Chicago v. Pooh Bah

Docket No. 99804.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE CITY OF CHICAGO, Appellee, v. POOH BAH

ENTERPRISES, INC., et al., Appellants.

Opinion filed October 5, 2006.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Kilbride, and

Garman concurred in the judgment and opinion.

Justice Freeman dissented upon denial of rehearing, with opinion.

Justice Burke took no part in the decision.

OPINION

Section 4–60–140(d) of the Municipal Code of Chicago prohibits

establishments licensed to serve alcoholic beverages from permitting

any employee, entertainer or patron to engage in “any live act,

demonstration, dance or exhibition *** which exposes to public view

*** [h]is or her genitals, pubic hair, buttocks *** or [a]ny portion of

the female breast at or below the areola thereof.” The issue we are

asked to resolve today is whether this ordinance violates the first and

fourteenth amendments to the United States Constitution (U.S. Const,

amends. I, XIV) and article I, section 4, of the Illinois Constitution of

1970 (Ill. Const. 1970, art. I, §4). The circuit court of Cook County

found that it does. The appellate court concluded that it does not.

Nos. 1–01–0592, 1–01–1932 cons. (unpublished order under Supreme

Court Rule 23). For the reasons that follow, we affirm the judgment

of the appellate court.

The events which gave rise to this appeal began in 1993, when the

Liquor Control Commission of the City of Chicago initiated

administrative proceedings against Pooh Bah Enterprises, Inc. (Pooh

Bah), to revoke various municipal licenses which had been issued to

the company, including its municipal retail liquor license. The

challenged licenses had been issued to the company in connection with

its operation of a so-called “gentlemen’s club” located at 1531 North

Kingsbury Street in the City of Chicago.1 The basis for the revocation

was that the company, by and through its agents, had permitted

various female dancers at the club to expose their buttocks or portions

of their breasts at or below the areola to public view in violation of

section 4–60–140(d) of the Chicago Municipal Code.

The record shows that Pooh Bah was originally owned by an

individual named Jim Levin. Under Levin’s ownership, Pooh Bah

operated the club as the “1531 Club.” When Levin began experiencing

financial problems, Perry Mandera, owner and president of a Chicago-

area-based shipping company known as The Custom Companies, lent

him $300,000 in exchange for a security interest in 50% of Pooh

Bah’s stock. Mandera subsequently lent Levin an additional $500,000

to finance improvements to the club undertaken in connection with its

becoming a franchisee of a chain of “strip” clubs operated by Michael

J. Peter Club Management, Inc., under the name “Thee Dollhouse.”

Prior to the switch to the Thee Dollhouse format, no nude or

seminude dancing was performed at the club. Strippers did not appear

until the club became affiliated with the Michael J. Peter organization.

Unfortunately for Levin, the introduction of strippers did not bring

financial solvency, and he was unable to repay Mandera the money he

1

According to testimony presented in the circuit court, the term

“gentlemen’s club” denotes a commercial establishment where, for a fee,

patrons can watch live dancing by nude or seminude women.

-2-

owed. Mandera ultimately took over full ownership of Pooh Bah

through an entity he owned called Ace Entertainment.

According to his testimony, Mandera, through Ace Entertainment,

became the sole owner of Pooh Bah and thus the strip club in the

summer of 1993. After taking over, Mandera terminated the club’s

connection with the Michael J. Peter organization. In place of that

company, Mandera, through Pooh Bah, entered into management and

licensing agreements with Frederick John “Rick” Rizzolo, owner of a

Las Vegas strip club known as “The Crazy Horse Too.” Rizzolo

became active in the management of Pooh Bah’s club in 1995, while

the license revocation proceedings were still pending.2 For his

services, Rizzolo was paid $20,000 per month, plus travel expenses.

Under Rizzolo’s regime, the club dropped the name “Thee

Dollhouse” and began operating under the same name as Rizzolo’s

club in Las Vegas, “The Crazy Horse Too.” Mandera explained that

he affiliated his club with Rizzolo because, when he came across The

Crazy Horse Too in Las Vegas, “[he] liked what they did.” He was

2

Mandera required management assistance because he had no experience

running strip clubs. Interestingly, Thomas Bridges, the person Mandera hired

to be the club’s general manager when Rizzolo entered the scene, had no

such experience either. Prior to going to work for Mandera, Bridges had been

a detective with the Chicago police department. Joe Pascente, one of the

club’s assistant managers, had also been associated with the police

department. He was a probationary officer, but was fired for failing to

disclose that he was the subject of an FBI investigation into insurance fraud

involving his father, Fred Pascente. That investigation ultimately led to

Fred’s conviction on federal mail fraud charges. As with Bridges, Fred had

been a Chicago police detective. Fred Pascente is now listed in the Nevada

Gaming Commission and State Gaming Control Board’s “Black Book” of

excluded persons based on the mail fraud conviction and on his connection

t o organized crime in t h e C h i c a g o a r e a . S ee

http://gaming.nv.gov/loep_pascente.htm. According to Joe, Fred was

employed at the club when he began there in 1995 and remained working at

the club up until the middle of 1999. Fred is the person who originally

introduced Joe to Mandera. Joe described Mandera as a family friend and

testified that before taking the job at the club, he worked for Mandera’s

shipping company.

