R.V.S., LLC v. City Rockford IL ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2772
R.V.S., L.L.C.,
Plaintiff-Appellant,
v.
CITY OF ROCKFORD,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 03 C 50048—Philip G. Reinhard, Judge.
____________
ARGUED DECEMBER 9, 2003—DECIDED MARCH 17, 2004
____________
Before FLAUM, Chief Judge, and BAUER and ROVNER,
Circuit Judges.
FLAUM, Chief Judge. Plaintiff R.V.S., L.L.C. (“RVS”) filed
suit against the City of Rockford (“Rockford”) seeking a
temporary restraining order and to preliminarily and per-
manently enjoin Rockford from enforcing an ordinance
regulating “Exotic Dancing Nightclubs.” Rockford
Ordinance 2002-308-0 (“the Ordinance”) prohibits the op-
eration of those businesses within 1000 feet of churches,
schools, residences and other Exotic Dancing Nightclubs,
and in addition, requires the issuance of a special use per-
mit before such businesses may operate in nonproscribed
2 No. 03-2772
locations. RVS argues that the Ordinance violates its rights
under the First Amendment to the United States Constitu-
tion and appeals the district court’s judgment in favor of
Rockford. For the reasons stated herein, we reverse the
judgment of the district court and remand the case for entry
of judgment consistent with this opinion.
I. Background
A. The Ordinance
RVS leases commercial property on Auburn Street in
Rockford, Illinois. RVS was preparing to open a business at
the Auburn Street location called Moulin Rouge. According
to RVS’s owner, James Roddy, Moulin Rouge planned to be
an “upscale” facility serving food along with “theme danc-
ing” and “artistic performances.” On December 12, 2002, in
response to an application for a liquor license, RVS received
a letter from the Rockford City Attorney explaining that a
new ordinance enacted the previous day would prevent RVS
from opening Moulin Rouge.
This newly passed ordinance defined, for the first time, a
category of businesses known as Exotic Dancing Nightclubs
and required that such businesses apply for a special use
permit. By definition, the Ordinance only applies to dancers
who are clothed—nude and semi-nude dancers are regu-
lated by a separate Rockford ordinance that deals with
“Sexually Oriented Businesses.” It is undisputed that the
business RVS planned to operate could fall within the
Exotic Dancing Nightclub definition but not the Sexually
Oriented Business definition. Under the Ordinance, an
Exotic Dancing Nightclub is defined as:
A business establishment at which one or more exotic
dancers perform or provide entertainment to a patron
or patrons. Exotic dancer means any person, whether
compensated or not, who dances, performs, or enter-
No. 03-2772 3
tains by doing a “striptease” or performs an erotic dance
or other movements which include the performer
touching their breasts or pubic area, or performing any
movements simulating sexual activity while wearing
fully opaque clothing covering over primarily the gen-
italia, pubic region, buttocks and if the person is fe-
male, the portions of the breast below the top of the
areola.
The Ordinance provides that Exotic Dancing Nightclubs
are prevented from operating within 1000 feet “of a church,
school, residential district or another exotic dancing night-
club.” The Auburn Street property is positioned within 1000
feet of a residential area. Furthermore, even in those areas
that are not within 1000 feet of the designated locations, an
Exotic Dancing Nightclub must obtain a special use permit
specifically allowing its operation at the location it has
selected.1
In August 2002, the Ordinance was first proposed at a
meeting of the Rockford City Council. Alderman (“Ald.”)
Douglas Mark suggested the adoption of a resolution
1
One seeking such a permit must apply to the Zoning Board
of Appeals (“ZBA”), which is required to hold at least one public
hearing on the application. ROCKFORD, ILL., ZONING
ORDINANCE § 1603.3 (2002). In order to recommend to the City
Council the granting of a special use permit, the ZBA must find,
among other things, that the establishment of “the special use
permit will not be detrimental to or endanger the public health,
safety, morals, comfort, or general welfare.” Once the hearing is
held, the ZBA must transmit its decision to the Zoning Adminis-
trator who then transmits the ZBA’s recommendation to the City
Council. If the ZBA recommends the issuance of a special use
permit, a majority of the City Council is required to approve the
permit. If the ZBA has recommended denial of the permit, a
super-majority (10 of 14 members) of the City Council is required
for approval. ROCKFORD, ILL., ZONING ORDINANCE § 1603.6
(2002).
4 No. 03-2772
amending Rockford’s Zoning Ordinance to add business
establishments featuring exotic dancers to the existing land
uses that require a special use permit. The matter was
referred to the Council’s codes and regulations committee.
On September 30, 2002, the City Council adopted the codes
and regulations committee’s report recommending that
Rockford file text amendments to the Zoning Ordinance
regarding Exotic Dancing Nightclubs. Accordingly, the text
amendments were filed with Rockford’s zoning officer and
a hearing was held on the proposed text amendments by the
Zoning Board of Appeals (“ZBA”). On November 19, 2002,
after hearing testimony on the matter from City Attorney
Kathleen Elliott and Ald. Mark, the ZBA recommended
approval of the text amendments. On November 27, 2002,
the codes and regulations committee of the City Council
voted to recommend sustaining the ZBA’s decision to
approve the text amendments. On December 9, 2002, the
City Council approved the Ordinance.
In considering whether to pass the Ordinance, it is
undisputed that the City Council did not rely on any studies
from other towns or conduct any of their own studies
regarding the relationship between Exotic Dancing Night-
clubs and undesirable “secondary effects,” such as decreased
property values and higher incidence of crime, public health
risks, and illegal sexual activities such as prostitution. The
Ordinance does not contain any preamble or legislative
findings and the journal of proceedings for the City Council
meeting at which it was adopted does not state any find-
ings. In fact, the legislative record reflects that the only
evidence to support the Ordinance was the testimony
offered by City Attorney Elliot and Ald. Mark at the
November 19, 2002 ZBA meeting. The minutes from that
meeting contain the following passage:
It is the City’s experience that [Exotic Dancing Night-
clubs] in a concentrated area or near residential uses
No. 03-2772 5
attract[ ] prostitution and other problems that are part
of this atmosphere. Alderman Mark stated there have
been incidents where liquor sales were procured with
the intent of establishing dancing clubs. The proposed
text amendments would allow the City more control
over the location of these type of clubs to prevent
adverse effects on adjoining neighborhoods.
Additionally, the minutes of the Council’s codes and
regulations meeting for November 27, 2002 contain the
following statement: “Although they are not considered
sexually oriented business[sic], strip clubs have similar
secondary effects in the neighborhood as sexually oriented
businesses.”
B. Trial
In response to the action filed by RVS against Rockford,
the district court denied RVS’s request for a temporary
restraining order and subsequently conducted a bench trial
combining the preliminary and permanent injunction
hearings. At trial, Ald. Mark testified that he drafted the
Ordinance with the intent of creating three different cat-
egories of behavior that would fall within the definition
of “exotic dancing.” According to Ald. Mark, fully clothed in-
dividuals are considered “exotic dancers” if they (1) dance,
perform, or entertain by doing a striptease, or (2) perform
an erotic dance or other movements which include touching
their breasts or pubic area. Under the third category, Ald.
Mark testified, individuals are “exotic dancers” if they
perform any movements simulating sexual activity while
wearing the specified limited clothing. Wayne Dust,
Rockford’s zoning manager, testified after Ald. Mark.
He disagreed with Ald. Mark’s interpretation of the Ordi-
nance. Dust testified that he understands the clothing
limitation to modify all three categories of conduct.
Rockford also introduced evidence to attempt to show that
adverse secondary effects result from the operation of
6 No. 03-2772
Exotic Dancing Nightclubs. Rockford police officer David
Dominguez, who performs crime analysis for the police
department, presented reports summarizing calls relating
to prostitution for the years 2001 and 2002. The summaries
showed that many calls originated from an area of Rockford
known as 7th Street and Broadway.2 Ald. Jeffrey Holt,
whose ward includes the 7th Street and Broadway area,
provided testimony pertaining to the conditions of his ward.
He testified that the area is comprised of a commercial
district in close proximity to a lower-income residential
area. The neighborhood contains a community center, a
homeless outreach center, a lower-income outpatient clinic,
restaurants, furniture stores, rental properties, and adult
establishments, including massage parlors, lingerie model-
ing shops, and dancing clubs. Ald. Holt testified that he
received complaints from residents concerning sexually
oriented businesses located in the area, relating to their
advertising and signage, hours of operation, and density. In
Ald. Holt’s opinion, the presence of sexually oriented
businesses in the 7th Street and Broadway area contributes
to lower property values, deteriorated properties, difficulty
in attracting development, and prostitution.
Ald. Nancy Johnson, whose ward is adjacent to Holt’s,
testified that she received calls from residents, complaining
about noise, traffic, and litter caused by Bigfoot, an Exotic
Dancing Nightclub in her ward. In her opinion, sexually
oriented businesses create unattractive appearances due to
neon lights, gaudy window displays, and unsavory clientele.
To refute the evidence presented by Rockford, RVS pre-
sented expert evidence from Dr. Daniel Linz. Linz testi-
fied that studies show that no adverse secondary effects are
associated with establishments featuring nude or semi-nude
dancing. Additionally, Linz found no studies concerning the
2
RVS’s Auburn Street location is not in the 7th Street and
Broadway area.
No. 03-2772 7
secondary effects of establishments where performers wear
clothing. RVS also presented testimony from Dr. Judith
Hanna, an anthropologist who has conducted studies of
dance and dancers. In Hanna’s expert opinion, the defini-
tions of “exotic dance” in the Ordinance are insufficient to
define conduct in any meaningful way. She explained that
it is common in many forms of mainstream dancing to touch
parts of the body, including the breasts and pelvic area. It
was also her opinion that the Ordinance’s clothing defini-
tion encompasses a wide range of dance costumes, uniforms,
and practice attire.
