, the account balance varied from a low of $10,800 to a high of about $17,000. However, Mrs. Frig deposited no money into the bank account during the months of May, June, July, August, or September of 1979. At the end of September, the account showed a balance of only $477.11. On October 8, 1979, a deposit of $9,395.78 was placed into the bank account. No deposits were made in November or December of 1979.

Mrs. Frig testified that she did not make regular deposits after April 1979 because her work load had substantially increased. A full-time assistant was hired for the civil division in mid-April, and Mrs. Frig was assigned secretarial duties for him, in addition to her previous duties.

Evidence was presented which indicated that others in the office were aware that Mrs. Frig kept money in her desk. Other evidence indicated that the money was packed by Mrs. Frig, prior to the move to the new office, and that the boxes containing the money package, along with the other contents of Mrs. Frig’s desk, sat in the office for several days. The boxes were then transported by the movers to the new office building. There they were unpacked by Mrs. Frig and placed in her desk. Testimony revealed that during the first week at the new office a variety of personnel would have had ready access to the desk and its contents.

The fiscal year of the State’s Attorney’s office begins on December 1. At such time an independent audit is conducted. Preliminary work papers for the audit were given to Mrs. Frig at the beginning of December 1979. These were returned to the auditor on December 10, 1979. The auditor determined that the papers were completely incorrect. They were resubmitted to Mrs. Frig, who returned them to the auditor on January 3, 1980. After a complete audit of the restitution account, the auditor determined that $59,442.03 in restitution funds had been received by Mrs. Frig, but only $30,440.40 had been deposited into the account at the Ottawa National Bank. On January 3, 1980, Mrs. Frig tendered an additional $19,722.83, of which $2,400 was cash and the rest checks. The court found that the checks included funds collected in June, July, August, September, October, and November of 1979, which had been recorded but not deposited, and also included some $10,000 that had not been recorded as received. The auditors found evidence of some additional payments out of the fund, and concluded that $8,618.26 remained unaccounted for. However, other payments were discovered to have been made to fund recipients by Mrs. Frig. Accordingly, the court found the actual discrepancy to be $8,259.48, such figure being the difference of money received during that fiscal year from the money actually deposited in the checking account.

On January 3, 1980, Mrs. Frig informed the State’s Attorney that the restitution account was short and she thought the money had been thrown out during the move. Mrs. Frig testified that the unpacking of the boxes in the new office was done in a hurried fashion. She merely threw the contents of the box marked “Barb’s Desk” into her desk, and did not notice whether or not the money was there. Approximately a week and a half later, she organized her desk and discovered that the envelope she had marked “Cash” was missing. She testified that during this week and a half, many persons who were not members of the office were coming in and moving around the office, and that persons were present when she left at 4:30 p.m. She testified that she thoroughly searched the office during the next two weeks. She did not tell anyone about the missing envelope because she was scared, upset, panicked, and believed that a search would turn up the missing envelope. When the annual audit came in December, she attempted to catch up with her book work. She testified that, when the accountant asked her if she had any more deposits, she informed him that she did, but that money was missing and she was attempting to locate it. At a subsequent meeting she informed the accountant and the State’s Attorney that she thought the money was lost or thrown out.

The conviction in this case suffers from a fatal defect. No corpus delicti has been established. That is to say, there is insufficient evidence that a crime has been committed. What the State succeeded in establishing was that a sum of money disappeared from the State’s Attorney’s office. It could have been lost. It could have been thrown out with the trash. Mrs. Frig could have taken it, of course, along with numberless other persons. Whether the money was stolen and whether Mrs. Frig took it is a matter for guess, speculation, and conjecture. The evidence does not warrant such a conclusion.

It is undisputed that Mrs. Frig had personal charge of the La Salle County State’s Attorney’s restitution fund. She handled the record keeping books and the deposits for the fund. It is clear from the record that all office personnel knew that the funds were kept in envelopes in Mrs. Frig’s unlocked desk. Prior to the discovery of the missing funds, the State’s Attorney’s office was moved across town. The office, including Mrs. Frig’s desk contents, were packed in boxes, moved, and unpacked in hurried fashion. Moreover, the sloppy procedures for the fund management (i.e., irregular bank deposits, storage of large amounts of cash in an envelope in an unlocked desk drawer) were in effect long before Mrs. Frig assumed her duties. In fact, prior to her employment, there had been theft from the fund. Upon investigation, one of the courthouse janitors was apprehended as the perpetrator.

Mrs. Frig had control of and access to the restitution fund, but this was not exclusive. To the contrary, the record manifestly reveals that many persons had ready access to the fund’s proceeds.

In order to prove that a crime was committed, that money was stolen, it is necessary for the prosecution to show that someone took it. Here, the State claims that someone was Mrs. Frig.

At this juncture, it is important that we remind ourselves that a person is considered innocent until proved guilty. To warrant conviction on circumstantial evidence the proof must be of a conclusive nature and tendency. It must lead on the whole to a satisfactory conclusion and providing certainty that the accused and no one else committed the crime. People v. Widmayer (1948), 402 Ill. 143.

The evidence in this case provides us with no such certainty. The State was unable to trace a single penny of the missing proceeds to Mrs. Frig. It presented no evidence of changed lifestyle. There was no evidence that Mrs. Frig had made any large purchases, deposited more money in her personal bank account than she and her husband received as earnings, went on any elaborate vacations or had upgraded her standard of living in any way. There was no evidence that she was in any financial difficulty. Moreover, Mrs. Frig had an excellent reputation in the community for being truthful and honest. The State presented no evidence to the contrary. While evidence of good reputation is not proof of innocence, it cannot be entirely disregarded and may be sufficient to raise a reasonable doubt of guilt, and where such evidence is uncontroverted, it must be given some consideration and weight. People v. De Suno (1933), 354 Ill. 387.

What did the State prove? That Mrs. Frig was the employee charged with administering the restitution fund, that she made no deposits for a five-month period, and that approximately $8,000 was missing. This does not lead to a satisfactory conclusion that a crime was in fact committed. Moreover, it does not lead to a satisfactory conclusion beyond a reasonable doubt that Mrs. Frig, and no one else, was the perpetrator.

Accordingly, the judgment of the Circuit Court of La Salle County is reversed.

Reversed.

SCOTT, P. J., concurs.

Mr. JUSTICE ALLOY,

dissenting:

I must respectfully dissent from the majority opinion in the above case.

The Circuit Court of La Salle County noted that the circumstantial evidence of the defendant’s guilt was sufficient to prove her guilty of the crimes of theft and official misconduct beyond a reasonable doubt. In so finding, the court noted specifically the drastic change in April 1979 of how defendant dealt with the restitution of fund moneys. Prior to April, she made deposits at the bank across the street at regular intervals, not later than three weeks at any time. From April 1979 through January 1980 she made only one deposit. That deposit of a considerable sum in October 1979 was made after the September report indicated that the bank account for the fund was almost completely depleted. The court indicated that it felt the deposit was made to avoid the danger of an overdraft and the questions such a situation would bring concerning the missing money. The court also found it significant that the defendant testified that she did not notice the envelope was missing for a week and a half after the early November move, yet she also testified that during this time she received restitution funds, which in her normal course of behavior she would have placed in the envelopes immediately upon receipt. Finally, the court found it significant that the defendant did not notify anyone of the missing moneys until the time the accountants brought the issue up in January 1980. The court acknowledged that there were possible explanations for the money’s disappearance which might be consistent with the defendant’s innocence. However, the court found that the only reasonable hypothesis explaining the missing money, and the defendant’s behavior, was that the defendant took it. While we might not convict on the evidence in this case, we should not reject the trial court decision when supported by the record.

For the reasons stated, therefore, I believe that the order of the Circuit Court of La Salle County in the instant case should be affirmed.


source: Caselaw Access Project

author: Mr. JUSTICE LONDRIGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYLVESTER ROSS, Defendant-Appellant.
    Fourth District
    No. 16896
    Opinion filed September 30,1981.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant Sylvester Ross was convicted of armed robbery and was sentenced to a term of 7M years’ imprisonment. On appeal, defendant contends that, under the theory of accountability, the evidence presented at trial was insufficient to support the verdict of guilty beyond a reasonable doubt.