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impressed by the club’s success and its desire to expand into other

cities. According to Mandera, Rizzolo was willing to give him a far

better financial arrangement than the one Pooh Bah had with the

Michael J. Peter organization. Being affiliated with Rizzolo also

provided Pooh Bah with access to the same pool of dancers Rizzolo

used. In addition, Mandera testified that Rizzolo “seemed like a very

nice person and operated a nice, up-scale operation ***.”3

The club operated under the name The Crazy Horse Too until

2003. According to the briefs and records of the Illinois Secretary of

State, the establishment now does business under the name “VIP’s”

or “VIP’s, A Gentlemen’s Club.” Absent any indication from the

parties to the contrary, we assume that its ownership and operations

remain unchanged.

At the time the license revocation proceedings against Pooh Bah

commenced and throughout the period relevant to this litigation, its

club at 1531 North Kingsbury Street has provided something that

other licensed establishments selling liquor by the drink in Chicago do

not: seminude dancers. Entertainment venues featuring nude and

seminude female dancers operate within the City’s limits in compliance

with municipal ordinances. None of them, however, has a liquor

3

Shortly after this case was argued in our court, Rizzolo pleaded guilty

in the United States District Court for the District of Nevada to a felony

charge of conspiring to defraud the United States of taxes in connection with

operation of his Las Vegas The Crazy Horse Too club. See United States of

America v. Rizzolo, No. 2:06–CR–188–PMP–PAL, Plea Memorandum

(June 1, 2006). At the same time, The Power Company, Inc., which is the

parent company of the Las Vegas club, pleaded guilty to federal charges of

“Conspiracy to Participate in an Enterprise Through a Pattern of

Racketeering.” See United States of America v. The Power Company, Inc.,

No. 2:06–CR–186–PMP–PAL, Plea Memorandum (June 1, 2006).

Proceedings in federal district court are a matter of which the courts of this

state may take judicial notice. See, e.g., Pfaff v. Chrysler Corp., 155 Ill. 2d

35, 71 (1992). As part of the federal plea agreements, the club must be sold,

and Rizzolo is barred from owning, operating, or having any involvement

with any strip clubs or similar businesses involved in pornography or erotic

entertainment or media in the United States and its territories for the

remainder of his life.

-4-

license. Throughout all of Chicago, Pooh Bah’s club is the only

commercial establishment where the sale of liquor by the drink and

dancing by seminude women are combined.

The mix of alcohol sales and nude or seminude dancing was not

always so rare. Roger G. O’Brien, a veteran Chicago police officer

who has worked in the Department’s 18th District vice unit since

1979, testified that the City’s Rush Street entertainment district was

once home to 12 or 13 strip clubs, all of which served alcohol. During

that time, prostitution in and around the clubs was pervasive.

According to O’Brien, in the late 1970s and mid-1980s, there were

prostitutes on every corner in the Rush Street area, and inside the

clubs, waitresses and dancers frequently solicited customers for sex.

Antiprostitution campaigns waged by the City during the 1980s

ultimately resulted in the closure of all these establishments. O’Brien

estimated that when the strip clubs serving alcohol were shut down,

the number of prostitution arrests in the area declined by 80%.

Pooh Bah’s club is not located in Chicago’s Rush Street

entertainment area and is not related to any of the City’s 1970- and

1980-era strip clubs. The type of entertainment presented at Pooh

Bah’s club would, however, probably be familiar to patrons of those

now-defunct establishments. After paying an admission charge, $15

in the year 2000, customers of the club enter a room containing a bar,

an elevated stage area, and tables and chairs.4 Female performers take

turns going on stage, where they remove their clothing while dancing

to prerecorded background music. For the most part, the performers

called to testify in this case had not received any formal dance

training. One described taking dance lessons when she was a child.

Another indicated that while she had never been taught dance steps,

she had “either choreographed or hired choreographers” to assist her

in her performance.

4

As the club was configured when the last hearing in the case was held, a

special “V.I.P.” room was located in an elevated are adjacent to the main

room. The “V.I.P.” room afforded patrons an additional measure of privacy

while still permitting them to view the rest of the club. Admission to the room

required payment of an additional fee.

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Over the course of an evening, more than 20 women may perform

on stage. During those performances, waitresses take drink orders

from patrons and serve them at their tables. When an entertainer has

finished on stage, she will circulate through the club and mingle with

the customers. Her objective in doing this is twofold. First, she is

expected to earn money for the club by encouraging patrons to buy

premium-priced drinks for themselves and for her. Alcohol sales are

a major source of the club’s income, which is substantial. According

to testimony given by Mandera in 2000, the club’s gross annual

revenue was $7 million. By comparison, strip clubs in Chicago that did

not serve alcohol had annual revenues of only one or two million

dollars.

A performer’s second objective when circulating through the club

is to earn money for herself through tips. 5 Dancers receive tips for

providing two basic services: (1) sitting and talking with customers6

and (2) doing table dances. A table dance is simply a brief striptease

which a dancer performs for a customer at the customer’s table. An

additional fee is charged for this service. At Pooh Bah’s club, the basic

charge for a table dance is $20, but dancers reported receiving as

much as $100.

5

Performers were also occasionally tipped while performing on stage.