At the conclusion of the hearing, the district court issued
an opinion finding in favor of Rockford, denying the injunc-
tion requests and dismissing the entire case with prejudice.
The district court found that the Ordinance was not an
unconstitutional prior restraint. Furthermore, the court
found that the Ordinance was a proper time, place, and
manner restriction because Rockford was entitled to rely on
its experience that Exotic Dancing Nightclubs cause un-
desirable secondary effects. The district court also found
that the Ordinance was not unconstitutionally vague or
overbroad. RVS appeals the district court’s decision with
respect to its determination that the Ordinance is not a
prior restraint and that sufficient evidence exists to uphold
the Ordinance on a secondary effects rationale.
II. Discussion
A. Legal Framework
In Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986),
the Supreme Court applied a three-step analysis in review-
ing the First Amendment validity of a municipal zoning
ordinance that regulated adult movie theaters. The Renton
analysis instructs courts reviewing regulations of adult
entertainment establishments to consider: (1) whether the
regulation constitutes an invalid total ban or merely a time,
8 No. 03-2772
place, and manner regulation, (2) whether the regulation is
content-based or content-neutral, and accordingly, whether
strict or intermediate scrutiny is to be applied, and (3) if
content-neutral, whether the regulation is designed to serve
a substantial government interest and allows for reasonable
alternative channels of communication.
In upholding a ban on multiple-use adult establishments,
the plurality opinion in City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425 (2002), adhered to the Renton
framework. However, in his concurrence, Justice Kennedy
joined the four dissenters, id. at 455-56, in eschewing the
content-neutral “fiction” of adult entertainment zoning
ordinances. Id. at 448 (“These ordinances are content based
and we should call them so.”); see also G.M. Enterprises v.
Town of St. Joseph, 350 F.3d 631, 637 (7th Cir. 2003)
(explaining that the content-based versus content-neutral
inquiry is unnecessary). Generally, content based restric-
tions on speech are analyzed with the strictest scrutiny, but
Justice Kennedy explained that content based zoning
regulations can be exceptions to that rule. In so concluding,
he agreed with the plurality that “the central holding of
Renton is sound: A zoning restriction that is designed to
decrease secondary effects and not speech should be subject
to intermediate rather than strict scrutiny.” Alameda
Books, 535 U.S. at 448. Whatever the label, Renton’s second
step is best conceived as an inquiry into the purpose behind
an ordinance rather than an evaluation of an ordinance’s
form. See Alameda Books, 535 U.S. at 440-41 (plurality
opinion) (explaining Renton’s second step “requires courts
to verify that the predominant concerns motivating the
ordinance were with the secondary effects of adult
[speech]”) (emphasis added) (internal quotations omitted);
Ben’s Bar v. Village of Somerset, 316 F.3d 702, 723 (7th Cir.
2003) (“regulations of adult entertainment receive interme-
diate scrutiny if they are designed not to suppress the
No. 03-2772 9
“content” of erotic expression, but rather to address the
negative secondary effects caused by such expression”)
(emphasis added); G.M. Enterprises, 350 F.3d at 637-38
(noting that courts “must first determine whether the
ordinances at issue are motivated by an interest in reducing
the secondary effects associated with the speech, rather
than an interest in reducing speech itself,” before applying
intermediate scrutiny) (emphasis added).3 As we noted in
Ben’s Bar, “while the label has changed, the substance of
Renton’s second step remains the same.” 316 F.3d at 702,
721 n.26.
Accordingly, only after confirming that a zoning ordi-
nance’s purpose is to combat the secondary effects of speech
do we employ Renton’s intermediate scrutiny test. Under
this test, zoning regulations are constitutional “so long as
they are designed to serve a substantial government
interest and do not unreasonably limit alternative avenues
of communication.” Renton, 475 U.S. at 47; see also
Alameda Books, 535 U.S. at 434. At this stage, courts are
“required to ask ‘whether the municipality can demonstrate
a connection between the speech regulated by the ordinance
and the secondary effects that motivated the adoption of the
ordinance.’ ” Ben’s Bar, 316 F.3d at 724 (quoting Alameda
Books, 535 U.S. at 441). In other words, simply stating that
3
Justice Kennedy does not discuss the “predominant concerns”
inquiry in his Alameda Books concurrence. As he notes that
“zoning regulations . . . have a prima facie legitimate purpose: to
limit the negative externalities of land use,” 535 U.S. at 449, it is
possible that he believes this inquiry to be unnecessary, as long as
an ordinance may be characterized as a zoning regulation.
However, as Justice Kennedy does not explicitly repudiate the
“predominant concerns” inquiry and our cases subsequent to
Alameda Books have continued to employ it, we will include it in
our analysis.
10 No. 03-2772
an ordinance is designed to combat secondary effects is
insufficient to survive intermediate scrutiny. The govern-
mental interest of regulating secondary effects may only be
upheld as substantial if a connection can be made between
the negative effects and the regulated speech. In evaluating
the sufficiency of this connection, courts must “examine
evidence concerning regulated speech and secondary
effects.” Alameda Books,535 U.S. at 441. According to the
Alameda Books plurality, the evidentiary requirement is
met if the evidence upon which the municipality enacted
the regulation “is reasonably believed to be relevant for
demonstrating a connection between [secondary effects
producing] speech and a substantial, independent govern-
ment interest.” 535 U.S. at 438 (internal quotations omit-
ted).
However, Justice Kennedy clarified that simply evaluat-
ing the strength of the connection is insufficient to pass
intermediate scrutiny. It is essential, he explained, to con-
sider the impact or effect that the ordinance will have on
speech. That is, not only must the regulation have the
“purpose and effect of suppressing secondary effects,” it
must also leave the “quantity and accessibility of speech
substantially intact.” Alameda Books, 535 U.S. at 450
(Kennedy, J., concurring). This approach requires that two
questions be asked and answered to resolve whether a
content-based zoning ordinance is justified: (1) “what pro-
position does a city need to advance in order to sustain a
secondary-effects ordinance?”; and (2) “how much evidence
is required to support the proposition?” Id.; see also Ben’s
Bar, 316 F.3d at 724. As Justice Kennedy explained, “the
necessary rationale for applying intermediate scrutiny
is the promise that zoning ordinances . . . may reduce
the costs of secondary effects without substantially reducing
speech.” Alameda Books, 535 U.S. at 450 (Kennedy, J.,
concurring). Accordingly, only once a “cost effective”
No. 03-2772 11
rationale has been identified to justify a regulation can the
sufficiency of the evidence supporting that rationale be
evaluated.4
In sum, Alameda’s plurality opinion along with Justice
Kennedy’s concurrence establish that in order to justify a
content-based time, place, and manner restriction, a muni-
cipality must advance some basis to show that its regula-
tion has the purpose and effect of suppressing secondary
effects, (i.e., is designed to serve or furthers a substantial or
important government interest), while leaving the quantity
and accessibility of speech substantially intact (i.e., the
regulation is narrowly tailored and does not unreasonably
limit alternative avenues of communication). Ben’s Bar, 316
F.3d at 725.
B. Application of Renton/Alameda Books to the Ordinance
1. Strict or Intermediate Scrutiny: Complete Ban or
Time Place and Manner Regulation?
First, we note that the Ordinance is not a complete ban
on Exotic Dancing Nightclubs, but a zoning regulation,
which Renton and Alameda Books instruct us to consider as
a time, place, and manner regulation. Rather than acting as
an outright prohibition on “exotic dancing,” the Ordinance
regulates the locations where that activity may occur.
However, the special use permit scheme does create the
potential of substantially restricting, or even preventing,
4
The Alameda Books plurality characterized Justice Kennedy’s
concurrence as “a reformulation of the requirement that an or-
dinance warrants intermediate scrutiny only if it is a time, place,
and manner regulation and not a ban.” 535 U.S. at 443. It appears
to us that Justice Kennedy’s contentions were not so limited. We
will follow our Court’s practice in cases applying Alameda Books
and treat Justice Kennedy’s concurrence as more demanding of
the third step of the Renton analysis and not merely a restate-
ment of the first step.
12 No. 03-2772
the establishment of new Exotic Dancing Nightclubs.
Nevertheless, the record does not support the conclusion
that the Ordinance amounts to a total ban on protected ac-
tivity—especially considering that existing Exotic Dancing
Nightclubs are unaffected by the Ordinance.
2. Strict or Intermediate Scrutiny: Were the Secondary
Effects of Speech the “Predominant Concerns” Moti-
vating Enactment of the Ordinance?
Next, we must examine whether the Ordinance was
designed to suppress the content of erotic expression or to
address the negative secondary effects caused by such ex-
pression. Ben’s Bar, 316 F.3d at 723. In other words, we
must determine whether the “predominant concerns” moti-
vating Rockford’s enactment of the Ordinance “were the
secondary effects of adult [speech], and not . . . the content
of adult [speech].” Id.5 Rockford claims to have enacted the
Ordinance to combat the negative secondary effects alleg-
edly created by Exotic Dancing Nightclubs, including pros-
titution, crime, and decreased property values. To support
this claim, Rockford points to testimony from Ald. Mark and
City Attorney Elliott given at the ZBA meeting explaining
that the purpose of the Ordinance was to ameliorate the
negative secondary effects of Exotic Dancing Nightclubs. In
addition, Ald. Holt and Ald. Johnson offered testimony at
trial relating to the negative effects produced by adult-
oriented businesses.