Sylvester Ross was charged with armed robbery in an information filed July 1, 1980. At trial, the following testimony was presented:

Tony Buzar and Keith Williams testified that at about 5 p.m. on June 25, 1980, they were at the Mini Bucket, a bait shop south of Decatur owned by Buzar’s father. Buzar was working at the shop that day and Williams was visiting him. Both Buzar and Williams were behind the counter when two black men entered the shop. After browsing for a while, one of the men pulled a pistol and shouted, “Get it out, get it out!” Buzar opened the cash register and the man without the gun took the money from the drawer. The men also took money from the wallets of Buzar and Williams and then left the shop. Williams went to the door and saw the men enter a tan four-door Oldsmobile Cutlass with a dented left front fender. The car did not have any license plates, but it did have a license sticker on the front windshield. Williams called the police.

Officer David Slade testified that he was dispatched to investigate the robbery. En route to the bait shop, Slade observed a car matching the description of the getaway vehicle; the car was occupied by three black men. Slade followed the car, but lost sight of the vehicle when it went the wrong way on a one-way street. Slade later found the Oldsmobile in the parking lot of the Masonic Temple.

About two blocks from where the car was found, Officer Slade arrested three black men, one of whom was the defendant. When Slade found the Oldsmobile in the parking lot, its engine was still warm. A paper bag and a butcher knife were lying on the floor. Slade could see, through a hole in the bag, what looked like a stock of a pistol.

Detectives Roger Shelton and Paul Johnson testified that, on July 15, 1980, they received a message from the jail that Ross wanted to talk. After informing Ross of his rights, the detectives took a recorded statement. The trial court admitted Ross’ statement.

In the statement, Ross said that King and Harper, the other two suspects arrested, wanted him to drive them to rob a man named Ted Perkins. The men obtained a gun from the home of Harper’s mother, but were unable to find Perkins. Either Harper or King said that since they could not find Perkins, they could “do something else.” The three men drove to the Mini Bucket. Ross parked in front of the shop because he thought the others were going into the store to buy food and “check out” the store. Ross said that he did not know that Harper had taken the gun into the store. Harper and King ran back to the car and told Ross to leave. King then told Ross that he and Harper had robbed the store. When Ross saw two police cars following him, he turned down an alley and attempted to evade the police. The three men abandoned the car and fled on foot. They were arrested a short time later.

Defendant contends that this evidence, presented at trial, was not sufficient to support a verdict of guilty beyond a reasonable doubt. We disagree.

There is no dispute that an armed robbery was committed. Nor is it disputed that defendant Ross drove the car used to flee the scene. If Ross knowingly drove a “getaway car,” then he is legally responsible as a principal. (People v. Richardson (1971), 132 Ill. App. 2d 712, 270 N.E.2d 568.) The Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 1 et seq.) states that a person is legally accountable for the acts of another if:

“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c).

Mere presence at the scene of the crime does not make defendant accountable for the acts of his companions; he must have known that a crime was being committed. (People v. Tillman (1971), 130 Ill. App. 2d 743, 265 N.E.2d 904.) However, proof of acts in aid of a common purpose to commit an offense can be shown by evidence of the circumstances surrounding the commission of the act. (People v. Hill (1968), 39 Ill. 2d 125, 233 N.E.2d 367; Richardson; People v. Williams (1968), 104 Ill. App. 2d 329, 244 N.E.2d 347.) “A person may aid or abet without actively participating in the overt act or acts and evidence that the accused attaches himself to a group bent on illegal acts with knowledge of. its design supports an inference that he shared the common illegal purpose and will sustain his conviction as a principal for a crime committed by another in furtherance of the venture. [Citation.]” People v. Littleton (1969), 113 Ill. App. 2d 185, 189, 252 N.E.2d 77, 79.

In the case before us, defendant admits that he and his companions set out to rob Ted Perkins, but were unable to locate their intended victim. They then decided to “do something else.” Ross drove to the Mini Bucket and waited while his friends were inside. Defendant admits driving from the scene and attempting to evade police. This evidence supports the inference that he shared the common illegal purpose of the group (see Littleton).

Defendant, in his recorded statement, said that he had no knowledge of the plans of King and Harper to rob the Mini Bucket. We do not consider this to be conclusive. Testimony by the defendant in a criminal case presents a question of credibility to be decided by the trier of fact. (People v. Kradenych (1980), 83 Ill. App. 3d 547, 404 N.E.2d 488; People v. Glenn (1975), 33 Ill. App. 3d 417, 337 N.E.2d 435.) A reviewing court will not set aside a jury verdict of guilty unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of guilt. People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288; People v. Fox (1971), 48 Ill. 2d 239, 269 N.E.2d 720.

The judgment of the circuit court of Macon County is affirmed.

Affirmed.

TRAPP, P. J., and WEBBER, J., concur.


author: Mr. JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SUZANNE COLLINS, a/k/a Suanne Lasch et al., Defendant-Appellant.
    Fourth District
    No. 17122
    Opinion filed September 30, 1981.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield (Mike Southworth, law student, of counsel), for appellant.
    C. David Vogel, State’s Attorney, of Pontiac (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

Defendant Suzanne Collins appeals her conviction of theft by deception (111. Rev. Stat. 1979, ch. 38, par. 16 — 1(b)(1)) and subsequent sentence of 5 years’ imprisonment, all entered in the circuit court of Livingston County. She maintains that the trial court erred in denying her motion to withdraw her plea of guilty and in considering improper matters and proceeding without a presentencing report at sentencing. As we rule that defendant must be given leave to withdraw her plea, we need not consider the propriety of the procedure at sentencing.

On April 6, 1981, defendant appeared before the circuit court with her court-appointed counsel. Defendant told the court she wished to enter a plea of guilty to the charge of theft by deception, and the court was informed that the prosecution and the defendant had entered into a written plea agreement whereby the defendant was to enter the plea and agree to make restitution of $1,500 to the victim of the offense and the State agreed to nol pros an additional charge and to recommend defendant be given a 3-year sentence to run concurrently with a Federal sentence defendant was serving. The court advised defendant of her various rights and questioned her with reference to the voluntary nature of the plea. The colloquy then proceeded as follows:

“THE COURT: You have been promised something and that promise has been reduced to writing and is contained in a written plea agreement, is that correct?
DEFENDANT: Yes.
THE COURT: Do you understand that contains all of the terms and conditions of the agreement in existence between you and the State’s Attorney’s office?
DEFENDANT: Yes.
THE COURT: Do you understand that the court did not participate in the negotiations of this agreement?
DEFENDANT: Yes I do.
THE COURT: Do you understand that the court has not concurred conditionally or otherwise in the agreement?
DEFENDANT: Yes I do.
THE COURT: And that the court is not bound to follow it? DEFENDANT: Yes.”

The trial court proceeded in further compliance with Supreme Court Rule 402 (73 Ill. 2d R. 402) and entered a judgment on the plea. The case was then called for sentencing. After hearing the prosecutor’s recommendation, which was in accordance with the plea agreement, the court stated it could not accept the prosecutor’s recommendation and sentenced defendant to 5 years’ imprisonment to run concurrently with her Federal sentence. Defendant then stated:

“I would like to withdraw my plea. It is my understanding I can withdraw my plea based on the information given to me by the public defender.”

The trial court explained that it was denying her motion because it had told her the plea agreement was not binding on it. Defendant then stated:

“Well, Your Honor, I would like to say on the record I believe that I have been misled by the facts brought to me upon signing this paper which I thought was a binding agreement. I do not contest everything the court says to me and the terminology used but I still would like to withdraw my plea of guilty and take a jury trial and I don’t know how you would view that motion but I would like that.”

On April 8,1981, defendant’s court-appointed counsel filed a petition on behalf of defendant wherein she sought to withdraw her plea of guilty. The petition made no allegation that defense counsel had misled defendant with reference to her rights to withdraw her plea of guilty if the trial court refused to follow the plea agreement. On appeal, defendant maintains the court should have appointed a new counsel for defendant to represent her on her petition to withdraw her plea because her statement in open court indicated she felt that her trial counsel had not properly advised her and he could not properly represent her when his competency was in issue. People v. Terry (1970), 46 Ill. 2d 75, 262 N.E.2d 923; People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169.

The situation created was an unusual and awkward one, but we need not pass upon whether error was created in this respect, because we determine that a much more fundamental error occurred in the application of Supreme Court Rule 402(d) which concerns plea discussions and plea agreements reached by the prosecution and the defense. Rule 402(d) (2) provides for the procedure when such agreements receive the concurrence or conditional concurrence of the court. If the trial judge has indicated his concurrence or conditional concurrence after the plea of guilty has been entered, he shall so advise the parties and then call upon the defendant either to affirm or to withdraw his plea of guilty. If the plea is withdrawn, the judge must recuse himself (Rule 402(d)(2)). Rule 402(d)(3) governs the situation where, as here, the court has either declined to commit himself to follow the agreement or has not been consulted. Under these circumstances, when the plea agreement is presented, the court is required to inform the defendant that the court is not bound by the agreement and that “if the defendant persists in his plea the disposition may be different from that contemplated by the plea agreement.” (Emphasis added.) (73 Ill. 2d R. 402(d)(3).) The rule clearly requires the court to make both explanations and to expressly give the defendant an opportunty to persist in or withdraw the plea.

