City of Chicago v. Pooh Bah Enterprises, Inc.

(No. 99804. CHICAGO,

CITY OF POOH BAH Appellee, v. ENTER PRISES, INC., al., et Appellants.

Opinion Rehearing October denied March 2007. filed 2006. Epstein, A. J. David Robert Weber and Thomas R.

Rakowski, Chicago, all of appellants. Georges, Counsel,

Mara S. of Corporation Chicago (Lawrence Rosenthal, Solomon, Benna Ruth Meera Werth, Elinor Myriam Zreczny Jane Notz and of Kasper, counsel), for appellee.

JUSTICE KARMEIER delivered judgment of court, opinion. with Kil- Fitzgerald,

Chief Justice Thomas and Justices bride, and judgment concurred in the Garman opinion. rehearing, upon of dissented denial Freeman

Justice opinion. with part in decision. no Burke took

Justice OPINION 60—140(d) Municipal Code of Section 4— Chicago prohibits to serve licensed establishments any employee, beverages permitting from alcoholic “any engage patron act, live demon to entertainer or *** exposes public to stration, or exhibition which dance *** *** pubic genitals, [h]is hair, buttocks or her view [a]ny portion the areola breast at or below of the female today is to resolve The we are asked thereof.” issue and fourteenth the first this ordinance violates whether (U.S. to States Constitution amendments the United XIV) 4, of the Il I, I, article section Const., amends. §4). (Ill. I, Const. art. linois Constitution County that it does. The court of Cook found circuit appellate 1—01— it not. Nos. court concluded that does cons, (unpublished order under 0592, 1—01—1932 23). Supreme follow,we Court Rule For the reasons that judgment appellate court. affirm the appeal began gave rise The events which City Liquor Commission of Control when against Chicago proceedings initiated administrative (Pooh Bah), Enterprises, to revoke various Pooh Inc. Bah company, municipal been issued licenses which had liquor including municipal The chal its license. retail company lenged in con had been issued licenses “gentlemen’s operation a so-called nection its Kingsbury Street in the at 1531 North club” located Chicago.1 that the revocation was The basis for the permitted through agents, company,by had vari- court, testimony the circuit According presented commercial establishment “gentlemen’s club” denotes a term by where, fee, dancing nude or live patrons can watch seminude women.

ous female dancers at club to their expose buttocks portions of their breasts at or below the areola to 60—140(d) public view violation of section 4— Chicago Municipal Code.

The record shows that Pooh Bah was originally owned an individual Jim named Levin. Under Levin’s ownership, Pooh operated Bah the club as the “1531 Club.” began When Levin experiencing prob- financial lems, Mandera, Perry owner president of a Chicago- area-based shipping company known as The Custom Companies, $300,000 lent him in exchange security for a interest in 50% of Pooh Bah’s stock. Mandera subse- quently $500,000 lent Levin an additional to finance improvements to the club undertaken in connection with becoming franchisee of a “strip” oper- chain of clubs ated Michael J. Peter Management, Inc., Club under the name “Thee Dollhouse.”

Prior format, to the switch to Thee Dollhouse no nude or dancing performed seminude was at the club. Strippers did not until the appear club became affiliated the Michael organization. with J. Peter Unfortunately for Levin, the introduction did strippers not bring financial solvency, and he was unable repay Mandera he money ultimately owed. Mandera took full over ownership of Pooh Bah an through entity he owned called Ace Entertainment.

According Mandera, to his testimony, Ace through Entertainment, became the sole owner of Pooh Bah and strip thus the club in the summer taking of 1993. After over, Mandera terminated the club’s connection Michael J. Peter organization. place company, of that Mandera, Bah, through Pooh entered into management licensing agreements with Frederick John “Rick” Rizzolo, Vegas strip owner of a Las club known as “The Crazy Horse Too.” Rizzolo became active the manage ment of Pooh Bah’s club in while the license revoca services, his For pending.2 still were proceedings tion month, $20,000 plus expenses. travel paid per Rizzolo was name club the regime, dropped the Rizzolo’s Under the same operating under began “Thee Dollhouse” Crazy “The Horse Vegas, club in Las Rizzolo’s name as he his club with affiliated explained Mandera Too.” Crazy Horse across The because, when he came Rizzolo they did.” He was “[he] in Las liked what Vegas, Too to expand and its desire by the club’s success impressed Mandera, Rizzolo will- to was According into other cities. arrangement financial than him a far better ing give to organiza- had Michael J. Peter the one Pooh Bah with the provided Rizzolo also Pooh Being affiliated with tion. of dancers Rizzolo used. pool Bah with access to same addition, like that Rizzolo “seemed Mandera testified he had no required management 2Mandera assistance because running strip Interestingly, Bridges, Thomas experience clubs. general manager Riz- be when person Mandera hired to the club’s scene, experience go- had either. Prior to zolo entered the no such Mandera, detective ing Bridges had been a to work Pascente, police of the club’s as- Chicago department. Joe one police managers, depart- also sistant had been associated with officer, failing to probationary He but fired for was a was ment. subject investigation FBI insur- disclose that he was the of an into father, investigation involving his Fred Pascente. That ance fraud charges. ultimately fraud led Fred’s conviction on federal mail Bridges, Chicago police Fred had detective. Fred As with been a Gaming Commission and Pascente now listed the Nevada Gaming persons Book” of excluded Control Board’s “Black State fraud and on his connection based on mail conviction Chicago http://gaming.nv.gov/ organized crime in the area. See Joe, employed at the According to Fred was loep_pascente.htm. began working at the club when he there in 1995 and remained originally who up person Fred is the club until the middle 1999. family described Mandera introduced Joe to Mandera. Joe club, taking job at the he that before friend testified shipping company. for Mandera’s worked a very person nice, nice operated up-scale opera ***.”3 tion operated club under the Crazy name The Horse According

Too until 2003. briefs and records of the Secretary State, Illinois the establishment now does “VIP’s, business under the name A “VIP’s” or Gentle- Club.” any parties men’s Absent indication from the contrary, we and opera- assume that ownership unchanged. tions remain the time proceedings

At the license against revocation Pooh Bah commenced and throughout period relevant litigation, to this its club at North Kingsbury Street provided something has that other licensed establish- selling liquor by Chicago ments the drink in do not: seminude dancers. Entertainment venues featuring nude and seminude operate City’s female dancers within the in limits compliance municipal with ordinances. None of them, however, a liquor Throughout has license. all of Pooh Bah’s club is Chicago, only commercial estab- 3Shortly argued court, after this case was in our Rizzolo pleaded guilty in the United States District Court for the District felony charge of conspiring Nevada to a of to the United defraud Vegas operation States of taxes in connection with of Las The his Crazy Rizzolo, Horse Too club. See United States America v. No. of (June 2006). CR—188—PMP—PAL, 1, Memorandum Plea 2:06— time, Inc., parent At Company, the same The Power is the which club, guilty company Vegas pleaded charges of the Las to federal of “Conspiracy Participate Enterprise in Through an a Pattern of Racketeering.” See United States America v. The Power of Inc., Company, CR—186—PMP—PAL, No. Plea Memoran 2:06— (June 2006). 1, Proceedings dum in federal district court are a may judicial of which matter the courts this state take notice. (1992). See, Corp., 35, e.g., Chrysler part 155 Ill. 2d As Pfaff v. sold, plea agreements, of the federal must be and Rizzolo the club having any owning, operating, is from barred or involvement strip any pornography clubs or involved in or similar businesses United and its ter erotic entertainment or media States for the ritories remainder his life. liquor the drink danc- sale of where the

lishment ing by women are combined. seminude nude seminude danc- The mix of alcohol sales always Roger ing O’Brien, G. veteran so rare. was not Depart- Chicago police in the has worked officer who that since testified District vice unit ment’s 18th City’s was once Street entertainment district Rush strip served alcohol. clubs, all which home to 12 or 13 During prostitution the clubs time, in and around According pervasive. late O’Brien, in the 1970s was every prostitutes corner in there mid-1980s, were clubs, area, waitresses Rush and inside the Street frequently solicited customers sex. and dancers waged by City during Antiprostitution campaigns ultimately all 1980s resulted in the closure of these strip establishments. O’Brien estimated when serving down, clubs alcohol shut the number of were prostitution 80%. arrests the area declined Chicago’s Pooh Bah’s club is not located Rush any entertainment area and not related Street City’s strip type 1970- and clubs. 1980-era presented would, at Pooh Bah’s club entertainment patrons probably however, be of those now- familiar paying defunct charge, After an admission establishments. year club in the customers of the enter $15 containing stage area, a bar, a room an elevated performers going turns tables and chairs.4 Female take stage, they clothing dancing remove their while on where part, background prerecorded For the most to music. testify performers to in this had not received called case configured hearing in the case 4As club was when last held, a located in an elevated area special was “VI.E” room was patrons adjacent an to main room. The “VI.E” room afforded permitting them privacy still to view additional measure of while payment required to the room the rest the club. Admission an additional fee.

any training. taking formal dance One described dance when was lessons she a Another indicated child. taught steps, she while had been never dance she had choreographed choreographers” “either or hired to assist performance. her in her evening,

Over the course of an more than women may perform stage. During performances, on those patrons waitresses take drink orders from and serve them at their tables. When an entertainer has finished stage, through mingle on she will circulate the club and objective doing Her with customers. twofold. expected money First, she is to earn for the club encouraging patrons buy premium-priced to drinks for major themselves and her. for Alcohol sales are a source According income, of the club’s which is substantial. to testimony given by gross Handera in the club’s an- By comparison, strip nual revenue was $7 million. clubs Chicago that did not serve had alcohol annual revenues only one or two million dollars. performer’s objective circulating A second when through money through the club is to earn for herself tips.5 tips providing Dancers receive for two basic (1) (2) sitting talking services: doing customers6 simply table A dances. table dance is a brief occasionally tipped performing 5Performers were also while stage. proceedings began, tips When these were the source sole compensation actually paid performers, for most the club’s who perform opportunity a fee to the club for the The to there. current compensation scheme, corporate intermediary which involves employer, appears payments the women’s nominal include some arrange tips. to the dancers in addition to sums earned as financially rewarding performers. According ment is a one Handera, average making dancer at the club was “six figures year” by year reported 2000. his own take Handera $75,000 per from the club to be month. Crazy

6According performer Tyra Andrews, Horse Too H. “Rio,” range topics weather of conversation from the a/k/a “someone’s, you know, intricate fantasies.” sexual at the for a customer performs dancer which a striptease charged is for this An additional fee table. customer’s club, charge a table basic At Pooh Bah’s service. as receiving much $20, reported dancers as dance is but $100. at on customers’ stage

The dances performed typically Performers intended to be erotic.7 tables are fashion, enhancing often suggestive in a sexually move Club pubic areas. by rubbing their breasts the effect at foot stay least one that dancers are policy specifies dances, but evidence during customers table away from routinely restriction is record suggests forbidding ignored. policy The is true of a club same to have contact with customers. physical dancers deliberately do performers record shows that sometimes report table One included during touch customers dances. nibbling. Tracey Sula admitted kiss Lynn earlobe Dancer on the cheek. ing customers onstage performances both and the table

During totally, dances, although not performers largely, become stage of a By striptease, nude. the conclusion whether on table, a only clothing item of at customer’s still on is a sometimes referred thong, dancer will have garment a “T-bar.” That consists of a narrow attached of cloth intended panel waistband which is A runs pubic strip the woman’s area. material cover up legs, the front between the woman’s panel, from buttocks, to the through the cleft of her then attaches sexually stimulating performances il- 7The effect of the place May an the club took lustrated event at which 2000, shortly evidentiary hearing Ac- before the final in the case. Mandera, police customer cording to had to be summoned when a “expose[ penis stroking in full ] moved to his erect and was it was Mandera, patrons who was view of other entertainers.” present episode place, at- physically the club when this took at injudicious antidepressant it to the use of tributed customer’s implicated. Prozac. Alcohol was also medication waistband at the It back. is similar to a traditional G-string except strip running that the cloth between the performer woman’s buttocks is wider. When a wears a thong, G-string, however, her anus is As concealed. with a completely exposed. her buttocks are left Although performers at Pooh club Bah’s remove all clothing thongs they they of their dance, but their when apply makeup nipples also flesh-toned and latex to their makeup and The areolas. and latex not do conceal the nipple They merely the contours of area. obscure the naturally portion darker color of that of the women’s presented breasts. Evidence was that the dancers are required by policy practice also club and to extend the covering makeup triangular and latex to a area extend- ing portion below the areola in the area in frontal the any performers the breast. Whether at female Pooh Bah’s actually open question. clear, club ever did to It is however, that the sides entire of the dancers’ breasts fully exposed makeup coating. remained no latex or photographs From and video exhibits contained in the appear record, the dancers’ breasts nude. But for the change nipples areolas, in color of the and one could not any tell that the dancers’ had in breasts been covered way. Testimony investigating police from officers indi- person, through that, cated in could one sometimes see makeup the and latex and discern the difference col- fleshy portion oration and between dancer’s areolas of her breasts. changed

While the name of Pooh Bah’s has club over years, way appeared have when dancers interact- ing with customers has remained constant. combina- nipples tion of “T-bars” latex-covered and areolas adopted has been a hallmark of the club since it first “gentlemen’s previ- club” we have format 1993. As ously again later, indicated, and as we shall discuss municipal Chicago prohibit do ordinances women in that of undress. state dancing from customers here, been clubs have period at issue Throughout dancers who City featuring in the operate to permitted where Indeed, are establishments wear less. there even trig- nudity. in a What complete state of perform dancers present Bah’s decision to litigation is Pooh gered this continuing makeup while in “T-bars” latex dancers beverages patrons. alcoholic serve danc- of nude or seminude Pooh Bah’s combination authori- ing opposed municipal sales liquor was it. Pooh Bah introduced attempted ties as soon as club 1993. were dancing February City police seminude two conducting investigations on the within premises month, Liquor Com- By following weeks. Control City of had administra- Chicago mission of the initiated against tive Pooh Bah revoke various proceedings company, licenses which had been issued municipal municipal The basis for including liquor its retail license. revocation, opinion, as indicated at the outset of this through had company, by agents, was that 60—140(d) Municipal violated section of the Chicago 4— Code, prohibits which establishments licensed to serve beverages permitting any employee, alcoholic from patron “any act, entertainer or demon- engage live *** stration, dance or exposes public exhibition which *** *** pubic hair, view or her buttocks or genitals, [h]is [a]ny portion of female breast at below the areola ordinance, purposes foregoing thereof.” For of the if are view body parts exposed public considered to be they completely are “uncovered or less than [are] §4 Chicago Municipal covered.” Code opaquely —60— 140(d) (2006). revocation attempted

Pooh Bah to block license by injunctive for relief in the filing declaratory a suit of Cook The court denied County. circuit court circuit restraining order. request temporary Pooh Bah’s for a The Local Liquor Commissioner City of Chicago subsequently entered an order, following the requisite notice and hearing, which revoked 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, fact, 60—140(d) violated section of the Municipal 4— Code.

