Chicago v. Pooh Bah ( 2006 )

Docket No. 99804.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE CITY OF CHICAGO, Appellee, v. POOH BAH
ENTERPRISES, INC., et al., Appellants.
Opinion filed October 5, 2006.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, and
Garman concurred in the judgment and opinion.
Justice Freeman dissented upon denial of rehearing, with opinion.
Justice Burke took no part in the decision.
OPINION
Section 4–60–140(d) of the Municipal Code of Chicago prohibits
establishments licensed to serve alcoholic beverages from permitting
any employee, entertainer or patron to engage in “any live act,
demonstration, dance or exhibition *** which exposes to public view
*** [h]is or her genitals, pubic hair, buttocks *** or [a]ny portion of
the female breast at or below the areola thereof.” The issue we are
asked to resolve today is whether this ordinance violates the first and
fourteenth amendments to the United States Constitution (U.S. Const,
amends. I, XIV) and article I, section 4, of the Illinois Constitution of
1970 (Ill. Const. 1970, art. I, §4). The circuit court of Cook County
found that it does. The appellate court concluded that it does not.
Nos. 1–01–0592, 1–01–1932 cons. (unpublished order under Supreme
Court Rule 23). For the reasons that follow, we affirm the judgment
of the appellate court.
The events which gave rise to this appeal began in 1993, when the
Liquor Control Commission of the City of Chicago initiated
administrative proceedings against Pooh Bah Enterprises, Inc. (Pooh
Bah), to revoke various municipal licenses which had been issued to
the company, including its municipal retail liquor license. The
challenged licenses had been issued to the company in connection with
its operation of a so-called “gentlemen’s club” located at 1531 North
Kingsbury Street in the City of Chicago.1 The basis for the revocation
was that the company, by and through its agents, had permitted
various female dancers at the club to expose their buttocks or portions
of their breasts at or below the areola to public view in violation of
section 4–60–140(d) of the Chicago Municipal Code.
The record shows that Pooh Bah was originally owned by an
individual named Jim Levin. Under Levin’s ownership, Pooh Bah
operated the club as the “1531 Club.” When Levin began experiencing
financial problems, Perry Mandera, owner and president of a Chicago-
area-based shipping company known as The Custom Companies, lent
him $300,000 in exchange for a security interest in 50% of Pooh
Bah’s stock. Mandera subsequently lent Levin an additional $500,000
to finance improvements to the club undertaken in connection with its
becoming a franchisee of a chain of “strip” clubs operated by Michael
J. Peter Club Management, Inc., under the name “Thee Dollhouse.”
Prior to the switch to the Thee Dollhouse format, no nude or
seminude dancing was performed at the club. Strippers did not appear
until the club became affiliated with the Michael J. Peter organization.
Unfortunately for Levin, the introduction of strippers did not bring
financial solvency, and he was unable to repay Mandera the money he
1
According to testimony presented in the circuit court, the term
“gentlemen’s club” denotes a commercial establishment where, for a fee,
patrons can watch live dancing by nude or seminude women.
-2-
owed. Mandera ultimately took over full ownership of Pooh Bah
through an entity he owned called Ace Entertainment.
According to his testimony, Mandera, through Ace Entertainment,
became the sole owner of Pooh Bah and thus the strip club in the
summer of 1993. After taking over, Mandera terminated the club’s
connection with the Michael J. Peter organization. In place of that
company, Mandera, through Pooh Bah, entered into management and
licensing agreements with Frederick John “Rick” Rizzolo, owner of a
Las Vegas strip club known as “The Crazy Horse Too.” Rizzolo
became active in the management of Pooh Bah’s club in 1995, while
the license revocation proceedings were still pending.2 For his
services, Rizzolo was paid $20,000 per month, plus travel expenses.
Under Rizzolo’s regime, the club dropped the name “Thee
Dollhouse” and began operating under the same name as Rizzolo’s
club in Las Vegas, “The Crazy Horse Too.” Mandera explained that
he affiliated his club with Rizzolo because, when he came across The
Crazy Horse Too in Las Vegas, “[he] liked what they did.” He was
2
Mandera required management assistance because he had no experience
running strip clubs. Interestingly, Thomas Bridges, the person Mandera hired
to be the club’s general manager when Rizzolo entered the scene, had no
such experience either. Prior to going to work for Mandera, Bridges had been
a detective with the Chicago police department. Joe Pascente, one of the
club’s assistant managers, had also been associated with the police
department. He was a probationary officer, but was fired for failing to
disclose that he was the subject of an FBI investigation into insurance fraud
involving his father, Fred Pascente. That investigation ultimately led to
Fred’s conviction on federal mail fraud charges. As with Bridges, Fred had
been a Chicago police detective. Fred Pascente is now listed in the Nevada
Gaming Commission and State Gaming Control Board’s “Black Book” of
excluded persons based on the mail fraud conviction and on his connection
t o organized crime in t h e C h i c a g o a r e a . S ee
http://gaming.nv.gov/loep_pascente.htm. According to Joe, Fred was
employed at the club when he began there in 1995 and remained working at
the club up until the middle of 1999. Fred is the person who originally
introduced Joe to Mandera. Joe described Mandera as a family friend and
testified that before taking the job at the club, he worked for Mandera’s
shipping company.
-3-
impressed by the club’s success and its desire to expand into other
cities. According to Mandera, Rizzolo was willing to give him a far
better financial arrangement than the one Pooh Bah had with the
Michael J. Peter organization. Being affiliated with Rizzolo also
provided Pooh Bah with access to the same pool of dancers Rizzolo
used. In addition, Mandera testified that Rizzolo “seemed like a very
nice person and operated a nice, up-scale operation ***.”3
The club operated under the name The Crazy Horse Too until
2003. According to the briefs and records of the Illinois Secretary of
State, the establishment now does business under the name “VIP’s”
or “VIP’s, A Gentlemen’s Club.” Absent any indication from the
parties to the contrary, we assume that its ownership and operations
remain unchanged.
At the time the license revocation proceedings against Pooh Bah
commenced and throughout the period relevant to this litigation, its
club at 1531 North Kingsbury Street has provided something that
other licensed establishments selling liquor by the drink in Chicago do
not: seminude dancers. Entertainment venues featuring nude and
seminude female dancers operate within the City’s limits in compliance
with municipal ordinances. None of them, however, has a liquor
3
Shortly after this case was argued in our court, Rizzolo pleaded guilty
in the United States District Court for the District of Nevada to a felony
charge of conspiring to defraud the United States of taxes in connection with
operation of his Las Vegas The Crazy Horse Too club. See United States of
America v. Rizzolo, No. 2:06–CR–188–PMP–PAL, Plea Memorandum
(June 1, 2006). At the same time, The Power Company, Inc., which is the
parent company of the Las Vegas club, pleaded guilty to federal charges of
“Conspiracy to Participate in an Enterprise Through a Pattern of
Racketeering.” See United States of America v. The Power Company, Inc.,
No. 2:06–CR–186–PMP–PAL, Plea Memorandum (June 1, 2006).
Proceedings in federal district court are a matter of which the courts of this
state may take judicial notice. See, e.g., Pfaff v. Chrysler Corp., 155 Ill. 2d
35, 71 (1992). As part of the federal plea agreements, the club must be sold,
and Rizzolo is barred from owning, operating, or having any involvement
with any strip clubs or similar businesses involved in pornography or erotic
entertainment or media in the United States and its territories for the
remainder of his life.
-4-
license. Throughout all of Chicago, Pooh Bah’s club is the only
commercial establishment where the sale of liquor by the drink and
dancing by seminude women are combined.
The mix of alcohol sales and nude or seminude dancing was not
always so rare. Roger G. O’Brien, a veteran Chicago police officer
who has worked in the Department’s 18th District vice unit since
1979, testified that the City’s Rush Street entertainment district was
once home to 12 or 13 strip clubs, all of which served alcohol. During
that time, prostitution in and around the clubs was pervasive.
According to O’Brien, in the late 1970s and mid-1980s, there were
prostitutes on every corner in the Rush Street area, and inside the
clubs, waitresses and dancers frequently solicited customers for sex.
Antiprostitution campaigns waged by the City during the 1980s
ultimately resulted in the closure of all these establishments. O’Brien
estimated that when the strip clubs serving alcohol were shut down,
the number of prostitution arrests in the area declined by 80%.
Pooh Bah’s club is not located in Chicago’s Rush Street
entertainment area and is not related to any of the City’s 1970- and
1980-era strip clubs. The type of entertainment presented at Pooh
Bah’s club would, however, probably be familiar to patrons of those
now-defunct establishments. After paying an admission charge, $15
in the year 2000, customers of the club enter a room containing a bar,
an elevated stage area, and tables and chairs.4 Female performers take
turns going on stage, where they remove their clothing while dancing
to prerecorded background music. For the most part, the performers
called to testify in this case had not received any formal dance
training. One described taking dance lessons when she was a child.
Another indicated that while she had never been taught dance steps,
she had “either choreographed or hired choreographers” to assist her
in her performance.
4
As the club was configured when the last hearing in the case was held, a
special “V.I.P.” room was located in an elevated are adjacent to the main
room. The “V.I.P.” room afforded patrons an additional measure of privacy
while still permitting them to view the rest of the club. Admission to the room
required payment of an additional fee.
-5-
Over the course of an evening, more than 20 women may perform
on stage. During those performances, waitresses take drink orders
from patrons and serve them at their tables. When an entertainer has
finished on stage, she will circulate through the club and mingle with
the customers. Her objective in doing this is twofold. First, she is
expected to earn money for the club by encouraging patrons to buy
premium-priced drinks for themselves and for her. Alcohol sales are
a major source of the club’s income, which is substantial. According
to testimony given by Mandera in 2000, the club’s gross annual
revenue was $7 million. By comparison, strip clubs in Chicago that did
not serve alcohol had annual revenues of only one or two million
dollars.
A performer’s second objective when circulating through the club
is to earn money for herself through tips. 5 Dancers receive tips for
providing two basic services: (1) sitting and talking with customers6
and (2) doing table dances. A table dance is simply a brief striptease
which a dancer performs for a customer at the customer’s table. An
additional fee is charged for this service. At Pooh Bah’s club, the basic
charge for a table dance is $20, but dancers reported receiving as
much as $100.
5
Performers were also occasionally tipped while performing on stage.
When these proceedings began, tips were the sole source of compensation for
most of the club’s performers, who actually paid a fee to the club for the
opportunity to perform there. The current compensation scheme, which
involves a corporate intermediary as the women’s nominal employer, appears
to include some payments to the dancers in addition to sums earned as tips.
The arrangement is a financially rewarding one for the performers.
According to Mandera, the average dancer at the club was making “six
figures a year” by the year 2000. Mandera reported his own take from the
club to be $75,000 per month.
6
According to Crazy Horse Too performer Tyra M. Andrews, a/k/a
“Rio,” topics of conversation range from the weather to “someone’s, you
know, intricate sexual fantasies.”
-6-
The dances performed on stage and at customers’ tables are
intended to be erotic.7 Performers typically move in a sexually
suggestive fashion, often enhancing the effect by rubbing their breasts
and pubic areas. Club policy specifies that dancers are to stay at least
one foot away from customers during table dances, but evidence in the
record suggests that this restriction is routinely ignored. The same is
true of a club policy forbidding dancers to have physical contact with
customers. The record shows that performers sometimes do
deliberately touch customers during table dances. One report included
earlobe nibbling. Dancer Tracey Lynn Sula admitted kissing customers
on the cheek.
During both the on-stage performances and the table dances,
performers become largely, although not totally, nude. By the
conclusion of a strip tease, whether on stage or at a customer’s table,
the only item of clothing a dancer will still have on is a thong,
sometimes referred to as a “T-bar.” That garment consists of a narrow
waistband to which is attached a panel of cloth intended to cover the
woman’s pubic area. A strip of material runs from the front panel,
between the woman’s legs, up through the cleft of her buttocks, then
attaches to the waistband at the back. It is similar to a traditional G-
string except that the cloth strip running between the woman’s
buttocks is wider. When a performer wears a thong, her anus is
concealed. As with a G-string, however, her buttocks are left
completely exposed.
Although performers at Pooh Bah’s club remove all of their
clothing but their thongs when they dance, they also apply flesh-toned
makeup and latex to their nipples and areolas. The makeup and latex
do not conceal the contours of the nipple area. They merely obscure
the naturally darker color of that portion of the women’s breasts.
7
The sexually stimulating effect of the performances is illustrated by an
event at the club which took place on May 17, 2000, shortly before the final
evidentiary hearing in the case. According to Mandera, police had to be
summoned when a customer was moved to “expose[ ] his erect penis and was
stroking it in full of other patrons and the entertainers.” Mandera, who was
not physically present at the club when this episode took place, attributed it
to the customer’s injudicious use of the antidepressant medication Prozac.
Alcohol was also implicated.
-7-
Evidence was presented that the dancers are also required by club
policy and practice to extend the makeup and latex covering to a
triangular area extending below the areola in the area in frontal
portion of the breast. Whether any female performers at Pooh Bah’s
club ever actually did that is open to question. It is clear, however,
that the entire sides of the dancers’ breasts remained fully exposed
with no latex or makeup coating. From photographs and video
exhibits contained in the record, the dancers’ breasts appear nude. But
for the change in color of the nipples and areolas, one could not tell
that the dancers’ breasts had been covered in any way. Testimony
from investigating police officers indicated that, in person, one could
sometimes see through the makeup and latex and discern the
difference in coloration between a dancer’s areolas and the fleshy
portion of her breasts.
While the name of Pooh Bah’s club has changed over the years,
the way dancers have appeared when interacting with customers has
remained constant. The combination of “T-bars” and latex-covered
nipples and areolas has been a hallmark of the club since it first
adopted the “gentlemen’s club” format in 1993. As we have
previously indicated, and as we shall discuss again later, Chicago
municipal ordinances do not prohibit women from dancing for
customers in that state of undress. Throughout the period at issue
here, clubs have been permitted to operate in the City featuring
dancers who wear even less. Indeed, there are establishments where
dancers perform in a state of complete nudity. What triggered this
litigation is Pooh Bah’s decision to present dancers in “T-bars” and
latex makeup while continuing to serve alcoholic beverages to its
patrons.
Pooh Bah’s combination of nude or seminude dancing and liquor
sales was opposed by municipal authorities as soon as the club
attempted it. Pooh Bah introduced seminude dancing in February of
1993. City police were on the premises conducting investigations
within two weeks. By the following month, the Liquor Control
Commission of the City of Chicago had initiated administrative
proceedings against Pooh Bah to revoke various municipal licenses
which had been issued to the company, including its municipal retail
liquor license. The basis for the revocation, as indicated at the outset
of this opinion, was that the company, by and through its agents, had
-8-
violated section 4–60–140(d) of the Chicago Municipal Code, which
prohibits establishments licensed to serve alcoholic beverages from
permitting any employee, entertainer or patron to engage in “any live
act, demonstration, dance or exhibition *** which exposes to public
view *** [h]is or her genitals, pubic hair, buttocks *** or [a]ny
portion of the female breast at or below the areola thereof.” For
purposes of the ordinance, the foregoing body parts are considered to
be exposed to public view if they are “uncovered or [are] less than
completely and opaquely covered.” Chicago Municipal Code
§4–60–140(d) (2006).
Pooh Bah attempted to block the license revocation by filing a suit
for declaratory and injunctive relief in the circuit court of Cook
County. The circuit court denied Pooh Bah’s request for a temporary
restraining order. The Local Liquor Commissioner of the City of
Chicago subsequently entered an order, following the requisite notice
and a hearing, which revoked the City of Chicago retail liquor license
and all other city licenses issued to Pooh Bah for its strip club at 1531
North Kingsbury Street based on its determination that the company
had, in fact, violated section 4–60–140(d) of the Municipal Code.
Pooh Bah appealed the revocation of its liquor licence to the City
of Chicago’s liquor appeal commission pursuant to sections 7–5 and
7–9 of the Liquor Control Act of 1934 (235 ILCS 5/7–5, 7–9 (West
1996)). The Commission affirmed. Pooh Bah petitioned for rehearing.
235 ILCS 5/7–10 (West 1996). When that petition was denied, Pooh
Bah sought judicial review in the circuit court of Cook County
pursuant to this state’s Administrative Review Law (735 ILCS
5/3–101 et seq. (West 1996)). See 235 ILCS 5/7–9, 7–11 (West
1996). The request for judicial review was asserted by Pooh Bah by
means of a new count added to an amended complaint it filed in
connection with its civil action for declaratory and injunctive relief,
which remained pending.8
8
Pooh Bah also sought review of the revocation of its other municipal
licenses. With respect to those revocations, it proceeded by means of a
petition for a common law writ of certiorari, which it included as an
additional new count in its amended complaint. The propriety of the
procedures employed by Pooh Bah for securing administrative review has not
been challenged and is not at issue in this appeal.
-9-
Revocation of Pooh Bah’s municipal licenses was stayed while
judicial review of the revocation decision was underway and Pooh
Bah’s civil action continued. The City, however, did not wait for those
matters to be resolved before taking further action. It filed a
counterclaim against Pooh Bah for equitable and other relief. The
basis for its counterclaim was that the strip club operated by the
company at 1531 North Kingsbury Street violated section 8–4–090(a)
of the Chicago Municipal Code. Under that statute,
“[a]ny premises used for prostitution, illegal gambling,
illegal [drug] trafficking *** or any other activity that
constitutes a felony, misdemeanor, business offense or petty
offense under federal, state or municipal law is hereby
declared to be a public nuisance ***.” Chicago Municipal
Code §8–4–090(a) (2005).
In the City’s view, Pooh Bah was committing a business or petty
offense within the meaning of this statute by allowing its entertainers
to engage in live acts, demonstrations, dances or exhibitions which
expose to public view portions of the buttocks and female breasts at
or below the areolae in violation of section 4–60–140(d) of the
Municipal Code.
The foregoing proceedings, which we shall designate as the license
revocation case, were protracted. Because the license revocations had
been stayed pending review, however, Pooh Bah’s municipal licenses
remained in effect and the company was able to continue operating its
strip club at 1531 North Kingbury Street throughout the remainder of
the 1990s. In 1999, further investigation by undercover police officers
revealed that dancers at the club continued to engage in the type of
conduct which had triggered the initial license revocation proceedings
six years earlier. The City therefore filed a new action in the circuit
court of Cook County to obtain injunctive relief to shut down the
club.
The basis for the City’s new claim was essentially the same as that
asserted in connection with the original license revocation case.
According to the City, Pooh Bah had violated and continues to violate
section 4–60–140(d) of the Municipal Code of Chicago by “causing,
encouraging or permitting” female performers at the club to engage
in dances or exhibitions “which expose to public view portions of the
female breast at or below the areola, the buttocks, the pubic hair
-10-
regions and portions of the genitalia.” The City further alleged that
Pooh Bah was in violation of section 8–4–090(a) of the Chicago
Municipal Code, the city’s public nuisance ordinance. Unlike the
City’s counterclaim in Pooh Bah’s civil action challenging the license
revocation, the City’s public nuisance claim in this case not only
charged violation of the liquor ordinance, it asserted that Pooh Bah
had caused, encouraged and permitted female performers to engage
in prostitution and to solicit for prostitution.
After filing its new complaint for injunctive relief, the City moved
for issuance of a preliminary injunction. Following discovery and a
series of hearings extending over several months, the circuit court
ruled in January of 2001 that section 4–60–140(d) of the Municipal
Code of Chicago contravened the first and fourteenth amendments to
the United States Constitution (U.S. Const, amends. I, XIV) and
article I, section 4, of the Illinois Constitution of 1970 (Ill. Const.
1970, art. I, §4) and therefore could not serve as the predicate for the
City’s claim that Pooh Bah’s strip club was being operated in a
manner that constitutes a public nuisance. Concluding that the City
had failed to establish that operation of the strip club created a public
nuisance in any other way, the circuit court denied the City’s motion
for a preliminary injunction.
By agreement of the parties, the circuit court amended its ruling,
nunc pro tunc, on May 3, 2001, to clarify certain of its provisions. In
a separate order entered the same day, the circuit court also granted
a joint motion by the parties to consolidate the license revocation case
with the public nuisance case and to adopt the evidentiary record
developed in connection with the motion for a preliminary injunction
as the basis for resolution of the license revocation and public
nuisance cases on the merits.9 In yet a third order dated May 3, 2001,
the court entered judgment in favor of Pooh Bah and against the City
on the City’s public nuisance claims; reversed the decision of the
liquor appeal commission upholding revocation of Pooh Bah’s
municipal licenses; vacated the revocation of those licenses; reserved
9
The agreed order reserved to the City the right to present additional
evidence regarding the amount of fines that could be imposed on Pooh Bah
in the event the City prevailed on the merits.
-11-
for future consideration various related and subsidiary issues; and
made an express written finding that there was no just reason for
delaying enforcement or appeal.
The City took an interlocutory appeal from the circuit court’s
judgement.10 Rejecting the circuit court’s position, the appellate court
held that section 4–60–140(d) of the Municipal Code of Chicago does
not violate either the federal or the Illinois Constitution. Because the
ordinance is not unconstitutional, the appellate court further held that
violation of the ordinance could serve as the basis for (1) revoking
Pooh Bah’s municipal licenses and (2) finding that Pooh Bah’s
operation of the strip club constituted a public nuisance. The appellate
court therefore reversed the circuit court’s judgment and remanded
for further proceedings with respect to both the license revocation
case and the City’s public nuisance claim. Nos. 1–01–0592,
1–01–1932 cons. (unpublished order under Supreme Court Rule 23).
After failing to persuade the appellate court to grant rehearing, Pooh
Bah petitioned our court for leave to appeal. 177 Ill. 2d R. 315.11 We
granted that petition, and the cause is now before us for review.
In resolving this appeal, the pivotal inquiry is whether section
4–60–140(d) of the Municipal Code of Chicago violates either the
United States or the Illinois Constitution. When assessing the validity
of municipal ordinances, our analysis is guided by the same standards
applicable to statutes. City of Chicago v. Morales, 177 Ill. 2d 440,
447 (1997). As with statutes, municipal ordinances are presumed to
be valid. Chavda v. Wolak, 188 Ill. 2d 394, 398 (1999). The burden
of rebutting that presumption is on the party challenging the law’s
validity. La Salle National Bank v. Evanston, 57 Ill. 2d 415, 428
(1974). Courts are obligated to uphold the constitutionality of
10
Although the procedural basis for the appeal was not specified,
interlocutory review was permissible under Supreme Court Rules 304(a)
(155 Ill. 2d R. 304(a)) and 307(a)(1) (188 Ill. 2d R. 307(a)(1)).
11
Perry Mandera, who, through ACE Enterprises is now the sole owner
of Pooh Bah, was a party to the proceedings in the lower courts and joined
in Pooh Bah’s petition for leave to appeal to our court. For purposes of this
appeal, his position is identical to Pooh Bah’s, and reference to Pooh Bah in
the discussion which follows should be understood to include him.
-12-
ordinances whenever it is reasonably possible to do so. City of
Chicago v. Alton R.R. Co., 355 Ill. 65, 75 (1933). Whether a
legislative enactment is constitutional presents a question of law which
we review de novo. See O’Brien v. White, 219 Ill. 2d 86, 98 (2006).
We consider first Pooh Bah’s contention that section 4–60–140(d)
of the Municipal Code of Chicago violates the first amendment to the
United States Constitution. The first amendment is binding on the
states through the fourteenth amendment’s due process clause. People
v. Alexander, 204 Ill. 2d 472, 476 (2003). It provides, in part, that
“Congress shall make no law *** abridging the freedom of speech.”
U.S. Const., amend. I.
Although the first amendment literally forbids only the
abridgement of freedom of speech, the United States Supreme Court
has long recognized that its protections are not limited to the written
or spoken word. They may also extend to expressive conduct. Texas
v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342, 353, 109 S. Ct.
2533, 2539 (1989). Generally speaking, the first amendment prevents
the government from proscribing speech or expressive conduct
because of disapproval of the ideas expressed. Content-based
regulations are presumptively invalid. Nevertheless, restrictions upon
the content of speech have traditionally been permitted in a few
limited areas which are “ ‘of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality.’ ” R.A.V. v. City of St.
Paul, 505 U.S. 377, 383, 120 L. Ed. 2d 305, 317, 112 S. Ct. 2538,
2543 (1992), quoting Chaplinsky v. New Hampshire, 315 U.S. 568,
572, 86 L. Ed. 1031, 1035, 62 S. Ct. 766, 769 (1942). Under the first
amendment jurisprudence developed by the United States Supreme
Court, freedom of speech does not include freedom to ignore these
traditional limitations. R.A.V. v. City of St. Paul, 505 U.S. at 383, 120
L. Ed. 2d at 317, 112 S. Ct. at 2543.
The municipal ordinance challenged in this case pertains to live
acts, demonstrations, dances or exhibitions which expose to public
view the performer’s genitals, pubic hair, buttocks or, in the case of
female performers, any portion of the breast at or below the areola.
The ordinance does not bar all such performances, only those that take
place at establishments licensed to serve alcohol. At the time the
license revocations were initiated in this case, the United States
-13-
Supreme Court adhered to the view that where, as here, the sale of
alcohol is involved, the regulatory authority conferred on states by the
twenty-first amendment to the United States Constitution (U.S.
Const., amend. XXI) gave states and their political subdivisions the
power to ban nude dancing. Under the Court’s analysis, the broad
powers of the states to regulate the sale of liquor pursuant to the
twenty-first amendment outweighed any first amendment interest in
nude dancing. The state therefore had the authority to ban nude
dancing as a part of its liquor licensing program. City of Newport v.
Iacobucci, 479 U.S. 92, 95, 93 L. Ed. 2d 334, 339, 107 S. Ct. 383,
385 (1986), quoting California v. LaRue, 409 U.S. 109, 114, 34 L.
Ed. 2d 342, 349-50, 93 S. Ct. 390, 395 (1972). As the Court noted in
New York State Liquor Authority v. Bellanca, 452 U.S. 714, 718, 69
L. Ed. 2d 357, 361, 101 S. Ct. 2599, 2602 (1981):
“Whatever artistic or communicative value may attach to
topless dancing is overcome by the State’s exercise of its
broad powers arising under the Twenty-first Amendment.
Although some may quarrel with the wisdom of such
legislation and may consider topless dancing a harmless
diversion, the Twenty-first Amendment makes that a policy
judgment for the state legislature, not the courts.”
See also California v. LaRue, 409 U.S. 109, 34 L. Ed. 2d 342, 93 S.
Ct. 390 (1972) (given broad sweep of twenty-first amendment,
regulations prohibiting explicitly sexual live entertainment and films in
bars and other establishments licensed to dispense liquor by the drink
not facially invalid).
Under the foregoing authority, section 4–60–140(d) of the
Municipal Code of Chicago, which prohibits nude entertainment in
establishments licensed to sell alcohol by the drink, would clearly not
be subject to challenge on first amendment grounds. During the
pendency of this litigation, however, the United States Supreme Court
altered its view of the interplay between the first and twenty-first
amendments. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
516, 134 L. Ed. 2d 711, 736, 116 S. Ct. 1495, 1514 (1996), the Court
held that while the twenty-first amendment
“limits the effect of the dormant Commerce Clause on a
State’s regulatory power over the delivery or use of
intoxicating beverages within its borders, ‘the Amendment
-14-
does not license the States to ignore their obligations under
other provisions of the Constitution.’ [Citation.]”
Noting its specific holdings in prior cases that “the Twenty-first
Amendment does not in any way diminish the force of the Supremacy
Clause [citations]; the Establishment Clause [citation] or the Equal
Protection Clause [citation],” the Court concluded that the same
should also be true with respect to the free speech clause. 44
Liquormart, 517 U.S. at 516, 134 L. Ed. 2d at 736, 116 S. Ct. at
1514-15. It therefore held “the Twenty-first Amendment does not
qualify the constitutional prohibition against laws abridging the
freedom of speech embodied in the First Amendment.” 44
Liquormart, 517 U.S. at 516, 134 L. Ed. 2d at 736, 116 S. Ct. at
1515.
Although the Court thus disavowed the reasoning employed in
City of Newport v. Iacobucci, New York State Liquor Authority v.
Bellanca, and California v. LaRue, insofar as it relied on the twenty-
first amendment, it distinguished cases such as LaRue, which involved
the regulation of nude dancing in places where alcohol was served.
The Court held that “[e]ntirely apart from the Twenty-first
Amendment, the State has ample power to prohibit the sale of
alcoholic beverages in inappropriate locations.” 44 Liquormart, 517
U.S. at 515, 134 L. Ed. 2d at 735, 116 S. Ct. at 1514. One of those
locations is an establishment where nude dancing is allowed.
Accordingly, the Court held that its “analysis in LaRue would have led
to precisely the same result if it had placed no reliance on the Twenty-
first Amendment.” 44 Liquormart, 517 U.S. at 515, 134 L. Ed. 2d at
735, 116 S. Ct. at 1514.
Four years after 44 Liquormart was decided, the United States
Supreme Court examined the validity of a municipal public indecency
ordinance which made it an offense to intentionally appear in public in
a “state of nudity.” Under that ordinance, whose provisions were
similar to those at issue in this case, “nudity” was defined to include
the “showing of the *** buttocks with less than a fully opaque
covering; the showing of the female breast with less than a fully
opaque covering of any part of the nipple; *** or the exposure of any
device worn as a cover over the nipples and/or areola of the female
breast, which device simulates and gives the realistic appearance of
nipples and/or areola.” City of Erie v. Pap’s A.M., 529 U.S. 277, 283
-15-
n.*, 146 L. Ed. 2d 265, 274 n.*, 120 S. Ct. 1382, 1388 n.* (2000).
Unlike the matter before us today, these prohibitions were not limited
to establishments licensed to serve alcohol.
Pap’s, a Pennsylvania corporation which operated Kandyland, an
establishment featuring totally nude erotic dancing by women,
challenged the ordinance on the grounds that its public nudity
provisions violated the first and fourteenth amendments to the United
States Constitution. Although the Pennsylvania Supreme Court upheld
the corporation’s challenge (Pap’s A.M. v. City of Erie, 553 Pa. 348,
719 A.2d 273 (1998)), the United States Supreme Court reversed and
remanded. In a plurality opinion authored by Justice O’Connor, the
Court held that while erotic nude dancing is expressive conduct, it
falls “only within the outer ambit of the First Amendment’s
protection.” Pap’s A.M., 529 U.S. at 289, 146 L. Ed. 2d at 278, 120
S. Ct. at 1391. Concluding that the ordinance was directed at
combating negative secondary effects associated with adult
establishments and was unrelated to the suppression of the erotic
message conveyed by nude dancing, the Court held that it was not
subject to strict scrutiny. Rather, its validity turned on whether it
passed the less stringent intermediate standard set forth in United
States v. O’Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673
(1968). Pap’s A.M., 529 U.S. at 296, 146 L. Ed. 2d at 282, 120 S. Ct.
at 1394-95.
Under O’Brien, a content-neutral regulation will be upheld if it
(1) is within the constitutional power of the government, (2) furthers
an important or substantial governmental interest, (3) is unrelated to
the suppression of free expression, and (4) restricts first amendment
freedoms no further than is essential to further the government’s
interest. O’Brien, 391 U.S. at 377, 20 L. Ed. 2d 680, 88 S. Ct. at
1679 (1968). The Court in Pap’s A.M. held that the nude-dancing
ordinance at issue in that case was justified under these standards.
According to the court, the municipality’s efforts to protect public
health and safety were clearly within its police powers. The ordinance
furthered the city’s undeniably important interest in combating the
harmful secondary effects associated with nude dancing. Pap’s A.M.,
529 U.S. at 296-97, 146 L. Ed. 2d at 282-83, 120 S. Ct. at 1395. It
was unrelated to the suppression of free expression, and “any
incidental impact on the expressive element of nude dancing [was] de
-16-
minimus,” leaving “ample capacity to convey the dancer’s erotic
message.” Pap’s A.M., 529 U.S. at 301, 146 L. Ed. 2d at 286, 120 S.
Ct. at 1397.
As we have indicated, the public indecency ordinance at issue in
Pap’s A.M. was general in nature. Unlike section 4–60–140(d) of the
Municipal Code of Chicago, its restrictions were not limited to
establishments licensed to sell alcoholic beverages. In the years
following 44 Liquormart and Pap’s A.M., the United States Supreme
Court itself has not specifically addressed the framework which should
be followed in analyzing first amendment challenges to adult
entertainment restrictions contained in municipal liquor regulations.
The issue was, however, recently addressed by the United States
Court of Appeals for the Seventh Circuit in Ben’s Bar, Inc. v. Village
of Somerset, 316 F.3d 702 (7th Cir. 2003).
Ben’s Bar concerned an ordinance enacted by the Village of
Somerset, Wisconsin that, in part, prohibited the sale, use or
consumption of alcohol on the premises of “sexually oriented
businesses.” Under the village’s regulatory scheme, an establishment
fell within the definition of “sexually oriented business,” and therefore
could not serve alcohol, if it featured nude or seminude dancers. For
purposes of the ordinance, nudity was defined as “the appearance of
the human bare anus, anal cleft or cleavage, pubic area, male genitals,
female genitals, or the nipple or areola of the female breast, with less
than a fully opaque covering; or showing of the covered male genitals
in a discernibly turgid state.” Ben’s Bar, 316 F.3d at 706 n.5.
Seminudity was “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 a complete and opaque covering.”
Ben’s Bar, 316 F.3d at 708.
The village’s reasons for enacting this ordinance were expressly
noted in the “legislative findings” section of the ordinance itself. That
section stated:
“Based on evidence concerning the adverse secondary
effects of Sexually Oriented Businesses on the community in
reports made available to the Village Board, and on the
holdings and findings in [numerous Supreme Court, federal
appellate, and state appellate judicial decisions], as well as
studies and summaries of studies conducted in other cities ...
