FOXXXY LADYZ ADULT WORLD, INC., and Dirt Cheap, Inc., Plaintiffs-Appellants, v. VILLAGE OF DIX, ILLINOIS, Defendant-Appellee.
No. 14-1642.
United States Court of Appeals, Seventh Circuit.
Decided March 10, 2015.
779 F.3d 706
Before WOOD, Chief Judge, and FLAUM and MANION, Circuit Judges.
Argued Dec. 11, 2014.
Aud Courtney Cox, Attorney, Sandberg Phoenix & Von Gontard, Carbondale, IL, for Defendant-Appellee.
FLAUM, Circuit Judge.
Plaintiffs—owners of an adult entertainment establishment that features nude dancing and permits customers to bring their own alcoholic beverages onto the premises—challenge the enactment of three local ordinances that ban public nudity, open containers of alcohol in public, and the possession of liquor in public accommodations. Plaintiffs argue that the public nudity ban violates the free speech protections of the First Amendment, and further allege that the Village of Dix lacks statutory authority to pass the challenged alcohol restrictions. Dix filed a motion to dismiss the complaint for failure to state a claim, which the district сourt granted as to both issues. Because we conclude that, at this early stage of the litigation, Dix has not established the necessary evidentiary basis for its assertion that nude dancing causes adverse secondary effects to the health, welfare, and safety of its citizens, we reverse the district court‘s judgment with
I. Background
The Village of Dix is a “dry” municipality of approximately 500 residents, located in Jefferson County, Illinois. In October 2010, Dirt Cheap, Inc. purchased commercial real estate in Dix and opened a nightclub offering erоtic entertainment. Two years later, Foxxxy Ladyz Adult World, Inc. began to rent the property from Dirt Cheap. Now operated by Foxxxy Ladyz, the nightclub features nude dancing and is open to all members of the public age twenty-one and over. Although Foxxxy Ladyz does not sell alcohol, it allows its customers to bring their own alcoholic beverages (“BYOB“) onto the premises. Foxxxy Ladyz is one of the few commercial establishments in Dix, and is located across the interstate highway from the Village‘s other businesses, residences, and grade school.
In December 2010, shortly after Dirt Cheap opened Foxxxy Ladyz‘s predecessor, Dix passed three ordinances, each of which banned certain behavior throughout the Village. First, Ordinance No. 2010-04 instituted a prohibition on opеn containers of alcohol in public. The preamble to the ordinance explains that “the sale at retail of alcoholic liquor is [already] prohibited by law” in Dix, and expresses a desire to “preserve the ‘dry’ status of the Village of Dix to the fullest extent permitted by law.” The preamble further asserts that “the prohibition on the retail sale and public consumption of alcoholic liquor within [Dix] is in the public interest to maintain social order, health, welfare, and safety of citizens.” The ordinance prohibits the possession of “any open container of alcoholic liquor” in any “public place” within the Village. The ordinance specifies that “public place” includes any “privately owned [property], which is open to or held out for use by the public or is otherwise available to the public.”
Dix next enacted Ordinance No. 2010-05, a public nudity ban also aimed at preserving “social order, health, welfare, and safety of citizens.” This ordinance replaced Ordinance No. 9, Section 7, which had been in effect in Dix since 1930 and which provided, “No person shall appear in any public place in a state of nudity, nor in a dress not belonging to his or her sex, or any indecent or lewd dress, or make any indecent exposure of his or her person, ... nor shall commit any indecent or lewd act.”1 Expressing a “desire[] to continue the prohibition on public nudity within the Village of Dix” and to “update the [1930 ordinance] to use language which has been approved by the Courts as consistent with the Illinois and United States Constitution,” Ordinance No. 2010-05 reads:
No person shall knowingly or intentionally appear nude or in a state of nudity in a public place.
“Public place” means any location frequented by the public or where the public is present or likely to be present or any location where a person may reasonably be expected to be observed by members of the public or any place to which the public has a right to go or is invited.