Pooh Bah appealed the revocation of its liquor licence to the Chicago’s liquor appeal commission pursu ant to sections 7—5 and 7—9 of the Liquor Control Act (235 (West 1996)). of 1934 ILCS 7—9 The Com 5/7— mission affirmed. Pooh Bah petitioned for rehearing. 235 (West 1996). ILCS When petition 5/7 —10 was denied, Pooh Bah sought judicial review the circuit court of County Cook pursuant to this state’s Administra (735 (West tive 1996)). Review Law ILCS et seq. 5/3 —101 (West 1996). See 235 ILCS 7—11 The request for 5/7— judicial review was asserted Pooh Bah means of a new count added an amended complaint it filed in con nection with its civil action declaratory and injunc relief, tive which remained pending.8

Revocation of Pooh Bah’s municipal licenses was stayed judicial while review of the revocation decision underway was and Pooh Bah’s civil action continued. City, however, did not wait for those matters to be resolved before taking further action. It filed a counter- claim 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 sought

8Pooh Bah also review of the revocation of its other municipal respect revocations, licenses. proceeded With to those it by petition certiorari, means of a for a common law writ of which it included as an additional new in complaint. count its amended propriety procedures employed by of the Pooh Bah for secur- ing challenged administrative review has not been and is not at is- appeal. sue in this 4—090(a) Chicago Municipal of the

violated section 8— statute, Code. Under that illegal gambling, “[a]ny premises prostitution, used for *** activity trafficking any or other

illegal [drug] misdemeanor, felony, petty or constitutes a business offense federal, municipal hereby offense under state or law is public Chicago Municipal ***.” declared to be a nuisance 4—090(a) (2005). §8 Code — view, committing In Pooh Bah a business City’s was of this statute al- petty meaning or offense within acts, demonstra- lowing engage its entertainers to live tions, public dances or exhibitions which to view expose the buttocks and female breasts at or below portions of 60—140(d) of the the areolae violation section 4— Municipal Code.

The foregoing proceedings, designate which we shall case, as the license Because protracted. revocation were stayed review, the license revocations had pending been however, Pooh Bah’s licenses remained in ef- municipal fect and the able to continue company operating was club at strip Kingsbury throughout 1531 North Street the remainder of investiga- the 1990s. further tion police undercover officers revealed that dancers at the club continued engage type of conduct triggered which had the initial license revocation proceedings years six earlier. The therefore filed a new action in the circuit court of County Cook to obtain injunctive relief to shut down the club. City’s

The basis for the claim was essentially new same as that asserted in connection the original license revocation case. According City, Pooh Bah had violated and continues violate section 4—60— 140(d) Chicago Code of Municipal by “causing, encouraging permitting” performers female at the engage club to in dances or exhibitions expose “which public portions view of the female breast at or below the areola, buttocks, hair pubic regions portions

of the genitalia.” City alleged further that Pooh Bah 4—090(a) inwas violation of section of the Chicago 8— Code, the nuisance Municipal city’s public ordinance. City’s Unlike the counterclaim in Pooh Bah’s civil action revocation, the license challenging City’s public nuisance claim in this case not only charged violation of ordinance, liquor it asserted that Pooh Bah had caused, encouraged and female permitted performers engage prostitution prostitution. and to solicit for filing relief, After its new complaint injunctive City moved for issuance preliminary injunction. of a Following discovery and a series of hearings extending months, several the circuit in January over court ruled 60—140(d) of 2001 that section of the Code Municipal 4— Chicago contravened the first and fourteenth amend (U.S. Const., ments to the United States Constitution XIV) I, I, 4, amends. and article section of the Illinois (Ill. §4) I, Constitution of 1970 Const. art. predicate City’s therefore could not serve as the for the claim that Pooh Bah’s club in a strip being operated was manner nuisance. public Concluding constitutes that the had failed to establish that of the City operation strip any way, club created a nuisance in other public City’s preliminary circuit court denied the motion for a injunction.

By the circuit court agreement parties, tunc, 3, 2001, May amended its nunc ruling, pro In order clarify provisions. separate certain of its granted a day, entered the same the circuit court also to consolidate the license joint parties motion nuisance case and to public revocation case with the in connection evidentiary developed record adopt as the basis injunction with the motion for a preliminary revocation and public for resolution of the license ayet nuisance cases on the merits.9 third order dated 3,May judgment the court entered in favor of Pooh City’s Bah and on the nuisance against public claims; the liquor appeal reversed decision of com mission of Pooh Bah’s upholding municipal revocation licenses; licenses; vacated the revocation of those reserved for future consideration related various issues; subsidiary express finding and made an written just that there was no delaying reason for enforcement or appeal. City took an interlocutory appeal from the circuit

court’s judgement.10 Rejecting posi the circuit court’s 60—140(d) tion, appellate the court held that section 4— of the Code of Municipal Chicago does not violate either the federal or the Illinois Constitution. Because the ordinance unconstitutional, is not the appellate court further held that violation of the ordinance could serve (1) as the basis for revoking Pooh Bah’s municipal (2) finding licenses that operation Pooh Bah’s of the strip club constituted a public nuisance. The appellate court therefore reversed the circuit judgment court’s remanded for further proceedings with respect to both the license City’s revocation case and the public nuisance cons, 01—0592,1—01—1932 claim. Nos. (unpublished 1— 23). order under Supreme Court Rule failing After persuade appellate the grant court to rehearing, Pooh Bah petitioned our court appeal. for leave to 177 Ill. 2d granted R. 315.11We petition, and the cause is now before us for review. agreed City

9The order right present reserved to the the ad- regarding ditional evidence the amount of fines that could he imposed on Pooh prevailed Bah the event the the merits. 10Although procedural appeal speci basis for was not fied, interlocutory permissible Supreme review was under Court 304(a) (155 304(a)) 307(a)(1) (188 Rules Ill. 2d R. Ill. 2d R. 307(a)(1)).

11Perry Handera, who, through Enterprises ACE is now the

406 is resolving appeal, pivotal inquiry 60—140(d) Code of Municipal whether section 4— Illinois either the United States Chicago violates validity municipal assessing When Constitution. ordinances, analysis guided by is the same standards our Morales, v. 177 Ill. City Chicago to statutes. applicable (1997). statutes, 440, ordi municipal 2d 447 As with Wolak, Chavda v. 188 presumed nances are to be valid. (1999). 394, rebutting 2d 398 The burden of Ill. challenging the law’s valid presumption party is on Evanston, 415, 2d 57 Ill. ity. La Salle National Bank v. (1974). constitu uphold are obligated 428 Courts reasonably possible it is tionality of ordinances whenever Co., Ill. 75 Chicago to do so. v. Alton R.R. City of (1933). constitutional legislative enactment is Whether review de novo. See question of law which we presents (2006). White, Ill. 2d O’Brien v. Bah’s contention that section

We consider first Pooh 60—140(d) Chicago violates Municipal Code of 4— United States Constitution. amendment to the first through binding on the states The first amendment clause. v. process People amendment’s due the fourteenth (2003). Alexander, 472, 2d It provides, 204 Ill. 476 *** abridging make shall no law part, “Congress Const., amend. I. freedom of U.S. speech.” literally only forbids the first amendment Although States of the United speech, of freedom abridgement recognized protections long Court has Supreme They may limited word. spoken to the written or are not Johnson, 491 Texas v. conduct. expressive also extend to 2533, 342, 353, 109 S. Ct. 397, 404, L. Ed. 2d U.S. 105 Bah, proceedings in the party to the of Pooh was sole owner appeal petition for leave to joined in Pooh Bah’s courts and lower position is identical purposes appeal, this his For of to our court. which Bah’s, to Pooh Bah in the discussion and reference to Pooh to include him. he understood follows should

407 (1989). Generally speaking, 2539 the first amendment from prevents government proscribing speech or disapproval conduct because of expressive of ideas regulations Content-based are expressed. presumptively Nevertheless, of upon invalid. restrictions the content speech traditionally have been in a few permitted limited “ slight areas which are ‘of such social value as a step to any may truth that benefit that be derived from is them clearly outweighed by the social interest in order and ” morality.’ Paul, 383, 377, R.A.V. v. St. 505 City U.S. of 305, 317, (1992), 120 L. Ed. 2d 112 2538, S. Ct. quoting 568, Chaplinsky v. New Hampshire, U.S. (1942). 572, 86 1031, 1035, 766, L. Ed. 62 S. Ct. Under the first amendment jurisprudence developed by the United Supreme Court, States freedom speech does not include ignore freedom to these traditional limita- Paul, tions. R.A.V. v. St. 505 U.S. at 120 L. Ed. 2d at 112 S. Ct. at 2543.

The municipal ordinance challenged in this case pertains acts, demonstrations, to live dances exhibi- tions which expose public performer’s view the genitals, pubic hair, or, buttocks in the case female performers, any portion of the breast at or below the areola. The ordinance does not bar such performances, all only those that take place at establishments licensed to serve alcohol. At the time the license revocations were case, initiated the United States Supreme Court adhered where, here, to the view that the sale of involved, alcohol the regulatory authority conferred on twenty-first states amendment to the United (U.S. XXI) Const., gave States Constitution amend. states and their political power subdivisions ban nude dancing. Under the analysis, Court’s powers broad regulate the states to sale liquor pursuant to the twenty-first amendment first outweighed any amend- ment interest in nude The state dancing. therefore had

408 nude of its authority dancing part liquor

the to ban as a Iacobucci, v. licensing program. City Newport 479 U.S. (1986), 92, 334, 339, 383, 95, L. 2d 107 S. Ct. 385 93 Ed. LaRue, v. 109, 114, Ed. 409 U.S. 34 L. quoting California (1972). 349-50, 342, 390, 2d S. Ct. 395 As the Court 93 Bellanca, v. Authority noted in New York State Liquor 357, 2599, 714, 718, 361, 452 L. 2d 101 S. Ct. U.S. 69 Ed. (1981): 2602 may artistic communicative value attach

“Whatever the its dancing is overcome State’s exercise of topless powers arising Twenty-first the Amendment. broad under Although may quarrel with wisdom of such some the topless dancing a may harmless legislation and consider diversion, Twenty-first policy makes Amendment judgment legislature, state not the courts.” LaRue, 109, 2d v. 34 L. Ed. See 409 U.S. also California (1972) 342, sweep twenty- (given S. Ct. broad 93 390 sexual amendment, regulations prohibiting explicitly first in bars and other establish- live entertainment films facially the drink not dispense liquor ments licensed to invalid). 60—140(d) authority, section foregoing

Under 4— nude prohibits which Municipal Chicago, Code to sell alcohol in establishments licensed entertainment drink, challenge on clearly subject not be by the would During of this grounds. pendency first amendment however, Supreme Court litigation, the United States the first and its between interplay altered view of 44 Inc. v. Liquormart, amendments. twenty-first 711, 736, 2d Island, 516, 134 Ed. Rhode U.S. L. (1996), the Court held that while 116 Ct. S. amendment twenty-first Clause on of the dormant Commerce “limits effect delivery or use regulatory power over the State’s borders, its ‘the Amendment intoxicating beverages within obligations ignore under their does not license the States [Citation.]” provisions of Constitution.’ other that “the prior cases specific holdings Noting in diminish Twenty-first any way Amendment does not [citations]; the the Supremacy force of Clause the Establishment Clause Equal [citation] or the Protection [citation],” Clause Court the concluded that the same should also true free respect speech be with to the clause. 516, 736, 44 Liquormart, 517 U.S. at 134 L. Ed. 2d at 116 S. Ct. at Twenty-first 1514-15. It therefore held “the does prohibi- Amendment not the constitutional qualify tion against abridging speech laws the freedom of embodied in the First 44 Liquormart, Amendment.” 517 516, 736, U.S. at 134 L. 2d at 116 S. Ed. Ct. at 1515. the thus Although Court disavowed the reasoning employed Iacobucci, in City v. New State Newport York of Liquor Bellanca, Authority LaRue, v. v. California insofar amendment, as it relied on the twenty-first it distinguished LaRue, cases such which involved the regulation dancing of nude in places where alcohol was served. The Court held that “[e]ntirely apart from the Twenty-first Amendment, the has ample State power prohibit the sale of in beverages alcoholic inappropriate 515, locations.” 44 Liquormart, 517 U.S. at L. 2d 134 Ed. 735, at S. 116 Ct. at 1514. One of those locations is an establishment where nude dancing allowed. Accord- ingly, the held Court “analysis LaRue would have led to if precisely the same result it had placed no reliance the Twenty-first on 44 Amendment.” Li- quormart, 515, 735, 517 U.S. at 134 L. Ed. 2d at 116 S. Ct. at 1514.

Four years decided, after 44 Liquormart was the United examined Supreme States Court validity the of a municipal indecency public ordinance which it made an offense to intentionally appear public in a “state of nudity.” ordinance, Under that provisions whose were case, “nudity” similar to those at issue was *** defined include “showing buttocks with less fully showing than a opaque covering;

410 fully covering

female breast less than a opaque *** any exposure any or the device part nipple; a cover nipples worn as over areola of and/or breast, gives simulates female which device areola.” appearance of nipples realistic and/or A.M., 277, n.*, Erie Ed. 2d Pap’s v. 529 U.S. L. * (2000) n.*, 120 S. Ct. 1388 n (plurality us these op.). today, prohibi- Unlike the matter before limited licensed tions were establishments to serve alcohol. Pennsylvania corporation operated which

Pap’s, featuring totally an nude Kandyland, establishment women, dancing challenged the ordinance erotic grounds public nudity provisions that its violated first amendments to the United States and fourteenth Pennsylvania Supreme Court Although Constitution. AM. upheld corporation’s challenge v. (Pap’s Erie, (1998)), 348, Pa. 719 A.2d 273 the United States 553 In a Supreme plurality reversed and remanded. Court O’Connor, Justice the Court held opinion authored conduct, it nude dancing expressive while erotic falls ambit of the First Amend- “only within outer A.M., 289, L. 529 U.S. at 146 protection.” Pap’s ment’s 278, (plurality op.). Ed. 120 S. Ct. at 1391 Conclud- 2d at combating nega- directed at ing that the ordinance was adult secondary effects associated with establish- tive erotic suppression was to the ments and unrelated conveyed by dancing, nude the Court held message Rather, validity subject scrutiny. its it was not to strict stringent it the less intermedi- passed on whether turned O’Brien, v. 391 ate set forth United States standard (1968). 367, 672, Pap’s 20 L. Ed. 2d 88 S. Ct. 1673 U.S. 282, 146 2d 120 Ct. at 296, L. Ed. at S. A.M., 529 U.S. at op.). (plurality 1394-95 be O’Brien, will regulation a content-neutral

Under (1) of the power if it the constitutional upheld is within (2) important or substantial furthers an government, (3) governmental suppres- interest, is unrelated to the (4) expression, sion of free restricts first amendment freedoms than no further is essential to further the government’s O’Brien, 377, interest. 391 U.S. at 20 L. (1968). Ed. 2d at 88 S. Ct. at 1679 Court Pap’s nude-dancing AM. held that the ordinance at issue justified in that case was under these Accord- standards. ing municipality’s protect Court, to the efforts to public safety clearly police health and were within its powers. city’s undeniably The ordinance furthered the important combating secondary interest in the harmful dancing. Pap’s effects associated with AM., nude 296-97, U.S. at 282-83, 146 L. Ed. 2d at 120 S. Ct. at (plurality op.). suppression It was unrelated to the expression, “any impact of free expressive incidental on the dancing [was]

element of nude minimus,” de leaving “ample capacity convey the dancer’s erotic message.” Pap’s AM., 529 U.S. at 146 L. Ed. 2d at (plurality op.). 286, 120 Ct. S. at 1397 public indecency indicated, As we have ordinance Pap’s general at issue in AM. was in nature. Unlike sec- 60—140(d) Municipal Chicago, tion Code of 4— restrictions were not limited to establishments licensed beverages. years following to sell alcoholic In the 44 Li- quor Pap’s Supreme mart A.M., the United States specifically Court itself has not addressed the framework analyzing which should be followed in first amendment challenges to adult entertainment restrictions contained municipal liquor regulations. in was, The however, issue recently Appeals addressed the United States Court of Village for the Bar, Seventh in Circuit Ben’s Inc. v. of (7th 2003). Somerset, 316 E3d 702 Cir. Ben’s Bar concerned an ordinance enacted the Vil- lage part, prohibited Somerset, that, Wisconsin in consumption premises sale, use or of alcohol on the “sexually village’s oriented businesses.” Under the scheme, fell within the an establishment

regulatory business,” and therefore “sexually definition of oriented alcohol, if it nude or seminude not serve featured could ordinance, nudity of the was purposes dancers. For anus, anal of the human bare appearance defined as “the area, genitals, male female cleavage, cleft or pubic breast, of the female or the or areola genitals, nipple showing of the fully opaque covering; than a with less discernibly state.” Ben’s turgid male in a genitals covered “the Bar, Seminudity exposure at 706 n.5. was F.3d the female breast male or female buttocks or of a bare of the areola at top below a horizontal line across and cover- complete opaque with less than a highest point Bar, 316 F.3d at 708. ing.” Ben’s ordinance were enacting reasons for village’s section of findings” in expressly “legislative noted itself. That section stated: the ordinance secondary concerning the adverse “Based on evidence community Sexually Oriented Businesses effects of Board, and on the Village to the reports in made available Court, federal holdings findings Supreme [numerous decisions], judicial as well as appellate and state appellate, cities conducted other and summaries studies studies Regulation of Adult findings reported ... and County, in St. Croix Entertainment Establishments Wisconsin; Report Attorney of the General’s Work- and the Village Sexually Businesses ... the ing Group of Oriented Board finds that:

(a) crimes, types that all statistics show Crime crimes, frequency in with more especially occur sex-related sexually are oriented businesses neighborhoods where located.

(b) sexually relationship oriented between Studies have found a neighborhood property values businesses commercial residential negative impact on both property values.

(c) may contribute to an Sexually oriented businesses sexually through spread public health risk increased transmitted diseases.

(d) potential There is an increase for infiltration by organized purpose crime for the of unlawful conduct. (e) consumption The beverages of alcoholic on the premises Sexually of a Oriented Business exacerbates the secondary deleterious effects of such businesses on the omitted.) community.” Bar, (Emphasis Ben’s 316 E3d at 705. ordinance,

Following enactment of this but two effect, it months before was to take a bar that provided nude and dancing liquor seminude and that held a license issued by village, dancers, with two of the along bar’s filed an against village alia, action asserting, inter that the ordinance rights violated their to free expression under Bar, the first amendment. Ben’s 316 F.3d at 705. The trial rejected court that claim granted summary judgment village. favor of the The appealed, argu- bar that ing the trial court erred in concluding that ordinance did not constitute an unconstitutional restric- tion on dancing. Bar, nude Ben’s 316 F.3d at 707.

In undertaking its review of the trial court’s judg- ment, the court appeals began by dismissing as falla- cious the bar’s contention the ordinance was directed attire, at the dancer’s or lack thereof. The ordinance, held, the court “restricts the sale and consumption beverages alcoholic in establishments that serve as entertainment, venues for adult not the at- Bar, tire of nude dancers.” Ben’s 316 F.3d at 708. The court proceeded then to review recent United States Supreme Court authority governing adult entertainment regulations, including 44 Liquormart and A.M. and Pap’s adoption of O’Brien’s four-part test. The court also Books, discussed City Angeles Inc., Los v. Alameda (2002). U.S. 152 L. Ed. 2d 122 S. Ct. 1728 That decision, A.M., which Pap’s upheld, followed at the sum- mary judgment an stage, ordinance prohibiting multiple adult entertainment businesses from in the operating same building. primary issue in ap- the case was the determining whether the ordi-

propriate standard interest. No governmental nance served a substantial but Justice majority question, could be reached on conclusion Kennedy plurality’s concurred overall demonstrating that a initial burden of municipality’s regulating interest in the adverse government substantial associated with adult entertainment is secondary effects Bar, this,” he Ben’s 316 F.3d at 722. “As slight. observed, city consistently held that a must have latitude

“we have outset, very the and that little experiment, to evidence at least at matter, general required. [Citations.] As a is second-guessing of courts should not be the business city empirical planners. [Cita- of fact-bound assessments Angeles City The Los Council knows the streets tion.] It is entitled to Angeles [Citations.] better than we do. Los appear if inferences reason- rely knowledge; on that and its able, say not there is no basis for its conclu- we should Books, 451-52, L. Ed. 2d at U.S.at 152 sion.” Alameda 691, 122 at 1742-43. S. Ct. set forth above

Based on its review of the authorities under others, the Circuit concluded that and Seventh a Court controlling Supreme precedent, United States consumption of the sale or liquor regulation prohibiting establish- of adult entertainment premises alcohol on the is constitutional if: ments “(1) legitimate regulating pursuant the State is (2) [citation]; regulation does not power the

governmental (3) [citation]; adult entertainment completelyprohibit suppression expression, regulation is aimed not at the secondary combating negative effects at but rather [citation]; entertainment establishments caused adult (4) regulation designed to serve substantial interest, tailored, reasonable narrowly government remain available avenues of communication alternative an [citation]; or, alternatively, regulation furthers interest and the government important or substantial greater than is es conduct is no expressive restriction [Citation.]” of that interest. in furtherance sential Bar, 316 F.3dat 722. original.) Ben’s (Emphasis encapsulates interme Step the so-called test four of this Washing scrutiny. Village v. Joelner diate standard 2004).12 (7th 613, 622 Cir. Park, 378 F.3d ton analytical foregoing Applying framework to village ordinance, Circuit held that the Seventh Somerset consumption regulation village’s alcohol sales general clearly inappropriate within in police powers. locations was type therefore of the The ordinance was authority government the constitutional has which the citing Pap’s A.M., Bar, Ben’s 316 F.3d at to enact. 282-83, S. Ct. at 2d at at 146 L. Ed. 529 U.S. did that the ordinance Next, the court concluded 1395. conveying employees completely from bar Ben’s Bar merely prohib- message. view, it In the court’s an erotic premises being or consumed on ited alcohol from sold Bar, 316 Ben’s of adult entertainment establishments. respect step three, the court F.3d at 723. With reviewing predomi- record, that the determined, after village adopting the ordinance was nant concern of the secondary sexually negative effects attendant to businesses, crime and reduced oriented such as increased neighboring property and residential business values suppress any village attempting to areas. The speech was not by protected or conduct the first amendment. Bar, 316 F.3d at 723-24. Ben’s Village’s these ordinance thus satisfied

Because the proceeded preliminary standards, the fourth the court explained step. applying step, In the court and final that village required to determine whether the that it was adequately a had demonstrated that there was connec- three, satisfy step step regulation

12If either two or fails regulation apply. will have to rigorous more standard will The scrutiny pass constitutional muster. withstand strict order Park, Washington F.3d at 622-23. Pooh Village Joelner v. 378 govern this argues scrutiny standard should Bah the strict opinion, Pooh Bah is For the reasons set forth later in case. incorrect. speech regulated by

tion between the the ordinance and secondary the adoption. effects that motivated the ordinance’s previously

As we have detailed, the record village judicial showed that the relied on numerous deci- “findings reported sions, studies cities, from different Regulation in the of Adult Entertainment Establish- Report Croix, ments of St. torney Wisconsin,” and the of the At- Working Group Sexually General’s Oriented (State 1989) support Minnesota, Businesses 6, June produces its conclusion that adult entertainment adverse secondary Bar, effects. Ben’s 316 E3d at 725. The court opined evidentiary “fairly support[ed] that this record Village’sproffered [the ordinance], rationale for [the had] bar failed ‘to cast direct doubt on this ” quoting Bar, rationale.’ Ben’s 726, 316 F.3dat Alameda Books, 535 U.S. at 2d L. Ed. at 122 S. Ct. at 1736. finding village’sevidentiary showing to be suf- rejected

ficient, the Seventh Circuit a claim the bar village required that the should have been to conduct its studies, level, own at the local to determine whether secondary liquor adverse effects result when is served on premises of adult entertainment establishments. Cit- ing Supreme various decisions the United States municipality required Court, the court held that a is not produce independent to conduct new studies or evidence “ already generated by long of that other cities ‘so city upon reasonably whatever evidence the relies problem city believed to be relevant to the that the ad- [Citation.]” Bar, dresses.’ Ben’s 316 F.3d at 725. rejected argument Seventh Circuit also the bar’s that the village’s fatally case was deficient because it had not ad- any reports relating specifically duced written to the ef- serving offering fects of in alcohol establishments nude dancing. Again citing precedent and seminude from the Supreme entirely Court, United States it held that it was

417 barroom nude conclude that village for the reasonable secondary effects adverse likely produce dancing was studies of specific in the absence even the local level at in noted legislature York state As the New the matter. Bellanca, challenged legislation connection with nudity any form indicates sense “[c]ommon undesirable begets public place in a with alcohol coupled (1977), quoted Ann. 150 Legis. N.Y. State behavior.” 361, 101 S. Ct. Ed. 2d at 718, at 69 L. Bellanca, 452 U.S. Bar, F.3d at 726. Ben’s at 2601. See also village’s to the whether Turning question next tailored, reiterated the court narrowly ordinance was fact, any restric- not, impose did the ordinance mes- convey an erotic ability a dancer’s tions at all on sexually oriented busi- Rather, merely it sage. prohibited nude or customers while serving from alcohol to nesses That, explained, on. the court dancing going is seminude prohibition but a expression, is not a restriction on erotic consuming (serving and conduct nonexpressive alcohol) conduct. expressive during presentation entitle view, amendment does not In the court’s the first to have alcohol available bar, patrons its dancers or its Ben’s taking place. dancing nude or seminude while cited numerous authori- Bar, 316 F.3d at 726. The court See, e.g., effect. jurisdictions to the same ties from other Control v. Alcoholic Beverage Alcoholic Department of 880, Board, Cal. 4th App. Beverage Appeals Control *** (“The (2002) state 2d Rptr. 121 Cal. performing dancers from prohibited has not They simply are forbid- expression. of erotic utmost level alcohol, and that serve do so in establishments den to offended”). thereby is not the Constitution village’s ordinance next observed that The court establishments adult entertainment was limited to art theaters, centers performing inapplicable was merit of serious artistic performances other venues where 418 regularly

are Bar, offered. Ben’s 316 F.3d at Finally, 727. it noted that the ordinance’s prohibition no greater was than was essential to furtherance of the village’s substan tial in interest combating the secondary effects resulting from the combination of nude or seminude dancing and alcohol consumption. so, That in view, was the court’s “because, as practical matter, complete ban of alcohol on premises of adult entertainment establishments is the only way the Village can advance that interest.” in (Emphasis original.) Bar, Ben’s 316 at F.3d 727.13 In light of the foregoing, the court concluded that the Village’s ordinance did not violate the first amendment. Wrote the court: regulation

“The no impact has whatsoever on the tavern’s ability to offer nude or dancing semi-nude patrons; to its it regulate seeks to alcohol and dancing nude or semi-nude prohibiting without either. The Village citizens may buy Somerset still a drink and watch nude or semi- dancing. They not, however, nude are constitutionally entitled to do both at the place. same time and in the same Gary, 311 F.3d at (holding 1338 there general- is no right ized to associate with other adults in alcohol- adults). purveying depriva- establishments with other The tion of alcohol prevent does not the observer from witnessing nude or dancing, semi-nude or the dancer from conveying an message. erotic Perhaps patron a sober will performance find the tantalizing, less might and the dancer (not therefore feel appreciated necessarily less from the ogling calls, reduction in and cat but certainly any from in tips decrease the amount of might she otherwise receive). And dowe not doubt Ben’s Bar’s assertion that was, prohibition 13Becauseit believed that practi- alcohol as a matter, cal the least furthering village’s restrictive means of combating negative secondary resulting interest effects from the combination of adult consump- entertainment and alcohol tion, specific analysis the court did not undertake a of the alterna- step four-part tive standard set forth in four its test. None was necessary, Bar, as the result would be the same. Ben’s 316 F.3d at 725 n.31.

419 serve alcohol if is unable to margin suffer it profit will rights of each are Amendment the First patrons. But to its liquor.” Ben’s goes on without the show not offended when Bar, F.3d at 728. 316 Bar, 316 court Ben’s by the analysis employed the Seventh followed subsequently F.3d was Park, F.3d 378 Washington Village v. Circuit Joelner 2004). (7th of the Seventh decisions While Cir. (Bowman v. this tribunal binding Circuit are Co., Ill. 2d Transportation American River by recently adopted in Ben’s Bar was (2005)), its decision the Third Circuit of Appeals United States Court (3d 2006), Cir. South, Fischer, 454 F.3d 228 Inc. v. 181 authority persuasive it believe that constitutes and we elect therefore by this case. We presented on the issues it. to follow Bar, in Ben’s test articulated four-part

Under the 60—140(d) Chicago, Code of Municipal of the section 4— case, in this does not offend the ordinance at issue First, to the United States Constitution. first amendment in Ben’s village ordinance at issue as with the Somerset 60—140(d) Code Bar, Chicago’s Municipal of section 4— of alcohol sales regulation was directed toward locations, a matter within consumption inappropriate BZAPS, City See Inc. v. City’s general police powers. (8th 2001) Mankato, 603, (city Cir. is 268 F.3d 608 of of prohibit the sale police power entitled under entertainment). in a that features adult alcohol location nude Second, completely prohibit the ordinance does not such dancing. merely prohibits perfor- It or seminude to sell alcohol. Where mances at establishments licenced served, dancing sold or nude and seminude alcohol is not Chicago. provid- Venues by City is not of prohibited have and con- dancing operated nude or seminude ing state law City in the in accordance with operate tinue to and local ordinances. Bar, which third of Ben’s step next consider the

We 420

specifies challenged regulation that the must be aimed suppression expression, not at the but rather at combating negative secondary effects caused adult entertainment establishments. Resolution of this issue predominate motivating turns on the concerns the law’s Bar, enactment. Ben’s 316 723; F.3d at Joelner, see R.VS., 624; F.3d at L.L.C. v. Rockford, 361 F.3d (7th 2004); Enterprises 402, 407-08 Cir. G.M. v. Town of (7th 2003). Joseph, St. 350 F.3d Cir. In evaluat ing municipality’s regulatory motivations, we are free variety to take into account a wide materials, includ ing, regulation to, but not limited the text of the or any preamble express legislative findings ordinance, it, associated with and studies and information of which legislators clearly were Joelner, aware. See 378 F.3d at inquiry stage analysis highly 624. The at this legislative body deferential to the that enacted the Corp. County App. ordinance. See XLP Lake, v. 359 Ill. (2005). 3d village legislative Just as the Somerset board made findings support upheld of the ordinance Chicago city Bar, Seventh Circuit in Ben’s council enacting detailed its concerns in the ordinance at issue part package in this case. The ordinance was of a adopted ordinances and ordinance amendments in 1993 zoning to establish “adult uses” within various districts City. preamble in the In the amendments, to those Chicago city explained: council

“Experience City in the Chicago of as well as in other cities has shown that adult in city uses certain areas of a may activity, lead to increased of including levels criminal prostitution assault; but not limited to and and City justifi- Merchants in some commercial areas of the ably are concerned that the location of adult use establish- effect; in negative ments such areas will have a serious and fact, Seattle, In experiences Washington, of Detroit, Michigan, cities, among other have demonstrated quality may degrade the establishments that adult use blight- may have a they are located and in the area which city; and ing effect on a nonconform- operate continued Adult uses which surrounding effect on a deleterious have had

ing uses many other than greater extent to a much neighborhoods uses; and

% iji í£ for provide will of adult uses regulation The reasonable City protect will property values protection City from within persons who work residents those who uses, providing while effects of adult adverse reasonable adult use establishments patronize desire establishments; and in to do so areas opportunity enable special uses to be treated as Adult uses should of an adult use the effects consideration of individualized surrounding neighborhood ***.” on the suggest nothing that these in the record to There is pretextual. objectives Smith, assistant com- Thomas were City Chicago’s depart- zoning for the missioner development, personally planning and was ment of City’s adult use in the formulation of involved Echoing proceedings. and he testified these ordinances many reported O’Brien Officer the circumstances negative testimony, explained during Smith his secondary had caused the adult businesses effects past, particularly Town, Rush Street the Old in the variety Loop Smith recounted and South areas. strip clubs associated with criminal that were activities girls” plied liquor and “B served and cabarets where was money. of their were bilked their trade. Conventioneers earnings Illegal rampant. were collected Prostitution was taxing proprietors reported authori- club and not ties. negative researching deal with the how best to

secondary strip and other adult entertain- effects of clubs department consulted establishments, Smith’s ment Planning groups Association and American such as the Municipal the National Institute of Law Officers. It also obtained and reviewed numerous studies conducted in major metropolitan other in areas addition to those specifically by city prepared noted council. Most were by city planning departments in connection with local police departments. Among reports them were from the Indianapolis, Minneapolis, cities of Phoenix, Paul, St. Angeles. including Minneapolis Some, Los specific studies, St. Paul took into account the relation- ship between the combination of alcohol sales and adult neighborhood According uses on the incidence of crime. testimony, to Smith’s the studies were consistent in showing presence of adult entertainment including strip liquor, establishments, clubs which served higher led to crime rates.