Here, the court fully informed the defendant that it was not bound by the agreement but did not explain to defendant that if she persisted in the plea, a different disposition might be made. The court also failed to ask the defendant if she persisted in or wished to withdraw her plea. Had the court done so, the misunderstanding alleged here would not have occurred. As it was, the record was ambiguous as to whether the defendant knew the court did not have to follow the agreement, but thought she could withdraw the plea if the court did not.

We deem the crucial due process aspect of the procedure under Rule 402(d) to be the requirement that the court must tender to a defendant the opportunity (1) to affirm or withdraw a guilty plea entered upon a court’s subsequently withdrawn concurrence or conditionál concurrence in a plea agreement, or (2) to persist in or withdraw a guilty plea entered on a plea agreement after a court that has not concurred in the agreement has explained its right to disregard the agreement and the consequences of its doing so. We note that the Rule requires these opportunities to be offered to the defendant before the court has indicated what its sentence will be. Thus, when the sentence is imposed, a dissatisfied defendant is in no position to complain.

We consider the necessity of properly following the procedure to be so important that the failure to follow it here was plain error. Accordingly, we reverse the sentence and order denying defendant leave to withdraw her plea and remand to the trial court with directions to allow defendant to plead anew.

Reversed and remanded with directions.

WEBBER and MILLS, jj„ concur.


author: Mr. PRESIDING JUSTICE ROMITI

text:
    FRANK J. ZETTEL, Plaintiff, v. PASCHEN CONTRACTORS, INC., et al., Defendants. — (PASCHEN-NEWBERG-GROVES et al., Third-Party Plaintiffs-Appellants, v. GATEWAY ERECTORS DIVISION OF IMOCO-GATEWAY CORPORATION, Third-Party Defendant-Appellee.) — JOHN J. RICHTER, Plaintiff, v. NEWBERG-PASCHEN-GROVES et al., Defendants. — (PASCHENNEWBERG-GROVES JOINT VENTURE et al., Third-Party Plaintiffs-Appellants, v. GATEWAY ERECTORS DIVISION OF IMOCO-GATEWAY CORPORATION, Third-Party Defendant-Appellee.)
    First District (4th Division)
    Nos. 80-2213, 80-2214 cons.
    Opinion filed July 30, 1981.
    Rehearing denied October 15, 1981.
    Eric A. Oesterle and Peter J. Valeta, both of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellants.

      Jerome H. Torshen, Ltd., and Querrey, Harrow, Gulanick & Kennedy, Ltd., both of Chicago (Jerome H. Torshen, Abigail K. Spreyer, Victor J. Piekarski, and Glen E. Amundsen, of counsel), for appellees.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The sole issue in this case is whether an agreement by a subcontractor to obtain insurance covering, inter alia, claims arising under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60-69) against the contractor was void as prohibited by section 1 of “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1975, ch. 29, par. 61). The trial court held that it was and dismissed the contractor’s suit for damages for failure to obtain the promised insurance. We disagree and reverse.

On June 23, 1976, Gateway Erectors Division of Imoco-Gateway Corporation (Gateway), as a subcontractor, entered into a construction contract with Paschen-Newberg-Groves, a joint venture. Under the terms of the subcontract, Gateway agreed to perform certain services and to supply various materials in connection with the construction of a sewage treatment reclamation plant. The joint venture agreed to pay Gateway an amount in excess of $2,000,000 as consideration for Gateway’s performance.

In section 10 of the subcontract, Gateway agreed to indemnify the joint venture for all losses arising "out of any work connected with the performance of the work by the subcontractor, including all claims arising out of any structural work law. In section 11 of the subcontract, Gateway agreed to carry certain liability policies insuring the owner, architect, contractor and subcontractor for injuries or death of persons including Gateway’s employees. That section further provided that:

“Subcontractor further agrees to cause contractual liability endorsements to be issued by the insurance companies and attached to the above-mentioned policies, to include under the coverage therein extended an obligation on the part of the insurers to insure against Subcontractor’s contractual liability hereunder and to indemnify the Owner, Architect, and Contractor against loss, liability, costs, expenses, attorneys’ fees and court costs as provided in section 10 hereof, and further agrees that said coverage shall be afforded therein against all claims arising out of the operation of any structural work law or law imposing liability arising out of the use of scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances.”

Two employees (Richter and Zettel) filed suit against the joint venture under the Illinois Structural Work Act for damages for injuries suffered. In each case the joint venture demanded that Gateway tender the defense of the joint venture to Gateway’s liability insurer. When Gateway failed to respond to these demands, the joint venture filed the third-party actions involved in this appeal. In the actions, the joint venture asked for judgment against Gateway in the amount of any judgment obtained against it together with the joint venture’s attorney’s fees and costs of defense.

In each case Gateway filed a motion to strike and dismiss these claims. After hearing extensive oral argument, the trial court in its order in each case found that the clear languagé of the subcontract required Gateway to procure insurance for the joint venture for all claims arising under the Structural Work Act, including claims for violations of the Act by the joint venture. Nevertheless, the court concluded that it was compelled under the rationale of Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881, to hold the agreement was void and unenforceable pursuant to section 1 of “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1975, ch. 29, par. 61). Accordingly the court granted the motions to dismiss. It also entered in each case an order under section 304(a) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)), providing for immediate reviewability.

The joint venture appealed both orders in both cases and the appeals were consolidated. The defendant did not cross-appeal. In its appeal, the joint venture has simply asked that the judgments be reversed with instructions to deny the motions to dismiss plus such other relief as the court may deem necessary.

I

On appeal Gateway contends that the judgment of dismissal should be affirmed, for two reasons: (1) any agreement to obtain insurance was void and (2) sections 10 and 11 of the subcontract do not clearly and unequivocally require Gateway to procure liability insurance to indemnify the joint venture for liability arising from the joint venture’s actions. What, in effect, Gateway wishes this court to do is to reverse the trial court’s judgment, which expressly found that the contract did require Gateway to obtain such insurance. But, since Gateway did not cross-appeal from that finding, we have no power to review it. As we recently reiterated in Gibson v. Village of Wilmette (1981), 97 Ill. App. 3d 1033,_N.E.2d-, since the appellee has not cross-appealed from the contested finding, it is final and we have no jurisdiction to review it here. (Clodfelter v. Van Fossan (1946), 394 Ill. 29, 67 N.E.2d 182; In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868; Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 234 N.E.2d 91, appeal denied (1968), 38 Ill. 2d 630.) Absent a notice of cross-appeal, the matters sought to be reviewed are not preserved for review and decision by the court. (Pioneer Trust & Savings Bank v. County of McHenry (1967), 89 Ill. App. 2d 257, 232 N.E.2d 816, revd on other grounds (1968), 41 Ill. 2d 77, 241 N.E.2d 454; Bawden v. Furlong (1958), 16 Ill. App. 2d 174, 147 N.E.2d 889, appeal denied (1958), 13 Ill. 2d 627.) It is true, as Gateway contends, that an appellee can sustain a decree upon any basis in the record even if that issue has not been previously urged. But where a general verdict for an appellee contains a specific finding not in its favor and the appellee fails to file a cross-appeal, the adverse finding is not properly before the reviewing court. Village of Arlington Heights v. National Bank (1977), 53 Ill. App. 3d 917, 369 N.E.2d 502.

II

Accordingly, the only issue before this court is whether the trial court erred in holding the agreement void under section 1 of “An Act in relation to indemnity in certain contracts” (111. Rev. Stat. 1975, ch. 29, par. 61), which provides:

“With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.”

Section 3 of the act (Ill. Rev. Stat. 1975, ch. 29, par. 63) provides that the act “does not apply to construction bonds or insurance contracts or agreements.”

