The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHOPPING DELIGHT, INC.,
Plaintiff,
v. Case No. 22-cv-01065-SPM
CITY OF BELLEVILLE and
SHARI BLAKESLEE,
Defendants.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Defendants City of Belleville and Shari Blakeslee (“Defendants”) seek to dismiss
the Amended Complaint1 filed by Plaintiff Shopping Delite, Inc. (“Shopping Delite”).
For the reasons set forth below, the Motion to Dismiss (Doc. 23) is DENIED.
BACKGROUND
The following facts alleged by Shopping Delite are accepted as true for purposes
of Defendant’s motion2. FED. R. CIV. P. 10(c); Arnett v. Webster, 658 F.3d 742, 751-52
(7th Cir. 2011).
On August 4, 2021, Shopping Delite applied for a Commercial Occupancy Permit
with defendants and paid the requisite $100.00 (Doc. 21, ¶ 4). Inspections were
permitted in anticipation of Shopping Delite opening as a retail store (Id., ¶5).
Although Shopping Delite was originally told its permit application was approved, a
1 Prior to the filing of the Amended Complaint, defendants filed their first Motion to Dismiss. That motion
(Doc. 19) was terminated as moot.
2 The factual information was taken directly from the first amended complaint (Doc.21) and will be cited
accordingly.
letter dated May 7, 2022, advised that Shopping Delite was in violation of permitted
uses because it was operating an “Adult Oriented Business” (Id., ¶¶ 6-10).
At all relevant times, the City of Belleville had in place an ordinance at Chapter
122 entitled “Adult Entertainment Businesses” (Doc. 21-1). Said ordinance purports to
regulate and supervise the operation of “sexually oriented businesses” in the city. (Id.).
Based on the application denial and the ordinance itself, Shopping Delite filed its
initial claim in this Court (Doc. 1). On July 27, 2022, the First Amended Complaint was
filed, wherein Shopping Delite asserts the following two causes of action: (1) The
ordinance is unconstitutionally vague; and, (2) The ordinance is unconstitutional under
the 1st and 14th Amendments in that it purports to regulate expressive conduct of the
store and its patrons (Doc. 21).
On August 18, 2022, defendants moved to dismiss the First Amended Complaint
in its entirety (Doc. 23). In their motion to dismiss, defendants first argued that
Shopping Delite failed to exhaust administrative remedies in violation of FED. R. CIV.
P. 12(b)(1) (Id., pp. 3-4). Defendants also argued that Shopping Delite failed to state a
cause of action in violation of FED. R. CIV. P. 12(b)(6), in their Constitutional claims
under both the First and Fourteenth Amendments (Id., pp. 4-12). Finally, defendants
asserted both Monell and the doctrine of qualified immunity as a bar to Shopping
Delite’s claims (Id., pp. 12-15).
On October 10, 2022, Shopping Delite filed its response in opposition to the
motion to dismiss (Doc. 26). Shopping Delite rebutted each of defendant’s arguments
and emphasized the early stage of this case as well as the significance of its
constitutional claims (Id.). Plaintiff also stressed that exhaustion was not necessary
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), Shopping Delite must allege
“a short and plain statement of [each] claim showing that [it] is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). That is, it must state a claim “that is plausible on its face” after the
Court disregards conclusory allegations. W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d
670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678–79, Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In resolving a motion to dismiss under Rule 12(b)(6), the Court accepts Shopping
Delite’s well-pled factual allegations as true and draws all reasonable inferences in its
favor. Id. Likewise, facial challenges to standing under Rule 12(b)(1) are assessed using
the same “Twombly–Iqbal facial plausibility requirement for pleading a claim[.]”. Silha
v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015).
ANALYSIS
I. Failure to Exhaust Administrative Remedies
Defendants first argue that Shopping Delite lacks subject matter jurisdiction and
that its amended complaint should be dismissed for failure to exhaust administrative
remedies (Doc. 23). That argument is not persuasive.
To the contrary, the Supreme Court has determined categorically that exhaustion
is not a prerequisite to an action under § 1983. McNeese v. Board of Education, 373 U.S.
668, 671 (1963). Indeed, “[w]hen federal claims are premised on § 1983 — as they are
here — we have not required exhaustion of state judicial or administrative remedies,
recognizing the paramount role Congress has assigned to the federal courts to protect
constitutional rights”. Patsy v. Board of Regents of State of Fla., 457 U.S. 496, 500 (1982).
Accordingly, defendant’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure is denied.
II. Failure to State a Claim
Defendants next assert that Shopping Delite fails to plausibly assert a cause of
action under § 1983 (Doc. 23). This is the pleading stage, not the proving stage. Indeed,
the question at this stage is simply whether the complaint includes factual allegations
that state a plausible claim for relief. Fortres Grand Corp. v. Warner Bros. Entm't
Inc., 763 F.3d 696, 700 (7th Cir.2014) (applying Rule 12(b)(6)). At this time and without
the benefit of a fully developed evidentiary record, the Court is not tasked with
determining whether Shopping Delite will prevail.