-17-
and findings reported in the Regulation of Adult Entertainment
Establishments in St. Croix County, Wisconsin; and the
Report of the Attorney General’s Working Group of Sexually
Oriented Businesses ... the Village Board finds that:
(a) Crime statistics show that all types of crimes, especially
sex-related crimes, occur with more frequency in
neighborhoods where sexually oriented businesses are located.
(b) Studies of the relationship between sexually oriented
businesses and neighborhood property values have found a
negative impact on both residential and commercial property
values.
(c) Sexually oriented businesses may contribute to an
increased public health risk through the spread of sexually
transmitted diseases.
(d) There is an increase in the potential for infiltration by
organized crime for the purpose of unlawful conduct.
(e) The consumption of alcoholic beverages on the
premises of a Sexually Oriented Business exacerbates the
deleterious secondary effects of such businesses on the
community.” (Emphasis omitted.) Ben’s Bar, 316 F.3d at 705.
Following enactment of this ordinance, but two months before it
was to take effect, a bar that provided nude and seminude dancing and
that held a liquor license issued by the village, along with two of the
bar’s dancers, filed an action against the village asserting, inter alia,
that the ordinance violated their rights to free expression under the
first amendment. Ben’s Bar, 316 F.3d at 705. The trial court rejected
that claim and granted summary judgment in favor of the village. The
bar appealed, arguing that the trial court erred in concluding that the
ordinance did not constitute an unconstitutional restriction on nude
dancing. Ben’s Bar, 316 F.3d at 707.
In undertaking its review of the trial court’s judgment, the court
of appeals began by dismissing as fallacious the bar’s contention that
the ordinance was directed at the dancer’s attire, or lack thereof. The
ordinance, the court held, “restricts the sale and consumption of
alcoholic beverages in establishments that serve as venues for adult
entertainment, not the attire of nude dancers.” Ben’s Bar, 316 F.3d at
708. The court then proceeded to review recent United States
-18-
Supreme Court authority governing adult entertainment regulations,
including 44 Liquormart and Pap’s A.M. and its adoption of
O’Brien’s four-part test. The court also discussed City of Los Angeles
v. Alameda Books, Inc., 535 U.S. 425, 152 L. Ed. 2d 670, 122 S. Ct.
1728 (2002). That decision, which followed Pap’s A.M., upheld, at
the summary judgment stage, an ordinance prohibiting multiple adult
entertainment businesses from operating in the same building. The
primary issue in the case was the appropriate standard for determining
whether the ordinance served a substantial governmental interest. No
majority could be reached on that question, but Justice Kennedy
concurred in the plurality’s overall conclusion that a municipality’s
initial burden of demonstrating a substantial government interest in
regulating the adverse secondary effects associated with adult
entertainment is slight. Ben’s Bar, 316 F.3d at 722. “As to this,” he
observed,
“we have consistently held that a city must have latitude to
experiment, at least at the outset, and that very little evidence
is required. [Citations.] As a general matter, courts should not
be in the business of second-guessing fact-bound empirical
assessments of city planners. [Citation.] The Los Angeles City
Council knows the streets of Los Angeles better than we do.
[Citations.] It is entitled to rely on that knowledge; and if its
inferences appear reasonable, we should not say there is no
basis for its conclusion.” Alameda Books, 535 U.S. at 451-52,
152 L. Ed. 2d at 691, 122 S. Ct. at 1742-43.
Based on its review of the authorities set forth above and others,
the Seventh Circuit concluded that under controlling United States
Supreme Court precedent, a liquor regulation prohibiting the sale or
consumption of alcohol on the premises of adult entertainment
establishments is constitutional if:
“(1) the State is regulating pursuant to a legitimate
governmental power [citation]; (2) the regulation does not
completely prohibit adult entertainment [citation]; (3) the
regulation is aimed not at the suppression of expression, but
rather at combating the negative secondary effects caused by
adult entertainment establishments [citation]; and (4) the
regulation is designed to serve a substantial government
interest, narrowly tailored, and reasonable alternative avenues
-19-
of communication remain available [citation]; or, alternatively,
the regulation furthers an important or substantial government
interest and the restriction on expressive conduct is no greater
than is essential in furtherance of that interest. [Citation.]”
(Emphasis in original.) Ben’s Bar, 316 F.3d at 722.
Step four of this test encapsulates the so-called intermediate standard
of scrutiny. Joelner v. Village of Washington Park, 378 F.3d 613, 622
(7th Cir. 2004).12
Applying the foregoing analytical framework to the Somerset
village ordinance, the Seventh Circuit held that the village’s regulation
of alcohol sales and consumption in inappropriate locations was
clearly within its general police powers. The ordinance was therefore
of the type which the government has the constitutional authority to
enact. Ben’s Bar, 316 F.3d at 722, citing Pap’s A.M., 529 U.S. at
296, 146 L. Ed. 2d at 282-83, 120 S. Ct. at 1395. Next, the court
concluded that the ordinance did not completely bar Ben’s Bar
employees from conveying an erotic message. In the court’s view, it
merely prohibited alcohol from being sold or consumed on the
premises of adult entertainment establishments. Ben’s Bar, 316 F.3d
at 723. With respect to step three, the court determined, after
reviewing the record, that the predominant concern of the village in
adopting the ordinance was the negative secondary effects attendant
to sexually oriented businesses, such as increased crime and reduced
property values in neighboring business and residential areas. The
village was not attempting to suppress any speech or conduct
protected by the first amendment. Ben’s Bar, 316 F.3d at 723-24.
Because the Village’s ordinance thus satisfied these preliminary
standards, the court proceeded to the fourth and final step. In applying
that step, the court explained that it was required to determine
whether the village had adequately demonstrated that there was a
12
If a regulation fails to satisfy either step two or step three, a more
rigorous standard will apply. The regulation will have to withstand strict
scrutiny in order to pass constitutional muster. Joelner v. Village of
Washington Park, 378 F.3d at 622-23. Pooh Bah argues that the strict
scrutiny standard should govern this case. For the reasons set forth later in
this opinion, Pooh Bah is incorrect.
-20-
connection between the speech regulated by the ordinance and the
secondary effects that motivated the ordinance’s adoption. As we
have previously detailed, the record showed that the village relied on
numerous judicial decisions, studies from 11 different cities, “findings
reported in the Regulation of Adult Entertainment Establishments of
St. Croix, Wisconsin,” and the Report of the Attorney General’s
Working Group of Sexually Oriented Businesses (State of Minnesota,
June 6, 1989) to support its conclusion that adult entertainment
produces adverse secondary effects. Ben’s Bar, 316 F.3d at 725. The
court opined that this evidentiary record “fairly support[ed] the
Village’s proffered rationale for [the ordinance], and that [the bar had]
failed ‘to cast direct doubt on this rationale.’ ” Ben’s Bar, 316 F.3d at
726, quoting Alameda Books, 535 U.S. at 438, 152 L. Ed. 2d at 683,
122 S. Ct. at 1736.
In finding the village’s evidentiary showing to be sufficient, the
Seventh Circuit rejected a claim by the bar that the village should have
been required to conduct its own studies, at the local level, to
determine whether adverse secondary effects result when liquor is
served on the premises of adult entertainment establishments. Citing
various decisions by the United States Supreme Court, the court held
that a municipality is not required to conduct new studies or produce
evidence independent of that already generated by other cities “ ‘so
long as whatever evidence the city relies upon is reasonably believed
to be relevant to the problem that the city addresses.’ [Citation.]”
Ben’s Bar, 316 F.3d at 725. The Seventh Circuit also rejected the
bar’s argument that the village’s case was fatally deficient because it
had not adduced any written reports relating specifically to the effects
of serving alcohol in establishments offering nude and seminude
dancing. Again citing precedent from the United States Supreme
Court, it held that it was entirely reasonable for the village to conclude
that barroom nude dancing was likely to produce adverse secondary
effects at the local level even in the absence of specific studies on the
matter. As the New York state legislature noted in connection with
the legislation challenged in Bellanca, “[c]ommon sense indicates that
any form of nudity coupled with alcohol in a public place begets
undesirable behavior.” N.Y. State Legis. Ann. 150 (1977), quoted in
Bellanca, 452 U.S. at 718, 69 L. Ed. 2d at 361, 101 S. Ct. at 2601.
See also Ben’s Bar, 316 F.3d at 726.
-21-
Turning next to the question of whether the village’s ordinance
was narrowly tailored, the court reiterated that the ordinance did not,
in fact, impose any restrictions at all on a dancer’s ability to convey an
erotic message. Rather, it merely prohibited sexually oriented
businesses from serving alcohol to customers while nude or seminude
dancing is going on. That, the court explained, is not a restriction on
erotic expression, but a prohibition of nonexpressive conduct (serving
and consuming alcohol) during the presentation of expressive conduct.
In the court’s view, the first amendment does not entitle a bar, its
dancers or its patrons to have alcohol available while nude or
seminude dancing is taking place. Ben’s Bar, 316 F.3d at 726. The
court cited numerous authorities from other jurisdictions to the same
effect. See, e.g., Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Board, 99 Cal. App. 4th 880,
895, 121 Cal. Rptr. 2d 729, 741 (2002) (“The state *** has not
prohibited dancers from performing with the utmost level of erotic
expression. They are simply forbidden to do so in establishments that
serve alcohol, and the Constitution is not thereby offended”).
The court next observed that the village’s ordinance was limited
to adult entertainment establishments and was inapplicable to theaters,
performing art centers and other venues where performances of
serious artistic merit are regularly offered. Ben’s Bar, 316 F.3d at
727. Finally, it noted that the ordinance’s prohibition was no greater
than was essential to furtherance of the village’s substantial interest in
combating the secondary effects resulting from the combination of
nude or seminude dancing and alcohol consumption. That was so, in
the court’s view, “because, as a practical matter, a complete ban of
alcohol on the premises of adult entertainment establishments is the
only way the Village can advance that interest.” (Emphasis in
original.) Ben’s Bar, 316 F.3d at 727. 13
13
Because it believed that alcohol prohibition was, as a practical matter,
the least restrictive means of furthering the village’s interest in combating the
negative secondary effects resulting from the combination of adult
entertainment and alcohol consumption, the court did not undertake a specific
analysis of the alternative standard set forth in step four of its four-part test.
None was necessary, as the result would be the same. Ben’s Bar, 316 F.3d
at 725 n.31.
-22-
In light of the foregoing, the court concluded that the Village’s
ordinance did not violate the first amendment. Wrote the court:
“The regulation has no impact whatsoever on the tavern’s
ability to offer nude or semi-nude dancing to its patrons; it
seeks to regulate alcohol and nude or semi-nude dancing
without prohibiting either. The citizens of the Village of
Somerset may still buy a drink and watch nude or semi-nude
dancing. They are not, however, constitutionally entitled to do
both at the same time and in the same place. Gary, 311 F.3d
at 1338 (holding that there is no generalized right to associate
with other adults in alcohol-purveying establishments with
other adults). The deprivation of alcohol does not prevent the
observer from witnessing nude or semi-nude dancing, or the
dancer from conveying an erotic message. Perhaps a sober
patron will find the performance less tantalizing, and the
dancer might therefore feel less appreciated (not necessarily
from the reduction in ogling and cat calls, but certainly from
any decrease in the amount of tips she might otherwise
receive). And we do not doubt Ben’s Bar’s assertion that its
profit margin will suffer if it is unable to serve alcohol to its
patrons. But the First Amendment rights of each are not
offended when the show goes on without liquor.” Ben’s Bar,
316 F.3d at 728.
The analysis employed by the court in Ben’s Bar, 316 F.3d 702,
was subsequently followed by the Seventh Circuit in Joelner v.
Village of Washington Park, 378 F.3d 613 (7th Cir. 2004). While
decisions of the Seventh Circuit are not binding on this tribunal
(Bowman v. American River Transportation Co., 217 Ill. 2d 75, 91
(2005)), its decision in Ben’s Bar was recently adopted by the United
States Court of Appeals for the Third Circuit in 181 South, Inc. v.
Fischer, 454 F.3d 228 (3d Cir. 2006), and we believe that it
constitutes persuasive authority on the issues presented by this case.
We therefore elect to follow it.
Under the four-part test articulated in Ben’s Bar, section
4–60–140(d) of the Municipal Code of Chicago, the ordinance at issue
in this case, does not offend the first amendment to the United States
Constitution. First, as with the Somerset village ordinance at issue in
Ben’s Bar, section 4–60–140(d) of Chicago’s Municipal Code was
-23-
directed toward the regulation of alcohol sales and consumption in
inappropriate locations, a matter within the City’s general police
powers. See BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 608 (8th
Cir. 2001) (city is entitled under its police power to prohibit the sale
of alcohol in a location that features adult entertainment). Second, the
ordinance does not completely prohibit nude or seminude dancing. It
merely prohibits such performances at establishments licenced to sell
alcohol. Where alcohol is not sold or served, nude and seminude
dancing is not prohibited by the City of Chicago. Venues providing
nude or seminude dancing have operated and continue to operate in
the City in accordance with state law and local ordinances.
We next consider the third step of Ben’s Bar, which specifies that
the challenged regulation must be aimed not at the suppression of
expression, but rather at combating the negative secondary effects
caused by adult entertainment establishments. Resolution of this issue
turns on the predominate concerns motivating the law’s enactment.
Ben’s Bar, 316 F.3d at 723; see Joelner, 378 F.3d at 624; R.V.S.,
L.L.C. v. City of Rockford, 361 F.3d 402, 407-08 (7th Cir. 2004);
G.M. Enterprises v. Town of St. Joseph, 350 F.3d 631, 637 (7th Cir.
2003). In evaluating a municipality’s regulatory motivations, we are
free to take into account 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. See Joelner, 378
F.3d at 624. The inquiry at this stage of the analysis is highly
deferential to the legislative body that enacted the ordinance. See XLP
Corp. v. County of Lake, 359 Ill. App. 3d 239, 246 (2005).
Just as the Somerset village board made legislative findings in
support of the ordinance upheld by the Seventh Circuit in Ben’s Bar,
the Chicago city council detailed its concerns in enacting the
ordinance at issue in this case. The ordinance was part of a package
of ordinances and ordinance amendments adopted in 1993 to establish
“adult uses” within various zoning districts in the City. In the
preamble to those amendments, the Chicago city council explained:
“Experience in the City of Chicago as well as in other
cities has shown that adult uses in certain areas of a city may
lead to increased levels of criminal activity, including but not
limited to prostitution and assault; and
-24-
Merchants in some commercial areas of the City justifiably
are concerned that the location of adult use establishments in
such areas will have a serious negative effect; and
In fact, the experiences of Seattle, Washington, and
Detroit, Michigan, among other cities, have demonstrated that
adult use establishments may degrade the quality of the area
in which they are locate and may have a blighting effect on a
city; and
Adult uses which continued to operate as nonconforming
uses have had a deleterious effect on surrounding
neighborhoods to a much greater extent than many other uses;
and
***
The reasonable regulation of adult uses will provide for the
protection of property values and will protect City residents
and persons who work within the City from the adverse
effects of adult uses, while providing those who desire to
patronize adult use establishments a reasonable opportunity to
do so in areas of the establishments; and
Adult uses should be treated as special uses to enable
individualized consideration of the effects of an adult use on
the surrounding neighborhood ***.”
There is nothing in the record to suggest that these objectives
were pretextual. Thomas Smith, assistant commissioner for zoning for
the City of Chicago’s department of planning and development, was
personally involved in the formulation of the City’s adult use
ordinances and he testified in these proceedings. Echoing many of the
circumstances reported by Officer O’Brien during his testimony, Smith
explained the negative secondary effects adult businesses had caused
in the City in the past, particularly in the Old Town, Rush Street and
South Loop areas. Smith recounted a variety of criminal activities that
were associated with strip clubs and cabarets where liquor was served
and “B girls” plied their trade. Conventioneers were bilked of their
money. Prostitution was rampant. Illegal earnings were collected by
club proprietors and not reported to taxing authorities.
In researching how best to deal with the negative secondary
effects of strip clubs and other adult entertainment establishments,
-25-
Smith’s department consulted groups such as the American Planning
Association and the National Institute of Municipal Law Officers. It
also obtained and reviewed numerous studies conducted in other
major metropolitan areas in addition to those specifically noted by the
city council. Most were prepared by city planning departments in
connection with local police departments. Among them were reports
from the cities of Phoenix, Indianapolis, Minneapolis, St. Paul, and
Los Angeles. Some, including the Minneapolis and St. Paul studies,
took into account the specific relationship between the combination
of alcohol sales and adult uses on the incidence of neighborhood
crime. According to Smith’s testimony, the studies were consistent in
showing that the presence of adult entertainment establishments,
including strip clubs which served liquor, led to higher crime rates.
While we do not know whether the additional studies discussed by
Smith were expressly presented to the city council before it enacted
the legislative package which included section 4–60–140(d) of the
Municipal Code, those studies did inform the recommendations Smith
made to the city council, and the concerns he expressed were, in turn,
reflected in the legislative preamble adopted by the city council. When
one considers the preamble, the text of the ordinance, the historical
context in which the 1993 version of the law was enacted, and the
undisputed fact that fully nude dancing is permitted by the City in
establishments that do not serve alcohol, the notion that section
4–60–140(d) of the Municipal Code represents an effort by the City
to restrict certain viewpoints or modes of expression is completely
untenable. See G.M. Enterprises, 350 F.3d at 638.
In R.V.S., L.L.C., 361 F.3d at 409-10, the court found that the
predominate concerns motivating Rockford to enact a municipal
ordinance regulating “exotic dancing nightclubs” related “to
combating prostitution, crime and other negative externalities”
notwithstanding the fact that the record included testimony by one of
the city’s aldermen, in response to questions regarding the purpose of
the ordinance, that “there were some concerns that some people just
don’t like this type of entertainment.” The Seventh Circuit correctly
declined to give that testimony dispositive effect, noting, among other
things, that “what motivates one legislator to support a statute is not
necessarily what motivates others to enact it. [Citations.]” R.V.S.,
L.L.C., 361 F.3d at 410. The City’s position in this case is
-26-
unencumbered by even that level of uncertainty. In contrast to R.V.S.,
L.L.C., there is nothing at all in this case to suggest, directly or
indirectly, that the City harbored any hostility of any kind toward the
expressive conduct in which the dancers at Pooh Bah’s club were
engaged. Based on the record before us here, combating the negative
secondary effects caused by adult entertainment establishments was
not only the predominate motive for the City’s actions, it was the only
motivation.
In an attempt to refute this conclusion, Pooh Bah argues that the
language used in a prior version of section 4–60–140(d) of the
Municipal Code can be read as evincing an intention by the city
council to reach the content of expression rather than its secondary
effects. That contention is untenable for three reasons. First, unlike the
preamble applicable to the current version of the law, the language
invoked by Pooh Bah, which states that the ordinance “controls the
form of entertainment in places licensed to sell alcoholic beverages”
is not part of the ordinance itself. It is merely a generic description of
the legislation included by the committee on police, fire, personnel,
schools and municipal institution in its recommendation to the city
council that the ordinance be approved. Second, even if the
committee’s views could be imputed to the city council and even if the
language it employed could be read as actually referring to the content
of conduct that is protected, reference to content is not the same as
suppression of content. Sammy’s of Mobile Ltd. v. City of Mobile,
140 F.3d 993, 998 (11th Cir. 1998). Like the present law, the version
of the ordinance invoked by Pooh Bah does not impose any limitations
on nude or seminude dancing. Its effect is simply to ban alcohol sales
where such dancing takes place. Finally, and perhaps most basically,
the prior version of the law is not at issue here. It is the subsequent
1993 version of the ordinance that gave rise to these proceedings, and
the preamble adopted in connection with that ordinance is what
reflects the city council’s motivation in adopting that version of the
law.
Because section 4–60–140(d) of the Chicago Municipal Code thus
satisfies steps two and three of the test set forth in Ben’s Bar, we
proceed to step four, namely, whether the ordinance is designed to
serve a substantial government interest, narrowly tailored, and
reasonable alternative avenues of communication remain available or,
-27-
alternatively, the ordinance furthers an important or substantial
government interest and the restriction on expressive conduct is no
greater than is essential in furtherance of that interest. Ben’s Bar, 316
F.3d at 722. As previously discussed, this inquiry encapsulates the
intermediate standard of review applicable to first amendment
challenges to adult entertainment regulations. Under Ben’s Bar and
the precedent on which it is based, assessing whether an ordinance
serves a substantial government interest under this standard requires
a court to determine whether the municipality has adequately
demonstrated that a connection exists between the speech regulated
by the ordinance and the secondary effects the ordinance was designed
to address. Ben’s Bar, 316 F.3d at 724. In making this determination,
the appropriate focus is not the actual intent of the governmental
body. The government’s actual intent relates to the earlier inquiry
regarding the predominant motivation behind its decision to enact the
law. The question at this stage is whether the government can show
that the regulation serves a current governmental interest. See
Giovani Caradola, Ltd. v. Bason, 303 F.3d 507, 515 (4th Cir. 2002).
The harms to which the law is addressed must be real, not merely
conjectural, and the law must alleviate those harms in a direct and
material way. See Giovani Caradola, Ltd., 303 F.3d at 515, quoting
Satellite Broadcasting & Communications Ass’n v. FCC, 275 F.3d
337, 356 (4th Cir. 2001).
The current governmental interest advanced by the City in support
of section 4–60–140(d) of its Municipal Code is the avoidance of the
negative secondary effects which result from the sale and consumption
of alcohol at adult entertainment establishments. That “[l]iquor and
sex are an explosive combination” (Blue Canary Corp. v. City of
Milwaukee, 251 F.3d 1121, 1124 (7th Cir. 2001) is a proposition so
frequently confirmed by human experience that it can scarcely be
questioned. Nude and topless dancing in bars has “a long history of
spawning deleterious effects,” including “prostitution and the criminal
abuse and exploitation of young women.” Steakhouse, Inc. v. City of
Raleigh, 166 F.3d 634, 637 (4th Cir. 1999). Where alcohol is served
in establishments offering nude or seminude dancing, secondary blight
is frequently reported. Disturbances involving lascivious conduct,
drunkenness, larcenies, assaults and narcotics are common. See, e.g.,
-28-
Steakhouse, Inc., 166 F.3d at 637; California v. LaRue, 409 U.S. at
111, 34 L. Ed. 2d at 347-48, 93 S. Ct. at 393.
The negative effects of combining alcohol with sexual stimulation
was corroborated in this case by Dr. Allen Kodish, a practicing
psychiatrist and member of the faculty at the University of Chicago.
Dr. Kodish, who was called as a witness by the City, testified that
alcohol consumption facilitates sexual and aggressive impulses and
impairs social judgment. When combined with sexual stimulation, it
produces an effect “associated with an increase in violent sexual acting
out, acts of criminal behavior.” Because of this, drinking alcohol while
viewing naked or nearly naked dancers can lead a person to act on
various impulses, including touching, screaming, and engaging in
fights or other risky behavior. While not everyone who drinks alcohol
reacts that way, Kodish explained that the combination of alcohol and
sexual stimulation increases the likelihood that they will. In support of
his conclusions, Kodish discussed a study entitled “The Effects of
Male Social Drinking on Fantasy,” which showed that increased
alcohol intake is associated with increased sexual and aggressive
thoughts.
The City also adduced testimony from Dr. Wesley Skogan, a
professor of political science at Northwestern University and a
member of the University’s Institute for Policy Research. According
to Professor Skogan, research shows that establishments serving
alcohol attract a significant amount of additional crime. Such
establishments create the opportunity for crime by bringing the
potential victim and the criminal together. Victims become more
vulnerable because of alcohol’s debilitating effects, thus creating an
attractive situation for potential offenders. In explaining these
circumstances, Professor Skogan discussed a number of studies and
articles showing the relationship between alcohol consumption and
crime. These studies, which demonstrated that establishments serving
or selling alcohol do exacerbate crime, included “Bars, Blocks and
Crime”; “Bars, Blocks and Crimes Revisited: Linking the Theory of
Routine Activities to the Empiricism of ‘Hot Spots’ ”; a study done
on the City of Garden Grove, California; a report entitled “Additional
Evidence that Taverns Enhance Nearby Crime”; and an article from
the American Journal of Public Health. The Garden Grove study is
particularly noteworthy because it showed that the combination of
-29-
retail alcohol sales and adult uses created a higher incidence of crime
than resulted from retail alcohol sales or adult uses operating in
isolation.
The conclusions reported by Dr. Kodish and Professor Skogan
were consistent with those reached by Thomas Smith, the assistant
commissioner for zoning, whose testimony we discussed earlier in this
opinion. Like Skogan, Smith consulted studies involving the
experience of other municipalities. He also drew on his own
experience as an urban planner and the problems Chicago had
experienced in the past. As we have previously noted, the city also
presented the testimony of veteran city police officer Roger O’Brien,
who described in detail the abundance of criminal activity that
occurred in the late 1970s and early 1980s when strip clubs serving
alcohol proliferated. In addition, the City buttressed its position by
presenting to the circuit court judicial decisions from other
jurisdictions involving attempts to regulate adult entertainment
establishments, including strip clubs serving alcohol, within the
confines of the first amendment.
Based on the foregoing, we believe that the evidentiary record
here, as in Ben’s Bar, fairly supported the rationale proffered by the
City for the ordinance. That, however, does not end our inquiry. If the
party challenging an ordinance can cast doubt on the municipality’s
rationale, either by demonstrating that the evidence adduced by the
municipality does not support the proffered rationale or by furnishing
evidence that disputes the municipality’s factual findings, the burden
will then shift back to the municipality to supplement the record with
evidence renewing support for a theory that justifies the law. World
Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186,
1193 (9th Cir. 2004); G.M. Enterprises, Inc. v. Town of St. Joseph,
350 F.3d 631, 639 (7th Cir. 2003).
In an attempt to trigger such a shift, Pooh Bah asserts that the
City’s evidence is fatally deficient because it did not include a study
dealing specifically with the City of Chicago itself. Such an argument
was specifically considered and rejected in Ben’s Bar. We discussed
the point previously and will state it again here. A municipality need
not conduct new studies or produce evidence independent of that
already generated by other cities before enacting an ordinance
pertaining to the adverse secondary effects of adult entertainment
-30-
establishments so long as whatever evidence the city does rely on is
reasonably believed to be relevant to the problem the city is
attempting to address. Ben’s Bar, 316 F.3d at 725. We note,
moreover, that the City’s position here was supported by its own
historical experience when strip clubs had been permitted to serve
alcohol to patrons in the past. Where actual experience from the
municipality itself buttresses the conclusions reported in studies from
other jurisdictions, those studies may be used by the municipality in
support of its claims regarding negative secondary effects. See XLP
Corp., 359 Ill. App. 3d at 254.
Pooh Bah also challenges the City’s position on the grounds that
the studies upon which the City’s witnesses relied contained scientific
and methodological flaws. Pierre DeVise, a self-employed consultant
retained by Pooh Bah, stated that he was not aware of studies
showing a cause and effect relationship between liquor establishments
featuring seminaked dancers and crime and did not believe that such
a relationship existed. Peter Girandola, an assistant professor of
psychology at the University of Kentucky, opined that there was no
direct, positive relationship between viewing sexual stimuli and sexual
“acting out behavior.” In addition, Rolf Campbell, a planning and
zoning consultant called to testify by Pooh Bah, stated that the
seminude dancing conducted at Pooh Bah’s club had no “negative
impact on the orderly development of the immediately surrounding
properties.”
This testimony by Pooh Bah’s experts was insufficient to trigger
an obligation on the part of the City to supplement the record with
additional evidence in support of its position. Campbell conceded, on
cross-examination, that he had no opinion about the relationship
between land use and crime and had conducted no research regarding
the relationship between either alcohol or sexually oriented businesses
and crime. DeVise actually admitted that a correlation has been shown
to exist between sexually oriented businesses serving alcohol and
increased incidence of crime, while Giranadola confirmed that alcohol
consumption is related to a higher level of aggression. It is true that
the City adduced no information dealing specifically with the potential
secondary effects of permitting liquor to be sold where the dancers
were covered to the extent required by section 4–60–140(d) of
Chicago’s Municipal Code, but no precedent requires the City to
-31-
obtain research targeting the exact activity that it wishes to regulate.
The City is only required to rely on evidence “reasonably believed to
be relevant” to the problem being addressed. The studies upon which
the City relied regarding the secondary effects of alcohol sales and
adult entertainment businesses satisfy that standard. See Gammoh v.
City of La Habra, 395 F.3d 1114, 1133 (9th Cir. 2005).
We further note that the City’s determination regarding the
deleterious secondary effects of allowing adult entertainment
establishments to serve liquor is entitled to a high degree of deference.
“[A]necdotal evidence and reported experience can be as telling as
statistical data and can serve as a legitimate basis for finding negative
secondary effects.” World Wide Video of Washington, Inc. v. City of
Spokane, 227 F. Supp. 2d 1143, 1157 (E.D. Wash. 2002), aff’d, 368
F.3d 1186 (9th Cir. 2004), quoting Stringfellow’s of N.Y., Ltd. v. City
of New York, 91 N.Y.2d 382, 400, 694 N.E.2d 407, 417, 671
N.Y.S.2d 406, 416 (1998) cited with approval in Center for Fair
Public Policy v. Maricopa County, 336 F.3d 1153, 1168 (9th Cir.
2003). The existence of academic studies said to indicate that the
threatened harms are not real will not suffice to cast doubt on the local
government’s experience. See City of Erie v. Pap’s A.M., 529 U.S.
277, 300, 146 L. Ed. 2d 265, 285, 120 S. Ct. 1382, 1397 (2000)
(plurality op.), citing Nixon v. Shrink Missouri Government PAC, 528
U.S. 377, 394, 145 L. Ed. 2d 886, 902, 120 S. Ct. 897, 908 (2000).
The same is true of disagreement among academic experts. While the
courts will not permit legislative bodies to rely on shoddy data, we
also will not specify the methodological standards to which their
evidence must conform. Gammoh v. City of La Habra, 395 F.3d at
1133. The Chicago city council knows the streets of Chicago better
than we do. See Alameda Books, 535 U.S. at 451-52, 152 L. Ed. 2d
at 691, 122 S. Ct. at 1743. The experience of other jurisdictions and
of the City itself leaves little doubt that the secondary harms to which
section 4–60–140(d) of the Municipal Code are addressed are real and
not merely conjectural.
Because enforcement of section 4–60–140(d) of the Chicago
Municipal Code has been stayed during the pendency of these
proceedings, Pooh Bah’s club has continued to sell alcohol while
presenting seminude dancing. The amount of documented criminal
activity reported during that period has been limited. Contrary to Pooh
-32-
Bah’s view, however, we do not believe that this demonstrates that
the City’s professed concerns are unfounded.
While few in number, the particular incidents which have taken
place at or around the club fall squarely within the type of activity
shown by the evidence to be typical of establishments where alcohol
and adult uses are combined. In addition to the incident discussed
earlier in our opinion involving the customer who exposed himself and
began masturbating in the middle of the club, the record reveals that
police have been summoned to deal with assaults both inside and
outside the club. The record also describes an incident in which a
bartender was caught forging entries on credit card receipts to give
herself higher tips.14
Wholly aside from that, we note again that the City’s historical
experience with strip clubs licensed to sell alcohol by the drink was
substantial. Negative secondary effects were serious and pervasive.
Such widespread effects may not have recurred yet, but neither has the
proliferation of strip clubs serving alcohol. Because of the adult use
ordinances enacted in 1993, which includes the version of section
4–60–140(d) of the Municipal Code at issue in this case, and the
prompt enforcement of section 4–60–140(d) against Pooh Bah, Pooh
Bah is the only establishment in the City where patrons can purchase
and consume alcohol while watching nude or seminude women
perform erotic dances. Perhaps that makes it easier to police. Perhaps
the criminal activity is more difficult to detect. Whatever the
explanation, the absence or apparent absence of crime at Pooh Bah’s
club does not render the ordinance constitutionally suspect. The first
amendment does not require a municipality to ignore its own
experience, the experience of other jurisdictions, and concerns which
the courts have held to be a matter of “common sense” (Ben’s Bar,
316 F.3d at 726) merely because the feared secondary effects have not
yet materialized in connection with a particular adult entertainment
establishment. See SOB, Inc. v. County of Benton, 317 F.3d 856 (8th
Cir. 2003) (public indecency ordinance banning live nude dancing
14
Incidents of prostitution were alleged as well, but it does not appear that
any dancer or patron has yet been charged with prostitution or prostitution-
related offenses.
-33-
upheld against first amendment challenge notwithstanding the
existence of reports showing fewer police calls to the club than to a
local gas station and suggesting that the value of properties near the
club and another adult entertainment establishment had increased
more from 1994 to 2001 than the value of properties near two
businesses that did not feature nude dancing); Artistic Entertainment,
Inc. v. City of Warner Robins, 223 F.3d 1306 (11th Cir. 2000) (that
city council members may have had no specific knowledge about
crime patterns near venue presenting live nude dancing did not render
ordinance prohibiting sale of alcohol there invalid under the first
amendment).
Having thus concluded that the evidentiary record fairly supports
the City’s rationale for section 4–60–140(d) of the Municipal Code
and that Pooh Bah has failed to cast direct doubt on that rationale, we
next consider whether the ordinance is narrowly tailored to the
problem to which it is addressed, namely, the negative secondary
effects associated with the combination of alcohol sales and nude or
semi-nude dancing. In order to satisfy the “narrow tailoring”
requirement, a regulation need not be “ ‘the least restrictive or least
intrusive means of [achieving the stated governmental interest].’ ”
Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006),
quoting Ward v. Rock Against Racism, 491 U.S. 781, 798, 105 L. Ed.