5
“Federal courts evaluating the ‘predominant concerns’ behind
the enactment of a statute, ordinance, regulation, or the like, may
do so by examining a wide variety of materials including, but not
limited to, the text of the regulation or ordinance, any preamble
or express legislative findings associated with it, and studies and
information of which legislators were clearly aware.” Ben’s Bar,
316 F.3d at 723, n.28 (citing Ranch House Inc. v. Amerson, 238
F.3d 1273, 1280 (7th Cir. 2001)).
No. 03-2772 13
However, observations made by Ald. Mark during trial
somewhat complicate this inquiry. In response to questions
relating to the purpose of the Ordinance, Ald. Mark stated
that while Rockford had experienced no problems with the
Exotic Dancing Nightclubs currently in operation, “there
were some concerns that some people just don’t like this
type of entertainment.” Combating the adverse secondary
effects caused by sexually explicit speech is a permissi-
ble purpose for a regulation; open and explicit hostility
toward and disapproval of the speech itself is not. Certainly,
such a direct acknowledgment from the official responsible
for introducing the Ordinance makes us sensitive to the
possibility that the Ordinance might be a pretextual use of
the power to zone as a means of suppressing expression. See
Young v. American Mini Theatres, Inc., 427 U.S. 50, 84
(1976) (Powell, J., concurring). Nonetheless, what motivates
one legislator to support a statute is not necessarily what
motivates others to enact it. See Renton, 475 U.S. at 48
(citing United States v. O’Brien, 391 U.S. 367, 383-84
(1968)); see also DiMa Corp. v. Town of Hallie, 185 F.3d
823, 828-29 (7th Cir. 1999) (rejecting an argument that
legislators’ improper motive can invalidate an otherwise
constitutional ordinance). Accordingly, on balance, it seems
that the predominant concerns motivating enactment of the
Ordinance related to combating prostitution, crime, and
other negative externalities.
3. Intermediate Scrutiny: Substantial Government
Interest, Narrowly Tailored, and Reasonable Alter-
nate Channels of Communication
Even accepting that the “predominant concerns” motivat-
ing Rockford’s adoption of the Ordinance were the alleged
secondary effects caused by Exotic Dancing Nightclubs, we
are compelled to reverse the decision of the district court
because the Ordinance cannot survive Renton/Alameda
Books intermediate scrutiny (i.e., designed to serve a
substantial government interest, narrowly tailored and does
14 No. 03-2772
not unreasonably limit alternate avenues of communica-
tion). See Ben’s Bar, 316 F.3d at 724.
a. Substantial Government Interest
As previously noted, our inquiry requires us to answer
two questions: (1) “what proposition does a city need to ad-
vance in order to sustain a secondary-effects ordinance?”;
and (2) “how much evidence is required to support the
proposition?” Alameda Books, 535 U.S. at 449 (Kennedy, J.,
concurring). Justice Kennedy put forth a proportionality
principle to guide courts in answering the first question. He
explained that, “a city may not assert that it will reduce
secondary effects by reducing speech in the same propor-
tion.” Id. Following this guideline, Justice Kennedy con-
cluded that the rationale of a dispersal statute must be that
the targeted businesses will disperse rather than shut
down. Id. at 451.
Accordingly, Rockford’s premise in support of the Ordi-
nance must be that locating Exotic Dancing Nightclubs
away from churches, schools, and residential neighbor-
hoods, and separating Exotic Dancing Nightclubs from one
another will significantly reduce negative secondary effects
that occur when there is a concentration of adult uses in an
area without substantially diminishing the availability of
speech.
As we move to the second question, we are confronted
with a critical deficiency of the Ordinance—the lack of
evidence to support this premise. The record is devoid of
evidence connecting Exotic Dancing Nightclubs and the
secondary effects that allegedly motivated the Ordinance’s
adoption. While it seems apparent that the Ordinance will
have the effect of reducing the availability of speech, evi-
dence is lacking to support the proposition that secondary
effects will be reduced by the same degree, if at all.
The Supreme Court has consistently held, “a city must
have latitude to experiment, at least at the outset, and . . .
No. 03-2772 15
very little evidence is required [to support an ordinance’s
proposition].” Id. As previously noted, “a municipality may
rely on any evidence that is ‘reasonably believed to be rele-
vant’ for demonstrating a connection between speech and a
substantial, independent government interest.” Alameda
Books, 535 U.S. at 438 (plurality opinion) (quoting Renton,
475 U.S. at 51-52). However, Rockford has produced little
evidence of harmful secondary effects connected to Exotic
Dancing Nightclubs beyond the assumption that such
effects exist. While it is true that common experience may
be relied upon to bolster a claim that a regulation serves a
current governmental interest, the experience in this case
falls short of satisfying the minimal evidentiary showing
required by Alameda Books. Indeed, while courts may credit
a municipality’s experience, such consideration cannot
amount to an acceptance of an “if they say so” standard.