When these proceedings began, tips were the sole source of compensation for

most of the club’s performers, who actually paid a fee to the club for the

opportunity to perform there. The current compensation scheme, which

involves a corporate intermediary as the women’s nominal employer, appears

to include some payments to the dancers in addition to sums earned as tips.

The arrangement is a financially rewarding one for the performers.

According to Mandera, the average dancer at the club was making “six

figures a year” by the year 2000. Mandera reported his own take from the

club to be $75,000 per month.

6

According to Crazy Horse Too performer Tyra M. Andrews, a/k/a

“Rio,” topics of conversation range from the weather to “someone’s, you

know, intricate sexual fantasies.”

-6-

The dances performed on stage and at customers’ tables are

intended to be erotic.7 Performers typically move in a sexually

suggestive fashion, often enhancing the effect by rubbing their breasts

and pubic areas. Club policy specifies that dancers are to stay at least

one foot away from customers during table dances, but evidence in the

record suggests that this restriction is routinely ignored. The same is

true of a club policy forbidding dancers to have physical contact with

customers. The record shows that performers sometimes do

deliberately touch customers during table dances. One report included

earlobe nibbling. Dancer Tracey Lynn Sula admitted kissing customers

on the cheek.

During both the on-stage performances and the table dances,

performers become largely, although not totally, nude. By the

conclusion of a strip tease, whether on stage or at a customer’s table,

the only item of clothing a dancer will still have on is a thong,

sometimes referred to as a “T-bar.” That garment consists of a narrow

waistband to which is attached a panel of cloth intended to cover the

woman’s pubic area. A strip of material runs from the front panel,

between the woman’s legs, up through the cleft of her buttocks, then

attaches to the waistband at the back. It is similar to a traditional G-

string except that the cloth strip running between the woman’s

buttocks is wider. When a performer wears a thong, her anus is

concealed. As with a G-string, however, her buttocks are left

completely exposed.

Although performers at Pooh Bah’s club remove all of their

clothing but their thongs when they dance, they also apply flesh-toned

makeup and latex to their nipples and areolas. The makeup and latex

do not conceal the contours of the nipple area. They merely obscure

the naturally darker color of that portion of the women’s breasts.

7

The sexually stimulating effect of the performances is illustrated by an

event at the club which took place on May 17, 2000, shortly before the final

evidentiary hearing in the case. According to Mandera, police had to be

summoned when a customer was moved to “expose[ ] his erect penis and was

stroking it in full of other patrons and the entertainers.” Mandera, who was

not physically present at the club when this episode took place, attributed it

to the customer’s injudicious use of the antidepressant medication Prozac.

Alcohol was also implicated.

-7-

Evidence was presented that the dancers are also required by club

policy and practice to extend the makeup and latex covering to a

triangular area extending below the areola in the area in frontal

portion of the breast. Whether any female performers at Pooh Bah’s

club ever actually did that is open to question. It is clear, however,

that the entire sides of the dancers’ breasts remained fully exposed

with no latex or makeup coating. From photographs and video

exhibits contained in the record, the dancers’ breasts appear nude. But

for the change in color of the nipples and areolas, one could not tell

that the dancers’ breasts had been covered in any way. Testimony

from investigating police officers indicated that, in person, one could

sometimes see through the makeup and latex and discern the

difference in coloration between a dancer’s areolas and the fleshy

portion of her breasts.

While the name of Pooh Bah’s club has changed over the years,

the way dancers have appeared when interacting with customers has

remained constant. The combination of “T-bars” and latex-covered

nipples and areolas has been a hallmark of the club since it first

adopted the “gentlemen’s club” format in 1993. As we have

previously indicated, and as we shall discuss again later, Chicago

municipal ordinances do not prohibit women from dancing for

customers in that state of undress. Throughout the period at issue

here, clubs have been permitted to operate in the City featuring

dancers who wear even less. Indeed, there are establishments where

dancers perform in a state of complete nudity. What triggered this

litigation is Pooh Bah’s decision to present dancers in “T-bars” and

latex makeup while continuing to serve alcoholic beverages to its

patrons.

Pooh Bah’s combination of nude or seminude dancing and liquor

sales was opposed by municipal authorities as soon as the club

attempted it. Pooh Bah introduced seminude dancing in February of

1993. City police were on the premises conducting investigations

within two weeks. By the following month, the Liquor Control

Commission of the City of Chicago had initiated administrative

proceedings against Pooh Bah to revoke various municipal licenses

which had been issued to the company, including its municipal retail

liquor license. The basis for the revocation, as indicated at the outset

of this opinion, was that the company, by and through its agents, had

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violated section 4–60–140(d) of the Chicago Municipal Code, which

prohibits establishments licensed to serve alcoholic beverages from

permitting any employee, entertainer or patron to engage in “any live

act, demonstration, dance or exhibition *** which exposes to public

view *** [h]is or her genitals, pubic hair, buttocks *** or [a]ny

portion of the female breast at or below the areola thereof.” For

purposes of the ordinance, the foregoing body parts are considered to

be exposed to public view if they are “uncovered or [are] less than

completely and opaquely covered.” Chicago Municipal Code

§4–60–140(d) (2006).

Pooh Bah attempted to block the license revocation by filing a suit

for declaratory and injunctive relief in the circuit court of Cook

County. The circuit court denied Pooh Bah’s request for a temporary

restraining order. The Local Liquor Commissioner of the City of

Chicago subsequently entered an order, following the requisite notice

and a hearing, which revoked the 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, in fact, violated section 4–60–140(d) of the Municipal Code.

Pooh Bah appealed the revocation of its liquor licence to the City

of Chicago’s liquor appeal commission pursuant to sections 7–5 and

7–9 of the Liquor Control Act of 1934 (235 ILCS 5/7–5, 7–9 (West

1996)). The Commission affirmed. Pooh Bah petitioned for rehearing.

235 ILCS 5/7–10 (West 1996). When that petition was denied, Pooh

Bah sought judicial review in the circuit court of Cook County

pursuant to this state’s Administrative Review Law (735 ILCS

5/3–101 et seq. (West 1996)). See 235 ILCS 5/7–9, 7–11 (West

1996). The request for judicial review was asserted by Pooh Bah by

means of a new count added to an amended complaint it filed in

connection with its civil action for declaratory and injunctive relief,

which remained pending.8

8

Pooh Bah also sought review of the revocation of its other municipal

licenses. With respect to those revocations, it proceeded by means of a

petition for a common law writ of certiorari, which it included as an

additional new count in its amended complaint. The propriety of the

procedures employed by Pooh Bah for securing administrative review has not

been challenged and is not at issue in this appeal.

-9-

Revocation of Pooh Bah’s municipal licenses was stayed while

judicial review of the revocation decision was underway and Pooh

Bah’s civil action continued. The City, however, did not wait for those

matters to be resolved before taking further action. It filed a

counterclaim 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 violated section 8–4–090(a)

of the Chicago Municipal Code. Under that statute,

“[a]ny premises used for prostitution, illegal gambling,

illegal [drug] trafficking *** or any other activity that

constitutes a felony, misdemeanor, business offense or petty

offense under federal, state or municipal law is hereby

declared to be a public nuisance ***.” Chicago Municipal

Code §8–4–090(a) (2005).

In the City’s view, Pooh Bah was committing a business or petty

offense within the meaning of this statute by allowing its entertainers

to engage in live acts, demonstrations, dances or exhibitions which

expose to public view portions of the buttocks and female breasts at

or below the areolae in violation of section 4–60–140(d) of the

Municipal Code.

The foregoing proceedings, which we shall designate as the license

revocation case, were protracted. Because the license revocations had

been stayed pending review, however, Pooh Bah’s municipal licenses

remained in effect and the company was able to continue operating its

strip club at 1531 North Kingbury Street throughout the remainder of

the 1990s. In 1999, further investigation by undercover police officers

revealed that dancers at the club continued to engage in the type of

conduct which had triggered the initial license revocation proceedings

six years earlier. The City therefore filed a new action in the circuit

court of Cook County to obtain injunctive relief to shut down the

club.

The basis for the City’s new claim was essentially the same as that

asserted in connection with the original license revocation case.

According to the City, Pooh Bah had violated and continues to violate

section 4–60–140(d) of the Municipal Code of Chicago by “causing,

encouraging or permitting” female performers at the club to engage

in dances or exhibitions “which expose to public view portions of the

female breast at or below the areola, the buttocks, the pubic hair

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regions and portions of the genitalia.” The City further alleged that

Pooh Bah was in violation of section 8–4–090(a) of the Chicago

Municipal Code, the city’s public nuisance ordinance. Unlike the

City’s counterclaim in Pooh Bah’s civil action challenging the license

revocation, the City’s public nuisance claim in this case not only

charged violation of the liquor ordinance, it asserted that Pooh Bah

had caused, encouraged and permitted female performers to engage

in prostitution and to solicit for prostitution.

After filing its new complaint for injunctive relief, the City moved

for issuance of a preliminary injunction. Following discovery and a

series of hearings extending over several months, the circuit court

ruled in January of 2001 that section 4–60–140(d) of the Municipal

Code of Chicago contravened the first and fourteenth amendments to

the United States Constitution (U.S. Const, amends. I, XIV) and

article I, section 4, of the Illinois Constitution of 1970 (Ill. Const.

1970, art. I, §4) and therefore could not serve as the predicate for the

City’s claim that Pooh Bah’s strip club was being operated in a

manner that constitutes a public nuisance. Concluding that the City

had failed to establish that operation of the strip club created a public

nuisance in any other way, the circuit court denied the City’s motion

for a preliminary injunction.

By agreement of the parties, the circuit court amended its ruling,

nunc pro tunc, on May 3, 2001, to clarify certain of its provisions. In

a separate order entered the same day, the circuit court also granted

a joint motion by the parties to consolidate the license revocation case

with the public nuisance case and to adopt the evidentiary record

developed in connection with the motion for a preliminary injunction

as the basis for resolution of the license revocation and public

nuisance cases on the merits.9 In yet a third order dated May 3, 2001,

the court entered judgment in favor of Pooh Bah and against the City

on the City’s public nuisance claims; reversed the decision of the

liquor appeal commission upholding revocation of Pooh Bah’s

municipal licenses; vacated the revocation of those licenses; reserved

9

The agreed order reserved to the City the right to present additional

evidence regarding the amount of fines that could be imposed on Pooh Bah

in the event the City prevailed on the merits.

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for future consideration various related and subsidiary issues; and

made an express written finding that there was no just reason for

delaying enforcement or appeal.