2d 661, 680, 109 S. Ct. 2746, 2757-58 (1989). Rather, the narrow
tailoring requirement is satisfied so long as the substantial
governmental interest which the law is designed to serve would be
achieved less effectively in the law’s absence and the law does not
burden substantially more speech than is necessary to further the
government’s objective. McGuire v. Reilly, 260 F.3d 36, 48 (1st Cir.
2001); Center for Fair Public Policy, 336 F.3d at 1169.
That standard has clearly been satisfied here. Section 4–60–140(d)
of the Municipal Code is tailored precisely to its objective: combating
the negative secondary effects that flow from the combination of nude
or seminude dancing and alcohol sales. 181 South, Inc. v. Fischer, 454
F.3d 228 (3d Cir. 2006) (upholding against first amendment challenge
state regulation forbidding erotic topless dancing in establishments
licensed to sell liquor). There is no question that the City’s goal could
not be achieved as effectively absent the ordinance. Indeed,
prohibiting establishments from offering both alcohol and nude or
-34-
seminude dancing is the only way the City can advance that interest.
See Ben’s Bar, 316 F.3d at 727. In addition, the ordinance goes no
further than is essential to further the City’s objective. Other courts
which have considered similar laws have so held. See 2025 Emery
Highway L.L.C. v. Bibb County, 377 F. Supp. 2d 1310, 1336 (M.D.
Ga. 2005) (requiring performers to “partially cover their breasts,
buttocks, and genitals at venues where alcohol is sold ‘is certainly the
least restriction possible which would still further the [government’s]
interest in controlling the combustible mixture of alcohol and
nudity’ ”), quoting Sammy’s of Mobile Ltd. v. City of Mobile, 140
F.3d at 997; Ben’s Bar, 316 F.3d at 727; Wise Enterprises, Inc. v.
Unified Government of Athens-Clarke Co., 217 F.3d 1360, 1365
(11th Cir. 2000).
Our final inquiry under step four of the test set forth in Ben’s Bar
is whether reasonable alternative avenues of communication remain
available. The answer to that inquiry is unquestionably yes. As in
Ben’s Bar, the ordinance regulates nude and seminude dancing and
the consumption of alcohol, but prohibits neither. The City of Chicago
still offers enumerable opportunities for the sale and consumption of
alcohol by the drink. It also permits venues to offer nude and
seminude dancing, and such establishments operate lawfully in the
City featuring performers who wear even less than the dancers at
Pooh Bah’s club. The only thing the City does not permit is for the
two activities to be combined on the same premises and at the same
time. Such a restriction is within the City’s authority to impose, for
the first amendment does not entitle a bar, its dancers or its patrons to
have alcohol available during a presentation of nude or seminude
dancing. Ben’s Bar, 315 F.3d at 726, 728.
In that regard, we note that the record is utterly devoid of any
testimony suggesting, directly or indirectly, that the availability of
liquor bears in any way on the expressive component of the dancers’
performances. Dancer Rachel Shaw, who testified under her stage
name, Samantha, described her message as fantasy and fun, “the idea
that the customer can have a beautiful stranger take their clothes off
and dance for them and feel special.” Melissa Candelaria, known at
the club as “Malibu,” repeated the fantasy theme. “It’s a fantasy,” she
said, “of being their girl, which you never will, basically.” Candelaria’s
objective included a pragmatic element as well. When dancers are up
-35-
on the main stage, Candelaria testified, “[w]e want to be noticed so
that we can get a table dance when we get off the stage.”
Cynthai Sudheimer, whom Pooh Bah patrons will recognize as
“Christy,” tries to convey the idea that she is “untouchable *** like a
star ***, somebody that is a step above, higher, glamour-type person
that is put up from everybody else.” When asked at trial whether she
had a message which she tries to convey on stage, “Star,” whose
actual name is Sara Jean Levorson, explained that she attempts to
portray “my fantasy, sex appeal *** like having a good time, having
a lot of fun.” For Rhonda Bobo, who performs as “Kori Adams,” the
objective is to communicate to the audience who she is, that she is
comfortable being on stage, that she is “here and available to
entertain,” and that she is “strong, confident, sexy, beautiful.”
Similarly, Vickie Bernal, a/k/a “Lee,” viewed her performances as
relating the message that women are beautiful. She wants her
customers to look not only at her body, but also at her hair and her
face. “I try to have them appreciate the whole me as a beautiful
woman,” she testified, “not just the body.”
We cannot see and Pooh Bah has not suggested any reason why
any of these messages cannot be expressed with equal effectiveness or
viewed by patrons with equal appreciation absent the ability of those
patrons to buy and consume alcohol while the performances are taking
place. In Ben’s Bar, 316 F.3d at 728, the Seventh Circuit postulated
that prohibiting alcohol sales where nude or seminude dancing occurs
may cause performers to suffer a reduction in tips. Based on the
record, we are not sure that is necessarily so in this case. Testimony
by some dancers indicated that they also work or have worked at
different strip clubs where alcohol is not served, and it is not at all
clear that any disparity existed between what they were paid at those
establishments and what they earned at Pooh Bah’s club. The situation
with the club itself is different. Testimony by the club’s owner
suggests that the club’s income would probably fall substantially if it
could not offer alcohol along with nude and seminude dancing. That,
however, is of no consequence. While the first amendment does
require that establishments like the club be given a “reasonable
opportunity” to disseminate protected speech, a “reasonable
opportunity” does not include a concern for economic considerations.
Ben’s Bar, 316 F.3d at 726-27, citing City of Renton v. Playtime
-36-
Theatres, Inc., 475 U.S. 41, 54, 89 L. Ed. 2d 29, 42, 106 S. Ct. 925,
932 (1986).
As an alternative basis for challenging section 14–60–140(d) of
the Chicago Municipal Code, Pooh Bah contends that the ordinance
is overbroad. Overbreadth is a judicially created doctrine which
recognizes an exception to the established principle that a person to
whom a statute may constitutionally be applied will not be heard to
challenge that statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the court.
Under the doctrine, a party being prosecuted for speech or expressive
conduct may challenge the law on its face if it reaches protected
expression, even when that person’s own activities are not protected
by the first amendment. The reason for this special rule in first
amendment cases is apparent: an overbroad statute might serve to chill
protected speech. A person contemplating protected activity might be
deterred by the fear of prosecution. The doctrine reflects the
conclusion that the possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility
that protected speech of others may be muted. Bates v. State Bar of
Arizona, 433 U.S. 350, 380, 53 L. Ed. 2d 810, 833-34, 97 S. Ct.
2691, 2707 (1977).
The doctrine’s tolerance is not unbounded. “[T]here comes a point
at which the chilling effect of an overbroad law, significant though it
may be, cannot justify prohibiting all enforcement of that
law–particularly a law that reflects ‘legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.’ ” Virginia v. Hicks, 539 U.S. 113, 119, 156 L.
Ed. 2d 148, 157, 123 S. Ct. 2191, 2197 (2003), quoting Broadrick v.
Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 842, 93 S. Ct. 2908,
2917 (1973). Like most exceptions to established principles, the
doctrine must be carefully tied to the circumstances in which facial
invalidation of a statute is truly warranted. New York v. Ferber, 458
U.S. 747, 769, 73 L. Ed. 2d 1113, 1130, 102 S. Ct. 3348, 3361
(1982). Its concern with “chilling” protected speech attenuates as the
otherwise unprotected behavior that it forbids the state to sanction
moves from pure speech toward conduct and that conduct, even if
expressive, falls within the scope of otherwise valid laws. Los Angeles
Police Department v. United Reporting Publishing Corp., 528 U.S.
-37-
32, 40, 145 L. Ed. 2d 451, 460, 120 S. Ct. 483, 489 (1999), quoting
Ferber, 458 U.S. at 770, 73 L. Ed. 2d at 1131, 102 S. Ct. at 3361,
quoting Broadrick, 413 U.S. at 615, 37 L. Ed. 2d at 842, 93 S. Ct. at
2917.
Because of the wide-reaching effects of striking down a statute on
its face at the request of one whose own conduct would otherwise be
punishable despite the first amendment, the Court has characterized
the overbreadth doctrine as “strong medicine” and employed it with
hesitation, and only as a last resort. New York v. Ferber, 485 U.S. at
769, 73 L. Ed. 2d at 1130, 102 S. Ct. at 3361. Where, as here,
conduct and not merely speech is involved, the overbreadth of the
statute must be not only real, but substantial as well, judged in relation
to the statute’s plainly legitimate sweep. “We will not topple a
statute,” the United States Supreme Court has held, “merely because
we can conceive of a few impermissible applications.” Massachusetts
v. Oakes, 491 U.S. 576, 595, 105 L. Ed. 2d 493, 509, 109 S. Ct.
2633, 2644 (1989). The claimant challenging the law as being
unconstitutionally overbroad bears the burden of demonstrating,
“ ‘from the text of [the law] and from actual fact,’ ” that substantial
overbreadth exists. Virginia v. Hicks, 539 U.S. at 122, 156 L. Ed. 2d
at 159, 123 S. Ct. at 2198, quoting New York State Club Ass’n v. City
of New York, 487 U.S. 1, 14, 101 L. Ed 2d 1, 17, 108 S. Ct. 2225,
2234 (1988).
More than 50 years after its inception, first amendment overbreadth
doctrine remains little understood. R. Fallon, Making Sense of
Overbreadth, 100 Yale L.J. 853 (1991). Courts and litigants sometimes
fail to heed the requirement (see Members of the City Council v.
Taxpayers for Vincent, 466 U.S. 789, 799-800, 80 L. Ed. 2d 772, 783,
104 S. Ct. 2118, 2126 (1984)) that a statute’s overbreadth be both real
and substantial. An example of such a lapse appears in Eggert Group,
L.L.C. v. Town of Harrison, 372 F. Supp. 1123, 1137 (E.D. Wis. 2005).
In invalidating as overbroad an ordinance similar to the one at issue here
prohibiting nude dancing in establishments licensed to serve alcohol, a
federal magistrate accepted the strip club’s contention that the law would
prevent the La Leche League from conducting a demonstration of how
to breast feed properly. Although Dr. Jack Newman, member of the La
Leche League International Health Advisory Council, has been quoted as
stating that“[r]easonable alcohol intake [by nursing mothers] should not
-38-
be discouraged at all” (see www.lalecheleague.org/FAQ/alcohol.html),
we think it unlikely to the point of absurdity that a La Leche League
chapter would consider holding an educational meeting about nursing
techniques for new mothers in a bar, especially considering that mothers
typically bring their new babies and sometimes the babies’ siblings to
those meetings. Moreover, even if a La Leche League meeting were held
in a bar, it is by no means obvious that the women’s breast feeding would
run afoul of the law. Contrary to the magistrate’s apparent belief, the
process of nursing a baby does not necessarily require exposure of the
mother’s breast to public view.
The magistrate in the same case also thought the law was
overbroad because “certain all-female educational demonstrations for
all-female audiences would be prohibited” at establishments licensed
to sell liquor. What the magistrate had in mind here eludes us
completely. Are there women who want to conduct educational
seminars in bars where the program entails exposing their breasts or
genitals or engaging in real or simulated sexual contact, which is the
kind of conduct they would have to undertake to trigger the law’s
prohibitions?15 Perhaps, but no concrete examples were noted or even
hinted at. Rather than being drawn from actual fact, the magistrate’s
example seems completely made up. In our view and under the
standards articulated by the United States Supreme Court, extreme
and unfounded hypotheticals of this kind are wholly inadequate to
establish that a law is overbroad.
With these thoughts in mind, we believe, as the appellate court
did, that Pooh Bah failed to meet its burden of demonstrating that
section 4–60–140(d) of the Chicago Municipal Code suffers from
substantial overbreadth. The club’s contention is that the ordinance
suffers from overbreadth because its prohibitions would apply to nude
15
Considering the type of conduct addressed by the ordinance, the “all-
female” demonstrations for “all-female” audiences described by the
magistrate evoke images of a Roman bacchanalia rather than a serious
educational program. The authority to restrict such “bacchanalian revelries,”
the United States Supreme Court has affirmed, is within the inherent police
power of the state. 44 Liquormart, 517 U.S. at 515, 134 L. Ed. 2d at 735,
116 S. Ct. at 1514.
-39-
and seminude performances at any venue licensed to sell alcohol,
including those which feature legitimate theater and country clubs
where swim meets and water shows take place, and the City has not
shown that the secondary effects to which the ordinance is directed
would flow from such performances. This argument is untenable. As
a preliminary matter, we cannot imagine and Pooh Bah has not
explained what kind of country club water shows it has in mind. If
country clubs are presenting water shows featuring nude or seminude
female performers, and Pooh Bah has presented nothing to
substantiate that such shows have been held or even planned for
Chicago or anywhere else, the incidence of such performances is
surely small. Any overbreadth would therefore be insignificant when
compared to the plainly legitimate reach of the ordinance. The swim
meet hypothetical is also unpersuasive. By its terms, the ordinance
pertains only to “employees,” “entertainers,” or “patrons” engaged in
“live act[s], demonstration[s], dance[s], or exibition[s].” Giving those
terms their plain and commonly understood meaning, the ordinance
could have no possible application to racers in a swimming
competition.16
With respect to the example involving venues offering legitimate
theater, the City observes, as it did below, that under its liquor
licensing ordinances, the “premises” for which it issues licenses consist
of the enclosed location where the alcohol is stored or displayed. That
definition embraces the stage and seating areas at Pooh Bah’s club,
but would not include the stage and seating areas in a normal theater.
The City does not issue licenses that cover stage and seating areas in
such theaters. By local ordinance, the sale of alcohol in theaters is
confined to the lobby area and limited to one hour before the
performance and during the intermission. Section 14–60–140(d) of the
Municipal Code is therefore inapplicable to stage performances at
conventional theaters in the City.
16
While we do not purport to be experts on competitive sports gear, we
further point out something of which anyone who has watched the Summer
Olympics is aware. The outfits typically worn by competitive female
swimmers provide considerably more coverage than the City requires of
strippers who perform where alcohol is served.
-40-
In any event, we note again that the ordinance does not actually
even forbid any speech or expressive conduct. Nude or seminude
dancing is perfectly lawful in the City. This ordinance merely prohibits
such performances from being combined with the sale and
consumption of alcohol. Under the law, the combination of live nude
or seminude dancing and the sale and consumption of alcohol is not
allowed anywhere, regardless of the quality, character, or content of
the performance. In this respect, the expansiveness of the ordinance
is a virtue, rather than a vice, for it is evidence that the ordinance does
not discriminate against a particular message or point of view. See
Hill v. Colorado, 530 U.S. 703, 731, 147 L. Ed. 2d 597, 621, 120 S.
Ct. 2480, 2497 (2000). Moreover, because the first amendment does
not entitle a licensed liquor establishment, its performers or its patrons
to have alcohol available during live nude or seminude performances
(Ben’s Bar, 316 F.3d at 727; Sammy’s of Mobile, 140 F.3d at 999
(“we are unaware of any constitutional right to drink while watching
nude dancing”)), enforcement of the ordinance at other types of
establishments licensed to serve alcohol by the drink would no more
trench on their first amendment rights than it does on the first
amendment rights claimed by Pooh Bah. Like the conduct at issue
here, the conduct at those other establishments would be encompassed
within the ordinance’s legitimate sweep. The ordinance is therefore
not overly broad. Hill v. Colorado, 530 U.S. at 732, 147 L. Ed. 2d at
621, 120 S. Ct. at 2498.17
Pooh Bah next argues that section 14–60–140(d) of the Municipal
Code violates the fourteenth amendment to the United States
Constitution (U.S. Const., amend. XIV) because it is too vague. A
statute can be impermissibly vague for either of two independent
reasons: (1) if it fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits, or (2)
if it authorizes or even encourages arbitrary and discriminatory
17
By its terms and as applied by the City of Chicago, the ordinance
pertains only to acts, demonstrations, dances, or exhibitions which are “live.”
It therefore has no possible application to movies, television broadcasts or
displays of artwork. Pooh Bah makes no argument to the contrary.
Accordingly, we need not consider such activities in assessing the reach of
the ordinance.
-41-
enforcement. Hill v. Colorado, 530 U.S. at 732, 147 L. Ed. 2d at 621,
120 S. Ct. at 2498.
A party may raise a vagueness challenge by arguing either that a
statute is vague as applied to the facts at hand, or that a statute is void
on its face. The first type of challenge, as its name suggests, evaluates
a statute in the context of the specific circumstances in which it was
applied to the litigant who contests its validity. If the litigant’s own
conduct falls squarely within the statute’s prohibitions, he cannot
complain of the vagueness of the law as applied to others. Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
495, 71 L. Ed. 2d 362, 369, 102 S. Ct. 1186, 1191 (1982).