We agree with Gateway that section 3 of the act is not applicable. An agreement to obtain insurance is not an agreement of insurance; a person promising to obtain insurance does not by that promise become an insurer although he may assume the liabilities of one if he breaches the agreement. (Connor v. Thompson Construction & Development Co. (Iowa 1969), 166 N.W.2d 109; Midwest Lumber Co. v. Dwight E. Nelson Construction Co. (1972), 188 Neb. 308, 196 N.W.2d 377; 4 Appleman, Insurance Law & Practice §2261 (1969).) Even more clearly, however, a promise to obtain insurance is not the same as a promise to indemnify. (See, for example, Zadak v. Cannon (1974), 59 Ill. 2d 118, 319 N.E.2d 469; Vandygriff v. Commonwealth Edison Co. (1980), 87 Ill. App. 3d 374, 408 N.E.2d 1129; Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032, appeal denied (1980), 81 Ill. 2d 599; Marshall Field & Co. v. J. B. Noelle Co. (1967), 81 Ill. App. 2d 409, 226 N.E.2d 454; Hooks v. Southeast Construction Corp. (D. C. Cir. 1976), 538 F.2d 431.) Under an indemnity agreement, the promisor agrees to assume all responsibility and liability for any injuries or damages. Under an agreement to obtain insurance the promisor merely agrees to procure the insurance and pay the premium on it. Once the insurance is obtained, the promisor bears no responsibility in the event of injury or damage, even if the insurer should breach the insurance agreement through no fault of the promisor. While the joint venture in this case is suing to recover any monies it may have to pay to the injured parties plus all costs of defense, this is not because Gateway promised to indemnify the joint venture; it is because if a person breaches a contract to obtain insurance, he is liable for any damages caused by the breach. In this case this would be the amount of any judgments up to the amount of the policy limits bargained for (or perhaps beyond if an insurer under the facts presented would have settled the cases rather than allowed them to go to judgment) plus the costs of defending the tort action. Gothberg v. Nemerovski (1965), 58 Ill. App. 2d 372, 208 N.E.2d 12, appeal denied (1965), 32 Ill. 2d 625; Waumbec Mills, Inc. v. Bahnson Service Co. (1961), 103 N.H. 461, 174 A.2d 839; Kenyon v. Larsen (1980), 205 Neb. 209, 286 N.W.2d 759.

Gateway argues, however, that following the reasoning of the Illinois Supreme Court in Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881, we should find the insurance provision void. The Illinois Supreme Court in Davis upheld the constitutionality of section 1 of the act, reasoning in part:

“The legislature in enacting section 1 may have considered that the widespread use of these agreements in the industry may have removed or reduced the incentives to protect workers and others from injury. (See Prosser, Handbook of the Law of Torts sec. 4 (4th ed. 1971).) For example, persons having ‘charge of the work’ and, thus, persons liable for violations of the Structural Work Act are able to escape the consequences of this liability by requiring indemnifying agreements from, let us say, general contractors or subcontractors. Having arranged the avoidance of the burdens of liability they no longer have the same motivation ‘to lessen the extent of the danger’ (Halberstadt v. Harris Trust & Savings Bank, 55 Ill. 2d 121, 127) to the prejudice of the worker’s safety and interest. Too, the members of the general public protected from dangers presented by, for example, the improper design, construction and maintenance of buildings would be obviously affected adversely if those charged with responsibility were able to avoid the consequences of liability through indemnity agreements. Viewed in this light, we consider that section 1 of the indemnity statute serves to protect workers in the industry and the public as well from dangers associated with construction work. The statute would thwart attempts to avoid the consequences of liability and thereby insure a continuing motivation for persons responsible for construction activities to take accident prevention measures and provide safe working conditions.” 61 Ill. 2d 494, 499, 336 N.E.2d 881, 884.

That not all attempts to shift responsibility are against public policy is clear from the more recent Illinois Supreme Court case of Capua v. W. E. O’Neil Construction Co. (1977), 67 Ill. 2d 255, 367 N.E.2d 669. In Capua, the contractors and the sureties agreed in a construction bond to indemnify the Sanitary District against all liabilities and judgments against the District, including liabilities and judgments arising under the Structural Work Act. The defendants argued that the exemption in section 3 of the act was limited to performance and payment bonds and did not apply to bonds containing hold harmless agreements. The court disagreed, pointing out that if that were true the legislature could simply have made no mention of construction bonds in section 3. The supreme court further reasoned:

“This protective interest of the legislature is manifested also through section 3. That section protects the interests of construction workers and members of the general public who may suffer injury through improper construction or maintenance by preserving supplemental sources of compensation for injured persons, namely insurance and indemnifying and hold-harmless agreements in construction bonds. For example, a worker injured on a construction project may look to the owner of the building and the contractor, his employer, for compensation. However, there will be times when the worker will be unable to recover, as when the defendant is insolvent or the damages simply too large for him to satisfy. If the contractor were required by the owner to post a construction bond in which he agreed to indemnity or hold harmless the owner, the injured worker may look to the surety for satisfaction of his claim if the owner is unable to satisfy his liability. Section 1, without more, would deny the worker the possibility of recovering from the surety because it would void the indemnity or hold-harmless agreement in the construction bond. It is reasonable to conclude that the legislature, knowing that construction bonds are frequently used as a means to assure compensation for injured workers, enacted section 3 so that this potential source of compensation for injured workers would be preserved. Section 3 serves to complement section 1.” (67 Ill. 2d 255, 260, 367 N.E.2d 669, 671-72.)

It seems to us that the same reasoning applies here. The statute clearly permits the general contractor to obtain insurance to cover its liabilities. It is immaterial whether the contractor obtains this insurance through an agent or broker or through a subcontractor. The same purpose is served — that of assuring compensation for injured workers. And since the obtaining of insurance is permitted by statute, there is no reason to strike down, as against public policy, an agreement to obtain insurance.

As we mentioned earlier in this opinion, a person breaching an agreement to obtain liability insurance is liable for all resulting damages including the amount of judgments against the promisee and the costs of defense. It is established that Gateway promised to obtain such insurance and is bound by that agreement. This case arose on a motion of Gateway to dismiss. It does not appear that the appellant had filed its own motion for summary judgment, nor has the appellant on appeal requested us to enter a judgment establishing Gateway’s liability. There may be questions remaining as to whether Gateway did in fact fail to obtain the required insurance. Accordingly, we reverse and remand the case to the trial court for further proceedings in accordance with this opinion.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: Mr. PRESIDING JUSTICE RIZZI

text:
    EUGENE KENNETH RAYFIELD, Plaintiff-Appellant, v. HOMART DEVELOPMENT CO. et al., Defendants-Appellees.—(CATERPILLAR TRACTOR CO. et al., Defendants.)
    First District (3rd Division)
    No. 79-2074
    Opinion filed August 19,1981.
    Rehearing denied October 26,1981.

      Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Irving D. Fasman, Nat P. Ozmon, and Dario A. Garibaldi, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas M. Grisham, and Kevin R. Sido, of counsel), for appellees.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

This is a Structural Work Act case (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) in which plaintiff, Eugene Kenneth Rayfield, was injured while operating a Traxcavator at a construction site owned by defendants Homart Development Co. and Broadway-Hale Properties, Inc. The trial court entered summary judgment in favor of defendants. We affirm.

A Traxcavator is basically a tractor with a front bucket that is used to scoop and lift material such as gravel or stone. The bucket tilts and is lifted by means of hydraulic arms controlled by the operator. The operator sits on an unenclosed cushioned seat. At the time of the occurrence, the bucket was elevated and loaded with one-inch stone. Plaintiff was simultaneously raising the bucket and moving the machine backward up a slope. The machine tipped forward, thrusting plaintiff off the machine in a forward direction and onto the ground.

Plaintiff brought a multi-count suit against several defendants, including a product liability count against the manufacturer of the Traxcavator. The count against defendants Homart Development Co. and Broadway-Hale Properties, Inc., is based solely on the Structural Work Act. Plaintiff’s theory is that these defendants are liable under the Act because the Traxcavator “had no seat belt and no other type of restraining device to hold the plaintiff in place on top of the machine, in the event the machine tipped or lurched.”

The parties first argue as to whether a Traxcavator that is being used to backfill at a construction site is a mechanical contrivance within the meaning of the Structural Work Act. We agree with plaintiff that a reasonable interpretation of the Act requires the conclusion that a Traxcavator used in such a manner is a mechanical contrivance within the meaning of the Act. However, we disagree with plaintiff on the more significant issue of whether the Act is intended to impose liability for the alleged failure of a Traxcavator to have a seat belt or other type of restraining device.

In order to determine the intent of a statute, we must not only look to its language, but we must also look to the evil to be remedied and the object to be attained. In determining the evil to be remedied and the object to be attained by the Structural Work Act, we must look to its history, including the legal climate that existed when it was enacted.

When the Structural Work Act was enacted in 1907, it was an enlightened and needed piece of legislation. Illinois did not yet have a workmen’s compensation act. Working conditions in the construction trades were extrahazardous, and injured workers’ claims for compensation were being defeated because of the doctrines of contributory negligence and assumption of risk. The purpose of the Structural Work Act “was to prevent injuries to persons employed in this dangerous and extrahazardous occupation, so that negligence on their part in the manner of doing their work might not prove fatal.” (Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 164, 106 N.E. 236, 239.) As a result, the doctrines of contributory negligence and assumption of risk were held not to be applicable to the Act. (Schultz v. Henry Ericsson Co. (1913), 182 Ill. App. 487, 493, affd (1914), 264 Ill. 156, 106 N.E. 236.) With these legal bars removed, suits under the Act were generally brought by injured employees against their own employers. E.g., Schultz.

In 1911, four years after the enactment of the Structural Work Act, the Illinois Workmen’s Compensation Act was enacted. It also afforded compensation to injured employees without regard to contributory negligence or assumption of risk. However, since the Workmen’s Compensation Act limited actions against employers to the remedies afforded by the Workmen’s Compensation Act, and since section 29 of the Workmen’s Compensation Act barred actions by employees against third-party tortfeasors who were also covered under the Workmen’s Compensation Act, the Structural Work Act became virtually a dormant piece of legislation. Then, in 1952, section 29 of the Workmen’s Compensation Act was held unconstitutional, and the worker’s right to sue third-party tortfeasors was established. (Grasse v. Dealers Transport Co. (1952), 412 Ill. 179, 200, 106 N.E.2d 124, 135.) This, of course, resulted in a proliferation of Structural Work Act suits.

This background of the Structural Work Act demonstrates that the Act is intended to afford injured workers in the construction trades a remedy where none exists, rather than to provide an additional remedy where other reasonable and satisfactory remedies are available. For this reason, we believe the Structural Work Act should be liberally interpreted where the need for a liberal interpretation reasonably exists to protect and afford relief to injured workers. However, the Act should not be interpreted so that it is extended unnecessarily to cover neoteric theories of liability where the existing workmen’s compensation and tort remedies protect and give reasonable and satisfactory relief to construction workers. This is consistent with the view that although the Structural Work Act is to be liberally construed to effectuate its purpose, it should not be interpreted to compel coverage of every construction work injury. (Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 536, 263 N.E.2d 817, 819) or every injury sustained in the operation of machinery at construction sites (Kenworthy v. Young (1979), 70 Ill. App. 3d 144, 147, 388 N.E.2d 217, 220). It also comports with the conclusion of the court in Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 1028, 414 N.E.2d 147, 150. There, the court stated:

“The Act should be generously interpreted to protect those who are covered by it. It should not be extended by unnatural interpretations, especially where the normal worker’s compensation and tort remedies remain to give relief to an injured worker.”

With this perspective, we have examined the Structural Work Act cases cited by the respective parties. None of the cases imposes liability for the failure of a mechanical contrivance to have a seat belt or a like device. Rather, the cases involving mechanical contrivances in which liability has been upheld include cases in which injuries to third persons occurred because of the unsafe operation of the mechanical contrivance as well as cases in which injuries occurred due to a functional or operational defect of the mechanical contrivance. We believe it would be an unnatural interpretation of the Act to extend its coverage further to include alleged defects which do not involve a functional or operational defect of a mechanical contrivance, such as the absence of seat belts or like devices. Plainly, the object to be attained by the Act would not be effectuated by interpreting the Act so that it would impose liability for such defects upon those persons named in the Act, where the normal workmen’s compensation and tort remedies remain to give relief to an injured worker. (See Matthews, 90 Ill. App. 3d 1024, 1028, 414 N.E.2d 147, 150.) Therefore, we conclude that the Act is not intended to impose liability for the alleged failure of a Traxcavator to have a seat belt or other type of restraining device.

Inasmuch as the material facts in this case are not in dispute, and the controversy is over the proper construction of the Structural Work Act and whether the facts sustain a cause of action under the Act, the case presents a question of law. Thus, summary judgment was an available procedure. Accordingly, we conclude that the trial court properly entered summary judgment in favor of defendants Homart Development Co. and Broadway-Hale Properties, Inc. The judgment is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.

       At the time of the appeal, the suit remained pending against the other defendants. The other defendants are not involved in the appeal.


author: Mr. JUSTICE PERLIN

text:
    THE PEOPLE OF COOK COUNTY ex rel. BERNARD CAREY, States Attorney, et al., Plaintiffs-Appellees, v. STARVIEW DRIVE-IN THEATRE, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 80-1538
    Opinion filed September 8,1981.
    Rehearing denied September 24,1981.

      L. Robert Artoe, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and John A. Dienner, III, Assistant State’s Attorneys, of counsel), for appellees.
   Mr. JUSTICE PERLIN

delivered the opinion of the court:

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. Under section 14 — 53.(3) of the ordinance (Cook County Ordinances 1979, §14 — 53.(3)), “every applicant for a license shall covenant and agree # o e.

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 (Dl. 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. 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.”

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.

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.

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 Nap ora’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.

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.) 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), 418 U.S. 153, 41 L. Ed. 2d 642, 94 S. Ct. 2750; Joseph Burstyn, Inc. v. Wilson (1952), 343 U.S. 495, 502, 96 L. Ed. 1098, 1106, 72 S. Ct. 777, 780-81.

Under the Cook County Outdoor Movie Theater Ordinance, films that depict scenes of “sexually explicit nudity” may not be exhibited if the films are “viewable from any private residence or any public street or walkway.” The county does not dispute that the definition in the ordinance of “sexually explicit nudity” satisfies neither the minimum Federal constitutional standards for obscenity enunciated in Miller v. California (1973), 413 U.S. 15,37 L. Ed. 2d 419, 93 S. Ct. 2607, nor the more stringent requirements imposed by section 11 — 20 of the Illinois Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20) as that section has been interpreted by our supreme court. (See People v. Ridens (1974), 59 Ill. 2d 362,372-73,321 N.E.2d 264, where the supreme court retained the stricter “redeeming social value” obscenity criterion announced in Memoirs v. Massachusetts (1966), 383 U.S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975.) It is apparent, therefore, that if the ordinance had attempted to ban the exhibition of all movies that contain scenes of “sexually explicit nudity,” it would not pass constitutional muster. The ordinance, however, does not reach that far.

Films containing the scenes defined in the ordinance are prohibited only if they are “viewable from any private residence or any public street or walkway.” Thus, the initial constitutional question raised by this ordinance is whether the county may use a film’s contents as the basis for imposing regulations that fall short of complete suppression. Relying principally on Police Department v. Mosley (1972), 408 U.S. 92, 33 L. Ed. 2d 212, 92 S. Ct. 2286, Starview asserts that such content-based discrimination is never permissible.

In Mosley, the Supreme Court struck down a Chicago city ordinance that prohibited all peaceful picketing in the vicinity of a school except peaceful labor picketing. “The central problem with Chicago’s ordinance,” according to the court, “is that it describes permissible picketing in terms of its subject matter.” (408 U.S. 92,95, 33 L. Ed. 2d 212, 216, 92 S. Ct. 2286, 2290.)

“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. [Citations.] To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, ' robust, and wide-open.’ New York Times Co. v. Sullivan, supra, [376 U.S. 254] at 270.
Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based * * * by reference to content alone.” 408 U.S. 92, 95-96, 33 L. Ed. 2d 212, 216-17, 92 S. Ct. 2286, 2290.

In Young v. American Mini Theatres, Inc. (1976), 427 U.S. 50, 65-66, 49 L. Ed. 2d 310, 323-24, 96 S. Ct. 2440, 2449-50, however, Mr. Justice Stevens, writing for a plurality of the Court, observed: principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached. When we review this Court’s actual adjudications in the First Amendment area, we find this to have been the case with the stated principle that there may be no restriction whatever on expressive activity because of its content.”

“This statement, [from Mosley] and others to the same effect, read literally and without regard for the facts of the case in which it was made, would absolutely preclude any regulation of expressive activity predicated in whole or in part on the content of the communication. But we learned long ago that broad statements of

Justice Stevens then surveyed those Supreme Court decisions which have held that neither the first amendment nor the equal protection clause prevents the State from prohibiting incitements to crime or violence, “fighting comments,” publication of sensitive military data in time of war, libel, or obscenity. Starview does not quarrel with these decisions but contends that since films depicting scenes of sexually explicit nudity do not fall within any of the classifications of speech that may be prohibited entirely (e.g., obscenity), such films may not be regulated either. Young rejected this conclusion.