While we do not know whether the additional studies by expressly presented city discussed Smith were to the legislative package council before it enacted the which 60—140(d) Municipal included section Code, of the 4— those studies did inform the recommendations Smith city expressed made council, to the and the concerns he legislative preamble were, turn, reflected adopted by city council. When one considers the preamble, ordinance, the text of the the historical context in which the 1993 version of the enacted, law was undisputed fully dancing permitted fact that nude is City alcohol, establishments that do not serve 60—140(d) Municipal the notion that section 4— represents Code an effort to restrict certain viewpoints expression completely or modes of unten Enterprises, able. See G.M. 350 F.3d at 638. R.V.S., L.L.C., 361 F.3d 409-10, at the court found predominate motivating

that the concerns Rockford municipal regulating dancing enact a ordinance “exotic nightclubs” combating prostitution, related “to crime negative notwithstanding and other externalities” testimony by one of the included the record fact that city’s regarding response questions the aldermen, in to purpose concerns ordinance, “there were some of the just type people this of entertain- don’t like that some give correctly to declined Circuit ment.” Seventh noting, among dispositive testimony other effect, that things, legislator support one that “what motivates necessarily to enact motivates others not what statute is City’s [Citations.]” R.V.S.,L.L.C., 410. The 361 F.3d at it. by position level even that in case is unencumbered this uncertainty. R.VS., noth- L.L.C., there is of contrast directly indirectly, suggest, ing in case to at all City any hostility any toward of kind that the harbored expressive the dancers at Pooh the conduct which engaged. us Based on the record before Bah’s club were secondary by combating negative here, the effects caused only not the adult entertainment establishments was predominate City’s actions, it was the motive for only motivation. attempt conclusion, Pooh Bah

In an refute this argues prior language of that the used in a version sec- 60—140(d) Municipal tion of the Code can be read as 4— city evincing by an council to reach the intention secondary expression of rather effects. content than First, That contention is untenable for three reasons. preamble applicable to the current version of unlike language by Bah, Pooh law, invoked which states form entertainment that the ordinance “controls the beverages” part places not licensed sell alcoholic description merely generic itself. It is of the ordinance police, legislation included the committee on of the municipal personnel, in its fire, schools and institution city the ordinance to the council that be recommendation approved. Second, views could be even if committee’s language imputed city even if the it to the council and actually referring employed to the be could read protected, content of conduct that is reference to content suppression Sammy’s is not the same as of content. (11th Mobile,Ltd. Mobile, v. 140 F.3d Cir. 1998). present law, Like the the version of the ordinance impose any invoked Pooh Bah does limitations on dancing. simply nude or seminude Its effect is to ban dancing Finally, place. alcohol sales where such takes perhaps basically, prior most version of the law subsequent is not at issue It here. is the 1993 version of gave proceedings, the ordinance that rise to these preamble adopted in connection with that ordinance city adopting is what reflects the council’s motivation version the law. 60—140(d) Chicago Because section Munici- 4— pal steps Code thus satisfies two and three set test proceed namely, step Bar, forth four, in Ben’s we designed whether the ordinance is a serve substantial government narrowly interest, tailored, and reasonable alternative avenues of communication remain available alternatively, important or, the ordinance furthers an government substantial expressive interest and the restriction on greater

conduct is no than is essential Bar, furtherance of that F.3d 722. interest. Ben’s 316 at previously inquiry encapsulates As discussed, this applicable intermediate standard of review first challenges regula- amendment to adult entertainment precedent tions. Under Bar Ben’s and the it is on which assessing based, whether an ordinance a serves substan- government requires tial interest under this standard a municipality court to determine whether the ad- has equately demonstrated connection exists between speech regulated by secondary the ordinance and the designed Bar, effects the ordinance was to address. Ben’s making ap- 316 at determination, F.3d 724. In propriate governmen- focus is not the of actual intent body. government’s tal actual intent relates to regarding predominant inquiry motivation earlier question law. The at this to enact the behind its decision government stage can show is whether governmental regulation interest. See a current serves (4th Caradola, Bason, 507, 515 Ltd. v. 303 F.3d Giovani 2002). must the law is addressed The harms which Cir. merely conjectural, law must allevi and the real, not be way. See Gio in a direct and material ate those harms quoting Caradola, 515, Ltd., 303 at Satellite F.3d vani Broadcasting FCC, v. 275 F.3d & Communications Ass’n 2001). (4th 337, 356 Cir. governmental interest advanced

The current 60—140(d) Municipal City support of its of section 4— secondary negative effects the avoidance of the Code is consumption alcohol at from the sale and which result “[ljiquor That adult entertainment establishments. (Blue Corp. explosive Canary v. sex are an City combination” 2001)) (7th Milwaukee, 251 F.3d Cir. is experi proposition frequently so confirmed human scarcely topless questioned. it can Nude and ence that dancing be history long spawning in bars “a deleteri has including “prostitution effects,” and the criminal ous exploitation young Steakhouse, abuse women.” (4th 1999). Raleigh, Cir. Inc. v. 166 F.3d offering nude is served in establishments Where alcohol dancing, secondary blight frequently or seminude involving reported. conduct, lascivious Disturbances larcenies, are com drunkenness, and narcotics assaults e.g., Steakhouse, Inc., 637; at See, mon. 166 F.3d Califor 347-48, LaRue, Ill, at Ed. 2d at nia v. 409 U.S. 34 L. S. Ct. 393. at negative combining alcohol sexual effects of

The Dr. this case Allen stimulation was corroborated psychiatrist practicing Kodish, a and member Chicago. faculty University Kodish, Dr. who was at the City, testified that alcohol called as a witness consumption aggressive impulses facilitates sexual and impairs judgment. and social When combined with sexual produces stimulation, it an effect “associated with an acting increase in out, violent sexual acts of criminal drinking behavior.” this, Because of alcohol while view- ing nearly person naked or naked dancers can lead a impulses, including touching, screaming, act on various engaging fights risky and or other behavior. While not everyone way, who drinks alcohol reacts that Kodish explained that the combination of and alcohol sexual they stimulation increases the likelihood that Inwill. support study conclusions, of his Kodish discussed a Drinking entitled “The Effects of Male Social on Fan- tasy,” which showed that increased alcohol intake as- thoughts. aggressive sociated with increased sexual and City testimony Wesley also adduced from Dr. Skogan, professor political a science at Northwestern University University’s and a member of the Institute Policy According Skogan, for Research. to Professor serving research shows that establishments alcohol at- significant tract a amount of additional crime. Such opportunity by bring- establishments create the for crime ing potential together. and the victim criminal Victims become more vulnerable because of alcohol’s debilitating creating effects, thus an attractive situation potential explaining circumstances, offenders. these Skogan Professor discussed a number studies showing relationship articles between alcohol consumption studies, crime. These which demon- serving selling strated that establishments alcohol do crime, “Bars, Crime”; exacerbate included Blocks and Linking Theory “Bars, Blocks and Crimes Revisited: Empiricism Spots’ of Routine ”; Activities to the ‘Hot study Grove, California; done on the of Garden report entitled “Additional Evidence that Taverns Nearby Crime”; Enhance an article from the

427 Grove Public Health. Garden American Journal of that noteworthy because it showed study particularly uses cre- of alcohol sales adult the combination retail from retail of than resulted incidence crime higher ated in isolation. operating or adult uses alcohol sales and Profes- Dr. Kodish reported by The conclusions reached consistent with those Skogan sor were Smith, zoning, for the assistant commissioner Thomas opinion. in this testimony discussed earlier whose we involving studies the Skogan, Like Smith consulted He municipalities. of other also drew his experience problems and the planner own an urban experience previ- As Chicago experienced past. had the we have testimony ously noted, presented the also the city O’Brien, city police Roger veteran officer who described activity in detail the abundance of criminal that occurred clubs early strip the late 1970s and 1980s when serv- addition, City the buttressed ing proliferated. alcohol judicial circuit position by presenting court involving attempts decisions from other jurisdictions establishments, regulate adult entertainment including alcohol, strip clubs the confines of the serving within first amendment. the foregoing,

Based on we believe that the eviden- tiary here, Bar, fairly record as in Ben’s supported That, the ordinance. proffered by City rationale for however, does not our If the inquiry. party challeng- end an ing municipality’s ordinance can cast doubt on rationale, by demonstrating either the evidence ad- support proffered duced does not municipality by furnishing disputes rationale or evidence that then shift findings, factual the burden will municipality’s record back to the municipality supplement renewing theory justifies support evidence Washington, Inc. v. law. World Wide Video (9th 2004); Cir. G.M. Spokane, 368 F.3d Enterprises, Joseph, Inc. v. Town St. 350 F.3d (7th 2003). Cir. attempt trigger

In an a shift, such Pooh Bah as City’s fatally serts that the evidence is deficient because study dealing specifically it did not include a with the City Chicago argument specifically Such itself. an was rejected considered in Ben’s Bar. We discussed the point previously again municipal and will state it here. A ity produce need conduct new studies or evidence independent already generated by of that other cities enacting pertaining before an ordinance the to adverse secondary effects adult entertainment establishments long city rely so as whatever evidence the does on is reasonably problem believed be to the relevant the city attempting Bar, to address. F.3d Ben’s at 725. City’sposition sup note, moreover, We here was by ported experience strip its own historical permitted when clubs patrons had been to serve alcohol to in the past. experience municipality Where actual from the reported itself buttresses the conclusions in studies from jurisdictions, may other those studies be used municipality regarding support negative of its claims secondary Corp., App. effects. See XLP 359 Ill. 3d at 254. City’s challenges position Bah

Pooh also on the grounds upon City’s that the studies which witnesses methodological relied contained scientific and flaws. self-employed DeVise, Pierre a consultant retained Bah, Pooh he stated that was not aware of studies show-

ing relationship liquor a cause and effect between featuring establishments seminaked dancers crime relationship and did not believe such a existed. Peter professor psychology Girándola, an assistant at the University Kentucky, opined direct, that there was no positive relationship viewing between sexual stimuli and “acting Campbell, addition, sexual out behavior.” In Rolf zoning planning testify by consultant called to dancing Bah, conducted that the seminude Pooh stated “negative impact club had no on the at Pooh Bah’s immediately surrounding orderly development of the properties.” testimony by experts Bah’s insuf-

This Pooh was City part trigger obligation ficient to an on the sup- supplement record additional evidence position. Campbell port conceded, on cross- of its opinion he the relation- examination, that had no about ship no land use and crime and had conducted between regarding relationship research between either sexually crime. alcohol or oriented businesses and DeVise actually admitted that a correlation has been shown serving sexually exist between oriented businesses crime, alcohol and increased incidence while Giran- consumption adola confirmed that alcohol is related to higher aggression. It is ad- level of true that dealing specifically no with the duced potential information secondary permitting liquor to effects of be sold required extent where dancers were covered 60—140(d) Chicago’s Municipal Code, section of 4— precedent requires City but no to research regulate. obtain targeting activity it to the exact that wishes City “reasonably only required rely The is on evidence being problem believed be relevant” to the addressed. City upon regarding which the relied studies secondary effects of sales and adult entertain- alcohol satisfy See Gammoh v. ment businesses that standard. (9th 2005). City 1114, Habra, La 395 Cir. F.3d 1133 City’s regard- Wefurther note that the determination ing secondary allowing adult deleterious effects of liquor entitled entertainment establishments serve “[A]necdotal high degree of deference. evidence and reported experience telling can as statistical data be legitimate finding negative can as a basis for and secondary serve Washington,Inc. effects.” Video WorldWide 430 (E.D.

v. City Spokane, Supp. 1143, 227 2d 1157 F. Wash. (9th 2002), aff’d, 2004), 368 F3d 1186 Cir. quoting String- N.Y., City York, Ltd. v. New 91 382, N.Y.2d fellow’s of (1998) 400, 407, 417, 406, 694 N.E.2d 671 N.Y.S.2d 416 approval cited with in Center Fair Public Policy v. (9th 2003). County, 1153, 336 F.3d Maricopa 1168 Cir. The existence of academic studies said to indicate that the threatened harms not real are will not suffice to cast government’s doubt on the local See experience. City of A.M., 277, 300, 265, Erie v. 529 U.S. L. Ed. 2d Pap’s 146 (2000) 285, 1382, Ct. (plurality op.), citing 120 S. PAC, Nixon 377, v. Shrink Missouri Government 528 U.S. (2000). 394, 902, 886, 897, 145 L. Ed. 2d 120 S. Ct. disagreement The same is true of among academic experts. legislative While the will not permit courts bod data, rely ies to we shoddy specify also will methodological standards to which their evidence must Habra, conform. Gammoh v. La F.3d City at 1133. The Chicago city council knows the streets of Chicago better than we do. Books, See Alameda 535 U.S. at 451- Ed. 2d 152 L. at 122 S. Ct. The experi at 1743. jurisdictions ence of other of the itself leaves secondary little doubt harms to which section 60—140(d) Municipal of the Code are addressed are 4— merely real and not conjectural. 60—140(d) section

Because enforcement of 4— has Chicago Municipal stayed during Code been of these Bah’s pendency proceedings, Pooh club has continued to sell alcohol danc- presenting while seminude ing. activity reported The amount of documented criminal period Contrary during that has been limited. to Pooh view, however, Bah’s we do not believe that this demon- strates are City’s professed concerns unfounded. in number,

While few incidents particular which place have taken at or the fall squarely around club type within of shown the evidence to activity the be typical and adult uses alcohol of where establishments the incident discussed combined. addition are involving opinion customer who the earlier our began masturbating exposed in the middle himself police have been sum club, that the the record reveals and outside the both inside moned to with assaults deal in which a an incident also describes club. record caught forging credit card entries on bartender was tips.14 receipts give higher herself City’s Wholly again that the that, from we note aside strip experience clubs licensed to sell historical with secondary Negative drink substantial. alcohol was widespread pervasive. ef- were serious and Such effects may yet, have neither has the fects not recurred but serving strip proliferation alcohol. Because of clubs adult ordinances enacted which includes use 60—140(d) Municipal version section 4— prompt case, at in this and the enforcement Code issue 60—140(d)against Bah, Pooh Bah is of section Pooh 4— only patrons establishment in the can where watching purchase consume while nude or alcohol perform Perhaps seminude erotic dances. women police. Perhaps activity makes it easier to criminal explanation, more difficult to detect. Whatever apparent absence or of crime at Pooh club absence Bah’s constitutionally suspect. does not render the ordinance require municipality The first amendment does ignore experience, experience other own jurisdictions, courts have held to concerns which (Ben’s Bar, be a of “common sense” 316 F.3d at matter 726) secondary merely effects because the feared have yet particular not materialized connection with a adult County SOB, Inc. v. entertainment establishment. See well, alleged it prostitution but does not 14Incidents of were charged any yet appear patron dancer or has been prostitution prostitution-related offenses.

432 (8th 2003) indecency (public Benton, 317 F.3d 856 Cir. banning against dancing upheld ordinance live nude first challenge notwithstanding amendment the existence reports showing police fewer calls to the club than to gas suggesting proper- local station that value ties near the club and another adult entertainment establishment had increased more from 1994 to 2001 properties than the value near two businesses that did dancing); Entertainment, not feature nude Artistic v. Inc. (11th 2000) City Robins, Warner 223 F.3d 1306 Cir. (that city may specific council members had have no knowledge patterns presenting about crime near venue dancing prohibiting live nude did not render ordinance amendment). sale of alcohol there under invalid the first Having evidentiary thus concluded that the record fairly supports City’s rationale section for 4—60— 140(d) Municipal of the Code and that Pooh Bah has rationale, failed direct to cast doubt that we next narrowly consider whether the ordinance is tailored to problem namely, nega- addressed, to which it is secondary tive effects associated with the combination of dancing. alcohol sales satisfy nude or seminude In order to tailoring” requirement, regulation the “narrow “ need not be ‘the least restrictive or least intrusive ” [achieving governmental interest].’ means of the stated (2d York, 78, Mastrovincenzo v. New F.3d 435 98 2006), quoting Against Cir. Racism, v. Rock Ward 491 798, 781, 661, 2746, U.S. 2d 105 L. Ed. 109 S. Ct. (1989). tailoring require- Rather, 2757-58 the narrow long governmental ment is so satisfied as substantial designed interest serve which law is would be effectively achieved less in the law’s and the law absence substantially speech does not burden more than is neces- sary government’s objective. McGuire v. further (1st 2001); Reilly, F.3d 260 48 Cir. Center Fair Policy, Public 336 F.3d 1169. at

433 Section here. clearly been satisfied has That standard 60—140(d) precisely is tailored Code Municipal 4— secondary effects combating negative objective: to its or seminude of nude combination from the flow Fischer, South, Inc. v. alcohol sales. dancing and 2006) amend- (3d first against (upholding Cir. F.3d topless erotic forbidding regulation challenge state ment There liquor). to sell licensed in establishments dancing achieved could not be City’s goal no question Indeed, prohibiting absent the ordinance. effectively nude or alcohol offering from both establishments City can advance way dancing only is the seminude addition, at 727. Bar, 316 F.3d interest. See Ben’s to further than is essential goes no further the ordinance considered which have Other courts City’s objective. Emery Highway See 2025 have so held. similar laws (M.D. 1310, 2d 1336 Supp. 377 F. County, L.L.C. v. Bibb 2005) their cover “partially (requiring performers Ga. is buttocks, at venues where alcohol breasts, genitals and which possible the least restriction certainly sold ‘is interest in control- [government’s] further the would still ”), nudity’ mixture of alcohol ling the combustible Mobile, Mobile, v. City Ltd. quoting Sammy’s 727; Enterprises, 997; Bar, Ben’s 316 F.3d at Wise F.3d at (11th Government, 217 F.3d Inc. v. Unified 2000). Cir. four of the test set forth inquiry step

Our final under reasonable alternative avenues in Ben’s Bar is whether to that remain available. answer of communication Bar, yes. As Ben’s unquestionably is inquiry dancing and the nude and seminude regulates ordinance City neither. The alcohol, prohibits but consumption opportunities offers innumerable Chicago still It also by the drink. of alcohol consumption sale and dancing, seminude venues to offer nude and permits City in the featur- lawfully operate such establishments ing performers who wear even less than the dancers at only thing permit Pooh Bah’s club. The does not is for the two activities to be combined on the same premises and at the same time. Such a restriction is City’sauthority impose, within the for the first amend- patrons ment does not bar, entitle a its dancers or its during presentation have alcohol available of nude or dancing. seminude Bar, Ben’s 315 F.3d at 728. regard, utterly In that we note that the record is any testimony suggesting, directly indirectly, devoid of availability liquor any way that the bears in on the expressive component performances. of the dancers’ stage Dancer Shaw, Rachel who testified name, under her message fantasy Samantha, described her fun, as stranger “the idea that the customer can have a beautiful take their clothes off and dance for them and feel special.” Melissa Candelaria, known at the club as repeated fantasy fantasy,” “Malibu,” theme. “It’s a being girl, you said, she “of their will, which never basi- cally.” objective pragmatic Candelaria’s included a ele- up stage, ment as well. When dancers are main “[w]e testified, Candelaria want to be noticed so that we get get stage.” can a table dance when we off the

Cynthai patrons Sudheimer, whom Pooh Bah will recognize “Christy,” convey tries to the idea that she *** somebody ***, “untouchable like a star that is a step higher, glamour-type person put up above, that is everybody from else.” When asked at trial whether she message convey stage, had a which she tries to “Star,” explained whose actual Levorson, name is Sara Jean that *** attempts portray “my fantasy, appeal she sex like having good having time, a a lot of fun.” For Rhonda performs objective Bobo, Adams,” who as “Kori is to communicate to is, the audience who she that she is being onstage, comfortable that she is “here and avail- “strong, entertain,” able to and that she is confident, “Lee,” Bernal, sexy, Similarly, beautiful.” Vickie a/k/a message that performances relating viewed her her customers to look women are beautiful. She wants “I only body, at her but also at her hair and her face. a try appreciate to have them the whole me as beautiful woman,” testified, just body.” she “not suggested any

We cannot see and Pooh Bah has not why any messages expressed reason of these cannot be by patrons equal effectiveness or viewed with equal appreciation ability patrons buy absent of those alcohol are performances taking consume while the Bar, 728, place. Ben’s 316 F.3d at the Seventh Circuit postulated that alcohol sales nude or prohibiting where dancing seminude occurs may performers cause to suffer record, a in tips. reduction Based on the we are not sure necessarily Testimony by is so this case. some they dancers indicated that also work or have worked at served, different clubs is not it strip where alcohol not at all clear that existed any disparity between what they paid were at those establishments they and what earned at Pooh Bah’s club. The situation with the club itself Testimony by sug- is different. the club’s owner gests probably the club’s income would fall substan- tially if it could not offer along alcohol with nude and That, dancing. however, seminude is of consequence. no While the first amendment does require that establish- ments like the club be given opportunity” “reasonable protected speech, op- disseminate a “reasonable portunity” does not include a concern for economic Bar, 726-27, considerations. Ben’s 316 F.3d at citing City Theatres, Inc., 41, 54, Playtime Renton v. 475 U.S. (1986). 42, L. Ed. 2d 106 Ct. S.

As an 14— challenging alternative basis for section 140(d) Code, Bah Chicago Municipal Pooh 60— contends that the ordinance is overbroad. Overbreadth is judicially created recognizes excep- doctrine which an

436 tion to the established that a to a principle person whom statute be heard may constitutionally applied be will not it challenge ground may that statute on the others, in conceivably applied unconstitutionally be doctrine, other situations not before the court. Under the party being prosecuted speech expressive conduct face if it may challenge protected the law reaches expression, person’s even when that own activities are not the first amendment. The reason for protected apparent: in amendment is an special rule first cases might protected speech. statute serve to chill overbroad activity might A be person contemplating protected prosecution. deterred the fear of The doctrine reflects society the conclusion that harm to possible permitting unprotected speech go unpunished some outweighed by possibility protected speech Arizona, 433 may others be muted. Bates v. State Bar of 350, 380, 810, 833-34, 2691, U.S. 53 L. Ed. 2d 97 S. Ct. (1977). 2707 “[T]here

The doctrine’s tolerance is unbounded. effect of an overbroad point chilling comes a at which law, may be, justify prohibit it cannot significant though ing particularly all enforcement of that a law that law— ‘legitimate maintaining reflects state interests harmful, constitutionally comprehensive controls over ” Hicks, 113, Virginia conduct.’ v. 539 U.S. unprotected (2003), 119, 148, 157, 2191, L. Ed. 2d 123 S. Ct. 2197 156 Oklahoma, 601, 615, 413 37 L. quoting Broadrick v. U.S. (1973). 830, 842, 2908, Like most Ed. 2d 93 S. Ct. the doctrine must be exceptions principles, established tied to the circumstances which facial carefully warranted. New York v. truly invalidation of statute is 1130, Ferber, 747, 769, Ed. 2d 102 S. 458 U.S. 73 L. (1982). “chilling” Its concern with Ct. unprotected attenuates as the otherwise protected speech moves from behavior that it forbids the state to sanction conduct, if pure speech toward conduct and that even expressive, scope falls within the of otherwise valid laws. Angeles Los Police v. United Department Reporting 32, 40, 451, Publishing Corp., 460, 528 U.S. 145 L. Ed. 2d 483, (1999), Ferber, 120 S. Ct. 489 quoting 458 U.S. at 770, 1131, 2d 3361, 73 L. Ed. at 102 S. Ct. at quoting Broadrick, 615, 842, 413 U.S. at Ed. 37 L. 2d at 93 S. Ct. at 2917.

Because of the wide-reaching striking effects of down a statute on its face at 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 it employed hesitation, and only Ferber, as a last resort. New York v. 769, 485 U.S. at 1130, 73 L. Ed. 2d at 102 S. Ct. at 3361. Where, here, as conduct and merely speech is involved, the overbreadth of the statute must be not only real, well, but substantial as judged relation to the statute’s plainly legitimate sweep. “We will not topple a statute,” the United States Supreme held, Court has “merely because canwe conceive of a impermissible few applications.” Oakes, 576, Massachusetts v. 595, 491 U.S. 493, (1989). 105 L. 509, Ed. 2d 2633, 109 S. Ct. 2644 claimant challenging the being law as unconstitutionally “ overbroad bears the burden of demonstrating, ‘from ” the text of fact,’ [the law] and from actual substantial overbreadth Hicks, exists. v. Virginia 539 122, U.S. at 159, 156 L. Ed. 2d 2198, at 123 S. atCt. New quoting York State York, Club Ass’n v. New City of 1, 14, 487 U.S. 1, 17, 101 L. Ed. 2d 108 S. Ct. 2234 (1988).

More than years 50 after inception, first amend- ment overbreadth doctrine remains little understood. R Fallon, Making Overbreadth, Sense 100 Yale L.J. 853 (1991). Courts and litigants sometimes fail to heed the (see requirement Members Council v. Taxpay- 789, 799-800, L. Ed. 2d Vincent, 466 U.S. ers for (1984)) statute’s 2118, 2126 that a 783, 104 S. Ct. example An real and substantial. overbreadth be both Group, lapse appears Eggert L.L.C. v. Town such a (E.D. 2005). Supp. 1123, Harrison, Wis. 372 F. invalidating to the one as overbroad an ordinance similar dancing prohibiting nude establishments at issue here magistrate accepted alcohol, a federal to serve licensed prevent strip the law would club’s contention that conducting League a demonstration of from the La Leche Although properly. Newman, Dr. Jack how to breast-feed League International Health the La Leche member of stating quoted Advisory Council, has been “ [by nursing mothers] [reasonable should alcohol intake (see www.lalecheleague.org/ discouraged at all” not be FAQ/alcohol.html), unlikely point it to the we think League chapter absurdity would consider that a La Leche nursing techniques meeting holding educational about an considering especially bar, that in a for new mothers bring typically their new babies and sometimes mothers meetings. siblings Moreover, if even to those the babies’ by meeting League bar, in a it is no were held La Leche a breast-feeding would the women’s Contrary means obvious that magistrate’s appar- the the law. to run afoul of baby nursing process neces- does not belief, of ent the public sarily require exposure mother’s breast view. thought magistrate the law in same case also educational “certain all-female overbroad because

was be audiences would for all-female demonstrations liquor. prohibited” sell licensed to at establishments magistrate eludes us com- had in mind here What the pletely. educa- want to conduct Are there women who expos- program entails where the seminars bars tional engaging genitals ing in real or or or their breasts kind of conduct contact, which is the sexual simulated they trigger prohib law’s would have undertake Perhaps, examples but no were noted itions?15 concrete being even at. Rather than from or hinted drawn actual magistrate’s example completely fact, the seems made up. our view under the standards articulated Supreme Court, the United States and un extreme hypotheticals wholly inadequate kind are founded to establish that law is overbroad. thoughts ap mind, believe,

With these we pellate did, court that Pooh failed its Bah to meet burden 60—140(d) demonstrating section 4— Chicago Municipal Code from suffers substantial over- breadth. The club’s contention is that the ordinance suf prohibitions ap fers from overbreadth because would ply performances any to nude and seminude at venue including alcohol, licensed to sell those feature which legitimate country theater and clubs where swim meets place, and water take shows and the has shown secondary effects which is ordinance performances. argu directed flow would from such This preliminary matter, isment untenable. As a we cannot imagine explained Bah Pooh has not kind what country country club water shows it has mind. If clubs presenting featuring are or water shows nude seminude performers, presented nothing female Bah Pooh has to substantiate that such have held or shows been even planned Chicago anywhere else, incidence performances surely Any such small. overbreadth insignificant compared would therefore be when to the 15Considering type ordinance, of conduct addressed the “all-female” demonstrations for “all-female” audiences magistrate images described the evoke a Roman bacchanalia program. than authority rather a serious educational revelries,” Supreme restrict such “bacchanalian the United States affirmed, power Court has is police within the inherent Liquormart, state. 517 U.S. at at L. Ed. 2d 116 S. Ct. at 1514. of the ordinance. The swim meet

plainly legitimate reach terms, By is the hypothetical unpersuasive. also its “entertainers,” only “employees,” pertains ordinance act[s], engaged demonstration[s], in “live “patrons” or dance[s], plain those terms their Giving exibition[s].” or could commonly meaning, and understood the ordinance racers application swimming have no possible competition.16 example involving offer- respect

With venues observes, theater, City below, as it did ing legitimate ordinances, liquor licensing “premises” under loca- it issues licenses consist of enclosed which That defini- displayed. tion where the alcohol is stored or stage seating and areas at Pooh Bab’s tion embraces club, stage seating not include the and areas but would not issue licenses that in a normal theater. The does By areas in theaters. local stage seating cover such confined to ordinance, the sale of alcohol theaters is hour area and limited to one before lobby 14— during the intermission. Section performance 140(d) inap- Municipal Code is therefore 60— theaters stage performances at conventional plicable to in the City. event, the ordinance does again we note any any speech expressive or conduct. actually

not even forbid City. in the dancing perfectly or lawful Nude seminude from merely prohibits performances This ordinance such consumption of alcohol. being combined with the sale nude seminude law, the of live Under the combination is not of alcohol dancing consumption and the sale and sports competitive purport experts to be 16Whilewe do something anyone who has gear, point we of which further out typically worn The outfits Olympics the Summer is aware. watched provide considerably cover- by competitive more female swimmers City requires strippers perform where alcohol age than who is served.