With respect to the second type of challenge, a statute is normally
not unconstitutional on its face unless it provides no standard of
conduct at all, i.e., the ambiguity is so pervasive that it is incapable of
any valid application. People v. Fabing, 143 Ill. 2d 48, 55 (1991),
quoting Steffel v. Thompson, 415 U.S. 452, 474, 39 L. Ed. 2d 505,
523, 94 S. Ct. 1209, 1223 (1974). Facial challenges to legislation are
generally disfavored. National Endowment for the Arts v. Finley, 524
U.S. 569, 580, 141 L. Ed. 2d 500, 511, 118 S. Ct. 2168, 2175 (1998),
quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 107 L.
Ed. 2d 603, 616, 110 S. Ct. 596, 603 (1990). The courts have held,
however, that when a law threatens to inhibit the exercise of
constitutionally protected rights such as those protected under the first
amendment, the Constitution demands that a more stringent vagueness
test be applied. In such a scenario, a statute is void for vagueness if it
reaches a substantial amount of constitutionally protected conduct.
United States v. Marzook, 383 F. Supp. 2d 1056 (N.D. Ill. 2005).
Because of the requirement that a statute must reach a substantial
amount of constitutionally protected speech, the facial vagueness and
overbreadth analyses are cognate. Record Head Corp. v. Sachen, 682
F.2d 672, 674 (7th Cir. 1982). For reasons discussed in connection
with Pooh Bah’s overbreadth claim, the club failed to establish that
section 14–60–140(d) of the Municipal Code reaches a substantial
amount of speech or expressive conduct protected by the first
amendment. As a result, just as the club cannot assert a valid
overbreadth claim, it likewise cannot attack the ordinance on the
grounds that it is unconstitutionally vague on its face.
-42-
Pooh Bah’s vagueness claim can succeed, if at all, only if the club
can establish that the ordinance is vague as applied. While not clearly
defined, Pooh Bah’s vagueness argument appears to rest on the first
of the two reasons on which vagueness challenges may be based,
namely, that persons of ordinary intelligence could only guess at its
meaning. The particular terms or phrases with which Pooh Bah took
issue below were “buttocks,” “any portion of the female breast at or
below the areola thereof,” “shall be considered exposed to public view
if it is uncovered or is less than completely and opaquely covered,”
and “any device, costume or covering which gives the appearance of
or simulates the genitals, pubic hair, buttocks, perineum, anal region
or pubic hair region.” The appellate court rejected Pooh Bah’s
arguments regarding these provisions, finding that the meaning of the
challenged language was apparent and perfectly intelligible. In our
court, Pooh Bah has narrowed it focus. Its arguments now center on
the meaning of “buttocks,” “any portion of the female breast at or
below the areola thereof,” and “less than completely and opaquely
covered.”
The tests for assessing whether a law is vague are not capable of
mechanistic application. Business regulations, for example, may be
less precise than other forms of legislation because the entities affected
by such regulations are more apt to know where the lines are drawn
and more able to obtain clarification through inquiry or administrative
proceedings. Civil legislation can be vaguer than criminal laws because
the consequences of imprecision are qualitatively less severe. Record
Head Corp. v. Sachen, 682 F.2d at 674. In any context, moreover,
there are limits to the degree of precision attainable by the English
language. The United States Supreme Court has therefore recognized
that “ ‘perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.’ ” Anderson v.
Milwaukee County, 433 F.3d 975, 978 (7th Cir. 2006), quoting Ward
v. Rock Against Racism, 491 U.S. 781, 794, 105 L. Ed. 2d 661, 677,
109 S. Ct. 2746, 2755 (1989). We must also remain mindful that when
judging the constitutionality of a rule or statute, common sense cannot
and should not be suspended. Anderson v. Milwaukee County, 433
F.3d 975, 978 (7th Cir. 2006).
The clarity of the term “buttocks” has frequently been addressed
by courts in the context of challenges to laws and regulations
-43-
pertaining to nudity. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d
Cir. 1995); Dodger’s Bar & Grill v. Johnson County Board of County
Commissioners, 32 F.3d 1436, 1444 (10th Cir. 1994); Geaneas v.
Willets, 911 F.2d 579, 586-87 (11th Cir. 1990); Wayside Restaurant,
Inc. v. Virginia Beach, 215 Va. 231, 236, 208 S.E.2d 51, 55 (1974).
These courts have consistently found that the term can be understood
by persons of ordinary intelligence. We see no possible basis for
reaching a contrary conclusion in this case. We likewise see no
grounds for holding that the phrase “less than completely and
opaquely covered” is not sufficiently clear to provide a person of
ordinary intelligence a reasonable opportunity to understand what it
requires. Moreover, and more importantly, even if there might be
some circumstances in which the meaning and applicability of these
terms might be uncertain, such circumstances are not present here.
The T-bars worn by Pooh Bah dancers covered the area between their
buttocks, including the anus, but left the buttocks themselves
completely uncovered. Their conduct thus fell squarely and
unambiguously within the ordinance’s prohibitions. As a result, Pooh
Bah will not be heard to complain that the law is vague as applied to
its dancers.
The same is true of that portion of the ordinance prohibiting the
exposure of “any portion of the female breast at or below the areola
thereof.” Pooh Bah’s policy required only that dancers apply a latex
and makeup covering to their nipples, areolas and triangular areas
extending below the areolas in the frontal portion of each breast.
Evidence was presented that the actual makeup and latex covering did
not even cover that much. From the photographic and video exhibits
included in the record and the testimony of the investigating police
officers, there is no indication of any covering beyond the nipples and
areolas. Even those areas would appear totally nude except for the
fact that their natural color was obscured. Whatever the actual
coverage, however, there is no dispute that it did not extend to the
lateral portions of the breasts below the tops of the areolas. The sides
of the dancers’ breasts were left completely uncovered. Courts
considering similar laws have held that persons of ordinary intelligence
could reasonably be expected to understand that the portion of the
female breast at or below the areola would include the entire portion
of the female breast at or below the areola, including the sides. See
-44-
City of Daytona Beach v. Del Percio, 476 So. 2d 197, 200 (Fla.
1985) (language refers to portion of breast directly or laterally below
the top of the areola); State v. Fantasia Restaurant & Lounge, Inc.,
Nos. 0112001060, 0109002426, 0112000958 cons., slip op. at 10
(Del. Super. Ct. 2004) (term refers to “entire area of the entire breast
below the top of the areola, not simply the strip of flesh the width of
the areola below the top of the areola”). That is precisely how the
ordinance was understood by regulatory authorities in the City, and
we agree that it is how persons of ordinary intelligence would
understand it. Pooh Bah and its dancers therefore cannot complain
that they were not given fair notice that their latex and makeup
practices were insufficient to meet the requirements of section
14–60–140(d) of the Municipal Code. Application of the ordinance to
them does not violate their rights to due process under the fourteenth
amendment.
Pooh Bah’s final contention is that even if section 14–60–140(d)
of the Municipal Code does not contravene the first and fourteenth
amendments to the United States Constitution, we should declare it
invalid under the “freedom of speech” provision of the Illinois
Constitution of 1970 (Ill. Const. 1970, art. I, §4). That provision
guarantees that “[a]ll persons may speak, write and publish freely,
being responsible for the abuse of that liberty.” Ill. Const. 1970, art.
I, §4. The relationship between article I, section 4, of the Illinois
Constitution and the first amendment to the United States
Constitution was discussed by this court in People v. DiGuida, 152 Ill.
2d 104 (1992). After reviewing the history of the provision and the
discussion of its terms at the 1970 Constitutional Convention, we
concluded that the framers recognized that the Illinois Constitution
may provide greater protection to free speech than does its federal
counterpart. People v. DiGuida, 152 Ill. 2d at 121. We therefore
rejected “any contention that free speech rights under the Illinois
Constitution are in all circumstances limited to those afforded by the
Federal Constitution.” People v. DiGuida, 152 Ill. 2d at 122. This,
however, does not end our inquiry.
That article I, section 4, of our constitution may afford greater
protection than the first amendment in some circumstances does not
mean that greater protection is afforded in every context. See Ino Ino,
Inc. v. City of Bellevue, 132 Wash. 2d 103, 115, 937 P.2d 154, 162
-45-
(1997). Construing a state constitutional provision nearly identical to
ours, the Washington Supreme Court noted that the provision, by its
terms, referred only to speaking, writing and publishing. No mention
was made of expressive conduct. The court recognized that the
provision had been found to warrant greater protection than the first
amendment for speech, both spoken and written, in some contexts. In
the absence of language relating to expressive conduct, however, the
court ruled that the text of the state constitution did not justify
extending greater protection to nude and seminude dancing at adult
cabarets than would be afforded by the first amendment. Ino Ino, Inc.
v. City of Bellevue, 132 Wash. 2d at 117, 937 P.2d at 163.
Courts in other jurisdictions applying state constitutional
provisions which are similar (and in some cases nearly identical) to
article I, section 4, of the Illinois Constitution of 1970 have likewise
held that their state constitutions provide no greater protection to
nude or seminude dancing than is conferred by the first amendment.
See Empress Adult Video & Bookstore v. City of Tucson, 204 Ariz.
50, 62, 59 P.3d 814, 826 (App. 2002) (collecting various cases);
Junction 615, Inc. v. Liquor Control Comm’n, 135 Ohio App. 3d 33,
41, 732 N.E.2d 1025, 1031 (1999) (state restriction on public nudity
in liquor establishments upheld on grounds that it “did not restrict
First Amendment rights any more than necessary” and the “free
speech guarantees accorded by the Ohio Constitution are no broader
than the First Amendment”); Ranch House, Inc. v. City of Anniston,
678 So. 2d 745, 746-47 (Ala. 1996) (state constitution’s free speech
protections did not invalidate local ordinance prohibiting nudity or
partial nudity in businesses that sell or dispense alcohol); Knudtson v.
City of Coates, 519 N.W.2d 166, 169-70 (Minn. 1994) (prohibition
against nude dancing in establishments licensed to sell alcohol upheld
against state constitutional challenge); S.J.T., Inc. v. Richmond
County, 263 Ga. 267, 269, 430 S.E.2d 726, 728-29 (1993) (same);
City of Billings v. Laedeke, 247 Mont. 151, 157-58, 805 P.2d 1348,
1352 (1991) (same); City of Daytona Beach v. Del Percio, 476 So.
2d 197, 203-04 (Fla. 1985) (similar).18 Although the Supreme Judicial
18
In Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228, 429
N.E.2d 765, 445 N.Y.S.2d 87 (1981), a case cited by Pooh Bah, New
York’s highest court held, on remand from the United States Supreme Court
-46-
Court of Massachusetts reached a contrary result in Commonwealth
v. Sees, 374 Mass. 532, 373 N.E.2d 1151 (1978), we find the majority
view more persuasive. Consistent with that view, we find no basis for
concluding that article I, section 4, of the Illinois Constitution affords
greater protection to nude and seminude dancing in establishments
licensed to sell alcohol than is provided by the federal constitution.
Pooh Bah’s argument that section 14–60–140(d) of the Chicago
Municipal Code is invalid under article I, section 4, of the Illinois
Constitution is therefore rejected.
Because section 14–60–140(d) of the Municipal Code does not
violate either the United States or the Illinois Constitution, the circuit
court erred in concluding that the ordinance could not serve as the
predicate for revoking Pooh Bah’s liquor license revocation or
enjoining its operation on the grounds that it constituted a public
nuisance. The appellate court therefore acted properly in reversing the
circuit court’s judgment and remanding for further proceedings. The
City urges us to dispense with the remand and enter judgment in its
favor now. This we decline to do. Because the circuit court’s
judgment turned on the constitutionality the ordinance, the circuit
court did not reach the non-constitutional issues raised by Pooh Bah
on administrative review of its liquor license, nor did it fully resolve
the merits of the City’s claim for injunctive relief. We believe that
those matters should be addressed by the circuit court in the first
instance. We will not supplant its function. Our purpose on this
interlocutory appeal was to finally determine the relevant
constitutional questions. That has been done.
Pooh Bah argues that on remand it should be permitted to present
additional evidence on the question of whether the ordinance actually
creates the secondary effects claimed by the City. This argument is
in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 69 L. Ed. 2d
357, 101 S. Ct. 2599 (1981), that a liquor control statute banning topless
dancing in premises licensed to sell alcohol did violate the state constitution’s
guarantee of freedom of expression. In reaching that result, however, the
court specifically noted that it was not reaching the question of whether the
state constitution’s free speech guarantee was broader than the guarantee of
the first amendment to the United States Constitution. Bellanca, 54 N.Y.2d
at 234, 429 N.E.2d at 768, 445 N.Y.S.2d at 90.
-47-
untenable. The sole reason Pooh Bah seeks to present such evidence
is to renew and bolster its contention that the ordinance violates
constitutional standards. For purposes of this appeal, however, the
constitutionality of the ordinance is no longer subject to dispute. Our
holding that the ordinance does not violate the United States or
Illinois constitution is conclusive of the issue and shall be binding on
the parties and on the circuit court on remand.
For the foregoing reasons, the judgment of the appellate court,
reversing the judgment of the circuit court and remanding the cause,
is affirmed.
Appellate court judgment affirmed.
JUSTICE BURKE took no part in the consideration or decision
of this case.
Dissent Upon Denial of Rehearing
JUSTICE FREEMAN, dissenting:
I initially joined the majority opinion in this case. I believe,
however, that many of the points raised by Pooh Bah in its petition for
rehearing merits this court’s further consideration. Specifically, I am
concerned, as noted by Pooh Bah in its rehearing petition, that this
court’s opinion “ignores” several substantive first amendment issues,
violates the “constitutionally required procedures for intermediate
scrutiny *** resulting in a denial of due process to Pooh Bah,” and
contains “errors, omissions and distortions of the record.” Because I
believe that this case deserves further reflection, and because this
court has not seen fit to use rehearing as a means of addressing these
points, I can no longer join the majority in its opinion. Accordingly, I
dissent from the court’s denial of rehearing in this cause.
First, as Pooh Bah notes in its petition for rehearing, the court’s
opinion in the matter at bar completely overlooks Pooh Bah’s
argument that strict scrutiny analysis should be applied to section
4–60–140(d) of the Chicago Municipal Code (the “coverage
ordinance”). In its written submissions to this court, Pooh Bah
-48-
strongly relied upon two decisions from the United States Supreme
Court in support of its assertion that strict scrutiny is applicable to the
ordinance at issue in this case: United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 146 L. Ed. 2d 865, 120 S. Ct. 1878
(2000), and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L.
Ed. 2d 403, 122 S. Ct. 1389 (2002). Pooh Bah asserted that the
challenged ordinance is content-related, on the basis that the law
applies solely to erotic entertainment and because its effect and
purpose is to limit erotic expression by regulating the body coverage
on erotic performers. According to Pooh Bah, the City’s justification
for the ordinance rests in part on the alleged primary effect of the
erotic expression on the audience, i.e., that the combination of alcohol
and seminude dancing prompts viewing-and-drinking patrons to
commit crime or become victims of crime when they leave the club.
Pooh Bah noted that this is the direct opposite of a content-neutral
justification. Therefore, Pooh Bah reasoned, because the challenged
ordinance was not sought to be justified solely by content-neutral
reasons–but also by the putative primary effects of the combination of
alcohol and erotic dancing on the viewers–the City’s proffered
justification requires strict scrutiny review.
As stated, in support of this proposition, Pooh Bah relied upon the
Playboy and Ashcroft decisions, in which the United States Supreme
Court struck down on first amendment grounds federal statutes which
attempted to regulate sexually oriented cable television programming
and child pornography. See Playboy, 529 U.S. at 826-27, 146 L. Ed.
2d at 887-88, 120 S. Ct. at 1893 (provision of the Telecommunication
Act which attempted to prevent “signal bleed” by requiring cable
operators either to scramble sexually explicit channels in full or limit
programming on such channels to certain hours violated first
amendment); Ashcroft, 535 U.S. at 258, 152 L. Ed. 2d at 426, 122 S.
Ct. at 1406 (certain provisions of the Child Pornography Prevention
Act of 1996–including a ban on virtual child pornography–found to
violate the first amendment). In both instances, the Court concluded
that the challenged statutes were subject to strict scrutiny analysis
because they had a content-related intent or purpose. Playboy, 529
U.S. at 811-13, 146 L. Ed. 2d at 878-79, 120 S. Ct. at 1885-86;
Ashcroft, 535 U.S. at 253-54, 152 L. Ed. 2d at 422-23, 122 S. Ct. at
1403. In its petition for rehearing before this court, Pooh Bah
-49-
contends that this court’s opinion should, at the very least,
“distinguish Playboy and Ashcroft and explain why non-obscene
Gentlemen’s Clubs in Illinois get less constitutional protection than
graphic sexual activities shown on cable TV or than child molesters
under the First Amendment.” I agree.
The opinion of this court overlooks both of these recent United
States Supreme Court free speech cases on which the defendants
strongly rely for their strict scrutiny argument. Rather than directly
address a central argument debated at length by the parties in this case
and engage in a thoughtful analysis of these contentions, the court
simply relegates this important debate to a brief footnote in the
opinion. In footnote 12 of this court’s opinion (slip op. at 20 n.12),
this court notes, in passing, that “Pooh Bah argues that the strict
scrutiny standard should govern this case.” The footnote further states
that “[f]or the reasons set forth later in this opinion, Pooh Bah is
incorrect.” This is the extent of the discussion the court provides with
respect to the strict scrutiny argument raised in this appeal. The court
rejects Pooh Bah’s strict scrutiny argument without further direct
analysis or explanation, despite the fact that, in its written submissions
to this court, the City justified its challenged ordinance, in part, on the
basis of the claimed effect of the expression–erotic seminaked
dancing–on the club’s patrons, in support of the theory that the
patrons then are more likely to commit or be victims of crime.
Accordingly, by virtue of this argument, the City itself has invited
application of the line of cases culminating in the Playboy and
Ashcroft decisions, which apply the higher strict scrutiny standard to
laws directed at the impact of speech on its listeners or watchers.
Furthermore, the court rejects Pooh Bah’s assertions that strict
scrutiny applies in this case despite the fact that in its opinion the court
itself resorts to anecdotal evidence of the supposed primary effects of
the combination of alcohol and live seminaked dancing on its viewers,
noting, e.g., the “customer who exposed himself and began
masturbating in the middle of the club.” Slip op. at 33. In addition, the
court discusses the testimony of the City’s expert, Dr. Kodish, which
focused upon the psychiatric effects on males resulting from the
combination of alcohol and sexual stimulation. According to Dr.
Kodish, this combination produces an effect “ ‘associated with an
increase in violent sexual acting out, acts of criminal behavior.’ ” Slip
-50-
op. at 29. Because this court justifies the City’s coverage ordinance
in part by the supposed effects of the regulated conduct on its
audience, this court’s own analysis triggers a discussion of whether
strict scrutiny review is applicable in this case.
The court sidesteps any discussion of strict scrutiny review by
relying heavily upon the decision of the United States Court of
Appeals for the Seventh Circuit in Ben’s Bar, Inc. v. Village of
Somerset, 316 F.3d 702 (7th Cir. 2003). That decision applies an
intermediate scrutiny analysis to the review of a local ordinance
regulating “sexually oriented businesses,” without detailed
consideration as to whether or not strict scrutiny is triggered by the
challenged law or the justification advanced for that law. However, I
note that, in Ben’s Bar, the applicable level of scrutiny was not at
issue and that the parties agreed that intermediate scrutiny was the
applicable standard for first amendment review. No party in that case
advocated for strict scrutiny analysis, and, therefore, it was
appropriate for the court in that case not to address the issue of which
standard of review applied. In contrast, in the matter before us, Pooh
Bah has vigorously argued from the moment it filed its petition for
leave to appeal with this court that strict scrutiny review applies. This
court’s opinion, therefore, should address Pooh Bah’s arguments with
respect to the application of strict scrutiny analysis and either
distinguish or apply the Ashcroft and Playboy decisions–two decisions
which remain conspicuously absent from this court’s opinion. In its
opinion, this court evades the strict scrutiny argument and
automatically applies intermediate scrutiny simply because a
governmental body claims that the purpose of the challenged
ordinance is to attack alleged negative secondary effects.
I am deeply troubled by the court’s out-of-hand dismissal of Pooh
Bah’s strict scrutiny argument for several additional reasons. First,
such conduct on the part of this court denies the parties to this action
the reassurance that we have carefully considered and deliberated their
arguments. What message does this court send to litigants when it
does not even bother to address the central arguments raised in their
appeals, especially when they are issues of constitutional magnitude?
I venture to say that it creates the perception that this court has
predetermined the outcome of the appeal and does not deem it
necessary to bother with arguments that may cut in the opposite
-51-
direction. In addition, by failing to address and fully analyze an issue
such as whether strict scrutiny applies to the ordinance challenged in
this case, this court fails to provide the bench and bar with the
guidance needed to deal with similar issues in future cases. Indeed, the
legal community “rel[ies] on our opinions to map the evolving course
of law.” People v. Jung, 192 Ill. 2d 1, 17 (2000) (McMorrow, J.,
specially concurring, joined by Miller and Freeman, JJ.). This court
has utterly failed to carry out this mission in the instant cause.
In its petition for rehearing, Pooh Bah also takes issue with this
court with respect to several aspects of its intermediate scrutiny
review of the City’s coverage ordinance. In its opinion, the court uses
the following test from the Ben’s Bar decision to determine whether
the challenged coverage ordinance withstands intermediate scrutiny
review. Under this test, a challenged law is constitutional if:
“ ‘(1) the State is regulating pursuant to a legitimate
governmental power [citation]; (2) the regulation does not
completely prohibit adult entertainment [citation]; (3) the
regulation is aimed not at the suppression of expression, but
rather at combating the negative secondary effects caused by
adult entertainment establishments [citation]; and (4) the
regulation is designed to serve a substantial government
interest, narrowly tailored, and reasonable alternative avenues
of communication remain available [citation]; or, alternatively,
the regulation furthers an important or substantial government
interest and the restriction on expressive conduct is no greater
than is essential in furtherance of that interest. [Citation.]’
(Emphasis in original.) Ben’s Bar, 316 F.3d at 722.” Slip op.
at 19-20.
I agree with my colleagues that the weight of precedent requires
this court to uphold the City’s coverage ordinance against a facial
challenge of its constitutionality. It is well settled that local
governments can ban nudity itself, including partial nudity such as
topless entertainment. See, e.g., Barnes v. Glen Theatre, Inc., 501
U.S. 560, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991). I am satisfied
that the coverage ordinance falls within the ambit of decisions that
have upheld government regulations of sexually oriented businesses
against facial challenges based upon secondary-effects justifications.
-52-
However, Pooh Bah argues on rehearing that this court in its
opinion has completely overlooked its argument that the City’s
coverage ordinance is violative of the first amendment as applied to
Pooh Bah’s specific factual situation. I agree with Pooh Bah, and
disagree with the court’s conclusion that the first amendment analysis
is appropriately ended in this case with its holding that the coverage
ordinance withstands a facial challenge. The court declines to fully
address Pooh Bah’s as-applied challenge to this ordinance and
disregards the incompleteness of the proceedings below with respect
to that challenge.
The first of Pooh Bah’s specific points in its petition for rehearing
with respect to this court’s intermediate scrutiny analysis is its
contention that this court’s opinion violates “the constitutionally
required procedures for intermediate scrutiny review,” thereby
“resulting in a denial of due process to Pooh Bah.” Pooh Bah takes
issue with this court’s denying it an opportunity to complete its attack
on the City’s secondary-effects justification for the challenged
ordinance on remand. Pooh Bah notes that this court denies it this
opportunity not only despite the fact that the circuit court had entered
a directed verdict in Pooh Bah’s favor finding that the ordinance was
unconstitutional after the City had rested its case in chief and before
Pooh Bah had completed presentation of its own evidence in rebuttal,
but also despite the fact that the circuit court specifically reserved to
Pooh Bah the right to present additional evidence in the event that the
court’s decision was subsequently overturned on appeal.
The record reflects that the circuit court ruled in Pooh Bah’s favor
and against the City on January 18, 2001. On that date, the circuit
court judge filed a very detailed memorandum opinion and order.
However, on May 3, 2001, the circuit court judge–with the agreement
of the parties–amended the January 18, 2001, memorandum opinion
and order nunc pro tunc by entering a series of three additional orders.
One order entered on May 3, 2001, was entitled “Partial Judgment
Order,” and this order notes that the cases had been before the circuit
court on “Pooh Bah’s motions for directed findings and for judgment
at the conclusion of the City’s case-in-chief.” The order further
recounts that the parties had entered into a “stipulation submitting the
cases for a ruling on the current record,” and that the circuit court’s
ruling on Pooh Bah’s directed verdict motion was “subject to
-53-
reservations by all parties of their respective rights to present
additional evidence if these motions are not finally dispositive.” The
order incorporates the circuit court’s prior January 18, 2001,
memorandum opinion and order, as well as prior rulings it rendered
on August 21, 2000, and for the reasons stated in those prior
decisions, granted Pooh Bah’s motion for directed finding and for
judgment against the City. In the May 3 order, the circuit court
explicitly “retain[ed] jurisdiction,” inter alia, “over the remaining trial
of these matters, if any of the judgments herein shall be reversed or
vacated.” The court’s order also stated that “Pooh Bah has reserved
its right to present additional evidence in opposition to Counts I-V
and in support of its affirmative defenses and amended counterclaims
in No. 99 CH 9682, and in support of its claims in No. 93 CH 4559,
if the judgments in this order are not affirmed in a final and non-
appealable order.”
Thus, the record reflects that the circuit court entered judgment
for Pooh Bah against the City on a motion for entry of a directed
verdict and not on a final record at the end of trial. Pooh Bah was
midstream in its defense case and was not finished in attacking the
City’s prima facie case in justification of the coverage ordinance when
the circuit court ruled on Pooh Bah’s already pending motion for
directed verdict. Based upon this procedural posture, the circuit court
explicitly reserved the “right” of Pooh Bah to present additional
evidence on remand in the event of a reversal and did not limit the
scope of such evidence. In its opinion, this court mentions the entry
of the May 3, 2001, orders in passing (slip op. at 11), but does so in
a general and vague manner, except for specifically noting in footnote
9 of the opinion that one of the agreed orders “reserved to the City the
right to present additional evidence regarding the amount of fines that
could be imposed by Pooh Bah in the event the City prevailed on the
merits.” Slip op. at 11 n.9. I question why this court feels compelled
to set forth with specificity that the circuit court order provides that
the City may present additional evidence with respect to the fines to
be levied against Pooh Bah on remand, but remains completely silent
with respect to the fact that the order also granted to Pooh Bah “its
right to present additional evidence” regarding issues which were cut
short by the court as a result of its grant of Pooh Bah’s motion for
directed verdict. I attach the circuit court’s May 3, 2001, “Partial
-54-
Judgment Order” as an appendix to this dissenting opinion as the best
evidence of the intent of the parties and the circuit court with respect
to this issue.
In addition, I note that the intermediate scrutiny analysis of the
validity of the City’s secondary-effects justification in support of the
coverage ordinance is a fact-based assessment, as the United States
Supreme Court has repeatedly noted, particularly in its most recent
decisions. See City of Erie v. Pap’s A.M., 529 U.S. 277, 146 L. Ed.
2d 265, 120 S. Ct. 1382 (2000); City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425, 152 L. Ed. 2d 670, 122 S. Ct. 1728
(2002); see also R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402 (7th
Cir. 2004). In Alameda Books, the Court described the proper
analytical framework for this inquiry:
“We held [in City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986)] that a
municipality may rely on any evidence that is ‘reasonably
believed to be relevant’ for demonstrating a connection
between speech and a substantial, independent government
interest. [Citations.] This is not to say that a municipality can
get away with shoddy data or reasoning. The municipality’s
evidence must fairly support the municipality’s rationale for its
ordinance. If plaintiffs fail to cast direct doubt on this
rationale, either by demonstrating that the municipality’s
evidence does not support its rationale or by furnishing
evidence that disputes the municipality’s factual findings, the
municipality meets the standard set forth in Renton. If
plaintiffs succeed in casting doubt on a municipality’s rationale
in either manner, the burden shifts back to the municipality to
supplement the record with evidence renewing support for a
theory that justifies its ordinance.” Alameda Books, 535 U.S.
at 438-39, 152 L. Ed. 2d at 683, 122 S. Ct. at 1736.
In their opinion, my colleagues do not address this three-part
evidentiary procedure set forth by the United States Supreme Court,
which requires: (1) justification for the ordinance by the government;
(2) challenge and dispute of the ordinance by the challenger; and (3)
rebuttal by the government. Instead, they take Pooh Bah to task for
requesting that this court recognize its right–under the Alameda
-55-
decision and the May 3, 2001, circuit court order–to complete
presentation of its evidence at trial:
“The sole reason Pooh Bah seeks to present [additional
evidence on the question of whether the ordinance actually
creates the secondary effects claimed by the City] is to renew
and bolster its contention that the ordinance violates
constitutional standards. For purposes of this appeal, however,
the constitutionally of the ordinance is no longer subject to
dispute. Our holding that the ordinance does not violate the
United States or Illinois constitution is conclusive of the issue
and shall be binding on the parties and on the circuit court on
remand.” Slip op. at 48.
I disagree. This court’s opinion fails to explain why, since the circuit
court judge’s directed findings on a half-completed record are now
reversed, the rebuttal cases of both the challengers and the
government should be cut off, not only despite the fact that the
constitutional procedures mandated for intermediate scrutiny review
require that both sides have these opportunities, but also despite the
fact that the circuit court’s May 3, 2001, order explicitly reserved to
Pooh Bah this right in light of the procedural posture of the case at the
time that order was entered.19
In addition, this court’s opinion reverses a fact-based decision of
the trial court and, in doing so, reweighs the sufficiency and credibility
of the City’s “justification” evidence to conclude that the City has
adequately established that the coverage ordinance was enacted to
combat secondary effects. As a general matter, it is not for this court,
19
As Pooh Bah states in its petition for rehearing:
“[T]he opinion prematurely makes a ‘final’ determination of the
constitutionality of the coverage ordinance on the fact-sensitive
intermediate scrutiny review–even though the most that can
properly be determined on appeal on that review (by reversing the
trial judge’s findings) is that the City made a prima facie case to
justify the ordinance. Particularly on the as-applied challenge, the
case was not over. But the opinion improperly cuts off the attack
on the City’s proferred secondary effects justifications, thus barring
this litigant from ever finishing its constitutional attack on the
ordinance.” (Emphasis in original.)
-56-
as a court of review, to substitute its judgment for that of the trial
court on issues of fact, as the trial court judge is in the best position
to observe the conduct and demeanor of the parties and the witnesses.
Best v. Best, 223 Ill. 2d 342, 350-51 (2006). This court’s actions are
particularly troubling in this case, in light of the following excerpt
from the memorandum opinion and order of the circuit court, written
after a parade of witnesses were called by the City in support of its
secondary-effects justification: “The court finds the record devoid of
any proof of the existence of even potentially harmful secondary
effects. Indeed, it finds that the City was successful in merely positing
the possibility that those secondary effects could hypothetically exist.”
Unless this court can say with 100% certainty that, as a matter of
law, there is no possible further evidence that may cast any doubt on
the City’s two main theories of justification–patron-generated crime
and outside-generated crime–or that might refute those theories, this
case should be allowed to play out in the trial court on remand, like
any other case where a directed finding is reversed. The court’s
opinion leads to the conclusion that the majority is unfairly holding
Pooh Bah to an unprecedented and heretofore-not-announced
standard that mandates a proffer of evidence on appeal to obtain a
remand after reversal of a directed finding.
In addition, Pooh Bah also asserts on rehearing that the opinion
filed by this court overlooks, as part of its intermediate scrutiny
analysis, the issue of multiple, overlapping and cumulative legislative
remedies in this case. As the court notes in its opinion, the challenged
coverage ordinance was passed by the Chicago city council in 1978.
Subsequently, in 1993 the city council passed an anticoncentration
adult use zoning ordinance which adopted location and dispersion
regulations for adult uses in the city, and which was enacted to
combat the same perceived problem as allegedly targeted by the
coverage ordinance: the so-called secondary effects of liquor-serving
adult-dancing venues.
As early as in its petition for leave to appeal filed with this court,
Pooh Bah raised the validity of these overlapping regulations as a
central issue for this court’s review, and noted that its club complies
with the requirements of the later-enacted adult use ordinance. In its
petition for leave to appeal, Pooh Bah questioned whether, in the
specific factual context of this case, the City must show whether the
-57-
coverage ordinance has, or will have, some substantial impact on the
targeted secondary effects above and beyond that provided by the
subsequent adult use zoning ordinance. Pooh Bah made the point that,
if this query is answered in the negative, there is a danger that
restrictions on free speech and expression can cumulate, “with the
latest legislative ‘solution’ piled on top of yesterday’s solution, and on
and on without genuine judicial review of their individual
justifications–or lack of justification.” The significance of the interplay
between these regulatory remedies as applied to Pooh Bah was one of
the reasons that this court accepted this appeal for review. However,
in its opinion, the court has failed to address this issue, which is
relevant in determining the validity of the City’s secondary-effects
justification.
Along these lines, Pooh Bah also asserts that this court improperly
overlooked in its opinion that, as a result of the City’s 1993 enactment
of the adult use zoning ordinance, Pooh Bah’s club is legally mandated
to be physically isolated from any other adult venues. According to
Pooh Bah’s rehearing petition, the court’s opinion “ignores the
industrial, non-residential character (and associated limited pedestrian
traffic patterns) of the Club’s area,” facts which, in Pooh Bah’s view,
are “especially pertinent to the as-applied challenge, which the court
does not take up in its opinion.”