Rockford does not identify any studies, judicial opinions,
or experience-based testimony that it considered in adopt-
ing the Ordinance. Furthermore, the evidence presented at
trial represented only a limited showing, consisting of:
evidence of a higher than average incidence of prostitution
in the 7th Street and Broadway area, testimony from two
local officials that police action had not been effective to
curb prostitution activity, and testimony from Ald. Johnson
that based on her personal observations strip clubs have
negative secondary effects on adjoining residential proper-
ties.6
Even if we were dealing with a typical adult entertain-
ment zoning ordinance, it is questionable whether this
modest amount of support would be sufficient under the
6
While the Supreme Court has not definitively addressed the is-
sue, our Court has permitted municipalities to make a record for
trial with evidence that it may not have considered when it en-
acted its ordinance. See DiMa Corp., 185 F.3d at 829-30.
16 No. 03-2772
albeit permissive guidelines set by the Supreme Court and
this Court’s previous cases. While “reasonably believed to
be relevant” is not a particularly demanding evidentiary
standard, neither the Supreme Court nor this Court has
found it satisfied by a similarly limited proffer of evidence.
Compare Alameda Books, 535 U.S. at 425 (city relied on
study it conducted a number of years prior to enacting or-
dinance); Renton, 475 U.S. at 44 (planning committee con-
ducted extensive studies and hearings); G.M. Enterprises,
350 F.3d at 631 (town board collected 16 studies and
consulted judicial opinions and police reports); Ben’s Bar,
316 F.3d at 725 (village board relied on numerous judicial
decisions, studies from 11 different cities, and findings in a
report from the state’s attorney general); Schultz v. City of
Cumberland, 228 F.3d 831 (7th Cir. 2000) (city collected
and reviewed studies and conducted legislative research);
DiMA Corp., 185 F.3d at 830-31 (town “minimally” met its
evidentiary burden by relying on the factual record sup-
porting the experience of another community as reported in
a judicial opinion).
We reiterate that “courts should not be in the business of
second-guessing fact-bound empirical assessments of city
planners.” G.M. Enterprises, 350 F.3d at 640 (quoting
Alameda Books, 535 U.S.at 451). However, in a situation
like the one before us, where Rockford has not adequately
engaged in such an assessment, to conclude that the “rea-
sonably believed to be relevant” requirement has been
satisfied would be to permit a municipality to employ an
unacceptably low level of justification, as proscribed by the
Alameda Books plurality. See 535 U.S. at 438.
Nonetheless, the requirement that municipalities be
allowed a reasonable opportunity to experiment with solu-
tions to an admittedly serious problem might render the
offered evidence sufficient if the Ordinance applied only to
bars and clubs that present nude or semi-nude dancing.
“Such entertainment has a long history of spawning dele-
No. 03-2772 17
terious effects, including prostitution and the criminal
abuse and exploitation of young women, and in most cases
a city or state need only carry a minimal burden to demon-
strate its interest in regulation of such activity.” Giovani
Carandola, Limited v. Bason, 303 F.3d 507, 516 (4th Cir.
2002) (internal citations omitted). In contrast, the regu-
lation in this case targets clothed dancers who convey
an erotic message through their movements. Within the
confines of this record evidence does not exist to support a
connection between establishments offering dancing by en-
tertainers who are clothed and adverse secondary effects.
While it may have been reasonable for Rockford to believe
that the evidence presented at trial was relevant to de-
monstrate a connection between adverse secondary effects
and nude or topless dancing, we conclude that it falls short
of being relevant to establishing a meaningful connection
between negative secondary effects and the type of enter-
tainment to which the Ordinance applies.
Most of the Rockford’s evidence, at least as presented to
date, does not appear to be directly relevant to the type of
entertainment that Rockford seeks to regulate. At trial,
Rockford focused on the problems afflicting the 7th Street
and Broadway area. Indeed, Officer Dominguez’s incidence
reports reflect that many prostitution calls originated from
this general vicinity in 2001 and 2002. However, Rockford
did not present to the Court any examples of businesses in
this area that fall within the definition of the Ordinance.
While the members of the City Council indicated in their
testimony that such establishments exist, they did not pro-
vide any examples. Their general statements alone may
have been sufficient were it not for the repeated overlap of
terminology at trial. Witnesses and Rockford’s attorney
continuously used the terms Sexually Oriented Business
and Exotic Dancing Nightclub interchangeably. As a result
of this lack of distinction, we cannot presume that the bus-
18 No. 03-2772
inesses operating in the 7th Street and Broadway area are
Exotic Dancing Nightclubs as opposed to Sexually Oriented
Businesses.
Notably, Ald. Mark testified that five Exotic Dancing
Nightclubs currently exist within Rockford. Indeed, five
specific business establishments (The Flag, State Street
Station, Hideaway, Surf Lounge, and Bigfoot) were men-
tioned by various witnesses at trial as examples of Exotic
Dancing Nightclubs. However, our search of the public
record indicates that none of these businesses are actually
located in the 7th Street and Broadway area. Accordingly,
it is difficult to conclude that the incidence reports and
testimony regarding 7th Street and Broadway reasonably
support the premise that a concentration of Exotic Dancing
Nightclubs result in adverse secondary effects. In effect, the
only evidence we are left with supporting Rockford’s
rationale behind the Ordinance are the conclusory state-
ments in the ZBA and codes and regulations minutes and
the testimony of one local official that in her personal
experience Exotic Dancing Nightclubs have a negative
impact on the surrounding community. If Rockford had
presented more convincing evidence to show that some
businesses featuring clothed entertainers produce adverse
secondary effects, a different result might ensue.
b. Narrowly Tailored and Reasonable Alternate
Channels of Communication
Additionally, the Ordinance does not appear to be nar-
rowly tailored to affect a category of business establish-
ments shown to produce unwanted secondary effects—or
even establishments that could conceivably produce them.
See Ben’s Bar, 316 F.3d at 725 (explaining that a regulation
must leave the quantity and accessibility of speech substan-
tially intact). Under a narrow reading, the Ordinance
regulates all persons performing an erotic dance (or other
specified movements) at a business establishment while
No. 03-2772 19
wearing more or less the equivalent of short shorts and, if
female, an opaque bra.7 While understandably aimed at
entertainers of a more “adult” persuasion, there exists the
potential that mainstream performances could fall under
the purview of the Ordinance. Simply, Rockford has not
presented justification why it is essential to regulate such
a wide universe of dance. Cf. Pleasureland Museum, Inc. v.
Beutter, 288 F.3d 988 (7th Cir. 2002) (holding that an
ordinance prohibiting a sexually oriented business’ signage
from displaying anything other than the business name was
not narrowly tailored to reduce secondary effects where
municipality could not articulate a single reason why such
a rule was necessary).
Certainly, as a direct restriction on erotic expression,
speech fares worse under the Ordinance than it did under
the laws at issue in similar cases. In Ben’s Bar, the ordi-
nance did not restrict erotic expression, but rather prohib-
ited sexually oriented businesses from serving alcohol
during a dancer’s performance. 316 F.3d at 726. Similarly,
in G.M. Enterprises, the availability of speech was left sub-
stantially intact because the ordinances merely sought to
minimize the factors that “heighten[ed] the probability that
adverse secondary effects would result from nude dancing:
physical proximity between the dancers and patrons, and
the consumption of alcohol by patrons.” 350 F.3d at 638.
Under the regulation at issue in G.M., if dancers chose to
wear de minimus clothing the ordinance’s restrictions could
7
This interpretation is similar to the one advanced by Wayne
Dust, Rockford’s zoning manager, at trial (i.e., the clothing clause
is read to modify all three categories of conduct). While we believe
Ald. Mark’s interpretation (i.e., the clothing clause applies only to
the last category) is the more structurally natural reading; the
outcome produces an irrational result that we will not employ. We
will treat the clothing clause as modifying all three categories of
conduct.
20 No. 03-2772
be avoided entirely. Id.; see also Alameda Books, 535 U.S.
at 447 (Kennedy, J., concurring) (noting that the ordinance
extended to non-expressive activities, like massage parlors);
DiMa Corp., 185 F.3d at 823 (ordinance regulated book-
store’s hours of operation).
In contrast, the Ordinance here is focused on expressive
conduct. Rather than targeting a non-expressive aspect of
Exotic Dancing Nightclubs, like neon signs, the Ordinance
targets the speech itself. As a zoning regulation we view the
Ordinance as less restrictive than an outright ban; however,
it is still the case that to avoid the Ordinance dancers must
not convey an erotic message through their movements (or
they must wear significantly more clothing than the
amount we have considered to be de minimus in past cases).
Like the regulation this Court struck down in Schultz v.
City of Cumberland, the Ordinance “deprives the performer
of a repertoire of expressive elements with which to craft an
erotic, sensual performance and thereby interferes substan-
tially with the dancer’s ability to communicate an erotic
message.” 228 F.3d 831, 847 (7th Cir. 2000) (invalidating
regulation that banned the performance of specified
sexually explicit movements within sexually oriented
businesses finding that “[b]y restricting particular erotic
movements and gestures of the erotic dancer . . . [the
regulation] unconstitutionally burdens protected expres-
sion.”).
As we have determined that the Ordinance is not ap-
propriately designed to serve a substantial government
interest and is not narrowly tailored, it is unnecessary for
us to separately analyze whether the Ordinance leaves open
reasonable alternate channels of communication.
C. Applying Renton/Alameda Books Beyond Sexually
Explicit Speech
As a final matter, we observe that challenging questions
are raised by the Ordinance’s expansiveness. While we
applied the Renton/Alameda Books framework in reviewing
No. 03-2772 21
the constitutionality of the Ordinance, it is unclear how
“sexual” in nature regulated speech must be to warrant the
Renton/Alameda Books analysis. Even under our narrow
reading of “exotic dancing,” a number of expressive acti-
vities may fall within Rockford’s definition that are not
ordinarily regulated under a secondary effects theory. It
is important to keep in mind that the Ordinance does not
apply to nude dancing or other forms of nude entertain-
ment. A survey of the laws challenged on secondary effects
grounds in leading Supreme Court and Seventh Circuit
cases illustrates the unusual breadth of the Ordinance. See
Alameda Books, 535 U.S. at 425 (prohibiting “Adult Enter-
tainment Businesses”8 from operating in the same build-
ing); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (restrict-
ing public nudity); Barnes v. Glen Theatre, Inc., 501 U.S.
560 (1991) (same); Renton, 475 U.S. at 41 (regulating the
location of adult motion picture theaters); G.M. Enterprises,
350 F.3d at 631 (regulating nude dancing); Ben’s Bar, 316
F.3d at 702 (prohibiting the sale, use, and consumption of
alcohol on the premises of “Sexually Oriented Businesses”9).
As these cases demonstrate, courts have upheld a number
of restrictions on sexually explicit expression that falls
8
The city defined “Adult Entertainment Business” as an “adult
arcade, bookstore, cabaret, motel, theater, or massage parlor or a
place for sexual encounters.” 535 U.S. at 431.
9
The ordinance at issue in Ben’s Bar defined “Sexually Oriented
Business” as “an adult arcade, adult bookstore or adult video
store, adult cabaret, adult motel, adult motion picture theater,
adult theater, escort agency or sexual encounter center.” 316 F.3d
at 708, n.8. As it regularly featured nude and semi-nude persons,
Ben’s Bar fell under the sub-category of “adult cabaret.” Id. at
708. The ordinance further defined semi-nudity as “the exposure
of a bare male or female buttocks or the female breast below a
horizontal line across the top of the areola at its highest point
with less than complete and opaque covering.” Id.
22 No. 03-2772
short of obscenity.10 However, what constitutes sexually
explicit but non-obscene expression can be difficult to
define. Previously, regulating nudity or semi-nudity has
served as a common link in the laws enacted by munici-
palities pertaining to sexually explicit expression. The
uniqueness of the Ordinance is that it removes nudity from
the calculus and seeks to regulate clothed individuals. The
challenge attendant to this legislative leap may be that it
cuts a broader swath across expression and attempts to
apply the “secondary effects” reasoning of Renton to laws
not confined to regulating “sexually explicit” speech. Re-
cently, the Eighth Circuit noted that First Amendment
issues may be raised by classifying live entertainment by
clothed dancers as sexual expression. Jake’s, Ltd., Inc. v.
City of Coates, 356 F3d 896, 903 (8th Cir. 2004). Indeed,
it remains questionable how and if the Renton/Alameda
Books analysis would apply in a case with even more tan-
gential of a relationship to businesses purveying sexually
explicit materials and entertainment. See Boos v. Barry,
485 U.S. 312, 334-35 (1988) (Brennan, J., concurring)
(objecting to implication that content-based regulations
could ever be subject to “secondary effects” analysis outside
the area of sexually explicit speech).
III. Conclusion
We do not conclude that Rockford may not permissibly
use its zoning power to regulate any type of clothed danc-
10
Obscenity is a constitutionally unprotected category of speech.
See Miller v. California, 413 U.S. 15 (1973) (holding that gov-
ernments may regulate speech as obscene if it (a) under commu-
nity standards, appeals to the prurient interest, (b) taken as a
whole, is a patently offensive depiction or description of sexual
conduct, and (c) lacks serious literary, artistic, political, or scien-
tific value).
No. 03-2772 23
ing. As we have previously noted of other zoning ordinances
regulating dancing: “the expressive activity involved in the
kind of striptease entertainment provided in a bar has at
best a modest social value and is anyway not suppressed
but merely shoved off to another part of town, where it
remains easily accessible to anyone who wants to patronize
that kind of establishment.” Blue Canary Corp. v. City of
Milwaukee, 251 F.3d 1121, 1124 (7th Cir. 2002) (upholding
denial of liquor license to club whose dancers performed in
pasties and bikini bottoms). It is arguable that at least
some forms of clothed entertainment may initiate adverse
secondary effects similar to the ones caused by establish-
ments featuring nude and semi-nude entertainment.
However, a municipality must offer sufficient evidence in
support of this proposition. Without further direction from
the Supreme Court, we cannot constitutionally lower the
already modest evidentiary hurdle for justifying regulations
of sexually explicit but non-obscene speech on secondary
effects grounds, especially in a case where mainstream
speech is affected.
For the foregoing reasons, the Ordinance as presently
drafted violates the First Amendment. As this determina-
tion is sufficient to permanently enjoin enforcement of the
Ordinance, we offer no opinion regarding RVS’s prior
restraint arguments. We REVERSE the judgment of the
district court and REMAND for further proceedings consis-
tent with this opinion.
24 No. 03-2772
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-17-04