441 character, regardless quality, or anywhere, allowed performance. respect, expan content the In this the of virtue, vice, ordinance is a rather than a siveness of the for it is evidence the ordinance does not discriminate Hill against point of view. See v. particular message or 597, 621, 703, 731, L. 2d 120 Colorado, 530 U.S. Ed. (2000). Moreover, 2480, S. Ct. because the first liquor amendment does not entitle a licensed establish ment, its or to have avail performers patrons alcohol (Ben’s able live nude or during performances seminude Bar, 727; Mobile, at 316 F.3d 140 F.3d at 999 Sammy’s of (“we are of drink any unaware constitutional to right watching dancing”)), while nude of enforcement ordinance at other types of establishments licensed to by serve the drink no alcohol would more trench their amendment rights first than it does on the first amend rights by ment claimed Bah. Like Pooh the conduct at is here, sue the conduct at those other establishments encompassed would be legitimate within ordinance’s sweep. The ordinance is not overly therefore broad. Hill Colorado, v. 732, 621, 530 U.S. at 147 L. Ed. 2d at 120 S. Ct. at 2498.17 60—140(d)

Pooh Bah next argues that section of 14— Code Municipal violates the fourteenth amendment (U.S. to the Const., United States Constitution amend. XTV) it is vague. because too A statute can impermis- be (1) sibly either vague independent of if two reasons: it fails to provide people ordinary intelligence reason- able to opportunity prohibits, understand what conduct it (2) if it authorizes encourages arbitrary or even

17By applied Chicago, its terms and as dances, pertains only acts, demonstrations, ordinance or exhibi- tions possible which are “live.” It has no application therefore movies, displays television broadcasts or Pooh Bah artwork. argument contrary. Accordingly, makes no to the we need not consider assessing such activities in the reach of the ordinance.

discriminatory Colorado, Hill v. 530 U.S. enforcement. at L. 147 Ed. 2d at 120 S. Ct. at 2498. party may vagueness challenge arguing

A raise a vague applied is the facts either a statute at type hand, or that a statute on its face. The first void challenge, suggests, name a statute in as its evaluates specific context circumstances in it was which litigant validity. applied If contests its who litigant’s squarely within the own conduct falls statute’s prohibitions, complain vagueness he cannot of the applied Village law as to others. Estates v. of Hoffman Flipside, Estates, Inc., 489, 495, 71 455 U.S. L. Hoffman (1982). 362, 369, 1186, Ed. 2d 102 S. 1191 Ct. respect type challenge, of a statute

With second normally unless not unconstitutional its face it ambiguity provides all, i.e., no of conduct at standard pervasive any applica incapable is so that it is of valid (1991), People Fabing, quoting 48, 2d 55 tion. v. 143 Ill. Thompson, 452, 474, 505, 2d v. 415 L. Ed. U.S. 39 Steffel (1974). challenges 523, 1209, 94 S. Ct. 1223 Facial legislation generally National Endowment are disfavored. Finley, 569, 580, 141 L. Ed. 2d the Arts v. 524 U.S. for (1998), quoting FW/PBS, 2168, 500, 511, 118 S. Ct. 2175 City Dallas, 215, L. Ed. 223, v. 493 U.S. 107 2d Inc. of (1990). 616, 596, Ct. The courts have 110 S. held, to inhibit the however, that when a law threatens constitutionally rights protected such as those exercise protected amendment, Constitution under the first stringent vagueness ap test be demands a more vagueness plied. scenario, is void a statute such constitutionally if it reaches a substantial amount Supp. protected Marzook, v. 383 F. conduct. United States 2005). (N.D. 2d 1056 Ill. requirement reach that a statute must

Because of the constitutionally protected a substantial amount analyses vagueness speech, overbreadth facial Sachen, are Record Head v. 682 F.2d cognate. Corp. 1982). (7th Cir. For reasons discussed connection claim, Pooh Bah’s overbreadth the club failed to with 60—140(d) the Municipal establish that section 14— speech expres- Code reaches a substantial amount of or sive conduct the first amendment. As a protected result, just as the club cannot assert a valid overbreadth claim, it the ordinance likewise cannot attack on the grounds vague that it is on its face. unconstitutionally succeed, all, if at vagueness

Pooh Bah’s claim can if only the club can that the ordinance is vague establish defined, applied. clearly vague- While Pooh Bah’s argument ness on the appears rest first of the two reasons vagueness challenges may based, on which be namely, persons ordinary could intelligence only guess at its meaning. particular terms or phrases “buttocks,” which Pooh Bah took issue below were “any portion of the female breast at or below the areola thereof,” “shall be considered if exposed public view it is uncovered or is less than completely opaquely covered,” “any device, costume covering which gives appearance of or simulates the genitals, pubic hair, buttocks, perineum, region pubic anal or hair region.” The appellate rejected court Pooh Bah’s argu- ments regarding provisions, these mean- finding that the ing of the challenged language was and apparent perfectly intelligible. court, In our Pooh Bah has narrowed it focus. Its arguments “buttocks,” now center on the of meaning “any portion of the female breast at or below the areola thereof,” and “less than completely opaquely and covered.”

The assessing vague tests for whether a law is are capable of application. regula- mechanistic Business tions, for example, may precise be less than other forms legislation of such by regula- because entities affected tions are more the lines are apt know where drawn

444 through

and more able to obtain clarification inquiry proceedings. legislation administrative Civil can be vaguer consequences than criminal laws because the of are less severe. Record Head imprecision qualitatively Sachen, context, In any v. 682 F.2d at 674. more- Corp. over, degree precision there are limits to the attainable English The United States language. Supreme “ recognized ‘perfect clarity Court has therefore precise guidance required regula- have never been even of ’ ” v. expressive activity. tions that restrict Anderson (7th 975, 2006), County, Milwaukee 433 F.3d 978 Cir. Racism, 781, 794, v. 491 U.S. quoting Against Ward Rock (1989). 677, 2746, 661, 105 L. Ed. 2d 109 S. Ct. 2755 We remain the consti- judging must also mindful when statute, cannot tutionality of a rule or common sense suspended. and should not be Anderson v. Milwaukee (7th 2006). 975, 433 F.3d 978 Cir. County, of the term “buttocks” has clarity frequently challenges been addressed courts the context See Giano v. regulations pertaining nudity. laws and (2d Senkowski, 1050, 1995); Dodger’s 54 F.3d 1057 Cir. County County Bar & v. Johnson Board Commis Grill (10th sioners, 1436, 1994); v. 32 F.3d Cir. Geaneas (11th 1990); Willets, Wayside Cir. 911 F.2d 586-87 Restaurant, 231, 236, Beach, 215 Virginia Inc. v. Va. (1974). consistently have S.E.2d These courts by persons found that the term can be understood see no basis for reach ordinary intelligence. possible We in this case. likewise see no ing contrary conclusion We completely “less than grounds holding phrase that the clear to sufficiently provide covered” is not opaquely opportunity a reasonable ordinary intelligence person Moreover, it and more requires. to understand what if be some circumstances might even there importantly, of these terms meaning applicability in which the uncertain, present are not be such circumstances might

445 Bah dancers covered the here. The T-bars worn Pooh anus, buttocks, but left including area between their uncovered. Their completely the buttocks themselves unambiguously conduct thus fell within the squarely result, Pooh Bah not prohibitions. ordinance’s As will complain vague applied be heard to that the law is its dancers. the ordinance portion

The same is true of that of the female prohibiting exposure “any portion policy breast at or below the areola thereof.” Pooh Bah’s only that a latex and required apply makeup dancers to their areas covering nipples, triangular areolas extending portion below areolas the frontal of each breast. Evidence presented makeup was that the actual covering and latex did not even cover that much. From and video exhibits photographic included testimony record and the of the investigating police offic- ers, any covering beyond there is no indication of nipples areolas. Even those areas would appear totally nude except for the fact that their natural color was however, obscured. Whatever the actual coverage, there dispute is no that it did not extend to the lateral portions of the breasts below the of the tops areolas. The sides of the dancers’ breasts left completely were uncovered. Courts considering similar laws have held persons of ordinary intelligence could reasonably be expected to understand portion of the female breast at or below the areola would include the entire portion areola, of the female breast at or below the including the sides. See City Daytona Beach v. Del Per- (Fla. 1985) cio, 476 So. 2d (language refers to portion of breast directly laterally top below the of the areola); Inc., State v. Fantasia & Lounge, Restaurant 0112001060, 0109002426, cons., Nos. slip op. (Del. 2004) (term at 10 Super. refers to “entire area of areola, the entire breast top simply below the strip of flesh the width of the areola below the top areola”). precisely That is how the ordinance was by regulatory City, understood authorities in the and we agree that it is persons ordinary intelligence how would it. Pooh Bah understand and its dancers therefore cannot that were not fair notice that complain they given their latex and makeup practices were insufficient 60—140(d) requirements meet the of section of the 14— Municipal Application Code. of the ordinance to them rights process does not violate their to due under the fourteenth amendment. if

Pooh Bah’s final contention is that even section 60—140(d) Municipal of the Code does not contra 14— vene the first and fourteenth amendments to the United Constitution, States we should declare it invalid under the “freedom of of the Illinois Consti speech” provision (Ill. §4). 1970, I, That provision tution of 1970 Const. art. guarantees persons may speak, “[a] that write and freely, for the abuse of that publish being responsible liberty.” 1970, I, §4. Ill. art. The relationship Const. I, between article section of the Illinois Constitution to the United States Constitu and the first amendment DiGuida, v. People tion was discussed this court (1992). reviewing history 152 Ill. 2d 104 After of its terms at the 1970 provision and the discussion Convention, the fram Constitutional we concluded that may provide ers that the Illinois Constitution recognized to free than does its federal greater protection speech DiGuida, 121. v. 152 Ill. 2d at We counterpart. People speech rights contention that free rejected “any therefore in all circumstances under the Illinois Constitution are the Federal Constitution.” limited to those afforded This, however, DiGuida, 2d does v. 152 Ill. at 122. People inquiry. not end our I, may constitution af-

That article section of our amendment in some protection ford than the first greater protection greater not mean that does circumstances Ino, Inc. Ino v. context. See every afforded (1997). 154,162 E2d Bellevue, 103,115, 2d 132 Wash. identi nearly Construing provision a state constitutional ours, Washington Court noted Supreme cal to terms, only speaking, by its referred provision, made expres No mention was writing publishing. the provision conduct. The court recognized sive greater than protection had found to warrant been written, spoken speech, first amendment both language relating contexts. In the absence of some however, conduct, the court ruled that expressive justify extending did not text of the state constitution at adult dancing to nude seminude greater protection first by than be afforded the amendment. cabarets would Ino, 117, Bellevue, v. 2d at 937 City Ino Inc. 132 Wash. of P.2d at 163. jurisdictions in state constitu applying

Courts other (and in tional which are similar some cases provisions identical) 4, I, of Illinois nearly to article section the of held that state Constitution 1970 have likewise their greater no nude or provide protection constitutions the dancing by seminude than is conferred first amend Adult Bookstore Empress City ment. See Video & v. of 2002) 50, 62, 814, Tucson, 204 Ariz. 59 P. 3d 826 (App. 615, cases); Inc. (collecting Liquor Junction v. various 33, 41, Comm’n, 135 Ohio 3d 732 N.E.2d App. Control (state (1999) 1025, nudity on in public 1031 restriction on that it “did not upheld grounds establishments liquor rights any First more than neces restrict Amendment the guarantees by the accorded sary” speech “free the are no broader than First Amend Ohio Constitution House, Anniston, So. ment”); City Ranch Inc. v. 678 1996) (Ala. (state free 745, constitution’s 2d 746-47 did not local ordinance protections invalidate speech nudity businesses that nudity partial or prohibiting 448 alcohol); sell dispense Coates, or v. City Knudtson 519 (Minn. 1994) 166, (prohibition

N.W.2d 169-70 against dancing nude in establishments licensed to sell alcohol against S.J.T., upheld challenge); state constitutional Inc. 267, 269, v. County, 726, Richmond 263 Ga. 430 S.E.2d (1993) (same); Laedeke, 728-29 City Billings v. 247 (1991) 151, 1348, 157-58, (same); Mont. 805 E2d 1352 Daytona Percio, v. Del 2d 197, Beach 476 So. (Fla. 1985) (similar).18 203-04 Although Supreme contrary Judicial Court of Massachusetts reached a result Sees, v. 532, Commonwealth 374 Mass. 373 N.E.2d (1978), we find the view majority persuasive. more view, find no Consistent that we basis for conclud ing I, 4, that article section of the Illinois Constitution greater protection affords to nude and dancing seminude licensed provided establishments to sell alcohol than is federal argument constitution. Eooh Bah’s 60—140(d) Chicago section of the Code is Municipal 14— I, 4, invalid under article section Illinois Constitu tion is therefore rejected. 60—140(d)

Because Municipal section 14— either United Il- Code does not violate States Constitution, linois in concluding circuit court erred could predicate ordinance not serve revoking liquor Eooh or enjoin- Bah’s license revocation Liquor Authority,

18In Bellanca v. New York State 54 N.Y.2d (1981), 429 N.E.2d N.Y.S.2d a case cited Pooh Bah, held, highest York’s court remand New from United Supreme Liquor Authority States Court in New York v. Bel- State lanca, 357, (1981), 452 U.S. L. Ed. 2d 101 S. 69 Ct. 2599 that banning topless dancing premises liquor control statute to sell alcohol did violate the state constitution’s licensed result, guarantee expression. reaching that freedom however, reaching specifically the court noted that it was not the guarantee question speech of whether state free the constitution’s guarantee first was broader than the of the amendment the Bellanca, N.Y.2d United States Constitution. at N.E.2d 768, 445 90. at N.Y.S.2d at it constituted a operation grounds on the

ing The court therefore acted appellate public nuisance. judgment reversing the circuit court’s properly City urges proceedings. us remanding for further in its judgment remand and enter favor dispense with the circuit This decline to do. Because the court’s now. we the constitutionality ordi- turned on the judgment nance, the court did not reach the nonconstitu- circuit administrative review by raised Bah on tional issues Pooh license, fully nor did it resolve the merits liquor of its relief. We that those City’s injunctive the claim for believe be the circuit court in the matters should addressed Our supplant first instance. We will not its function. interlocutory finally on purpose appeal was questions. determine the relevant That constitutional has been done. permit-

Pooh Bah remand it should be argues on present question ted to additional evidence the on the ordinance ef- actually secondary whether creates the argument fects claimed This City. untenable. present The sole reason Pooh Bah seeks to such evidence is to renew and bolster its contention that the ordinance ap- violates constitutional standards. For of this purposes however, peal, constitutionality of the is no ordinance longer dispute. holding Our that the ordinance subject does violate the United States Illinois constitution be binding par- is conclusive of issue and shall circuit ties on the court on remand. foregoing reasons,

For judgment appel- court, reversing late of the circuit court judgment remanding cause, is affirmed. court

Appellate judgment affirmed. no consideration part JUSTICE BURKE took or decision of this case.

450 Upon Rehearing

Dissent Denial of dissenting: FREEMAN, JUSTICE initially joined majority opinion I in the I this case. many points believe, however, that raised Pooh petition rehearing Bah in its for merits this court’s Specifically, further consideration. I concerned, am as rehearing petition, noted Bah in Pooh its that this opinion “ignores” court’s several first substantive “constitutionally required issues, the amendment violates *** procedures scrutiny resulting for intermediate in a process Bah,” denial of Pooh due and contains “er- rors, and omissions distortions of the I record.” Because reflection, believe that this case deserves further rehearing because this court has not seen fit to use as addressing points, longer join means of these I can no majority opinion. Accordingly, the in its I dissent from rehearing the in court’s denial of this cause. petition rehearing,

First, Pooh Bah in opposite direct that this Pooh Bah noted Therefore, Bah Pooh justification. content-neutral reasoned, ordinance was challenged because justified solely by to be content-neutral reasons— sought of the combina- primary also effects putative but on the viewers —the dancing tion of alcohol and erotic scrutiny strict justification requires City’s proffered review. stated, Bah

As in this Pooh support proposition, decisions, in and which upon Playboy relied Ashcroft first Court struck down on Supreme the United States grounds attempted federal statutes which amendment regulate sexually programming oriented cable television 826-27, child See 529 U.S. at pornography. Playboy, 887-88, 2d (provision 146 L. Ed. 120 Ct. at 1893 at S. attempted the Telecommunication Act which to prevent “signal by requiring operators bleed” cable either in full limit sexually explicit scramble channels such to certain hours violated programming on channels amendment); at L. Ed. Ashcroft, first 535 U.S. (certain provisions 2d at 122 S. Ct. at 1406 Prevention Pornography including Child Act 1996— ban on child pornography virtual violate —found amendment). instances, In the Court first both concluded subject that strict challenged statutes were scrutiny they because had content-related analysis 811-13, purpose. intent or 529 U.S. at 146 L. Ed. Playboy, 878-79, 1885-86; 2d Ashcroft, at 120 S. Ct. at 535 U.S. at 253-54, at 422-23, 152 L. Ed. 2d at 122 S. Ct. 1403. In its court, for rehearing before this Pooh Bah petition should, opinion very contends that this court’s at the least, “distinguish Playboy why and explain Ashcroft in Illinois get non-obscene Gentlemen’s Clubs less protection constitutional than graphic sexual activities shown on cable TV or than child molesters under the First I agree. Amendment.”

The opinion this court overlooks both of these recent United States Supreme speech Court free cases on which strongly rely the defendants for their strict scrutiny Rather than argument. directly address a central argument debated at in length parties this case in a engage thoughtful analysis contentions, of these simply relegates court this important debate to a brief opinion. footnote footnote 12 of this court’s (224 opinion Ill. 2d n.12), notes, at 415 this court pass ing, that “Pooh argues Bah the strict scrutiny govern standard should this case.” footnote further states “[f]or the reasons set later forth opinion, Bah Pooh is incorrect.” This is the extent of the provides discussion the court to the respect strict scrutiny argument appeal. rejects raised in this The court Pooh scrutiny argument Bah’s strict without further analysis that, direct fact in explanation, despite the its court, written City justified submissions to this the its ordinance, in on challenged part, the basis of the claimed effect of the expression seminaked dancing —erotic —on the club’s in of patrons, support theory the that the patrons likely then are more to be commit or victims of crime. of Accordingly, by argument, virtue this the City itself has invited of the cases application line of culminat decisions, ing in Playboy apply the which Ashcroft the strict standard higher scrutiny to laws directed at the on impact speech its listeners or watchers.

Furthermore, rejects the court Pooh Bah’s assertions in scrutiny applies despite that strict this case the fact in itself opinion its the court resorts anecdotal the the supposed evidence of effects of combina primary dancing tion of alcohol live seminaked on its view ers, e.g., the “customer who himself and noting, exposed middle of club.” 224 began masturbating the the Ill. testimony the addition, In the court discusses 2d 431. at the Kodish, upon focused expert, Dr. which City’s from the combina resulting males psychiatric effects on Dr. According stimulation. tion of alcohol sexual “ effect Kodish, produces an ‘associated this combination acting out, acts in violent sexual with an increase ” court 224 Ill. 2d Because this criminal behavior.’ at sup justifies City’s coverage part by ordinance audience, regulated conduct posed effects whether analysis triggers own a discussion of this court’s in this case. scrutiny applicable strict is review scrutiny of strict sidesteps any The court discussion decision of the United heavily upon the relying review in Ben’s States Court of for the Seventh Circuit Appeals (7th Bar, Somerset, F.3d Cir. Inc. v. Village of 2003). scrutiny intermediate applies That decision an regulating to the of a ordinance analysis review local businesses,” “sexually detailed consid- oriented without scrutiny not triggered eration as to whether or strict challenged for justification law or advanced However, that, Bar, ap- I note in Ben’s law. plicable scrutiny was at issue and that level scrutiny ap- parties agreed that intermediate was first No plicable party standard for amendment review. and, scrutiny for analysis, that case advocated strict therefore, it the court in that case appropriate was for ap- standard of review not to address the issue which us, contrast, in the Bah has plied. matter before Pooh it argued petition from the moment filed its vigorously scrutiny that strict appeal with court leave therefore, should applies. opinion, This court’s review ap- arguments respect Pooh address Bah’s distinguish either plication scrutiny and analysis strict and deci- Playboy the decisions —two apply Ashcroft this absent from conspicuously sions which remain court evades the strict opinion, In its this opinion. court’s argument scrutiny automatically applies and intermedi- scrutiny simply governmental body ate because a claims purpose challenged that the the ordinance is to attack alleged negative secondary effects. deeply

I am troubled the court’s out-of-hand argument scrutiny dismissal Pooh Bah’s strict for First, several additional reasons. such conduct on the part parties of this court denies the to this action the carefully reassurance that we have considered and arguments. message deliberated their What does this litigants court send to when does it not even bother to arguments appeals, the address central raised in their especially they magni when are issues constitutional say perception tude? I venture to that it creates the predetermined appeal this court has the outcome of necessary arguments does deem it to bother with may opposite cut in addition, direction. In analyze failing fully to address and an issue such as scrutiny applies whether strict to the ordinance chal lenged provide case, in this this court fails to the bench guidance with the bar needed to deal similar with is legal community Indeed, sues in future cases. evolving opinions map “rel[ies] on our to course of (2000) (McMorrow, law.” Ill. 2d People v. Jung, specially concurring, joined by J., JJ.). Miller Freeman, utterly carry

This court has failed out this mis sion in the instant cause. petition rehearing,

In its Pooh Bah also takes is- respect aspects sue with this court several of its scrutiny City’s coverage intermediate review opinion, following ordinance. the court uses the test from decision determine whether Bar Ben’s challenged coverage ordinance intermedi- withstands scrutiny challenged test, ate Under review. law is constitutional if: “ ‘(1) pursuant legitimate regulating State (2)

governmental [citation]; regulation power does not (3) [citation]; the completely prohibit adult entertainment expression, suppression of not at the regulation is aimed secondary negative combating effects at the but rather [citation]; entertainment establishments caused adult (4) a regulation designed to serve substantial is the tailored, interest, narrowly and reasonable government remain available avenues of communication alternative an [citation]; or, alternatively, regulation furthers government interest and the important or substantial es greater is no than is expressive on conduct restriction (Empha [Citation.]’ that interest. sential in furtherance of Bar, F.3d 224 Ill. 2d at in Ben’s at 722.” original.) sis - 414. weight that agree my colleagues prece- I with City’s coverage requires uphold dent this court to challenge its constitutional- ordinance facial against governments is can ban ity. It well settled that local itself, as nudity including nudity topless such partial Theatre, See, Inc., e.g., entertainment. Barnes v. Glen (1991). I 560, 115 L. Ed. 2d 111 Ct. 2456 501 U.S. S. coverage am satisfied that the ordinance falls within the that upheld government regula- ambit of decisions have facial chal- sexually against tions oriented businesses justifications. lenges upon secondary-effects based However, rehearing Bah this argues Pooh that in has opinion completely argu- court its overlooked its City’s coverage ment that ordinance is violative of the first amendment to Pooh Bah’s applied specific Bah, agree factual I Pooh and disagree situation. with that the first amendment with court’s conclusion is analysis ended this case with its hold- appropriately coverage that ing ordinance withstands facial chal- lenge. fully The address Pooh Bah’s as- court declines to challenge disregards to this ordinance and applied incompleteness proceedings respect below with challenge. that specific points petition of Pooh Bah’s first respect

for with to this court’s intermediate rehearing scrutiny analysis its contention this court’s opinion constitutionally violates “the required procedures scrutiny review,” intermediate thereby “resulting a denial of due process to Pooh Bah.” Pooh Bah takes is- sue this court’s it an denying opportunity complete its attack on City’s secondary-effects justification for the challenged ordinance on remand. Pooh Bah notes that this court denies it opportunity only despite the fact circuit court had entered directed verdict in finding Pooh Bah’s favor that the ordinance was City unconstitutional after the had rested its in case chief and before Bah had Pooh completed presentation rebuttal, of its own evidence in but despite also the fact that circuit specifically the court Bah reserved to Pooh the to right present additional evidence in the event that the court’s decision was subsequently overturned on appeal.

The record reflects that the circuit ruled court in Pooh Bah’s and against City January 18, favor the on date, 2001. On that the judge circuit court filed a very opinion However, detailed memorandum and order. on 2001, May 3, judge agreement the circuit court the —with 18, parties January 2001, of the the memoran- —amended entering dum and opinion pro order nunc tunc a series 3, on May three additional orders. One order entered Order,” was entitled “Partial and Judgment this present “right” of Pooh Bah to additional evidence on remand in the of a and did not limit the event reversal scope opinion, In its this men of such evidence. court (224 entry May passing 3, 2001, in tions the of the orders 404-05), vague general in a Ill. 2d at but does so noting except specifically the manner, in footnote 9 of for agreed opinion to the that one of the orders “reserved City right present regarding evidence to additional by imposed Pooh Bah the amount of fines that could be City prevailed 2d the merits.” 224 Ill. in the event on compelled question why to I court feels at 405 n.9. this specificity that the circuit court order set forth with 458

provides City may present additional evidence respect with to the fines to levied against be Pooh Bah remand, on but remains completely respect silent with to the fact that order also Bah granted to Pooh “its right present additional regarding evidence” issues were which cut short the court as a of grant result its of Pooh Bah’s for motion directed verdict. I attach the 3, 2001, circuit court’s May Judgment “Partial Order” as an appendix dissenting opinion to this as the best evidence of the of the parties intent the circuit court respect with to this issue. addition,

In I note that scrutiny the intermediate analysis validity of the City’s secondary-effects justification in support coverage ordinance ais fact-based, assessment, as the United Supreme States repeatedly noted, Court has its particularly most AM., recent v. City Pap’s decisions. See Erie 529 U.S. (2000) 277, 265, 146 L. Ed. 2d 120 S. Ct. 1382 (plurality Inc., op.); City Angeles Books, Los v. Alameda 535 U.S. 425, 670, (2002); 152 L. Ed. 2d 122 1728 S. Ct. see also (7th R.V.S., City L.L.C. v. Rockford, E3d 402 Cir. 2004). Books, the proper Alameda the Court described analytical inquiry: for this framework Theatres, Playtime Inc., [in held “We Renton v. (1986)] L. 2d

U.S. Ed. 106 S. Ct. 925 that a municipality may rely any ‘reasonably on evidence that is demonstrating believed be relevant’ for a connection substantial, speech govern- and a independent between say ment [Citations.] interest. This is not that a municipality get away shoddy reasoning. can data or support The municipality’s fairly evidence must municipality’s If plaintiffs rationale its ordinance. fail rationale, cast direct doubt either demonstrat- ing municipality’s support evidence does not disputes by furnishing rationale or evidence that municipality’s findings, municipality factual meets the plaintiffs standard set forth Renton. If succeed cast- municipality’s manner, ing doubt on a rationale in either

459 supplement municipality to the shifts back the burden theory for a renewing support with evidence the record Books, U.S. at Alameda justifies its ordinance.” that 683, 122 Ct. at 1736. 438-39, 2d at S. L. Ed. address this do not my colleagues In opinion, their the United by set forth evidentiary procedure three-part (1) justification Court, requires: which Supreme States (2) challenge and government; for the ordinance (3) rebut- challenger; by the of the ordinance dispute Bah to Instead, take Pooh they government. tal right— its recognize this court requesting task for circuit May and the Alameda decision under the at its evidence complete presentation court order —to trial: present [additional Bah seeks to

“The sole reason Pooh actually the ordinance question of whether evidence on City] by the is to secondary effects claimed creates the ordinance violates its contention that renew and bolster appeal, of this purposes For constitutional standards. longer however, constitutionally is no of the ordinance does not holding that the ordinance subject dispute. Our or Illinois constitution violate the United States binding parties on the issue and shall be conclusive of the 224 Ill. 2d at 449. circuit court on remand.” and on the why, since explain fails to disagree. opinion I This court’s a half- findings directed judge’s the circuit court reversed, cases of the rebuttal record are now completed be cut government and the should challengers both the fact the constitutional off, only despite review scrutiny for intermediate procedures mandated but also opportunities, that both sides have these require 3, 2001, order May circuit court’s despite the fact that the light right to Pooh Bah this explicitly reserved time that order was of the case at the procedural posture entered.19 a fact-based addition, reverses opinion this court’s rehearing: petition Pooh Bah states

19As doing reweighs so, decision of sufficiency and, the trial court credibility City’s “justification” and of the City adequately evidence to conclude that the has coverage established that the ordinance was enacted secondary general matter, combat effects. As a it not is judg court, for this a review, as court of to substitute its ment for the fact, that of trial court on issues of as the judge position trial court is in the best to observe the parties conduct and demeanor of the and the witnesses. (2006). Ill. 2d 350-51 This court’s Best, Best v. particularly troubling light case, actions are this in of excerpt following opinion the from the memorandum parade court, order of the circuit written after a of wit by City secondary- support nesses the were called of its justification: effects “The court finds the record of devoid any proof potentially the existence even harmful secondary City Indeed, effects. it finds that the was suc merely positing possibility cessful in secondary that those hypothetically could

effects exist.” say certainty that, Unless this court can 100% possible as a matter law, there is no further evidence may any City’s that cast doubt on the two main theories justification patron-generated crime and outside- — generated might theories, crime—or that refute those play this case should be allowed to out in the trial court any finding remand, on other case a like where directed opinion prematurely “[T]he a ‘final’ makes determination constitutionality coverage of the ordinance on the though scrutiny fact-sensitive intermediate review —even properly can on appeal the most that be determined on reversing judge’s findings) that (by review the trial is that prima justify made case to ordinance. facie Particularly as-applied challenge, the case on was opinion improperly off the over. But the cuts attack on the City’s secondary justifications, preferred effects thus bar- finishing ring litigant this from ever its constitutional at- original.) (Emphasis tack on the ordinance.” leads to the conclusion opinion The court’s is reversed. an Pooh Bah to unfairly holding majority that standard heretofore-not-announced unprecedented to obtain appeal on of evidence proffer mandates a finding. directed of a after reversal remand rehearing addition, Bah also asserts Pooh of its overlooks, part court filed opinion multiple, the issue scrutiny analysis, intermediate in this remedies legislative cumulative overlapping challenged opinion, in its the court notes case. As Chicago city passed ordinance was coverage city council in 1993 Subsequently, in 1978. council zoning use ordinance adult an anticoncentration passed regulations and dispersion location adopted which to combat city, and which was enacted uses in the adult targeted by the problem allegedly perceived the same secondary the effects ordinance: so-called coverage adult-dancing venues. liquor-serving filed leave to appeal as in its for early petition As validity of these court, Bah raised the this Pooh with court’s a central issue this regulations as overlapping review, complies require- its club with and noted that In its adult use ordinance. ments of the later-enacted Bah questioned Pooh appeal, for leave petition case, of this whether, in the factual context specific has, or coverage ordinance City must show whether targeted on the have, impact substantial will some beyond provided effects above and secondary Bah made Pooh subsequent zoning adult use ordinance. negative, in the that, if this is answered point query free speech that restrictions on danger there is a legislative latest cumulate, can “with expression solution, and on and top yesterday’s ‘solution’ piled their individual review of genuine judicial on without significance justification.” lack of justifications —or ap- remedies as regulatory these interplay of the between plied to Pooh Bah was one of the reasons that this court accepted appeal opinion, However, for review. in its the court has failed to issue, address this which is determining validity City’s relevant of the secondary-effectsjustification.

Along lines, these Pooh Bah also asserts that this improperly opinion court overlooked in its that, as a City’s result of the 1993 enactment of the adult use zon- ing legally ordinance, Pooh Bah’s club is mandated to be physically any isolated from other adult venues. Accord- ing rehearing petition, opinion to Pooh Bah’s the court’s “ignores (and industrial, non-residential character pedestrian patterns) associated limited traffic of the area,” which, Club’s facts in Pooh view, Bah’s are “especially pertinent as-applied challenge, to the which up opinion.” the court does not take in its my concerning physical view, the facts isola- tion of Pooh Bah’s club are relevant to two issues. First general “justification” coverage is the for the ordinance respect vicinity to incidents of crime in the generated club from outside sources. The and most heavily justification. of the case law relies on this In ad- argument supported by dition, this was the various City’s expert “studies” from other cities that the wit- nesses described in the Bah, however, circuit court. Pooh countered that most or all of that evidence is based on concentrations of adult businesses or concentrations liquor so, establishments. If then the absence of concen- tration in this case is a factor that undermines the relevance Indeed, of those studies. this is one of the obvi- disputes appropriate ous in this case that is for further evidence on remand. physical

Second, the isolation of the club is relevant as-applied challenge coverage to Pooh Bah’s to the zoning ordinance based on the later-enacted adult physical separa- ordinance, which, stated, mandates which, Bah and Pooh adult establishments tion between crime-in-the-vicinity problem any claims, has solved area). (based upon Bah in the Pooh the crime absence requires the of affairs from state asserts coverage justification for different some additional or beyond justification. It is ordinance my the usual anticrime may coverage be ordinance of the 1970s view City’s unnecessary by of the own and virtue archaic superseding City’s legislation. zoning The adult use coverage justifying under the older ordinance burden scrutiny analysis include the immediate should demonstrating marginal need for the older burden of in the law addition to the anticoncentration efforts zoning points completely These are which are newer law. opinion, in its would overlooked the court which appropriate be for further consideration. peti argument,

In a related Bah asserts in its Pooh engaged rehearing tion for that this in “clear and court plain error” its of the consideration intermediate scrutiny incorrectly legislative citing issues his preambles zoning tory City’s 1993 adult use history legislative as if ordinance that were the city original challenged coverage council intent of the years ordinance, enacted which was earlier. See agree. findings Ill. 2d I at 420-22. on which this opinion justification City’s court’s focus on relies enacting zoning restrictions, rather than for the coverage earlier-enacted ordinance. As Pooh Bah states rehearing petition, opinion erroneously “the its treats City’s policies supporting announced 1993 adult (which liquor zoning remedy use were addressed to venues) original expressed ifas it intention for were pre ‘coverage’ requirements no the 1978 had —which amble or announced other than the Commit intentions opinion disregards.” Report, (Emphasis in tee which the original.) respect

In sum, with to this court’s treatment of the scrutiny appeal, agree intermediate issues in I this precedent Pooh Bah that it is untenable to reserve a finding directed then not allow former winner to presenting especially remand, finish its evidence on on appeal injunction hearing an an from full without discovery. validly points rehearing Bah As Pooh out in its petition: (or

“Why any lawyer accept) would Illinois now move for a finding directed or verdict is now a waiver —which right present if appellate rest case his/her When, here, disagree judge? courts with the trial reviewing reweigh nary courts the evidence with a mention standards, weight deferential manifest clear error there is palpable sense of arbitrariness that will constrain litigants Illinois to make an entire record —even when judge hearings unnecessary.” trial finds more (Emphases original.) precedent comple- this set court’s refusal to allow scrutiny tion of evidence on the intermediate first amend- following finding ment of a issues reversal directed integrity proce- undermines the of the directed-verdict strongly discourages litigants dure, and from Illinois employing judicial time-saving los- this device for fear of ing rights complete their if their record their directed upset appeal. litigation verdict is The fact that this protracted history has a of no this should be moment in consideration, our reason short-circuit procedure. own well-settled laws of civil petition matter, As a final Pooh Bah contends in its rehearing opinion “errors, that this court’s contains omissions and distortions of the record” which serve inject “misleading,” “consistently “irrelevant,” one- agree Bah sided” information into this case. I with Pooh points merit that these further consideration court. opinion, page slip

First, at 33 of the the court presented by discusses the evidence the circuit ef secondary negative to the historical respect court with in the to sell alcohol clubs licensed by strip fects caused late 1970s and during the Chicago area of Rush Street Testimony in the circuit 224 Ill. 2d at 430-31. early 1980s. strippers during period, time court indicated that Rush Street estab associated with those and waitresses prostitu large for a number of lishments accounted and, court area, this geographic in that tion arrests and serious secondary effects were states, “[njegative state of present to the This court then turns pervasive.” Bah’s that, to Pooh respect with affairs and observes recurred may not have club, effects widespread “[s]uch added.) in footnote This court also notes yet.” (Emphasis slip opinion although of the that page 14 on the same that incidents litigation initially alleged in had City club, “it does not occurred at Pooh Bah’s prostitution charged been any patron yet that dancer or has appear offenses.” prostitution prostitution-related with added.) (Emphasis into these statements “yet”

The insertion of the word that, unjustified judicial to an forecast even amounts associated negative secondary effects though historic not selling proven clubs alcohol have been strip with club, and, though the to Pooh Bah’s even respect oc- prostitution failed to establish that incidents of City club, they simply at or could be connected to the curred in likely appear “yet” have not occurred will in of the inappropriate light particularly future. This is prove litigation City attempted below where the completely and failed prostitution solicitation and/or opinion its case. In his memorandum establishing op- had the order, judge circuit court below —who credibility of the assess the demeanor portunity to City on behalf of the witnesses who testified —described City’s as follows: failings evidence *** entrap the dancers police officers tried to “Undercover Ac- prostitution and solicitation. attempt in an to show cording to the presented trial, clear evidence at the dancers not police were interested. The tried using video planted cameras in their style neckties —James Bond —to show violations. That failed The simplest thing too. by could have been City done would have been to produce residents who were affected the existence of [the brought Club]. None were police forth. At least five of- ficers, a minimum of five corporation assistant counsels and the latest modern technology were used present totally case that was proof.” devoid of judge City The circuit court further wrote that “the did produce any neighbors commercial or resi- —either complained dential owners or tenants —who about the Testimony [the Club]. existence of or the effects of No City operated [the Club] was offered in a unreasonably manner which health, interferes with the safety, peace, general comfort of convenience of the public.”

Accordingly, affirmatively the record refutes the al- legation that there was solicitation and/or prostitution in—or associated with—Pooh Bah’s club. It blatantly improper for this court on review to intimate only nega- that it is a matter of time before the historical secondary including prostitution, effects, tive occur— despite completely the fact that the record in this case is unjustly places devoid of such evidence. This court its imprimatur published opinion suggestion in a on the past Pooh Bah’s club has in the in will the future and/or types illegal be connected to these and undesirable activities. petition addition, Bah Pooh also states in its for

rehearing selectively that this court has reached outside inject opinion the record to “facts” into its which are not only defamatory consistently “irrelevant, and one-sided,” proceedings subsequent but also which occurred to the in support ruling below, in circuit court an effort to against According in favor of the Pooh Bah. rehearing petition: Pooh Bah’s extraordinary sponte expended “[T]he Court has sua effort inject tertiary references to other’s irrelevant associations, baseless ac- criminal conduct and as well as ‘prostitution’ cusations of to taint the Club and its owner- ship. only completely unnecessary to the deci- This is case, misrepresents in the facts and sion this but relationships involved. It is also unfair. Pooh Bah has no (under order) opportunity here or on remand the current *** present guilt by rebuttal evidence. Such association judicial place opinion.” has no in a agree. I rehearing petition, points In its Bah Pooh to the information contained within footnotes 2 and 3 of this opinion being particularly egregious. court’s Both of these footnotes contain outside-the-record information blatantly which is unfair to defendants and irrelevant to example, maligns this court’s decision. For footnote Joe managers Pascente—one of four assistant at the club—as impliedly paints defrauder, son of a convicted him with that same brush. As reflects, far as this record any Joe Pascente has not been crime, convicted of and is any not “associated” with addition, other criminals. In Chicago police the statement in the footnote that the department failing [him] “fired to disclose that he subject investigation was a involving of an FBI into insurance fraud improper.

his father” is 224 Ill. 2d at 395 n.2. The record below reflects that Joe Pascente denied that subject investigation, he was ever a of an FBI there is no judicial finding issue, on this and there is no in evidence any challenged this record—nor cited the footnotes—to subject. City’s police confirm that he was such a (on personnel City attorney file which the said that she during hearings based her accusation in the circuit court) is not Nevertheless, contained this record. hearsay allegation court’s footnote treats that as fact published opinion, respect person to a who has any wrongdoing. improper not been convicted of This is disturbing precedent. and sets a addition, father, Joe’s Fred Pas- respect with

cente, Chicago the record reflects that he was a retired club, employee detective was an of the but police who 2, however, management authority. had no Footnote club, running that Fred Pascente was insinuates the club and nefari- that there is an association between in the ous criminals because Fred Pascente is now listed “Black Book.” I note that Gaming Nevada Commission’s of the listing subsequent this occurred conclusion below, information was litigation and that this protracted the record on drawn this court from sources outside appeal. 3 in respect

Similar concerns exist with to footnote footnote, provided In this the court has opinion. Riz- legal problems detailed faced Fred resume subsequent have occurred to his apparently zolo which club, gleaned, and which have been involvement with on appeal. once from sources outside record again, case reflects that in 1995 the club’s The record this owner, Handera, Perry management entered into Rizzolo, who owned a Las licensing agreements with Han- “Crazy as the Horse Too.” Vegas strip club known nationally stated that he wanted to license dera his club “Crazy Chicago Horse Too” name for recognized Chicago name known to convention- because it would be a As and, therefore, as a benefit to the business. eers work notes, operated the club under opinion this court’s Horse Too” name until 2003. Footnote 3 of the “Crazy dif- however, legal on Rizzolo’s opinion, court’s focuses of his Las respect operation ficulties in 2006 with club, any difficulties arose Vegas with no indication Chicago his with Handera’s respect association club, any part proceedings played or that did criminal infiltra- allege Because the below. business, Bah had no reason to Bah’s Pooh tion of Pooh below, in the circuit court rebut such claimed associations appeal. in this emphasized opinion first they were review, As a court of it is our role to examine the validity judgments record below and review the of the supplement ap- below.It is not our role to the record on peal. litigants expect every Will now case this court will comb the Internet or other outside-the-record sources of information —whether reliable or not —to gather up-to-the-minute information irrelevant to the disposition legal appeal, issues their case on but prurient enough tantalizing pieces to include as side information contained within the footnotes of this court’s opinions? opinion After the bar, filed in the matter at they justified believing. would be in so why, very

It is unclear to me at the least, particular portion petition rehearing of Pooh Bah’s for generated any type response my has not from col- leagues majority. they agree in the Do that such er- rors, omissions and distortions of the record in this case warrant a correction? by points

Because I am troubled raised Pooh petition rehearing, Bah in its I believe that this mat- rehearing. ter merits further reflection this court on Accordingly, respectfully I dissent from the denial of rehearing in this cause.

APPENDIX notes its opinion completely court’s the matter bar at argument scrutiny overlooks Pooh Bah’s analysis strict 60—140(d) applied should be to section 4— (the ordinance”). “coverage Chicago Municipal Code court, In its written to this submissions Pooh Bah upon strongly relied two decisionsfrom the United States Supreme support Court of its assertion that strict scrutiny applicable is ordinance at issue in Playboy Group, Inc., case: United States v. Entertainment (2000), 865, 529 U.S. 146 L. 2d Ct. 1878 Ed. 120 S. Speech Coalition, v. Free 535 U.S. Ashcroft (2002). 403, L. Ed. 2d S. Ct. 1389 Bah Pooh asserted challenged content-related, that the ordinance on the applies solely basis that the law erotic entertainment purpose because effect and is to limit erotic expression by regulating body coverage on erotic performers. According City’s justifica- Bah, to Pooh part allegedprimary tion for on the ordinance rests audience, i.e., expression erotic effect dancing seminude alcohol and combination to commit crime patrons viewing-and-drinking prompts they leave the club. crime when become victims of

Notes

notes order that the cases had been before the circuit on findings court “Pooh Bah’s motions for directed judgment for at the conclusion of the case-in- City’s chief.” The order parties further recounts had into submitting entered the cases for a “stipulation on ruling record,” the current and that the circuit court’s on Bah’s ruling Pooh directed verdict motion was all of their “subject parties respective reservations if rights present additional evidence these motions are finally dispositive.” incorporates The order January prior 18, 2001, memorandum court’s circuit rulings prior opinion on it rendered order, as well as prior August in those 21, 2000, for the reasons stated finding granted decisions, Bah’s motion directed Pooh City. May against judgment order, and for jurisdiction,” “retained] explicitly inter court the circuit any remaining matters, if alia, trial of these “over judgments be or vacated.” herein shall reversed Bah has reserved its also stated that “Pooh court’s order opposition present right additional evidence support of defenses and I-V and in its affirmative Counts sup- in No. CH and in amended counterclaims port judgments 4559, if the in No. 93 CH claims non-appealable are in a final and this order not affirmed order.” Thus, the the circuit court record reflects judgment against for Pooh Bah on a mo entered entry and not a final tion for of a directed verdict Pooh in its record at the end of trial. Bah was midstream attacking City’s defense case and was not finished coverage prima justification case in ordinance facie already pend Bah’s when the circuit court ruled on Pooh ing upon proce motion for directed verdict. Based posture, explicitly dural the circuit court reserved

Case Details

Case Name: City of Chicago v. Pooh Bah Enterprises, Inc.

Court Name: Illinois Supreme Court

Date Published: Mar 5, 2007

Citation: 865 N.E.2d 133

Docket Number: 99804

Court Abbreviation: Ill.