Defendants argue that the first amended complaint should be dismissed because
Shopping Delite fails to state a claim that: (1) Belleville’s adult-oriented business
ordinance is unconstitutionally vague as to violate the Fourteenth Amendment; (2)
There are violations of the First and Fourteenth Amendments for unconstitutional
regulation of expressive conduct; (3) There is a violation of the Fourteenth Amendment;
(4) Satisfies the requirements of Monell3 as to Belleville; and, (5) Is barred by the
doctrine of qualified immunity as to Blakeslee (Doc. 23). The problem is that the
allegations Shopping Delite is alleging that the ordinance violates the First and
Fourteenth Amendment (Doc. 21).
“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
3 Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978.
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.
Defendants refer to a Seventh Circuit case wherein a sexually oriented business
brought a §1983 action against a city, contending the ordinance in that case closely
resembles the one in this case. Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th
Cir. 2002). However, that is like comparing apples to oranges. Pleasureland was at the
summary judgment, not dismissal stage. Again, evaluating the ordinance at this stage
would be improper, i.e. premature.
The First Amendment protects non-obscene, sexually explicit
speech. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224 (1990). Regulations on
sexually explicit speech are typically evaluated under one of two frameworks. Zoning
ordinances are considered “time, place, and manner restrictions” and are consequently
evaluated under the framework set out in City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Andy's
Restaurant & Lounge, Inc. v. City of Gary, 466 F.3d 550, 552–53 (7th Cir. 2006). Statutes
that impact expressive conduct are evaluated under the framework set out in United
States v. O'Brien, 391 U.S. 367 (1968).
Shopping Delite’s challenge to the whole of the Ordinance does not fit neatly
within either framework. It involves restrictions on where Shopping Delite can conduct
its business, but also has prohibitions that may impact expressive conduct. However,
the central thrust of Shopping Delite's claim is that it is being regulated out of existence
through its inability to obtain an occupancy permit. Because these concerns center on
where Shopping Delite may conduct its business, the Renton/Alameda
Books framework is more appropriate.
In reviewing regulations of adult entertainment establishments, Renton and
Alameda Books instruct me to consider: (1) whether the regulation constitutes an
invalid total ban or merely a time, place, and manner regulation, (2) whether the
regulation is content-based or content-neutral, and accordingly, whether strict or
intermediate scrutiny is to be applied, and, (3) if content-neutral, [apply intermediate
scrutiny to determine] whether the regulation is designed to serve a substantial
government interest and allows for reasonable alternative channels of communication.
R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 407 (7th Cir. 2004). At this time and
without the benefit of a fully developed record; however, I simply have no evidence to
consider other than the language of the ordinance itself.
The attached ordinance suggests that it is content neutral and intermediate
scrutiny applies for Shopping Delite's claim (Doc. 21-1). See BBL, Inc. v. City of Angola,
809 F.3d 317, 325 (7th Cir. 2015) (An ordinance is regarded as content neutral so long
as “one purpose” of the ordinance is “to combat harmful secondary effects,” even if it is
not literally content neutral; Andy's Restaurant & Lounge, Inc. v. City of Gary, 466 F.3d
at 52–53 (“[I]ntermediate scrutiny is applied if the challenged law is found to be either
content neutral or for the purpose of decreasing secondary effects.”)
Shopping Delite argues that the ordinance is a total ban on its speech because it
cannot obtain the requisite occupancy permit (Doc. 21). Accordingly, Shopping Delite
has stated a claim and to dismiss Shopping Delite’s claim now, when Belleville has not
yet made any affirmative showing of adverse secondary effects and Shopping Delite has
not received a full and fair opportunity to challenge any findings would be premature.
Belleville will have its opportunity to present its side of the facts and Shopping Delite
its opportunity to challenge those facts.
III. Monell and Qualified Immunity
At this time and without the opportunity for a fully-developed record, the Court
declines to address the issue. Rule 12(b)(6) is not the only way to preserve an official’s
right to not stand trial or the other burdens of litigation. See Mitchell v. Forsyth, 472
U.S. 511 (1985). Indeed, immunity may depend on facts that are not necessary to be
pled at this stage. Hanson v. LeVan, 967 F.3d 584, 590 (7th Cir. 2020).
CONCLUSION
In light of the forgoing, Shopping Delite has sufficiently pled multiple causes of
action against Defendants and has plausibly alleged that it is entitled to relief. Because
the purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of the complaint,
not to resolve the case on the merits, any disputed issues may be better suited for
disposition on a motion for summary judgment, after the case has been more fully
developed through discovery. Accordingly, the motion is DENIED and defendants
shall answer the first amended complaint within 21 days, or by, December 21, 2022.
In closing, the Court admonishes plaintiff’s counsel as to the tone used in his
objection to motion to dismiss. This Court further reminds him that said response had
to be prompted through a Rule to Show Cause. Finally, this Court expects all parties to
display a modicum of decorum and professionalism via pleadings and court
appearances.
IT IS SO ORDERED.
DATED: November 30, 2022
s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge