The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
S.J.C. ILLINOIS, LLC,
Plaintiff,
v. Case No. 22-CV-00096-NJR
VILLAGE OF EAST CAPE
GIRADEAU, IL,
Defendant.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Defendant Village of East Cape Girardeau (“East Cape”) seeks to dismiss the
Amended Complaint filed by Plaintiff S.J.C. Illinois, LLC (“SJC”).1 For the reasons set
forth below, the Motion to Dismiss (Doc. 15) is denied.
BACKGROUND
On November 11, 2014, East Cape purportedly adopted a municipal ordinance,
Ord. 20141111-A (“Ordinance”), regulating alcohol sales and use within the limits of East
Cape. The Ordinance defines “Night Club” “as an establishment whose principal source
of business is the sale and service of alcohol and any form of adult entertainment
consisting of live dancers, full or partial nudity, wet t-shirt contests, and any other
pernicious adult entertainment as allowed by the laws of the State of Illinois.” (Doc. 12,
p. 13). The Ordinance governs the hours that licensed businesses are permitted to sell
1 Prior to the filing of the Amended Complaint, East Cape filed its first Motion to Dismiss. That
motion (Doc. 10) is denied as moot.
alcohol. (Id. at p. 16). Under Section 5A, a “Night Club” was permitted “to serve alcohol
between the hours of 8:00 a.m. to 12:00 midnight and from 12:00 midnight to 4:30 a.m.”
(Id.). Under Section 10L of the Ordinance, a licensee violates a liquor permit license if it
“keep[s] open for business or admit[s] the public or patrons or customers or persons to
any premises licensed under this Ordinance for the retail sale of alcohol during the hours
within which sale of such liquor is prohibited or to permit or allow persons, patrons, or
customers to remain in or about the licensed premises either before or after the hours
designated within which the sale and consumption of alcoholic liquors is prohibited on
the licensed premises.” (Id. at p. 24).
SJC is a business in East Cape that provides erotic, nude, and partially nude dance
performances to its patrons from 3:00 p.m. to 4:30 a.m. (Id. at pp. 5-6). Besides offering
erotic entertainment, SJC allegedly has a valid liquor license issued by East Cape and
Illinois until December 31, 2022. (Id. at p. 6).
On January 11, 2022, East Cape adopted an amendment to the Ordinance. (Id. at
pp. 31-35). The amendment allegedly changed the hours of operation for any business
issued a Night Club license by requiring SJC to stop selling or otherwise distributing
alcohol at 1:30 a.m. (Id. at p. 33).
On January 18, 2022, SJC commenced this action against East Cape. (Doc. 1). In
Counts I and II, SJC alleges that the amendment to the Ordinance is unconstitutional
under the First and Fourteenth Amendments. (Doc. 12, pp. 6-7). In Count III, SJC seeks a
declaration that as a matter of law, the amendment is null, void, and of no effect. (Id. at
p. 8). In Count IV, SJC seeks permanent injunctive relief by “restraining and enjoining the
Defendant, its officers, agents, servants, attorneys and all persons in active concert or
participation with them who receive actual notice of the injunction by personal service or
otherwise, from enforcing the Amendment to the Ordinance against Plaintiff.” (Id. at
pp. 8-9). East Cape timely filed a Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(6).
LEGAL STANDARD
The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the complaint,
not to determine the merits of the case or decide whether a plaintiff will ultimately
prevail. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule
12(b)(6) motion to dismiss, a plaintiff only needs to allege enough facts to state a claim
for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A plaintiff need not plead detailed factual allegations, but must provide “more than
labels and conclusions, and a formulaic recitation of the elements.” Id. For purposes of a
motion to dismiss under Rule 12(b)(6), the Court must accept all well-pleaded facts as
true and draw all possible inferences in favor of the plaintiff. McReynolds v. Merrill Lynch
& Co., Inc., 694 F.3d 873, 879 (7th Cir. 2012).
ANALYSIS
I. Improperly Adopted Ordinance Claim (Count III)
SJC alleges that East Cape’s Ordinance was never properly adopted. (Doc. 12,
pp. 3, 8). According to SJC, the copy of the Ordinance obtained “does not contain an
ordinance number, does not contain a recordation of the yeas and neas, or have a
certification by the Clerk of the Village Board of Trustees that it was duly adopted.” (Id.
at p. 3). SJC’s counsel requested that East Cape “produce a signed copy of [ ] [the]
[Ordinance], along with the attendant certification signed by the clerk.” (Id.). “Counsel
for [SJC] followed up with [ ] [East Cape’s] counsel on February 14, 2022, and was told
that [ ] [East] [Cape’s] counsel had ‘requested those last week and just sent a follow up
email to get them’ and ‘will get them to you as soon as they are received.’” (Id. at p. 4).
“A second follow-up email a week later indicated [ ] [East Cape] was still ‘actively
looking’ for the purported ordinance.” (Id.).
East Cape’s motion fails to address whether the Ordinance was properly adopted.
Accordingly, East Cape’s Motion to Dismiss must be denied.
II. First Amendment Claims – Counts I & II
Even if East Cape’s Ordinance was properly adopted, the Court must still deny
the Motion to Dismiss. East Cape first argues that Counts I and II should be dismissed
because “Illinois law specifically permits villages the right to set its own hours of
operation for the sale of alcoholic beverages.” (Doc. 16, p. 2). The problem is SJC is
alleging East Cape’s Ordinance violates the First Amendment.
“The First Amendment provides, in part, that ‘Congress shall make no law . . .
abridging the freedom of speech . . ..’” Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 707
(7th Cir. 2003) (quoting U.S. Const. amend. I.). “The First Amendment’s Free Speech
Clause has been held by the Supreme Court to apply to the states through the Fourteenth
Amendment’s due process clause.” Id. (citing Gitlow v. People of State of New York, 268 U.S.
652, 666 (1925)). When a municipal regulation restricts the sale or consumption of alcohol
at adult entertainment establishments, district courts within the Seventh Circuit apply a
four-part test to determine whether the regulation is constitutional.
(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,
narrowly tailored, and reasonable alternative avenues of
communication remain available; or, alternatively, the regulation
furthers an important or substantial government interest and the
restriction on expressive conduct is no greater than is essential in
furtherance of that interest.
Id. at 722 (citations omitted). If the ordinance meets the first three steps, then it “is
constitutional as long as it survives intermediate scrutiny, meaning it serves a ‘substantial
governmental interest,’ is ‘narrowly tailored,’ and ‘reasonable alternative avenues of
communication remain available.’” 7421 W. 100th Place Corp. v. Vill. of Bridgeview, 2016
WL 5373062, at *6 (N.D. Ill. Sept. 26, 2016) (quoting Ben’s Bar, Inc., 316 F.3d at 722). “If, on
the other hand, a regulation is not aimed at secondary effects (it fails step three), strict
scrutiny applies.” Joelner v. Vill. of Washington Park, Ill., 508 F.3d 427, 431 (7th Cir. 2007).
East Cape fails to address the four-part test. East Cape also fails to provide any
materials for the Court to evaluate the municipality’s underlying regulatory motivations.
See Joelner v. Vill. of Washington Park, Illinois, 378 F.3d 613, 624 (7th Cir. 2004) (citation
omitted) (noting that when evaluating a municipality’s underlying regulatory
motivations courts 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”).
And, even if East Cape provided the Court materials to evaluate East Cape’s underlying
regulatory motivations, evaluating these materials would be improper at the motion to
dismiss stage.2
East Cape also asserts that “[i]n order for the Plaintiff to establish a violation of
§ 1983, the Plaintiff must prove that the Defendant acted under color of state law and that
their conduct deprived Plaintiff of a right, privilege or immunity secured by the United
States Constitution.” (Doc. 16, p. 4). East Cape continues:
There is nothing in Plaintiff’s Complaint to show that the Village’s change
in hours of operation deprived Plaintiff of a right, privilege or immunity
secured by the United States Constitution. While a company’s liquor license
may be property rights protected by the Fourteenth Amendment, Reed v.
Village of Shorewood, 704 F.2d 943 (7th Cir. 1983), the hours in which a
business can sell alcoholic beverages is not a protected property right and
therefore as a result there are no § 1983 violations that Plaintiff can claim
and as a result, Plaintiff’s Amended Complaint fails to state a claim for
which relief may be granted as the Village of East Cape Girardeau has the
absolute right to set hours for the sale of alcoholic beverages within the
Village in accordance with state law.
(Id.).
Again, this case is at the motion to dismiss stage. This argument also fails as SJC
2 SJC spends much of its response on whether strict scrutiny or intermediate scrutiny applies. To do so,
SJC discusses Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015), and apparently contends that Reed changed
the applicable law so that the Ordinances will be subject to strict scrutiny. At this juncture, this issue need
not be decided. The Court is cognizant, however, of counsel’s prior attempts to call into question the
secondary-effects doctrine in other circuits. See Flanigan’s Enterprises, Inc. of Georgia v. City of Sandy Springs,
Georgia, 703 F. App’x 929, 933 (11th Cir. 2017).
alleges a § 1983 violation. SJC is alleging East Cape’s Ordinance violates the First
Amendment as noted above. See also Reed v. Vill. of Shorewood, 704 F.2d 943, 949 (7th Cir.
1983), overruled on other grounds by Brunson v. Murray, 843 F.3d 698, 713 (7th Cir. 2016))
(“The First Amendment claim in this case is separate from the plaintiffs’ claim to have
been deprived of property.”).
CONCLUSION
For these reasons, the Motion to Dismiss filed by Defendant Village of East Cape
Girardeau is DENIED. The action will proceed on SJC’s claims in Counts I-IV.
IT IS SO ORDERED.
DATED: April 25, 2022 Tl
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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