ERIC JOELNER, FISH, INC. d/b/a XXXTREME ENTERTAINMENT, FREE SPEECH, INC., and FIRST AMENDMENT, INC. v. VILLAGE OF WASHINGTON PARK, ILLINOIS
No. 03-2669
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 7, 2003—DECIDED AUGUST 4, 2004
Appeal from the United States District Court for the Southern District of Illinois. No. 03 C 325—G. Patrick Murphy, Chief Judge.
KANNE, Circuit Judge.
I. Background
A. The Parties
Eric Joelner, a resident of the Village of Washington Park, Illinois, is president and sole shareholder of Fish, Inc.
In an effort to balance Washington Park‘s revenue needs and its desire to protect its citizens from what ostensibly it views as the negative effects of adult entertainment businesses, the municipality has enacted ordinances, which limit the number of adult entertainment outlets within its corporate limits, including both “bookstores” and “cabarets,” see infra Part I.B., and impose license fees for such establishments. However, with a population of only 5,300 covering 2.5 square miles at the confluence of two interstate highways leading into St. Louis, Missouri, adult entertainment has been the industry of Washington Park. As of May 2003, there were four licensed, one unlicensed, and two newly licensed adult cabarets. Each licensed cabaret generates around $100,000 annually in licensing and other fees for the Village. And because the population of Washington Park decreased by more than 2,000 residents between 1990 and 2000, with a corresponding loss of about $300,000 a year in state funding, the income which the adult entertainment industry generates for the Village is critical. John McCormick, Cash-strapped Town Relies on Strip Clubs to Pay Bills, Chi. Trib., Apr. 29, 2003, at A1. (R. 1, Ex. 11.)
B. The Ordinances
Ordinance 069-99, adopted by the Village Board of Trustees on September 7, 1999, defined “adult entertainment” as anything “featuring acts, performances, videos, and/or movies, involving nudity, or partial nudity, but within the permitted community standards of the Village of Washington Park . . . .” It limited the number of such establishments to four, imposed an annual license fee of $3000, prohibited the sale or other transfer of licenses, set hours of operation, and included a severability clause.2
Then, four months later on January 11, 2000, Ordinance 01-00, although making no express reference to the prior ordinance, increased the annual licensing fee tenfold to $30,000. The stated goal of the increase was to protect the “public health, safety, and welfare” and to defray the increase in police, fire, and other costs associated with adult entertainment establishments.
Ordinance 01-22, adopted two years later on November 6, 2002, differentiates between “adult entertainment” establishments.3 It defines “adult bookstores” as “[a]ny business which sells what is commonly known as adult entertainment books, magazines, other reading materials, movies, novelties, or paraphernalia” and “adult cabarets” as
C. Joelner‘s Clashes With the Village
In January of 2003, the first in a series of disagreements over these ordinances began between Joelner and the Village. Joelner objected to the “increase” in annual licensing fees to $10,000, established in November of 2002 through Ordinance 01-22, for his existing bookstore at 2226 Kingshighway. Apparently, notwithstanding both Ordinances 069-99 and 01-00 which had, prior to Ordinance 01-22, set license fees for adult bookstores at $3000 and $30,000 respectively, Joelner had only been paying $100 per year to operate his business, without any documented objection. But in a letter dated December 23, 2002, the Village informed him of the “new” annual adult bookstore fee and requested that he make a first-quarter payment of $2500. On or around January 24, 2003 Joelner did so, but also remitted in the same check an additional $7500 first-quarter payment for an adult cabaret license.
The Village returned the $10,000 check to Joelner on February 20, informed him that his existing business was licensed only as a bookstore, not as a cabaret, and requested that Joelner forward his first-quarter bookstore fee as soon as possible. However, he made no further payment.
Notwithstanding this dispute with the Village over the fee for his bookstore‘s annual license, Joelner, through various
After the Board approved the ordinance, it then immediately granted the two newly available licenses—but not to Joelner. One license was awarded to a former village police chief‘s son, a convicted felon, whose application did not ap-
The Board then temporarily denied Joelner‘s two applications, accused Joelner of having past-due license fees for his currently operating bookstore (whether the Board was concerned with only the November 2002 fee increase or other arrearages is unclear), discussed revocation of Joelner‘s bookstore license, and finally voted to hold a hearing at a later time about the 2226 Kingshighway business.
Before the Village Board next convened, Joelner reached an informal agreement with the Village whereby he agreed to postpone the filing of any lawsuit against the Village until after June 1, in exchange for the Village‘s assurances that they would not seek to terminate his bookstore license during that same time. The Village continued to urge Joelner to “pay his delinquent adult bookstore fees.”
Then at the next meeting on May 6, the Board briefly discussed the status of Joelner‘s 2226 Kingshighway business, and was informed by its attorney that negotiations were proceeding between Joelner and the Village regarding the disputed arrearages. The Board took no further action regarding the 2226 Kingshighway business, and then later, during that same meeting, considered Joelner‘s third license application seeking to open a combination adult cabaret and bookstore at 5900-6000 Bunkum Road, as Free Speech, Inc. Based upon the alleged arrearages and the Board‘s claimed desire to avoid an over-saturation of adult businesses at that particular location (another adult entertainment outlet was licensed for a property immediately adjacent to that proposed by Joelner), the Board denied this third and final application.
After negotiations regarding the 2226 Kingshighway business apparently failed, Joelner filed suit against the
After a hearing on June 12, 2003, the district court granted in part and denied in part Joelner‘s request for a preliminary injunction. The court found the ordinances constitutional and refused to prohibit the Village from enforcing the ordinances with respect to both the numerical limitations and licensing fees imposed on adult entertainment outlets. It also refused to require the Village to issue any cabaret licenses to Joelner for the new locations. However, the court did order the Village to allow Joelner to continue to operate his current bookstore business at 2226 Kingshighway, and also to consider in a new hearing Joelner‘s application for a cabaret license for that same location, so long as he paid any arrearages and the newly approved November 2002 fees. This appeal followed.
II. Analysis
For the reasons set forth below, we find that the district court correctly refused to preliminarily enjoin the Village from enforcing the two ordinances, and we further find that the court appropriately granted the preliminary injunction requiring the Village to allow Joelner to continue to operate his bookstore business at 2226 Kingshighway. However, we also determine that the district court erred in granting the injunction requiring Joelner to pay the disputed fees and/or arrearages in order to continue operating his bookstore and
Under the
In order to obtain a preliminary injunction, the moving party must show that: (1) they are reasonably likely to succeed on the merits; (2) no adequate remedy at law exists; (3) they will suffer irreparable harm which, absent injunctive relief, outweighs the irreparable harm the respondent will suffer if the injunction is granted; and (4) the injunction will not harm the public interest. See Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1067 (7th Cir. 1994). If the movant can meet this threshold burden, then the inquiry becomes a “sliding scale” analysis where these factors are weighed against one another. See AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Erickson, 13 F.3d at 1067; see also Nat‘l People‘s Action v. Vill. of Wilmette, 914 F.2d 1008, 1110-11 (7th Cir. 1990). In reviewing a district court‘s denial or grant of a preliminary injunction, we examine legal conclusions de novo, findings of fact for clear error, and the balancing of the previously noted factors for abuse of discretion. Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 474 (7th Cir. 2001).
When a party seeks a preliminary injunction on the basis of a potential
However, it is sometimes necessary to inquire beyond the merits, see MacDonald v. Chicago Park Dist., 132 F.3d 355, 358 (7th Cir. 1997) (per curiam), particularly when the challenged statute regulates the adult entertainment industry. “[E]ven though we recognize that the
We note that this interlocutory appeal of a preliminary injunction (granted in part and denied in part) cannot result in a conclusive determination of the constitutional merits of Joelner‘s claims. See, e.g., MacDonald, 132 F.3d at 357-58 (citing Ayres v. City of Chicago, 125 F.3d 1010, 1013 (7th Cir. 1997)). The appellate record contains only three or four items that contribute substantially to the factual background of this case: Joelner‘s complaint and request for a preliminary injunction, the Village‘s motion in opposition to the preliminary injunction, and the preliminary injunction hearing transcript and evidence. As a result, numerous critical factual ambiguities plague the record, including, but not limited to: what inquiries were conducted by the Village and what findings were made to support its adult entertainment ordinances; exactly how many adult establishments are currently operating—with or without licenses—in Washington Park; whether subsequent ordinances abrogated prior ordinances; the total amount of licensing fee arrearages allegedly owed by Joelner and the basis for that number; which license applications were and were not on the April 15 agenda; why applications were considered in a particular order by the Board on April 15; and the justification(s) for the denial of Joelner‘s applications, other than the alleged arrearages. Moreover, the question of standing remains, see supra note 4. All of these issues may be more fully explored when the district court, upon remand, takes up Joelner‘s request for a permanent injunction and declaratory relief.
Because a definitive determination on the merits is not now possible, we will consider the relative strength of Joelner‘s constitutional claims based on the skimpy appel-
A. Reasonable Likelihood of Success on the Merits
Here we must decide, in the context of a preliminary injunction, whether a municipality can constitutionally limit the number of adult entertainment venues and impose annual licensing fees for such businesses. Specifically, Joelner posits that both the numerical restriction and licensing fees are facially unconstitutional, and that the numerical restriction was unconstitutionally applied. With respect to the facial challenges, it is an uphill battle because, absent overbreadth and/or vagueness challenges, he can only prevail if he demonstrates ” ‘that no set of circumstances exist under which the [regulation] would be valid.’ ” Ben‘s Bar, 316 F.3d at 708 n.11 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987) (brackets in original) and citing Horton v. City of St. Augustine, 272 F.3d 1318, 1331 (11th Cir. 2001)). See also Thomas v. Chicago Park Dist., 227 F.3d 921, 923 (7th Cir. 2000), aff‘d on other grounds, 534 U.S. 316 (2002). We recently conducted an exhaustive review of
1. The Numerical Restriction
a. Facial Challenge
The primary thrust of Joelner‘s facial challenge to the numerical restriction is his assertion that because the ordinance applies only to “adult entertainment” outlets, it is a content-based restriction of erotic expression, subject to strict scrutiny, and cannot pass constitutional muster. But
Ordinance 01-27 is clearly directed only at “adult entertainment.” Regulations which directly circumscribe a certain category of speech are subject to strict scrutiny and are likely to be constitutionally impermissible. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Renton, 475 U.S. at 47; Stromberg v. California, 283 U.S. 359, 368-69 (1931). But the
There are two distinct, yet overlapping, lines of Supreme Court jurisprudence addressing the degree of
Ordinance 01-27 cannot neatly be categorized as either an indecency regulation or zoning ordinance, similar to the statute at issue in Ben‘s Bar, 316 F.3d at 722-28. Thus, we will analyze Ordinance 01-27 just as we analyzed the Ben‘s Bar statute—by using the “road map” provided in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). 316 F.3d at 722. A restriction placed upon the number of adult entertainment outlets is constitutional if:
(1) the State is regulating pursuant to a legitimate governmental power; (2) the regulation does not completely prohibit adult entertainment; (3) the regulation is aimed not at the suppression of expression, but rather at combating the negative secondary effects caused by adult entertainment establishments; and (4) the regulation is designed to serve a substantial government interest, [is] narrowly tailored, and reasonable alternative avenues of communication remain available . . . .
Id. at 722 (citations omitted). Step four encapsulates the intermediate standard of scrutiny applicable in
First, Ordinance 01-27 is an exercise of the Village‘s general police power because it is purportedly justified as an effort to protect the public‘s health, welfare, and safety. See, e.g., Ben‘s Bar, 316 F.3d at 722-23. Therefore, the Village is regulating pursuant to a legitimate government power and prong one is met.
Second, Ordinance 01-27 is plainly not a complete prohibition of adult entertainment. It explicitly allows six venues for such expression. Because no additional adult cabarets or bookstores can be licensed after the maximum number of licenses are issued, Joelner asserts that the Ordinance therefore operates as a “complete ban.” See, e.g., Alameda Books, 535 U.S. at 443 (mentioning that the Ninth Circuit had rejected a similar argument advanced below by the adult bookstore/arcade owner, but not reaching the issue). We find this characterization unpersuasive. Because adult entertainment venues are not prohibited entirely in Washington Park, it is more appropriate to view the ordinance as a limitation, rather than a ban. Joelner is unable to point us to any case which says otherwise. Thus, as Ordinance 01-27 does not eliminate erotic expression in Washington Park, prong two is met.
The third prong of the analysis, which considers whether the regulation is aimed at reducing the negative effects of adult speech and not the suppression of speech, when coupled with the second, concerns the level of scrutiny that must be applied to Ordinance 01-27. Ben‘s Bar, 316 F.3d at 723. In Ben‘s Bar, although we concluded that the statute was “content-based,” we nonetheless applied intermediate scrutiny. Id. at 724. The focus was solely upon the municipality‘s purpose in enacting the statute.
If an ordinance was enacted to restrict certain viewpoints or modes of expression, see Schultz, 228 F.3d at 844-47, it is
The “content-neutrality” inquiry is therefore subsumed by the inquiry into a municipality‘s purpose in enacting the regulation. See 316 F.3d at 724 (citing Alameda Books, 535 U.S. at 432-39 (plurality opinion); id. at 448-49 (Kennedy, J. concurring); Pap‘s A.M., 529 U.S. at 294-96 (plurality opinion); and id. at 310 (Souter, J., concurring in part and dissenting in part)). In evaluating a municipality‘s underlying regulatory motivations, we may consider a ” ‘wide variety of materials including, but not limited to, the text of the regulation or ordinance, any preamble or express legislative findings associated with it, and studies and information of which legislators were clearly aware.’ ” 316 F.3d at 723 n.28 (quoting Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1280 (11th Cir. 2001)). And while a municipality need not conduct new studies or produce evidence independ-
In the instant case, Ordinance 01-27 limits the number of “places” providing adult entertainment at any one “time” to six, but includes no guidelines to restrict the mode by which erotic messages are conveyed. See, e.g., Schultz, 228 F.3d at 847 (holding unconstitutional a statute which “restrict[ed] the particular movements and gestures of the erotic dancer” and thereby “depriv[ed] the performer of a repertoire of expressive elements with which to craft an erotic, sensual performance.“) Hence, Ordinance 01-27 is a type of time, place, and manner restriction.
The preamble to Ordinance 01-27 states that it was enacted “[i]n order to promote the public interest in the preservation of public health, safety and welfare . . . .” In addition, the ordinances which were adopted prior to No. 01-27, Nos. 069-99 and 01-22, both cite “public health, safety, and welfare”
The record does not contain any legislative findings or any indication that the Board considered studies or other information before enacting Ordinance 01-27, or its precursor ordinances. Without this information, we cannot now determine if intermediate scrutiny applies. But we also note that when the matter is fully considered upon remand, if the Village is unable to point to any legislative findings, other than the preamble noted above, or some outside information upon which the Board relied, the evidence indicates that the Village‘s decision to increase the limitation from four to six seemed to be motivated predominantly by concerns about revenue and/or political patronage, not secondary effects and hence, strict scrutiny would apply. And if so, the Ordinance would likely be unconstitutional because the Village‘s general statements about public welfare would be insufficient to demonstrate that the ordinance was necessary to serve a compelling state interest and narrowly drawn to that end.
Moreover, even if the Village can point to other legislative findings or outside information relied upon by the Board, such that Ordinance 01-27 is subject to the less demanding intermediate level of scrutiny, the Village still must satisfy the fourth prong of the analysis—the regulation must serve a substantial governmental interest, be narrowly tailored,
In sum, we agree with the district court that based on the limited appellate record, Joelner has a strong likelihood of success on the merits of his permanent injunction and declaratory judgment action as to the facial constitutionality of the numerical restriction. However, our inquiry cannot end here as we must proceed to the balancing of the harms, see infra Part II.B., after a brief review of Joelner‘s other constitutional challenges.9
b. As Applied
Joelner argues that the Village‘s application of the numerical restriction was unfounded, arbitrary, and capricious and thus, unconstitutional. As a preliminary matter, we point out that the Board based its rejections of his licenses, at least in part, upon his alleged failure to pay applicable licensing fees. This can hardly be considered an “arbitrary
2. Facial Challenge to the Licensing Fees
The main focus of Joelner‘s facial challenge to the licensing fees is his argument that Ordinance 01-22 is content-based and therefore unconstitutional. But a statute imposing licensing fees is not “content-based” simply because it is directed at a certain category of activities, such as regulations of parades, rallies, assemblies, and other demonstrations held on city streets or city property. MacDonald, 132 F.3d at 361; Alameda Books, 535 U.S. at 446. See, e.g., Church of the Am. Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 680-81 (7th Cir. 2003) (”KKK“) (treating regulation affecting only parade and demonstration activities as “content-neutral“); Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-132 (1992) (same). Rather, an inquiry into the constitutionality of a fee ordinance is two-fold: (1) does the regulation in question vest the public officials in charge of enforcing or applying the ordinance with a constitutionally impermissible amount of discretion, see, e.g., Forsyth, 505 U.S. at 130-32; and (2) is the fee amount based upon the costs of administering the ordinance, maintaining public order, and relieving the other burdens on public services stemming from the matter licensed, see Cox v. New Hampshire, 312 U.S. 569, 576-77 (1941); Murdock v. Pennsylvania, 319 U.S. 105, 116 (1943); KKK, 334 F.3d at 682 (citations omitted); Thomas, 227 F.3d at 925; MacDonald, 132 F.3d at 362-63.
Turning to the first issue, Washington Park vests its public officials with no discretion at all regarding the application of the licensing fee. Every “adult entertainment” venue or proposed venue is subject to Ordinance 01-22, and the license applicant himself, rather than public officials, determines which fee will apply, either by applying for a “bookstore” or a “cabaret” license. MacDonald, 132 F.3d at 362. This ordinance does not create the “unbridled discretion” the Supreme Court condemned in Forsyth, 505 U.S. at 135-36.
And as to the second issue, we cannot now make any determination regarding the underlying basis for the amount of the fee. Permit or license fees which restrict constitutionally protected speech must bear a rational relationship to the public services involved with the matter licensed. S.-Suburban Housing Ctr. v. Greater S. Suburban Bd. of Realtors, 935 F.2d 868, 898 (7th Cir. 1991). The Village generally indicated the basis for the fees in section 1 of Ordinance 01-22:
[I]t is in the best interests of the health, safety, and welfare of its citizens to increase the license fees for adult entertainment establishments operating within the corporate limits of the Village. After careful consideration of the size of the Village and the number of businesses, the expenses involved in maintaining law and order, the vehicular and pedestrian traffic in the Village, the income and number of problems and difficulties that arise from the aforesaid businesses, and the desire to provide a safer, cleaner, and more aesthetically pleasing Village for its residents, the Board has determined that license fee rates should be increased.
Standing alone these are valid reasons for the imposition of a fee. But the $10,000 and $30,000 fees imposed by Washington Park are certainly not nominal. See Forsyth, 505 U.S. 138-40 (dissenting opinion) (discussing whether the
B. Balancing of the Harms to the Parties and the Public Interest
Our discussion of Joelner‘s likelihood of success on the merits generally supports a preliminary injunction to prevent the Village from enforcing the ordinances. Yet our conclusions do not necessitate that outcome. As noted earlier, see supra Part II, because this case involves adult entertainment regulations, which implicate conflicting public interests, and because lingering factual questions make a definitive resolution on the merits impossible, the relative harms to the interested parties stemming from a grant or denial of a preliminary injunction must be weighed against the merits. Although we are fairly convinced that there are serious constitutional problems with both the numerical restriction and, to a lesser extent, the licensing fees, a preliminary injunction may nonetheless be inappropriate if the relative harms strongly disfavor such relief. See, e.g., MacDonald, 132 F.3d at 363 (vacating a preliminary injunction where the relative harms mediated against it).
Regarding the $30,000 fee portion of the ordinance and the numerical restriction, if an injunction were refused, there would be no direct harm to Joelner because he does not have any currently operating licensed cabaret businesses. We also note again our concern about whether Joelner actually owns the relevant properties, see supra note 4. Generously, we do acknowledge that Joelner would suffer some opportunity costs if an injunction were refused and these ordinances were later found unconstitutional. But such opportunity costs are too speculative for us to consider here. For example, if we were to enjoin the enforcement of these ordinances, who is to say that Joelner‘s proposed business would find adequate staff or operate at a profit?
However, if the Village was forced to hold new hearings on Joelner‘s applications, the Village would incur costs, admittedly nominal. And if the Village was compelled to grant Joelner the licenses he requested, as he urges us to do, the Village would bear the not insignificant increase in police, infrastructural, and other related costs.
Moreover, if the injunction were refused with respect to the $30,000 fee and numerical restriction, Washington Park would still have six currently licensed and operating adult entertainment outlets, including Joelner‘s bookstore at 2226 Kingshighway. Put differently, there would be no shortage of forums for this type of communication. And as mentioned previously, the opening of each additional outlet may be accompanied by deleterious secondary effects (e.g., increased crime rates, diminished property values, deterioration of neighborhoods, see, e.g., Renton, 475 U.S. at 46-47).
In sum, given that there is an abundance of adult entertainment venues in Washington Park, that Joelner does not currently operate any cabaret, and that the Village and the public would bear both direct and indirect costs if even one
2. The $10,000 Bookstore Fee
With respect to the $10,000 portion of the fee ordinance, if an injunction were refused and Joelner were forced to pay the fee in order to continue to operate his bookstore, Joelner could suffer significant irreparable harm. It is true that, assuming Joelner ultimately succeeds in establishing the invalidity of the fee provisions, his injury could be compensated through an award of money damages. MacDonald, 132 F.3d at 358 n.4. However, $10,000 is a relatively onerous amount to pay to continue operate a business previously licensed for only $100 annually. Second and relatedly, if Joelner cannot afford such a hefty fee, he would be forced to shut down his bookstore. Hence, there is a threat that these allegedly unconstitutionally excessive fees could cause Joelner significant irreparable harm. See id. at 363 n.8.
In contrast, if the injunction is granted, allowing Joelner to continue to operate his bookstore without paying the $10,000 fee, the possible harm to the Village is minimal. The Village would be deprived of $10,000—and only temporarily, assuming, arguendo, the fee is later found to be constitutional. Even for a small municipality like Washington Park, the harm from such a temporary deprivation of capital cannot outweigh the possible harm to Joelner. Also, Washington Park licensed Joelner‘s bookstore for only $100 annually from at least 1995 until January 2003, despite the fact that
Regarding the alleged arrearages owed by Joelner, the record does not reveal the Board‘s basis for these contentions, other than statements by the Village Clerk that Joelner was “in the red.” But presumably, although there is no documentation of any objection by the Village to Joelner‘s payment of only a nominal $100 annual fee prior to January 2003, the Board seeks to hold Joelner responsible for the adult entertainment fees which ostensibly first became applicable in 1999. Given that Joelner‘s arrearages could possibly total around $56,00011 and that the Village had made no objection to his “nonpayment” until January 2003, our above analysis with respect to the “new” $10,000 fee likewise applies to the alleged arrearages.
Furthermore, the bookstore is a forum for adult speech known and presumably relied upon by the public. Because
III. Conclusion
The district court‘s denial of all injunctive relief requested by Joelner save its order preventing the Village of Washington Park from interfering with the continued operation of Joelner‘s bookstore located at 2226 Kingshighway was correct and appropriate. But it was error for the district court to require Joelner to pay either the disputed arrearages or the November 2002 fee in order to run this business. In addition, with respect to Joelner‘s request for new hearings the district court also erred—the Village need not hold any rehearings on any of Joelner‘s applications, nor grant any new licenses to Joelner.
Therefore, although it appears that the numerical restriction on its face (and possibly as applied to Joelner) is unconstitutional and that the fee requirement on its face may be unconstitutional, after weighing the merits against the interests of Joelner, the Village, and the public, the request to preliminarily enjoin Washington Park from enforcing these ordinances was properly denied, but Joelner should be allowed to continue to operate his bookstore without the payment of any disputed fees pending final disposition of the case. The district court‘s order is AFFIRMED in part and VACATED in part. The case is REMANDED for further proceedings.
Ordinance 069-99: Ordinance Limiting the Number of Adult Entertainment Licenses in the Village of Washington Park, St. Clair County, Illinois to the Number of (4) Four.
Be it ordained by the President and Board of Trustees of the Village of Washington Park, Illinois, that there has been and shall be a limitation of the number of adult entertainment licenses to the maximum limit of (4) four as follows:
Section 1. Limitation and Purpose.
In order to promote a public interest in the preservation of public health, safety and welfare, and to accord with the historical fact that adult entertainment licenses are and were limited to the number of (4) four, there is and shall be a limitation on the number of adult entertainment licenses and establishments limiting the number of such licenses and establishments to a maximum of (4) four in the Village of Washington Park. This maximum limitation is a reaffirmation of this Village‘s limitation. The maximum limitation shall apply retrospectively and prospectively. In the event of the cessation of business of any licensed adult entertainment license, the adult entertainment license conferred to the persons or corporation for that establishment shall immediately lapse and no future adult entertainment license shall be issued by any elected or appointed public official, representative, employee, or body of the Village of Washington Park to operate an adult entertainment establishment on the geographic location of a prior existing establishment or any other location within the Village limits of Washington Park, Illinois. Thereupon, the maximum number of adult entertainment licenses shall be immediately lowered to the number of adult entertainment licenses remaining in effect.
All persons or corporations involved in the operation of a commercial use featuring [adult entertainment] shall be required to have an adult entertainment license the fee for which is set at $3000.00 and is limited by the number of allowed establishments as set forth herein.
Section 3. Definition of Adult Entertainment.
Adult entertainment is the operation of a commercial use featuring acts, performances, videos, and/or movies involving nudity, or partial nudity, but within the permitted community standards of the Village of Washington Park, the County of St. Clair and the State of Illinois, available to persons over the age of (21) twenty-one years.
Section 4. Transfers Prohibited.
No entertainment licenses issued by the Village of Washington Park shall be transferable by any means whatsoever, and such authority as an entertainment license confers shall be conferred ONLY to the persons or corporation name thereon.
Section 5. Authorized Time of Operation.
In order to promote the health, safety, and welfare of the citizens of Washington Park, Illinois, all adult entertainment licensed establishments are only authorized to conduct adult entertainment on the premises specified, between the time of 6:00 a.m. central time and 12:00 a.m. central time on Sunday through Thursday; and, on Friday through Saturday between 6:00 a.m. central time and 1:00 a.m. central time. Failure to comply with the authorized time of operation shall subject the licensee to immediate re-
Section 6. Saving Clause.
Should any court of competent jurisdiction make a judicial determination that any section, paragraph, provision or sentence of this ordinance is unconstitutional, the validity of the remaining sections, paragraphs, provisions or sentences shall not be affected and shall remain in full force and effect.
Ordinance 01-00: Ordinance Amending the Fee for Adult Entertainment License.
Whereas, the president and board of Trustees of the Village of Washington Park, Illinois believe that the public health, safety and welfare of the residents of the Village and those persons who enter the territorial jurisdiction of the Village would be served by an increase in the annual fee for an adult entertainment license within the Village; and,
Whereas, the cost, including police, fire, and other municipal resources to the Village has steadily increased because of the location of said adult entertainment establishments within the Village;
Be it ordained by the president and board of trustees of the Village of Washington Park, Illinois, that the fee for maintaining an adult entertainment license within the Village shall be increased to $30,000.00 [ ] annually.
Ordinance 01-22: Amending the License Fees and Other Regulations Regarding Adult Entertainment Licensing.
Section 1. Purpose.
The Village Board has determined that it is in the best interests of the health, safety, and welfare of its citizens to increase the license fees for adult entertainment establishments operating within the corporate limits of the Village. After careful consideration of the size of the Village and the number of businesses, the expenses involved in maintaining law and order, the vehicular and pedestrian traffic in the Village, the income and number of problems and difficulties that arise from the aforesaid businesses, and the desire to provide a safer, cleaner, and more aesthetically pleasing Village for its residents, the Board has determined that license fee rates should be increased.
Section 2. Body of Evidence.
The license fees for engaging in adult entertainment establishments within the Village shall be as provided in the following schedule:
| Business | Fee/Year 2002 | Fee/Year 2003 |
|---|---|---|
| Adult Bookstore | $10,000 | $10,000 |
| Adult Cabaret | $30,000 | $30,000 |
Section 3.
The following definitions apply to all Village of Washington Park regulations.
| Business | Definition |
|---|---|
| Adult Bookstore | Any business which sells what is commonly known as adult entertainment books, magazines, other reading materials, movies, novelties, or paraphernalia. |
| Adult Cabaret | Any business with adult entertainment which includes live persons performing adult entertainment and which includes nudity. |
Section 4.
The fees contained in Section 2 are annual fees. The businesses may pay the fees on a quarterly basis . . . .
Section 5. Limitation and Purpose.
In order to promote a public interest in the preservation of public health, safety and welfare, and to accord with the historical fact that adult entertainment licenses are and were limited to the number of (4) four, there is and shall be a limitation on the number of adult entertainment licenses and establishments limiting the number of such licenses and establishments to a maximum of (4) four in the Village of Washington Park. This maximum limitation is a reaffirmation of this Village‘s limitation. The maximum limitation shall apply retrospectively and prospectively. In the event of the cessation of business of any licensed adult entertainment license, the adult entertainment license conferred to the persons or corporation for that establishment shall immediately lapse and no future adult entertainment license shall be issued by any elected or appointed public official, representative, employee, or body of the Village of Washington Park to operate an adult entertainment
Section 6. Transfers Prohibited.
No entertainment licenses issued by the Village of Washington Park shall be transferable by any means whatsoever, and such authority as an entertainment license confers shall be conferred ONLY to the persons or corporation name thereon.
Section 7. Authorized Time of Operation.
In order to promote the health, safety, and welfare of the citizens of Washington Park, Illinois, all adult entertainment licensed establishments are only authorized to conduct adult entertainment on the premises specified, between the time of 6:00 a.m. central time and 12:00 a.m. central time on Sunday through Thursday; and, on Friday through Saturday between 6:00 a.m. central time and 1:00 a.m. central time. Failure to comply with the authorized time of operation shall subject the licensee to immediate revocation of the adult entertainment license by the Village Board. Upon revoking said license, the Village Board shall state the reason(s) in writing to the holder of the revoked license.
Section 8. Saving Clause.
Should any court of competent jurisdiction make a judicial determination that any section, paragraph, provision or sentence of this ordinance is unconstitutional, the validity
Ordinance 01-27: Amending the Village of Washington Park, Illinois Ordinance No. 01-22, Section 5.
Be it ordained by the Village Board of Trustees of the Village of Washington Park, Illinois in regular meeting assumed as follows:
Section 5. Limitation and Purpose.
In order to promote the public interest in the preservation of public health, safety and welfare, there is and shall be a limitation on the number of adult entertainment licenses and establishments to a maximum of (6) six in the Village of Washington Park. This maximum limitation shall apply prospectively. In the event of cessation of business of any adult entertainment establishment, the adult entertainment license conferred to the persons or corporation for that establishment shall immediately lapse and no future adult entertainment license shall be issued by any elected or appointed public official, representative, employee, or body of the Village of Washington Park to operate an adult entertainment establishment on the geographic location of a prior existing establishment or any other location within the Village limits of Washington Park, Illinois. Thereupon, the maximum number of adult entertainment licenses shall be immediately lowered to the number of adult entertainment licenses remaining in effect.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of Appeals for the Seventh Circuit