In my view, the facts concerning the physical isolation of Pooh
Bah’s club are relevant to two issues. First is the general
“justification” for the coverage ordinance with respect to incidents of
crime in the vicinity of the club generated from outside sources. The
City and most of the case law relies heavily on this justification. In
addition, this argument was supported by the various “studies” from
other cities that the City’s expert witnesses described in the circuit
court. Pooh Bah, however, countered that most or all of that evidence
is based on concentrations of adult businesses or concentrations of
liquor establishments. If so, then the absence of concentration in this
case is a factor that undermines the relevance of those studies. Indeed,
this is one of the obvious disputes in this case that is appropriate for
further evidence on remand.
Second, the physical isolation of the club is relevant to Pooh Bah’s
as-applied challenge to the coverage ordinance based on the later-
enacted adult zoning ordinance, which, as stated, mandates physical
-58-
separation between adult establishments and which, Pooh Bah claims,
has solved any crime-in-the-vicinity problem (based upon the absence
of crime in the area). Pooh Bah asserts that this state of affairs
requires from the City some additional or different justification for the
coverage ordinance beyond the usual anticrime justification. It is my
view that the coverage ordinance of the 1970s may be archaic and
unnecessary by virtue of the City’s own superseding adult use zoning
legislation. The City’s burden of justifying the older coverage
ordinance under the immediate scrutiny analysis should include the
burden of demonstrating the marginal need for the older law in
addition to the anticoncentration efforts in the newer zoning law.
These are points which are completely overlooked by the court in its
opinion, and which would be appropriate for further consideration.
In a related argument, Pooh Bah asserts in its petition for
rehearing that this court engaged in “clear and plain error” in its
consideration of the intermediate scrutiny issues by incorrectly citing
the legislative history and preambles of the City’s 1993 adult use
zoning ordinance as if that were the legislative history and original city
council intent of the challenged coverage ordinance, which was
enacted 15 years earlier. See slip op. at 24-26. I agree. The findings
on which this court’s opinion relies focus on the City’s justification for
enacting the zoning restrictions, rather than for the earlier-enacted
coverage ordinance. As Pooh Bah states in its rehearing petition, “the
opinion erroneously treats the City’s announced policies supporting
its 1993 adult use zoning remedy (which were not addressed to liquor
venues) as if it were the original expressed intention for the 1978
‘coverage’ requirements–which had no preamble or announced
intentions other than the Committee Report, which the opinion
disregards.” (Emphasis in original.)
In sum, with respect to this court’s treatment of the intermediate
scrutiny issues in this appeal, I agree with Pooh Bah that it is
untenable precedent to reserve a directed finding and then not allow
the former winner to finish presenting its evidence on remand,
especially on an appeal from an injunction hearing without full
discovery. As Pooh Bah validly points out in its rehearing petition:
“Why would any Illinois lawyer now move for (or accept) a
directed verdict or finding–which is now a waiver of the right
to present the rest of his/her case if the appellate courts
-59-
disagree with the trial judge? When, as here, the reviewing
courts reweigh the evidence with nary a mention of the
deferential manifest weight or clear error standards, there is a
palpable sense of arbitrariness that will constrain Illinois
litigants to make an entire record–even when the trial judge
finds more hearings unnecessary.” (Emphases in original.)
The precedent set by this court’s refusal to allow completion of
evidence on the intermediate scrutiny first amendment issues following
the reversal of a directed finding undermines the integrity of the
directed-verdict procedure, and strongly discourages Illinois litigants
from employing this judicial time-saving device for fear of losing their
rights to complete their record if their directed verdict is upset on
appeal. The fact that this litigation has a protracted history should be
of no moment in this consideration, and is not a reason to short-circuit
our own well-settled laws of civil procedure.
As a final matter, Pooh Bah contends in its petition for rehearing
that this court’s opinion contains “errors, omissions and distortions of
the record” which serve to inject “irrelevant,” “misleading,” and
“consistently one-sided” information into this case. I agree with Pooh
Bah that these points merit further consideration by this court.
First, at page 33 of the slip opinion, the court discusses the
evidence presented by the City in the circuit court with respect to the
historical negative secondary effects caused by strip clubs licensed to
sell alcohol in the Rush Street area of Chicago during the late 1970s
and early 1980s. Testimony in the circuit court indicated that during
that time period, strippers and waitresses associated with those Rush
Street establishments accounted for a large number of the prostitution
arrests in that geographic area, and, this court states, “[n]egative
secondary effects were serious and pervasive.” This court then turns
to the present state of affairs and observes that, with respect to Pooh
Bah’s club, “[s]uch widespread effects may not have recurred yet.”
(Emphasis added.) This court also notes in footnote 14 on the same
page of the slip opinion that although the City in this litigation had
initially alleged that incidents of prostitution occurred at Pooh Bah’s
club, “it does not appear that any dancer or patron has yet been
charged with prostitution or prostitution-related offenses.” (Emphasis
added.)
-60-
The insertion of the word “yet” into these statements amounts to
an unjustified judicial forecast that, even though the historic negative
secondary effects associated with strip clubs selling alcohol have not
been proven with respect to Pooh Bah’s club, and, even though the
City failed to establish that incidents of prostitution occurred at or
could be connected to the club, they simply have not “yet” occurred
and will likely appear in the future. This is particularly inappropriate
in light of the litigation below where the City attempted to prove
solicitation and/or prostitution and failed completely in establishing its
case. In his memorandum opinion and order, the circuit court judge
below–who had the opportunity to assess the demeanor and credibility
of the witnesses who testified on behalf of the City–described the
failings in the City’s evidence as follows:
“Undercover police officers *** tried to entrap the dancers in
an attempt to show prostitution and solicitation. According to
the clear evidence presented at the trial, the dancers were not
interested. The police tried using video cameras planted in
their neckties–James Bond style–to show violations. That
failed too. The simplest thing that could have been done by the
City would have been to produce residents who were affected
by the existence of [the Club]. None were brought forth. At
least five police officers, a minimum of five assistant
corporation counsels and the latest in modern technology were
used to present a case that was totally devoid of proof.”
The circuit court judge further wrote that “the City did not produce
any neighbors–either commercial or residential owners or
tenants–who complained about the existence of or the effects of [the
Club]. No Testimony was offered by the City that [the Club] operated
in a manner which unreasonably interferes with the health, safety,
peace, comfort of convenience of the general public.”
Accordingly, the record affirmatively refutes the allegation of the
City that there was solicitation and/or prostitution in–or associated
with–Pooh Bah’s club. It is blatantly improper for this court on review
to intimate that it is only a matter of time before the historical negative
secondary effects, including prostitution, occur–despite the fact that
the record in this case is completely devoid of such evidence. This
court unjustly places its imprimatur in a published opinion on the
-61-
suggestion that Pooh Bah’s club has in the past and/or will in the
future be connected to these types of illegal and undesirable activities.
In addition, Pooh Bah also states in its petition for rehearing that
this court has selectively reached outside the record to inject “facts”
into its opinion which are not only “irrelevant, defamatory and
consistently one-sided,” but also which occurred subsequent to the
proceedings in the circuit court below, in an effort to support its ruling
in favor of the City and against Pooh Bah. According to Pooh Bah’s
rehearing petition:
“[T]he Court has expended extraordinary sua sponte effort to
inject irrelevant and tertiary references to other’s criminal
conduct and associations, as well as baseless accusations of
‘prostitution’ to taint the Club and its ownership. This is not
only completely unnecessary to the decision in this case, but
misrepresents the facts and relationships involved. It is also
unfair. Pooh Bah has no opportunity here or on remand (under
the current order) to present rebuttal evidence. *** Such guilt
by association has no place in a judicial opinion.”
I agree.
In its rehearing petition, Pooh Bah points to the information
contained within footnotes 2 and 3 of this court’s opinion as being
particularly egregious. Both of these footnotes contain outside-the-
record information which is blatantly unfair to defendants and
irrelevant to this court’s decision. For example, footnote 2 maligns Joe
Pascente–one of four assistant managers at the Club–as the son of a
convicted defrauder, and impliedly paints him with that same brush.
As far as this record reflects, Joe Pascente has not been convicted of
any crime, and is not “associated” with any other criminals. In
addition, the statement in the footnote that the Chicago police
department “fired [him] for failing to disclose that he was a subject of
an FBI investigation into insurance fraud involving his father” is
improper. The record below reflects that Joe Pascente denied that he
was ever a subject of an FBI investigation, there is no judicial finding
on this issue, and there is no evidence in this record–nor any cited in
the challenged footnotes–to confirm that he was such a subject. The
City’s police personnel file (on which the City attorney said that she
based her accusation during the hearings in the circuit court) is not
contained in this record. Nevertheless, this court’s footnote treats that
-62-
hearsay allegation as a fact in a published opinion, with respect to a
person who has not been convicted of any wrongdoing. This is
improper and sets a disturbing precedent.
In addition, with respect to Joe’s father, Fred Pascente, the record
reflects that he was a retired Chicago police detective who was an
employee of the Club, but had no management authority. Footnote 2,
however, insinuates that Fred Pascente was running the Club, and that
there is an association between the Club and nefarious criminals
because Fred Pascente is now listed in the Nevada Gaming
Commission’s “Black Book.” I note that this listing occurred
subsequent to the conclusion of the protracted litigation below, and
that this information was drawn by this court from sources outside the
record on appeal.
Similar concerns exist with respect to footnote 3 in the opinion. In
this footnote, the court has provided a detailed resume of the legal
problems faced by Fred Rizzolo which apparently have occurred
subsequent to his involvement with the Club, and which have been
gleaned, once again, from sources outside the record on appeal. The
record in this case reflects that in 1995 the Club’s owner, Perry
Mandera, entered into management and licensing agreements with
Rizzolo, who owned a Las Vegas strip club known as the “Crazy
Horse Too.” Mandera stated that he wanted to license the nationally
recognized “Crazy Horse Too” name for his Chicago Club because it
would be a name known to Chicago conventioneers and, therefore,
work as a benefit to the business. As this court’s opinion notes, the
Club operated under the “Crazy Horse Too” name until 2003.
Footnote 3 of the court’s opinion, however, focuses on Rizzolo’s
legal difficulties in 2006 with respect to the operation of his Las Vegas
club, with no indication that any difficulties arose with respect to his
association with Mandera’s Chicago Club, or that this played any part
in the proceedings below. Because the City did not allege criminal
infiltration of Pooh Bah’s business, Pooh Bah had no reason to rebut
such claimed associations in the circuit court below, as they were first
emphasized in this opinion on appeal.
As a court of review, it is our role to examine the record below
and review the validity of the judgments below. It is not our role to
supplement the record on appeal. Will litigants now expect that in
every case this court will comb the Internet or other outside-the-
-63-
record sources of information–whether reliable or not–to gather up-
to-the-minute information irrelevant to the disposition of the legal
issues in their case on appeal, but prurient enough to include as
tantalizing side-pieces of information contained within the footnotes
of this court’s opinions? After the opinion filed in the matter at bar,
they would be justified in so believing.
It is unclear to me why, at the very least, this particular portion of
Pooh Bah’s petition for rehearing has not generated any type of
response from my colleagues in the majority. Do they not agree that
such errors, omissions and distortions of the record in this case
warrant a correction?
Because I am troubled by the points raised by Pooh Bah in its
petition for rehearing, I believe that this matter merits further
reflection by this court on rehearing. Accordingly, I respectfully
dissent from the denial of rehearing in this cause.
-64-
APPENDIX
N THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DMSION
CITY OF CHICAGO, an Illinou municipal corporation, . )
Plaintiff-Counterdefendanh 1
1 No. 99 CH 9682
Va. 1
1
POOH BAH ENTERPRISES,INC, an Illinois corporation, )
and PERRY MANDERA,
1
Defendan~ounterplaintiffs. 1
POOH BAH ENTERPRISES, INC.,an Illinob corporation; )
ACE ENTERTAINMENT CO., NC., an Illinois corporation; )
PERRY MANDERA, Pooh Bab president and Ace
Entertainment Co., Inc president; LISA D. SUMS,
CHRISTEN E. HADSALL, and SUSAN L LJENQUIST, 1
entertainen and dancers; and PETER ABRUZZO, )
1
Plaintif& )
1
v. No. 93 CH 4559
CITY OF CRICAGO, an Illinois municipal corporation;
RICHARD M. DALEY. in his ofEcid caeacitv u Mayor of )
thecity of Chicago; *STON MARD~S,i h i s offteid . )
capaci& ~1~ i r e c i oof
r the Mayor's License Commission; 1
LICENSE APPEAL COMMISSION WILLIAM D.
O~DONACINE, ch-m; ALBERT D. MCCOY md 1
IRVING J. KOPPEL,Commlrsionerr, 1
1
Defend8nta. 1
C
-
- - - - - - - - - - - - -
- - - -
These cases are before the court on Pooh Bah's motions for directed findings a 6f
judgment at the conclusion of the City's case-in-chief on the City's Counts I-VinN0. 99 CH 9682
.- - i n-i o n pooh i ah's CountsVI and W in No. 93 CH 4559, and o i the @a'' '
stipulationsubmining
the cases for a o i & - ~ mb*-alongm
f tive =vim,oubjcct - - - - -
' In this o&, 'city"refers to plaintiff in No. 99 CH 9682 and, w f l d v e l ~to
,
defendants in No. 93 CH 4559; and "Pooh Bah" refers, collecti``ly,
to defendant3 in No. 99 CH
9682 and to plaintiffs in No. 93 CH 4559. -
s a l l parties of their respective rights to present additional evidence if thex motions
to ~ s m a t i o nby
an not M y dispositive; and the court, being fully advised in the premises, docs now FMD:
1. The City has rested on its following claims and defenses, which an ripe for a ruling
on Pooh Bah's motions for d i i t e d findings and for judgment:
(a) C o w EIlI of its complaint in NO. 99 CH 9682 (seeking injunctive relief);
(b) the liability issues in Counts IV and V of its complaint in No. 99 CH 9682
(setking fines); and
(c) its defense against Pooh Bah's facial constitutional attack on 9 4d0-14qd)
of the Chicago Municipal Codc,
2. The court reailirm the d i n g s set forth in its Memorandum Opinion and Order
issued January 18,2001 ("Janwy 18" Memorandum Opinion") and in Lhe m p t
of proceedings in this case dated August 21,2000 ("August 21' Rulings"); and
3. Appellate review of this court's decision, as set forth in the January la*
Memorandum Opinion and the Augurt 21' Rulings, will expedite the ultimate
resolution of this matter and wnserve judicial resources;
WHEREFORE.IT IS HEREBY ORDERED:
1. For the m h s stated in the January 1gh ~ e k o m d u mOpinion and the August 2lX
Rulings, Pooh Bah's motions for directed findings and forjudgment an gmnted, and
therefore:
(a) in case No. 99 CH 9682, judgment is entered for Pooh Bah and against the
City on Counts I-V of the complain1; and
@) in case No. 93 CH 4559, judgment is entered for PPoo Bah and against the
City on Counts VI and VII,. and the order of the Chicago License Appeal
.,Commissionin No. 93 LA 11, a f E m h g the orda of mocation entered by
the Mayor's Licew Commission inNo. 99 LR32, isrcversed; charges 1-22
in No. 93 LR 32 arc dismissed; and the revocation of Pooh Bah's City
licenses is vacated and set aside,
TheJanuary 18" MemorandumOpinion and the August 2 laRulings arc incorporated
into and made a part of this order.
------ ---- - -.-. __ _ _ _ _ _ _
._ .
The wurt retainsjurisdiction:
(a) in No. 99 CH 9682, over Pooh Bah's pending amended counterclaims and the
City'saiihative defenses thereto;
(b) in No. 93 CH 4559, over Pooh Bah's remaining claims and the City's
affirmative defenses thereto;
(c) over the remaining trial of these matters, if any of the judgments herein shall
be reversed or vacated, for which purpose:
(i) the City has reserved its right to present additional evidence on the
amount of the fines to be assessed on Counts IV and V in 99 CH
9682; and
(ii) Pooh Bah has reserved its right to present additional evidence in
opposition to Counts I-V and in s up srt of its affirmative defenses
and amended counterclaimsin No. 99CH 9682. and in mr,wrtof its
claims in No. 93 CH 4559, if the judgments this & are not
affirmed in a finel and non-appealable ordw,
4. AU proceedings in these two cases shall be stayed pending a finalorder onthe appeal
from this o*,
5. There is no just reason for delaying enforcement or appeal of the judgments in this
orda, and
6. This order shall be entered in both No. 99 CH 9682 and No. 93 CH 4559.
E P J TkCt Ra - C D
. City of Chicago Law Department
Chicago, Uhois 60602 30N.L ~ St. SCte. 900
Chicago, Illinois 60602
bbat I iVb
- - - - ~ - - ~ ~
.
~ttom&sfor the City *oarties .
-- - w
--. c 1%weew - - .-- - - - - - . - .- _ - - - - - - - ._- - - .- - - - .- - ...-- - - - .- --...- - -
30 N.LaSaUe St, Ste. 2800
Chicago, wi 60602
~ltomeysfor the Pooh Bah parties
. .
DATED: April -
2001.