“Nude” or “State of Nudity” means the showing of the human male or female
genitals, pubic area, vulva, anus, or anal cleft or cleavage with less [than] a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola, or the showing of the covered male genitals in a discernibly turgid state.
An individual can comport with Ordinance No. 2010-05 by wearing pasties and a G-string.
The third ordinance, No. 2010-06, prohibits the possession of liquor in public accommodations. The ordinance—whose preamble largely restates the preamble to Ordinance No. 2010-04—defines “public accommodation” as “a refreshment, entertainment or recreation facility of any kind whose goods, services, facilities, privileges or advantages are extended, offered, sold or otherwise made available to the public.” In enacting these ordinances, Dix conducted no studies, nor did it expressly cite other evidence suggesting that the operation of Foxxxy Ladyz would lead to increased crime or other undesirable “secondary effects” associated with sexually oriented businesses.
An individual who violates any of these ordinances is subject to a fine between $100.00 and $750.00 per violation, and may also be enjoined from committing further offenses. Given that Foxxxy Ladyz is a BYOB establishment that offers fully nude dancing, it concededly operates in violation of all three ordinances. In March 2013, the Dix Village Board sent Foxxxy Ladyz a notice explaining that its actions constitute a nuisance, and ordering Foxxxy Ladyz to immediately comply with the applicable ordinances.
Shortly thereafter, plaintiffs filed suit in the United States District Court for the Southern District of Illinois. They argue that Dix‘s public nudity ban violates the free speech protections of the First Amendment (incorporated against the states by the Fourteenth Amendment) and the Illinois Constitution.2 Plaintiffs also allege that Dix lacks authority to pass the alcohol restrictions embodied in Ordinance Nos. 2010-04 and 2010-06 as a result of the limitations imposed upon municipal regulation of alcohol by the
II. Discussion
We review de novo a district court‘s grant of a motion to dismiss for failure to state a claim, Alexander v. McKinney, 692 F.3d 553, 555 (7th Cir. 2012), “constru[ing] the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [plaintiff‘s] favor.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009).
A. Public Nudity Ban
Although “be[ing] ‘in a state of nudity’ is not an inherently expressive condition,” City of Erie v. Pap‘s A.M., 529 U.S. 277, 289 (2000) (plurality opinion), “nude dancing ... is expressive conduct within the outer рerimeters of the First Amendment.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality opinion). Dix contends that Ordinance No. 2010-05 is targeted not at nude dancing itself, but rather at minimizing the deleterious “secondary effects“—such as “the impacts on public health, safety, and welfare,” Pap‘s A.M., 529 U.S. at 291—caused by the presence of adult entertainment establishments. When faced with such a legislative justification, this court has “presume[d] that the government did not intend to censor speech, even if the regulation incidentally burdens particular instances of expressive conduct.” Schultz v. City of Cumberland, 228 F.3d 831, 841 (7th Cir. 2000) (citing Pap‘s A.M., 529 U.S. at 291). Nevertheless, because Dix‘s public nudity ban does entail an incidental limitation on expressive activity, it must satisfy certain constitutional standards. G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d 631, 636 (7th Cir. 2003).
The U.S. Supreme Court has held that municipality-wide regulations of public nudity, such as the ordinance at issue here, are properly evaluated under the framework set forth in United States v. O‘Brien, 391 U.S. 367, for content-neutral restrictions on symbolic speech. Pap‘s A.M., 529 U.S. at 289; see also G.M. Enters., 350 F.3d at 638 (“Regulations of public nudity ... are analyzed under the intermediate scrutiny test of United States v. O‘Brien.“). The Supreme Court first applied the O‘Brien standard to a public nudity ordinance in its fractured 1991 decision, Barnes v. Glen Theatre, Inc., 501 U.S. 560. Barnes addressed the constitutionality of an Indiana public indecency statute nearly identical to Dix‘s regulation, which banned “nudity” in a “public place,” effectively requiring exotic dancers to wear pasties and G-strings. Id. at 563, 569 n. 2. The Court noted that Indiana, like Dix here, “ha[d] not banned nude dancing as such, but ha[d] proscribed public nudity across the board” in all public accommodations. Id. at 566. The Court3 determined that the statute was unrelated to the suppression of free expression and was therefore content neutral—concluding that “while the dancing to which [the statute applies] ha[s] a communicative element, it [i]s not the dancing that [i]s prohibited, but simply its being done in the nude.” Id. at 570-71. Because Ordi-
Under the O‘Brien test, a regulation of public nudity will be upheld if (1) the regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the restriction on alleged First Amendment freedoms is no greater than essential to further the government‘s interest. O‘Brien, 391 U.S. at 377. Ordinance No. 2010-05 easily satisfies three of these four prongs. With respect to the first prong of the analysis, the Supreme Court established in City of Erie v. Pap‘s A.M. that the pаssage of a substantially similar public nudity ordinance to “protect public health and safety [was] clearly within [a] city‘s [constitutional] police powers.” 529 U.S. at 296. Dix‘s proffered rationale for Ordinance No. 2010-05—the maintenance of “social order, health, welfare, and safety of citizens“—is essentially the same as that advanced by the city of Erie. O‘Brien‘s third prong, which inquires whether the governmental interest is unrelated to the suppression of free expression, is identical to the antecedent content neutrality inquiry, addressed above. Finally, with regard to the fourth prong, which explores whether a challenged restraint on symbolic speech is any more restrictive than necessary to further the government‘s interests, the Supreme Court has concluded that a рasties and G-string requirement imposes only a de minimis restriction on freedom of expression, and one that is “minor when measured against the dancer‘s remaining capacity and opportunity to express the erotic message.” Barnes, 501 U.S. at 587 (Souter, J., concurring in the judgment); see also G.M. Enters., 350 F.3d at 636 (“The requirement that dancers wear pasties and G-strings has only a ‘de minimis’ effect on the expression conveyed by nude dancing.“).
Dix‘s public nudity ban fares less well, however, with respect to the second prong of O‘Brien, which demands that Ordinance No. 2010-05 “further[] an important or substantial governmental interest.” 391 U.S. at 377. As we have explained, Dix‘s asserted justification for the ordinance‘s enactment is the reduction of adverse secondary effects associated with establishments that offer erotic entertainment—an interest whose validity the Barnes Court acknowledged. See 501 U.S. at 582 (crediting Indiana‘s “substantial interest in combating the secondary effects of adult entertainment establishments“). However, while the minimization of secondary effects may, in the abstract, satisfy O‘Brien‘s “substantial governmental interest” requirement, Dix must nevertheless offer some evidence that nude dancing in fact generates such deleterious effects. See G.M. Enters., 350 F.3d at 638-39 (assessing “what quality and quantum of evidence a regulating body must consider in order to demonstrate that it has a reasonable basis for believing that the regulated activity generates adverse secondary effects, the reduction of which is a ‘substantial government interest’ under the ... O‘Brien test“). The outcome of this appeal ultimately turns on whether, in enacting the challenged ordinance, Dix relied on evidence sufficient to suggest that public nudity would give rise to adverse secondary effects in the Village.
The parties dispute the evidentiary foundation that a municipality must establish in order to invoke secondary effects as the justification for an ordinance burdening
The district court shared Dix‘s view. The court rejected plaintiffs’ argument that Dix “needed a ‘predicate‘—some study, factual finding, or other evidence—in order to justify that its nudity ban would combat the secondary effects of nude dancing.” Foxxxy Ladyz Adult World, Inc. v. Vill. of Dix, Ill., No. 13-482, op. at 712 n. 5 (S.D. Ill. Mar. 12, 2014). According to the court, “The Pap‘s A.M. plurality made clear that relying on the evidentiary foundation of harmful secondary effects set forth in previous caselaw provides an adequate rationale for passing a nudity ban.” Id. (citing Pap‘s A.M., 529 U.S. at 296-97). This conclusion was in error. While Pap‘s A.M. may have suggested that reliance on prior case law was sufficient to justify the imposition of a ban on public nudity,4 the Supreme Court, in its subsequent decision, City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (plurality opinion), clarified that the evidentiary standard a municipality must satisfy in order to constitutionally impose a restriction on adult entertainment venues is not so lenient.
The Court first addressed this standard in its 1986 opinion, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41. There, the city оf Renton, Washington (population 32,000) enacted a zoning ordinance prohibiting the operation of any “adult motion picture theater” within 1,000 feet of any residential zone, church, park, or school. Id. at 44. Prior to enacting the ordinance, which “was aimed at preventing the secondary effects caused by the presence of even one such theater in a given neighborhood,” the city held public hearings, considered studies produced by nearby Seattle, and reviewed a report from the City Attorney‘s Office detailing similar developments in other cities. Id. at 44, 50. In evaluating whether Renton had sufficiently demonstrated the existence of adverse secondary effects when it relied heavily on data from other cities rather than on legislative findings specific to Renton, the Court endorsed Renton‘s reliance on “the experiences of Seattle and other cities, and in particular on the ‘detailed findings’ summarized in the Washington Supreme Court‘s Northend Cinema opinion.” Id. at 51 (citing Northend Cinema, Inc. v. City of Seattle, 90 Wash. 2d 709 (1978)).
Renton was followed by Barnes and Pap‘s A.M.—both plurality opinions in which the Court upheld public nudity bans over First Amendment challenge, invoking Renton‘s evidentiary standard and endorsing reliance on prior case law to meet that standard. See Barnes, 501 U.S. at 584 (noting that because the type of entertainment the government sought to regulate was “plainly of the same character as that at issue in Renton,.... [i]t is therefore no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects“); see also Pap‘s A.M., 529 U.S. at 296-97. Recognizing that the divided opinions in Pap‘s A.M. and Barnes may have muddied the waters regarding the nature and extent of the evidence a governmental body must evaluate in order to conclude that a regulated activity produces adverse secondary effects, the Court granted certiorari in City of Los Angeles v. Alameda Books, Inc., “to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton.” 535 U.S. at 433.5
In Alameda Books, plaintiff operators of an adult bookstore and adult video arcade challenged a 1983 Los Angeles ordinance prohibiting the operation of multiple adult businesses in the same building. Id. at 431-32. In enacting the ordinance, Los Angeles looked to a 1977 study it had conducted, which focused not on the effects of multiple adult entertainment businesses within a single complex, but rather on the effects of a concentration of separate adult establishments within close geographic proximity. Id. at 430. Although Los Angeles did not consider evidence bearing directly on the alleged link between multiple-use adult establishments and negative secondary effects, the Supreme Court determined that Los Angeles permissibly relied on the 1977 study. See id. at 436 (“[I]t is rational for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates.“).
In an attempt to crystalize the evidentiary standard set forth in Renton, the Alameda Books plurality explained,
In Renton, we ... held that a municipality may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent government interest. This is not to say that a municipality can get away with shoddy data or reasoning. The municiрality‘s evidence must fairly support the municipality‘s rationale for its ordinance.
In the wake of Alameda Books, our court has been consistent in requiring that a regulating body produce somе specific, tangible evidence establishing a link between the regulated activity and harmful secondary effects. Our decision in Annex Books, Inc. v. City of Indianapolis, Ind., 581 F.3d 460 (7th Cir. 2009), is particularly instructive. In Annex Books, Indianapolis revised its ordinances relating to adult businesses, expanding the definition of “adult entertainment business” and prohibiting the operation of such businesses after midnight or on Sundays. Id. at 461.6 The city attempted to justify the restrictions on the ground that they would “reduce crime and other secondary effects associated with adult businesses.” Id. at 462. In setting forth the applicable evidentiary standard, we interpreted Alameda Books to require a demonstration that a regulation is “‘likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.’ ‘[In other words, a] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects....‘” Id. at 465 (quoting Alameda Books, 535 U.S. at 445, 449).
In revising the challenged ordinances, Indianapolis relied on a 1984 study that found higher crime rates near adult businesses. However, we rejected the study‘s probative value, concluding that it was relevant only to a restriction on the high concentration of adult businesses in a particular geographic area, which Indianapolis‘s ordinances did not seek to regulate. Id. at 462. We also objected to the fact that most of the plaintiffs were book and video outlets, which did not offer live entertainment, but that the studies that Indianapolis cited dealt exclusively with live entertainment venues. Id. at 463. In summarizing the flaws in Indianapolis‘s research, we explained,
Indianapolis has approached this case by assuming that any empirical study of morals offenses near any kind of adult establishment in any city justifies every possible kind of legal restriction in every city.... But because books (even of the “adult” variety) have a constitutional status different from granola and wine, ... the public benefits of the restrictions must be established by evidence, and not just asserted. The evidence need not be local; Indianapolis is entitled to rely on findings from Milwaukee or Memphis (provided that a suitable effort is made to control for other variables). But there must be evidence; lawyers’ talk is insufficient.
We reaffirmed this evidentiary standard in New Albany DVD, LLC v. City of New Albany, Ind., 581 F.3d 556 (7th Cir. 2009). There, the city of New Albany enacted a prohibition on the operation of any sexually oriented business within 1,000 feet of any church, which prevented plaintiff adult book and video outlet from operating in its current location. Id. at 558. The district court granted plaintiff‘s motion for a preliminary injunction, which the city appealed. Although we found fault with the district court‘s conclusion that New Albany‘s ordinance was not narrowly tailored, id. at 558-59, we nonetheless agreed that the city—at least at that point in the litigation—had not demonstrated that the plaintiff‘s establishment, or other comparable businesses, generated any adverse secondary effects. Id. at 559. With respect to New Albany‘s first proffered injurious secondary effect—increased theft—we concluded that the city had not offered evidence that “fairly support[ed]” the contention that adult bookstores located near churches attracted thieves. Id. at 560.
We also found that the city had produced insufficient evidentiary support for the ordinance‘s alternative justification—an increase in pornographic litter. We determined that, in order to salvage the anti-litter rationale on remand, New Albany would be required to present evidence establishing “(a) how much sex-oriented litter an adult bookstore generates; (b) who is likely to see that litter in the parts of New Albany where adult bookstores are allowed to operate; and (c) how much аdult litter will remain in New Albany‘s central business area ... if plaintiff is exiled.” Id. at 561. In sum, both Annex Books and New Albany require that a municipality enacting an ordinance that burdens freedom of expression demonstrate a reasonable connection between the cited evidentiary basis for its regulation and the specific facts and circumstances on the ground.
Applying this precedent to Ordinance No. 2010-05, we reverse the district court‘s grant of Dix‘s motion to dismiss. To pass constitutional muster, Dix must provide some concrete evidence indicating that public nudity generates adverse secondary effects. Dix has produced no such evidence—either within the Village itself or in an analogous municipality. All Dix has offered is the generic maxim that it “is in the public interest to maintain social order, health, wеlfare, and safety of citizens.” As we observed in Annex Books, if public nudity is “associated with significant crime or disorderly conduct, it should be easy for [the municipality] to show it.” 581 F.3d at 463. But, like Indianapolis there, Dix here “has not offered an iota of evidence to that effect.” Id.
As for the “quality and quantum of evidence” Dix must produce, G.M. Enters., 350 F.3d at 638, the Village retains consid-
Finally, we emphasize thаt this dispute is only at the motion-to-dismiss stage. In reversing the district court, we conclude only that Dix—at this early phase of the litigation—has not pointed to sufficient secondary effects evidence to permit disposing of plaintiffs’ claim altogether. If, on remand, Dix produces concrete evidentiary support, and “[i]f plaintiffs fail to cast direct doubt on [its proffered] rationale, either by demonstrating that [Dix]‘s evidence does not support its rationale or by furnishing evidence that disputes [Dix]‘s factual findings,” Ordinance No. 2010-05 should be upheld. Alameda Books, 535 U.S. at 438-39. By contrast, “[i]f plaintiffs succeed in casting doubt on [Dix]‘s rationale in either manner, the burden shifts back to [Dix] to supplement the record with evidence renewing support for a theory that justifies its ordinance.” Id. at 439. To dismiss plaintiffs’ claim now, when Dix has nоt yet made any affirmative showing of adverse secondary effects and plaintiffs have therefore not received a full and fair opportunity to challenge Dix‘s findings,7 would be premature.
B. Alcohol Regulations
Plaintiffs also argue that, under Illinois law, Dix lacked authority to pass the open container ban (Ordinance No. 2010-04) and the prohibition on the possession of alcohol in public accommodations (Ordinance No. 2010-06). They further contend that, even if Dix acted within the parameters of Illinois law in enacting the challenged regulations, the bans nevertheless violate the First Amendment because Dix has produced no evidence demonstrating that the possession of liquor by patrons of a busi-
The
Plaintiffs contend that the challenged ordinances violate
Dix argues that its authority to enact the challenged alcohol restrictions derives directly from
Moreover, while the
With regard to Ordinance No. 2010-04—Dix‘s open container ban—the Municipal Code makes no express reference to open containers of alcohol in public; however, it empowers all Illinois municipalities to “prevent intoxication and all other disorderly conduct.”
Turning to whether the challenged alcohol regulations comport with constitutional requirements, that inquiry is a simple one. We have unequivocally held that the First Amendment does not entitle a bar, its dancers or its patrons, “to have alcohol available during a ‘presentation’ of nude or semi-nude dancing.” Ben‘s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 726 (7th Cir. 2003). In Ben‘s Bar, we upheld a municipal ordinance prohibiting the sale, use, or consumption of alcohol on the premises of “Sexually Oriented Businesses.” Id. at 704, 728. Concluding that the regulation at issue was “not a restriction on erotic expression, but a prohibition of nonexpressive conduct (i.e., serving and consuming alcohol) during the presentation of expressive conduct,” we subjected the chаllenged regulation to intermediate scrutiny. Id. at 724, 726. However, in contrast to the regulation at issue in Ben‘s Bar, the challenged ordinances here do not single out “sexually oriented businesses,” which are subject to some limited amount of First Amendment protection; rather, Ordinance Nos. 2010-04 and 2010-06 apply broadly to all public accommodations and do not, on their face, target establishments where protected expressive conduct is likely to occur. Therefore, the district court correctly concluded that Dix‘s alcohol ordinances burden no fundamental rights, and that the ordinances need only withstand rational basis review.
A regulation satisfies rational basis so long as it is rationally related to some legitimate government interest. Wis. Educ. Ass‘n Council v. Walker, 705 F.3d 640, 653 (7th Cir. 2013). Such a regulation “bear[s] a strong presumption of
Based on this deferential standard of review, plaintiffs’ challenge fails. Dix‘s asserted interests in enacting the alcohol restrictions—maintaining “social order, health, welfare, and safety” and “preserv[ing] the ‘dry’ status of the Village of Dix to the fullest extent permitted by law“—are undoubtedly legitimate and bear a reasonable relation to the open container and public accommodations bans. Although plaintiffs allege that the true motivation behind the alcohol restrictions was to interfere with the successful operation of Foxxxy Ladyz, this allegation is insufficient to render a regulation invalid under rational basis review so long as some hypothetical legitimate government interest exists to support the challenged regulation. See id. Finally, because regulations survive rational basis review even if they are “speculation[s] unsupported by evidence,” id., Dix was under no obligation to demonstrate concrete evidence of adverse secondary effects prior to enacting the contested ordinances. The district court was therefore correct to dismiss plaintiffs’ challenge to Ordinance Nos. 2010-04 and 2010-06.
III. Conclusion
We REVERSE the district court‘s dismissal of plaintiffs’ challenge to Dix‘s public nudity ban but AFFIRM its dismissal of plaintiffs’ challenge to Dix‘s alcohol regulations, and REMAND for further proceedings consistent with this opinion.
JOEL M. FLAUM
UNITED STATES CIRCUIT JUDGE