At issue in Young was the constitutionality of two Detroit zoning ordinances that dispersed the location of “adult” motion picture theaters. The classification of a theater as “adult” was expressly predicated on the character of the motion pictures which the theater exhibited. If the theater was used to present “material distinguished or characterized by an emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities’ or ‘Specified Anatomical Areas,’ ” it was an adult establishment. (427 U.S. 50, 53, 49 L. Ed. 2d 310, 316, 96 S. Ct. 2440, 2444.) The definitions of these terms encompassed more than that which could be banned as obscene under Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607. Nevertheless, “even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value,” “the State may legitimately use the contents of these materials as the basis for placing them in a different classification from other motion pictures.” 427 U.S. 50, 70-71, 49 L. Ed. 2d 310, 326, 96 S. Ct. 2440, 2452.

We hold that the Cook County Outdoor Movie Theater Ordinance is not unconstitutional solely because the regulations are based on the content of communication protected from total suppression by the first amendment.

In Young, the Supreme Court found that the line drawn by the ordinances imposed only a minimal burden on protected speech and was justified by Detroit’s interest in preserving the character of its neighborhoods. The potential burdens to protected speech are more substantial here than in Young because an outdoor theater owner desiring to present films containing sexually explicit nudity may have to expend substantial sums of money to comply with the restrictions of the ordinance. (See, e.g., Olympic Drive-In Theatre, Inc. v. City of Pagedale (Mo. 1969), 441 S.W.2d 5, 8.) The theater’s only alternative to incurring these additional costs is to avoid showing these movies. The ordinance thus has the effect of deterring outdoor theaters from exhibiting films containing scenes of sexually explicit nudity. “Such a deterrent, although it might not result in total suppression of these movies, is a restraint on free expression.” (Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 211 n.8, 45 L. Ed. 2d 125, 132 n.8, 95 S. Ct. 2268, 2274 n.8.) Thus, we consider whether such a restraint is constitutional.

Both Starview and the State’s Attorney have characterized the Cook County Outdoor Movie Theater Ordinance as a system of prior restraints. If this characterization is accurate, then the ordinance is presumptively invalid. (Bantam Books v. Sullivan (1963), 372 U.S. 58, 70, 9 L. Ed. 2d 584, 593, 83 S. Ct. 631, 639.) Neither party, however, defines “prior restraint” or attempts to explain why prior restraint principles should be applied to this ordinance.

A “prior restraint” has been succinctly defined as “any restraint of future expression because of the content of either past or anticipated future expression e * (Cornflower Entertainment, Inc. v. Salt Lake City Corp. (D. Utah 1980), 485 F. Supp. 777, 781.) According to this definition, the Cook County Outdoor Movie Theater Ordinance may be described as a “prior restraint.” In applying for a license, an outdoor theater owner must agree to comply with certain specific conditions imposed by the ordinance relating to the exhibition of films containing scenes of “sexually explicit nudity.” His license may be revoked for violation of those conditions. But regardless of whether section 14 — 53. (3) of the ordinance falls within this or any other abstract definition of “prior restraints,” it is apparent that section 14 — 53.(3) shares none of the vices commonly associated with prior restraints previously held invalid by the United States Supreme Court.

The ordinance does not establish a scheme of discretionary administrative censorship under which films must be submitted to a censor before they may be exhibited. Thus, the many Supreme Court cases which have struck down such censorship systems because of their over-broad delegation, potential for abuse, and lack of adequate procedural safeguards for review of the censor’s decision are inapplicable. See, e.g., Freedman v. Maryland (1965), 380 U.S. 51,13 L. Ed. 2d 649,85 S. Ct. 734, and Joseph Burstyn, Inc. v. Wilson (1952), 343 U.S. 495, 96 L. Ed. 1098,72 S. Ct. 777 (movies); Bantam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 9 L. Ed. 2d 584, 83 S. Ct. 631 (books); Blount v. Rizzi (1971), 400 U.S. 410, 27 L. Ed. 2d 498, 91 S. Ct. 423 (mail); Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (plays).

Nor does the ordinance authorize an injunction against the exhibition of any particular film, enforceable through a contempt proceeding. The principal vice of this form of prior restraint is that, in a contempt hearing, a person may lose the right to assert the defense that his communication was protected by the first amendment. (Vance v. Universal Amusement Co. (1980), 445 U.S. 308, 63 L. Ed. 2d 413,100 S. Ct. 1156; Walker v. City of Birmingham (1967), 388 U.S. 307, 18 L. Ed. 2d 1210, 87 S. Ct. 12.) That possibility does not exist here. In any proceeding to revoke a license or to enjoin a theater from operating without one, the theater owner may raise the defense that the ordinance is void on its face because it is unconstitutionally overbroad or impermissibly vague or both. Shuttlesworth v. Birmingham (1969), 394 U.S. 147, 22 L. Ed. 2d 162, 89 S. Ct. 935; Staub v. City of Baxley (1958), 355 U.S. 313, 2 L. Ed. 2d 302,78 S. Ct. 277; Lovell v. Griffin (1938), 303 U.S. 444, 82 L. Ed. 949, 58 S. Ct. 666.

We believe that the Cook County Outdoor Movie Theater Ordinance may be classified as a legislative prior restraint. This form of prior restraint, however, does not possess any of the objectionable features of executive or judicial prior restraints and should not be subject to the same scrutiny:

“In the legislative form of prior restraint, somewhat different factors pertain. Here no individual discretion is involved. The control may operate to prevent expression, but most of the abuses arising out of intimate government inspection and supervision of communication are absent. Under such circumstances, the strict rule of prior restraint should not apply. Hence the validity under the First Amendment turns upon the same sort of considerations as in subsequent punishment cases, with the element of preventive control operating as an additional, but not conclusive, factor.” T. Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Prob. 648, 671 (1955).

We do not believe that the usual heavy presumption of invalidity with which prior restraints are burdened is entitled to much weight in reviewing this ordinance. Nevertheless, as in Erznoznik, the ordinance does constitute “a restraint on free expression.” (422 U.S. 205, 211 n.8, 45 L. Ed. 2d 125, 132 n.8, 95 S. Ct. 2268, 2274 n.8.) The State’s Attorney contends that this restraint may be sustained as a reasonable exercise of the county’s police power to protect the right of privacy of nearby residents from whose homes the films are viewable, and to regulate expression where the well-being of its children is at stake.

With respect to the first interest, the Supreme Court has repeatedly held that “[a] State or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. [Citations.]” (Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 209, 45 L. Ed. 2d 125, 130, 95 S. Ct. 2268, 2272.)

“But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. [Citations.] Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, see Rowan v. Post Office Dept., 397 U.S. 728 (1970), or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. [Citation.]” 422 U.S. 205, 209,45 L. Ed. 2d 125,130-31, 95 S. Ct. 2268, 2272.

In Rowan v. United States Post Office Department (1970), 397 U.S. 728, 25 L. Ed. 2d 736, 90 S. Ct. 1484, the Supreme Court upheld a Federal statute that permits a person receiving a “pandering advertisement” which he believes to be “erotically arousing or sexually provocative” to instruct the Postmaster General to inform the sender that such mail is not to be sent in the future. “* ° * [T]he mailer’s right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.” (397 U.S. 728, 737, 25 L. Ed. 2d 736, 743, 90 S. Ct. 1484, 1490.) Particularly appropos of the issue here are the court’s following remarks:

“To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen or to view any unwanted communication, whatever its merit; * ° 397 U.S. 728,737, 25 L. Ed. 2d 736, 743, 90 S. Ct. 1484, 1490.

In our judgment, the Supreme Court’s opinion in Rowan clearly justifies that part of the county ordinance which forbids a licensee from projecting onto a vast screen scenes portraying sexual intercourse and other sexually explicit nudity if such scenes are “viewable from any private residence.” “That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere.” 397 U.S. 728, 738, 25 L. Ed. 2d 736, 744, 90 S. Ct. 1484, 1491.

Without the protection afforded by the ordinance, a homeowner who objects to what he regards as obnoxious and offensive scenes of sexually explicit nudity is powerless to prevent these scenes from being beamed into the privacy of his living room where they may disturb the tranquility of his home and interfere with the raising of his children. (See, in this regard, Prince v. Massachusetts (1944), 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438.) Criminal prosecution under the obscenity provisions of the Criminal Code may not be possible because the films, taken as a whole, may not be obscene. Even as to films that are ultimately found to be obscene, criminal prosecution cannot undo the damage already done to the sensibilities of unwilling viewers. “* * 0 ‘[EJxposure to [erotic material] is for some persons an intense emotional experience. A communication of this nature, imposed upon a person contrary to his wishes, has all the characteristics of a physical assault * * * [and it] constitutes an invasion of his privacy * * V ” T. Emerson, The System of Freedom of Expression 496 (1970), quoted in Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 106-07, 37 L. Ed. 2d 446, 486, 93 S. Ct. 2628, 2659 (Brennan, J.,dissenting).

Nor does the law of public nuisance offer an alternative remedy to residents whose privacy has been invaded. Although the regulations of the ordinance are not limited to the standards of obscenity set forth in Miller v. California, not even obscenity itself can be abated as a public nuisance under section 1 of “An Act regarding places used for purposes of lewdness, assignation, or prostitution * 0 (Ill. Rev. Stat. 1979, ch. 100%, par. 1; People ex rel. Difanis v. Futia (1978), 56 Ill. App. 3d 920, 926-27, 373 N.E.2d 530; People v. Goldman (1972), 7 Ill. App. 3d 253, 254-56, 287 N.E.2d 177; see also People v. Movies, Inc. (1971), 49 Ill. 2d 85, 87, 273 N.E.2d 366 (dicta).) Moreover, it has been held that the presentation of obscene films at an outdoor theater may not be enjoined as a common law public nuisance where the alleged injury is not to the public generally but only to the right of privacy of a few nearby residents from whose homes the films are visible. People ex rel. Carey v. Route 53 Drive-In (1976), 45 Ill. App. 3d 81, 83-84, 358 N.E.2d 1298.

In our opinion, the Cook County Outdoor Movie Theater Ordinance represents a conscientious and constitutional effort by the County Board to protect the right of persons in their own homes to be free from the visual onslaught of offensive sexual materials.

That brings us to the portion of the ordinance which prohibits the exhibition of sexually explicit nudity “viewable from * * * any public street or walkway.” The principal Supreme Court case in this area is Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 45 L. Ed. 2d 125,95 S. Ct. 2268.

Erznoznik concerned the validity of a Jacksonville, Florida, ordinance that banned drive-in theaters from showing films in which “the human male or female bare buttocks, human female bare breasts, or human bare pubic areas are shown” if such films were “visible from any public street or public place.” (422 U.S. 205, 207,45 L. Ed. 2d 125,129, 95 S. Ct. 2268, 2271.) The court found that the city’s interest in preventing significant intrusions on privacy did not justify the ordinance because it “seeks only to keep these films from being seen from public streets and places where the offended viewer readily can avert his eyes.” (422 U.S. 205, 212, 45 L. Ed. 2d 125, 132, 95 S. Ct. 2268, 2274.) The court also rejected Jacksonville’s alternative theory that the ordinance was a valid exercise of the city’s police power to protect its children. While the court agreed that under its prior rulings, e.g., Ginsberg v. New York (1968), 390 U.S. 629, 20 L. Ed. 2d 195, 88 S. Ct. 1274, a State or municipality can adopt more stringent controls on communicative materials available to youth than on those available to adults, it found that the ordinance in question was broader than permissible:

“The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby’s buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. See Ginsberg v. New York, supra. Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” (Emphasis added.) 422 U.S. 205, 213-14, 45 L. Ed. 2d 125, 133, 95 S. Ct. 2268, 2274-75.

The court noted that “[t]he only narrowing construction which occurs to us would be to limit the ordinance to movies that are obscene as to minors” (422 U.S. 205, 216 n.15, 45 L. Ed. 2d 125,135 n.15,95 S. Ct. 2268, 2276 n.15), but found that the Jacksonville ordinance was not susceptible of such a limiting construction and held the ordinance unconstitutional.

With respect to minors, what is obscene? Erznoznik made clear that “under any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene ‘such expression must be, in some significant way, erotic.’ Cohen v. California, 403 U.S. 15, 20 (1971). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106-107 (1973) (Brennan, J., dissenting).” 422 U.S. 205, 213 n.10, 45 L. Ed. 2d 125, 133 n.10, 95 S. Ct. 2268, 2275 n.10.

We experience no difficulty in holding that scenes depicting sexual intercourse, masturbation or oral copulation (§14 — 53.(3), cl. (A)) or erect male genitalia or male ejaculation (cl. (C)) are erotic. Such scenes constitute the type of “sexually explicit nudity” which Erznoznik suggested could be prohibited (as to minors) by a properly drawn ordinance. And we reject Starview’s interpretation of Erznoznik that scenes of “sexually explicit nudity” cannot be prohibited without regard for their context or pervasiveness. As we interpret the court’s opinion, sexually explicit nudity is inherently erotic and may be proscribed. Nudity alone is not necessarily erotic and cannot be banned, even as to minors, without considering the context in which the nudity appears and its pervasiveness throughout a movie. We do not believe, however, that every scene described in clause (B) or the ordinance (“[tjouching, caressing, or fondling of the bare female breast or bare male or female buttocks, anus, or genitals”) is necessarily erotic.

Clause (B) would prohibit scenes of a mother breastfeeding or bathing her baby, or of a parent lovingly caressing an infant. It would also prohibit the presentation of films in which breast self-examination techniques are demonstrated. Many other examples of nonerotic scenes falling within the scope of clause (B) suggest themselves. We find that clause (B) is overbroad. Moreover, we do not believe a narrowing construction of this clause is possible without either rewriting the ordinance or substituting an impermissibly vague standard (e.g., any “lewd” touching, caressing or fondling) for one which is clear and specific but overbroad. We hold, therefore, that clause (B) is unconstitutional to the extent it restricts the exhibition of films that are viewable only from “any public street or walkway.” This holding, however, does not affect the validity of any other provision of the ordinance. Nor does this holding prevent clause (B) of section 14 — 53.(3) from being enforced against an outdoor theater that exhibits films viewable from “any private residence.”

For the foregoing reasons, we hold that clauses (A) and (C) of section 14 — 53.(3) of the Cook County Outdoor Movie Theater Ordinance, as amended, are constitutional. We hold further that clause (B) of section 14 — 53. (3) is constitutional in part and unconstitutional in part. Accordingly, the trial court is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

HARTMAN, P. J., and DOWNING, J., concur.

       The original outdoor movie theater ordinance 78 — 0—25 (Cook County Ordinances 1978, chs. 14-47 et seq.) was adopted and went into effect on July 10,1978. On May 29,1979, the Honorable Reginald J. Holzer held the ordinance unconstitutional. The ordinance was thereafter amended (79 — O—27) on September 4,1979, in an effort to overcome the constitutional infirmities found in the original. This appeal is concerned with the ordinance in its amended form.

       The theater is located at the intersection of Illinois Routes 20 and 59 in unincorporated Cook County.

       In this appeal Starview also challenges sections 14 — 53.(4), 14 — 54 and 14 — 49. We express no opinion on the constitutionality of any of these provisions.
      Section 14 — 53.(4) requires a licensee “[t]o refuse admittance of all minors un-accompanied by their parents or guardians to motion pictures or film presentations as described in paragraph (3) above.” We find that Starview lacks standing to contest the validity of this provision. Starview represented to the trial court that “[t]he audience admitted to the theater has been limited to adults only, * ® ®.” The theater has manifested no intention or desire to change this policy. Thus, Starview has not sustained and is in no danger of sustaining a direct injury as a result of the enforcement of this provision of the ordinance. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 451, 389 N.E.2d 529.) Since Starview is not aggrieved by the operation of section 14 — 53.(4) it cannot question its validity here. (Walker v. State Board of Elections (1977), 65 Ill. 2d 543, 550, 359 N.E.2d 113.) This is true even though the usual strict rules concerning standing are relaxed when, as in the instant case, a first amendment attack on an ordinance for vagueness or overbreadth is made. (Groyned v. City of Rockford (1972), 408 U.S. 104, 114, 33 L. Ed. 2d 222, 230-31, 92 S. Ct. 2294, 2302.) Starview must still claim “injury in fact” (Bigelow v. Virginia (1975), 421 U.S. 809, 817, 44 L. Ed. 2d 600, 608-09, 95 S. Ct. 2222, 2230) or show “ ‘specific present objective harm or a threat of specific future harm’ ” (Laird v. Tatum (1972), 408 U.S. 1, 13-14, 33 L. Ed. 2d 154, 163-64, 92 S. Ct. 2318, 2325-26). No such injury or harm has been alleged or proved. We therefore decline to consider the constitutionality of section 14 — 53.(4).
      Section 14 — 54 sets forth the procedure by which a license may be revoked or a licensee fined. Subsequent to the trial court’s ruling in the case now before us, the county sought to revoke Star view’s license. An extensive hearing was conducted on September 25 and 26, 1980. On January 28, 1981, the hearing officer found that Starview had violated section 14 — 53.(3) and imposed a fine of $2,500. We may take judicial notice of this decision (which has been reproduced in appendix A of the State’s Attorney’s brief) under the principles laid down in May Department Stores Co. v. Teamsters Local 743 (1976), 64 Ill. 2d 153, 159, 355 N.E.2d 7, and Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 428, 206 N.E.2d 709. On April 23, 1981, Starview advised this court that it proposed to file in the circuit court a complaint for administrative review of the hearing officer’s decision. Presumably, that review is now pending before the circuit court. The issues concerning the constitutionality of section 14 — 54 will undoubtedly be more fully developed and argued in that proceeding than they have been here (Starview’s discussion is extremely brief; the State’s Attorney does not even mention section 14 — 54). Accordingly, we believe appellate consideration of section 14 — 54 should be deferred until the administrative review action reaches this court. See Rasky v. Anderson (1978), 62 Ill. App. 3d 633, 636-37, 379 N.E.2d 1.
      Section 14 — 49 provides, in part, that every license “shall be subject to all laws, resolutions and regulations now in force and effect, or which may hereinafter be enacted, adopted or approved relating to outdoor movie theaters used for public viewing of motion pictures or other film presentations.” Starview asserts that by this section, “the County Board is attempting to have the appellant waive his constitutionally protected rights under the First and Fourteenth Amendments.” Aside from the provisions of the ordinance already mentioned, Starview does not argue that the County Board has passed any invalid “laws, resolutions [or] regulations” affecting outdoor movie theaters. Whether the County Board will do so in the future is sheer speculation. ° ° [A] declaratory judgment is an inappropriate action for declaring the rights of the parties on a state of facts which has not yet arisen, or which is future, contingent and uncertain. [Citation.]” Rougher v. Walker (1977), 47 Ill. App. 3d 573, 577-78, 362 N.E.2d 410.

         A reviewing court can take judicial notice of such events or facts which, while not appearing in the record, disclose that an actual controversy no longer exists between the adverse parties. (Bluthardt, at 250.) Where the facts suggesting mootness are neither matters of common knowledge nor readily verifiable and capable of “instant and unquestionable demonstration” (9 Wigmore, Evidence §2571, at 548 (3d ed. 1940)), they may be proved by extrinsic evidence, including a motion supported by affidavit. Slaughter v. Thornton (1975), 34 Ill. App. 3d 422, 424, 339 N.E.2d 776; Buckingham Corp. v. Vesolowski (1974), 17 Ill. App. 3d 58, 61, 307 N.E.2d 703; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379, 121 N.E.2d 486.

       The Ridens tests for determining obscenity under section 11 — 20 have been held applicable to prosecutions under local obscenity ordinances. See Eagle Books, Inc. v. City of Rockford (1978), 66 Ill. App. 3d 1038, 1043, 384 N.E.2d 493; City of Delavan v. Thomas (1975), 31 Ill. App. 3d 630, 632-33, 334 N.E.2d 190.

       Again, in Mosley, 408 U.S. 92, 99, 33 L. Ed. 2d 212, 218-19, 92 S. Ct. 2286, 2292, the court stated: “In this case, the ordinance itself describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation ‘thus slip[s] from the neutrality of time, place, and circumstance into a concern about content.’ This is never permitted.” Similar expressions appear in the court’s decisions in Carey v. Brown (1980), 447 U.S. 455, 460-63,65 L. Ed. 2d 263, 269-71, 100 S. Ct. 2286, 2289-91; Linmark Associates, Inc. v. Township of Willingboro (1977), 431 U.S. 85, 94, 52 L. Ed. 2d 155, 162-63, 97 S. Ct. 1614, 1619; Madison Joint School District v. Wisconsin Employment Relations Com. (1976), 429 U.S. 167, 175-76, 50 L. Ed. 2d 376, 384-85, 97 S. Ct. 421, 426-27; and Hudgens v. National Labor Relations Board (1976), 424 U.S. 507, 520, 47 L. Ed. 2d 196, 207, 96 S. Ct. 1029, 1036-37, all cited by Starview.
      Starview does not maintain that the private residences of nearby homeowners constitute a “public forum,” nor does it assert a right to exhibit its films so that they may be viewed from outside the theater. Starview, after all, is “a commercial enterprise which depends for its success on paying customers, not on freeloading passersby.” (Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 210 n.6, 45 L. Ed. 2d 125, 131 n.6, 95 S. Ct. 2268, 2273 n.6.) Thus, unlike the circumstances present in Mosley and the related cases cited by Starview, there is no “public forum” issue here. Mosley, however, does address the constitutionality of content-based discrimination. The discrimination of which Starview complains inheres in the fact that under the ordinance only outdoor theaters intending to present films containing scenes of “sexually explicit nudity” must incur the costs of shielding their screens from the view of persons outside the theater.

       See, e.g., Justice Brennan’s concurring opinion in Lamont v. Postmaster General (1965), 381 U.S. 301, 309, 14 L. Ed. 2d 398,403-04,85 S. Ct. 1493,1497: ° ° [Inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government. [Citations.]” See also Boyd v. United States (1886), 116 U.S. 616, 635, 29 L. Ed. 746, 752, 6 S. Ct. 524.

       While only three other justices joined this portion of Justice Stevens’ opinion, a majority of the court has recently acknowledged that Young stands for the proposition “that a zoning ordinance is not invalid merely because it regulates activity protected by the Fourth Amendment, ° ° Schad v. Borough of Mount Ephraim (1981),_U.S__,_, 68 L. Ed. 2d 671, 682.101 S. Ct. 2176. 2184.

       In concluding that content-based regulation of non-obscene material is not per se unconstitutional, we do not rely on the Supreme Court’s decision in FCC v. Pacifica Foundation (1978), 438 U.S. 726, 57 L. Ed. 2d 1073,98 S. Ct. 3026, cited by the county. That case involved the Federal Communication Commission’s regulatory power over broadcasting. The court specifically noted that “of all forms of communication, it is broadcasting that has received the most limited First Amendment protection.” (438 U.S. 726,748,57 L. Ed. 2d 1073, 1092, 98 S. Ct. 3026, 3040.) For purposes of constitutional analysis, an outdoor movie theater is not engaged in “broadcasting.” The county’s reading of the FCC case is clearly at odds with what the Supreme Court has held to be permissible in regulating the fare of outdoor theaters. See Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268, discussed below.

       We are mindful of Mr. Justice Frankfurter’s admonition that the term “prior restraint” is neither “a self-wielding sword” nor a “talismanic test.” Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 441, 1 L. Ed. 2d 1469, 1473, 77 S. Ct. 1325, 1328.

       According to the record, Starview’s screen is 72 feet high and 96 feet wide.

       Citing Rowan, the Supreme Court has expressly held that “in the privacy of the home, ° ° ° the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” FCC tx Pacifica Foundation (1978), 438 U.S. 726, 748, 57 L. Ed. 2d 1073, 1093, 98 S. Ct. 3026, 3040.

       Indeed, the State’s Attorney has specifically argued that the purpose of the ordinance was to provide the citizens of Cook County with a “remedy against pornography which falls just short of obscenity.”

       In this appeal, we need not determine under what circumstances either live entertainment or films constitutionally may be enjoined as obscene. See City of Chicago v. Festival Theatre Corp. (1980), 88 Ill. App. 3d 216, 230, 410 N.E.2d 341 (appeal allowed, January 30,1981),_HI. 2d_; Vanee v. Universal Amusement Co. (1980), 445 U.S. 308, 63 L. Ed. 2d 413, 100 S. Ct. 1156.

       In footnote 9 to its opinion, the court said that it was not concerned with “a nondiscriminatory nuisance ordinance designed to protect the privacy of persons in their homes from the visual and audible intrusions of such theaters.” Here, of course, the ordinance does discriminate on the basis of a film’s content. Erznoznik itself, however, recognized that under Rowan, selective restrictions of some kinds of speech may be upheld “when the speaker intrudes on the privacy of the home ® ® ®.” 422 U.S. 205, 209, 45 L. Ed. 2d 125, 131, 95 S. Ct. 2268, 2272.

       In its brief, the county implies that section 14 — 53.(3) is constitutional because it uses the same term “sexually explicit nudity” which Erznoznik approves. However, it is the definition in the ordinance of the term “sexually explicit nudity” and not its mere incantation which determines the constitutionality of section 14 — 53.(3). We recognize “the ancient wisdom that calling a thing by a name does not make it so.” Madison Joint School District v. Wisconsin Employment Relations Com. (1976), 429 U.S. 167, 174, 50 L. Ed. 2d 376, 384, 97 S. Ct. 421, 425.