The City took an interlocutory appeal from the circuit court’s

judgement.10 Rejecting the circuit court’s position, the appellate court

held that section 4–60–140(d) of the Municipal Code of Chicago does

not violate either the federal or the Illinois Constitution. Because the

ordinance is not unconstitutional, the appellate court further held that

violation of the ordinance could serve as the basis for (1) revoking

Pooh Bah’s municipal licenses and (2) finding that Pooh Bah’s

operation of the strip club constituted a public nuisance. The appellate

court therefore reversed the circuit court’s judgment and remanded

for further proceedings with respect to both the license revocation

case and the City’s public nuisance claim. Nos. 1–01–0592,

1–01–1932 cons. (unpublished order under Supreme Court Rule 23).

After failing to persuade the appellate court to grant rehearing, Pooh

Bah petitioned our court for leave to appeal. 177 Ill. 2d R. 315.11 We

granted that petition, and the cause is now before us for review.

In resolving this appeal, the pivotal inquiry is whether section

4–60–140(d) of the Municipal Code of Chicago violates either the

United States or the Illinois Constitution. When assessing the validity

of municipal ordinances, our analysis is guided by the same standards

applicable to statutes. City of Chicago v. Morales, 177 Ill. 2d 440,

447 (1997). As with statutes, municipal ordinances are presumed to

be valid. Chavda v. Wolak, 188 Ill. 2d 394, 398 (1999). The burden

of rebutting that presumption is on the party challenging the law’s

validity. La Salle National Bank v. Evanston, 57 Ill.2d 415, 428

(1974). Courts are obligated to uphold the constitutionality of

10

Although the procedural basis for the appeal was not specified,

interlocutory review was permissible under Supreme Court Rules 304(a)

(155 Ill. 2d R. 304(a)) and 307(a)(1) (188 Ill. 2d R. 307(a)(1)).

11

Perry Mandera, who, through ACE Enterprises is now the sole owner

of Pooh Bah, was a party to the proceedings in the lower courts and joined

in Pooh Bah’s petition for leave to appeal to our court. For purposes of this

appeal, his position is identical to Pooh Bah’s, and reference to Pooh Bah in

the discussion which follows should be understood to include him.

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ordinances whenever it is reasonably possible to do so. City of

Chicago v. Alton R.R. Co., 355 Ill. 65, 75 (1933). Whether a

legislative enactment is constitutional presents a question of law which

we review de novo. See O’Brien v. White, 219 Ill. 2d 86, 98 (2006).

We consider first Pooh Bah’s contention that section 4–60–140(d)

of the Municipal Code of Chicago violates the first amendment to the

United States Constitution. The first amendment is binding on the

states through the fourteenth amendment’s due process clause. People

v. Alexander, 204 Ill.2d 472, 476 (2003). It provides, in part, that

“Congress shall make no law *** abridging the freedom of speech.”

U.S. Const., amend. I.

Although the first amendment literally forbids only the

abridgement of freedom of speech, the United States Supreme Court

has long recognized that its protections are not limited to the written

or spoken word. They may also extend to expressive conduct. Texas

v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342, 353, 109 S. Ct.

2533, 2539 (1989). Generally speaking, the first amendment prevents

the government from proscribing speech or expressive conduct

because of disapproval of the ideas expressed. Content-based

regulations are presumptively invalid. Nevertheless, restrictions upon

the content of speech have traditionally been permitted in a few

limited areas which are “ ‘of such slight social value as a step to truth

that any benefit that may be derived from them is clearly outweighed

by the social interest in order and morality.’ ” R.A.V. v. City of St.

Paul, 505 U.S. 377, 383, 120 L. Ed. 2d 305, 317, 112 S. Ct. 2538,

2543 (1992), quoting Chaplinsky v. New Hampshire, 315 U.S. 568,

572, 86 L. Ed. 1031, 1035, 62 S. Ct. 766, 769 (1942). Under the first

amendment jurisprudence developed by the United States Supreme

Court, freedom of speech does not include freedom to ignore these

traditional limitations. R.A.V. v. City of St. Paul, 505 U.S. at 383, 120

L. Ed. 2d at 317, 112 S. Ct. at 2543.

The municipal ordinance challenged in this case pertains to live

acts, demonstrations, dances or exhibitions which expose to public

view the performer’s genitals, pubic hair, buttocks or, in the case of

female performers, any portion of the breast at or below the areola.

The ordinance does not bar all such performances, only those that take

place at establishments licensed to serve alcohol. At the time the

license revocations were initiated in this case, the United States

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Supreme Court adhered to the view that where, as here, the sale of

alcohol is involved, the regulatory authority conferred on states by the

twenty-first amendment to the United States Constitution (U.S.

Const., amend. XXI) gave states and their political subdivisions the

power to ban nude dancing. Under the Court’s analysis, the broad

powers of the states to regulate the sale of liquor pursuant to the

twenty-first amendment outweighed any first amendment interest in

nude dancing. The state therefore had the authority to ban nude

dancing as a part of its liquor licensing program. City of Newport v.

Iacobucci, 479 U.S. 92, 95, 93 L. Ed. 2d 334, 339, 107 S. Ct. 383,

385 (1986), quoting California v. LaRue, 409 U.S. 109, 114, 34 L.

Ed. 2d 342, 349-50, 93 S. Ct. 390, 395 (1972). As the Court noted in

New York State Liquor Authority v. Bellanca, 452 U.S. 714, 718, 69

L. Ed. 2d 357, 361, 101 S. Ct. 2599, 2602 (1981):

“Whatever artistic or communicative value may attach to

topless dancing is overcome by the State’s exercise of its

broad powers arising under the Twenty-first Amendment.

Although some may quarrel with the wisdom of such

legislation and may consider topless dancing a harmless

diversion, the Twenty-first Amendment makes that a policy

judgment for the state legislature, not the courts.”

See also California v. LaRue, 409 U.S. 109, 34 L. Ed. 2d 342, 93 S.

Ct. 390 (1972) (given broad sweep of twenty-first amendment,

regulations prohibiting explicitly sexual live entertainment and films in

bars and other establishments licensed to dispense liquor by the drink

not facially invalid).

Under the foregoing authority, section 4–60–140(d) of the

Municipal Code of Chicago, which prohibits nude entertainment in

establishments licensed to sell alcohol by the drink, would clearly not

be subject to challenge on first amendment grounds. During the

pendency of this litigation, however, the United States Supreme Court

altered its view of the interplay between the first and twenty-first

amendments. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,

516, 134 L. Ed. 2d 711, 736, 116 S. Ct. 1495, 1514 (1996), the Court

held that while the twenty-first amendment

“limits the effect of the dormant Commerce Clause on a

State’s regulatory power over the delivery or use of

intoxicating beverages within its borders, ‘the Amendment

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does not license the States to ignore their obligations under

other provisions of the Constitution.’ [Citation.]”

Noting its specific holdings in prior cases that “the Twenty-first

Amendment does not in any way diminish the force of the Supremacy

Clause [citations]; the Establishment Clause [citation] or the Equal

Protection Clause [citation],” the Court concluded that the same

should also be true with respect to the free speech clause. 44

Liquormart, 517 U.S. at 516, 134 L. Ed. 2d at 736, 116 S. Ct. at

1514-15. It therefore held “the Twenty-first Amendment does not

qualify the constitutional prohibition against laws abridging the

freedom of speech embodied in the First Amendment.” 44

Liquormart, 517 U.S. at 516, 134 L. Ed. 2d at 736, 116 S. Ct. at

1515.

Although the Court thus disavowed the reasoning employed in

City of Newport v. Iacobucci, New York State Liquor Authority v.

Bellanca, and California v. LaRue, insofar as it relied on the twenty-

first amendment, it distinguished cases such as LaRue, which involved

the regulation of nude dancing in places where alcohol was served.

The Court held that “[e]ntirely apart from the Twenty-first

Amendment, the State has ample power to prohibit the sale of

alcoholic beverages in inappropriate locations.” 44 Liquormart, 517

U.S. at 515, 134 L. Ed. 2d at 735, 116 S. Ct. at 1514. One of those

locations is an establishment where nude dancing is allowed.

Accordingly, the Court held that its “analysis in LaRue would have led

to precisely the same result if it had placed no reliance on the Twenty-

first Amendment.” 44 Liquormart, 517 U.S. at 515, 134 L. Ed. 2d at

735, 116 S. Ct. at 1514.

Four years after 44 Liquormart was decided, the United States

Supreme Court examined the validity of a municipal public indecency

ordinance which made it an offense to intentionally appear in public in

a “state of nudity.” Under that ordinance, whose provisions were

similar to those at issue in this case, “nudity” was defined to include

the “showing of the *** buttocks 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; *** or the exposure of any

device worn as a cover over the nipples and/or areola of the female

breast, which device simulates and gives the realistic appearance of

nipples and/or areola.” City of Erie v. Pap’s A.M., 529 U.S. 277, 283

-15-

n.*, 146 L. Ed. 2d 265, 274 n.*, 120 S. Ct. 1382, 1388 n.* (2000).

Unlike the matter before us today, these prohibitions were not limited

to establishments licensed to serve alcohol.

Pap’s, a Pennsylvania corporation which operated Kandyland, an

establishment featuring totally nude erotic dancing by women,

challenged the ordinance on the grounds that its public nudity

provisions violated the first and fourteenth amendments to the United

States Constitution. Although the Pennsylvania Supreme Court upheld

the corporation’s challenge (Pap’s A.M. v. City of Erie, 553 Pa. 348,

719 A.2d 273 (1998)), the United States Supreme Court reversed and

remanded. In a plurality opinion authored by Justice O’Connor, the

Court held that while erotic nude dancing is expressive conduct, it

falls “only within the outer ambit of the First Amendment’s

protection.” Pap’s A.M., 529 U.S. at 289, 146 L. Ed. 2d at 278, 120

S. Ct. at 1391. Concluding that the ordinance was directed at

combating negative secondary effects associated with adult

establishments and was unrelated to the suppression of the erotic

message conveyed by nude dancing, the Court held that it was not

subject to strict scrutiny. Rather, its validity turned on whether it

passed the less stringent intermediate standard set forth in United

States v. O’Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673

(1968). Pap’s A.M., 529 U.S. at 296, 146 L. Ed. 2d at 282, 120 S. Ct.

at 1394-95.

Under O’Brien, a content-neutral regulation will be upheld if it

(1) is within the constitutional power of the government, (2) furthers

an important or substantial governmental interest, (3) is unrelated to

the suppression of free expression, and (4) restricts first amendment

freedoms no further than is essential to further the government’s

interest. O’Brien, 391 U.S. at 377, 20 L. Ed. 2d 680, 88 S. Ct. at

1679 (1968). The Court in Pap’s A.M. held that the nude-dancing

ordinance at issue in that case was justified under these standards.

According to the court, the municipality’s efforts to protect public

health and safety were clearly within its police powers. The ordinance

furthered the city’s undeniably important interest in combating the

harmful secondary effects associated with nude dancing. Pap’s A.M.,

529 U.S. at 296-97, 146 L. Ed. 2d at 282-83, 120 S. Ct. at 1395. It

was unrelated to the suppression of free expression, and “any

incidental impact on the expressive element of nude dancing [was] de

-16-

minimus,” leaving “ample capacity to convey the dancer’s erotic

message.” Pap’s A.M., 529 U.S. at 301, 146 L. Ed. 2d at 286, 120 S.

Ct. at 1397.

As we have indicated, the public indecency ordinance at issue in

Pap’s A.M. was general in nature. Unlike section 4–60–140(d) of the

Municipal Code of Chicago, its restrictions were not limited to

establishments licensed to sell alcoholic beverages. In the years

following 44 Liquormart and Pap’s A.M., the United States Supreme

Court itself has not specifically addressed the framework which should

be followed in analyzing first amendment challenges to adult

entertainment restrictions contained in municipal liquor regulations.

The issue was, however, recently addressed by the United States

Court of Appeals for the Seventh Circuit in Ben’s Bar, Inc. v. Village

of Somerset, 316 F.3d 702 (7th Cir. 2003).

Ben’s Bar concerned an ordinance enacted by the Village of

Somerset, Wisconsin that, in part, prohibited the sale, use or

consumption of alcohol on the premises of “sexually oriented

businesses.” Under the village’s regulatory scheme, an establishment

fell within the definition of “sexually oriented business,” and therefore

could not serve alcohol, if it featured nude or seminude dancers. For

purposes of the ordinance, nudity was defined as “the appearance of

the human bare anus, anal cleft or cleavage, pubic area, male genitals,

female genitals, or the nipple or areola of the female breast, with less

than a fully opaque covering; or showing of the covered male genitals

in a discernibly turgid state.” Ben’s Bar, 316 F.3d at 706 n.5.

Seminudity was “the exposure of a bare male or female buttocks or

the female breast below a horizontal line across the top of the areola

at its highest point with less than a complete and opaque covering.”

Ben’s Bar, 316 F.3d at 708.

The village’s reasons for enacting this ordinance were expressly

noted in the “legislative findings” section of the ordinance itself. That

section stated:

“Based on evidence concerning the adverse secondary

effects of Sexually Oriented Businesses on the community in

reports made available to the Village Board, and on the

holdings and findings in [numerous Supreme Court, federal

appellate, and state appellate judicial decisions], as well as

studies and summaries of studies conducted in other cities ...

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and findings reported in the Regulation of Adult Entertainment

Establishments in St. Croix County, Wisconsin; and the

Report of the Attorney General’s Working Group of Sexually

Oriented Businesses ... the Village Board finds that:

(a) Crime statistics show that all types of crimes, especially

sex-related crimes, occur with more frequency in

neighborhoods where sexually oriented businesses are located.

(b) Studies of the relationship between sexually oriented

businesses and neighborhood property values have found a

negative impact on both residential and commercial property

values.

(c) Sexually oriented businesses may contribute to an

increased public health risk through the spread of sexually

transmitted diseases.

(d) There is an increase in the potential for infiltration by

organized crime for the purpose of unlawful conduct.

(e) The consumption of alcoholic beverages on the

premises of a Sexually Oriented Business exacerbates the

deleterious secondary effects of such businesses on the

community.” (Emphasis omitted.) Ben’s Bar, 316 F.3d at 705.

Following enactment of this ordinance, but two months before it

was to take effect, a bar that provided nude and seminude dancing and

that held a liquor license issued by the village, along with two of the

bar’s dancers, filed an action against the village asserting, inter alia,

that the ordinance violated their rights to free expression under the

first amendment. Ben’s Bar, 316 F.3d at 705. The trial court rejected

that claim and granted summary judgment in favor of the village. The

bar appealed, arguing that the trial court erred in concluding that the

ordinance did not constitute an unconstitutional restriction on nude

dancing. Ben’s Bar, 316 F.3d at 707.

In undertaking its review of the trial court’s judgment, the court

of appeals began by dismissing as fallacious the bar’s contention that

the ordinance was directed at the dancer’s attire, or lack thereof. The

ordinance, the court held, “restricts the sale and consumption of

alcoholic beverages in establishments that serve as venues for adult

entertainment, not the attire of nude dancers.” Ben’s Bar, 316 F.3d at

708. The court then proceeded to review recent United States

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Supreme Court authority governing adult entertainment regulations,

including 44 Liquormart and Pap’s A.M. and its adoption of

O’Brien’s four-part test. The court also discussed City of Los Angeles

v. Alameda Books, Inc., 535 U.S. 425, 152 L. Ed. 2d 670, 122 S. Ct.

1728 (2002). That decision, which followed Pap’s A.M., upheld, at

the summary judgment stage, an ordinance prohibiting multiple adult

entertainment businesses from operating in the same building. The

primary issue in the case was the appropriate standard for determining

whether the ordinance served a substantial governmental interest. No

majority could be reached on that question, but Justice Kennedy

concurred in the plurality’s overall conclusion that a municipality’s

initial burden of demonstrating a substantial government interest in

regulating the adverse secondary effects associated with adult

entertainment is slight. Ben’s Bar, 316 F.3d at 722. “As to this,” he

observed,

“we have consistently held that a city must have latitude to

experiment, at least at the outset, and that very little evidence

is required. [Citations.] As a general matter, courts should not

be in the business of second-guessing fact-bound empirical

assessments of city planners. [Citation.] The Los Angeles City

Council knows the streets of Los Angeles better than we do.

[Citations.] It is entitled to rely on that knowledge; and if its

inferences appear reasonable, we should not say there is no

basis for its conclusion.” Alameda Books, 535 U.S. at 451-52,

152 L. Ed. 2d at 691, 122 S. Ct. at 1742-43.

Based on its review of the authorities set forth above and others,

the Seventh Circuit concluded that under controlling United States

Supreme Court precedent, a liquor regulation prohibiting the sale or

consumption of alcohol on the premises of adult entertainment

establishments is constitutional if:

“(1) the State is regulating pursuant to a legitimate

governmental power [citation]; (2) the regulation does not

completely prohibit adult entertainment [citation]; (3) the

regulation is aimed not at the suppression of expression, but

rather at combating the negative secondary effects caused by

adult entertainment establishments [citation]; and (4) the

regulation is designed to serve a substantial government

interest, narrowly tailored, and reasonable alternative avenues

-19-

of communication remain available [citation]; 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. [Citation.]”

(Emphasis in original.) Ben’s Bar, 316 F.3d at 722.

Step four of this test encapsulates the so-called intermediate standard

of scrutiny. Joelner v. Village of Washington Park, 378 F.3d 613, 622

(7th Cir. 2004).12

Applying the foregoing analytical framework to the Somerset

village ordinance, the Seventh Circuit held that the village’s regulation

of alcohol sales and consumption in inappropriate locations was

clearly within its general police powers. The ordinance was therefore

of the type which the government has the constitutional authority to

enact. Ben’s Bar, 316 F.3d at 722, citing Pap’s A.M., 529 U.S. at

296, 146 L. Ed. 2d at 282-83, 120 S. Ct. at 1395. Next, the court

concluded that the ordinance did not completely bar Ben’s Bar

employees from conveying an erotic message. In the court’s view, it

merely prohibited alcohol from being sold or consumed on the

premises of adult entertainment establishments. Ben’s Bar, 316 F.3d

at 723. With respect to step three, the court determined, after

reviewing the record, that the predominant concern of the village in

adopting the ordinance was the negative secondary effects attendant

to sexually oriented businesses, such as increased crime and reduced

property values in neighboring business and residential areas. The

village was not attempting to suppress any speech or conduct

protected by the first amendment. Ben’s Bar, 316 F.3d at 723-24.

Because the Village’s ordinance thus satisfied these preliminary

standards, the court proceeded to the fourth and final step. In applying

that step, the court explained that it was required to determine

whether the village had adequately demonstrated that there was a

12

If a regulation fails to satisfy either step two or step three, a more

rigorous standard will apply. The regulation will have to withstand strict

scrutiny in order to pass constitutional muster. Joelner v. Village of

Washington Park, 378 F.3d at 622-23. Pooh Bah argues that the strict

scrutiny standard should govern this case. For the reasons set forth later in

this opinion, Pooh Bah is incorrect.

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connection between the speech regulated by the ordinance and the

secondary effects that motivated the ordinance’s adoption. As we

have previously detailed, the record showed that the village relied on

numerous judicial decisions, studies from 11 different cities, “findings

reported in the Regulation of Adult Entertainment Establishments of

St. Croix, Wisconsin,” and the Report of the Attorney General’s

Working Group of Sexually Oriented Businesses (State of Minnesota,

June 6, 1989) to support its conclusion that adult entertainment

produces adverse secondary effects. Ben’s Bar, 316 F.3d at 725. The

court opined that this evidentiary record “fairly support[ed] the

Village’s proffered rationale for [the ordinance], and that [the bar had]

failed ‘to cast direct doubt on this rationale.’ ” Ben’s Bar, 316 F.3d at

726, quoting Alameda Books, 535 U.S. at 438, 152 L. Ed. 2d at 683,

122 S. Ct. at 1736.

In finding the village’s evidentiary showing to be sufficient, the

Seventh Circuit rejected a claim by the bar that the village should have

been required to conduct its own studies, at the local level, to

determine whether adverse secondary effects result when liquor is

served on the premises of adult entertainment establishments. Citing

various decisions by the United States Supreme Court, the court held

that a municipality is not required to conduct new studies or produce

evidence independent of that already generated by other cities “ ‘so

long as whatever evidence the city relies upon is reasonably believed

to be relevant to the problem that the city addresses.’ [Citation.]”

Ben’s Bar, 316 F.3d at 725. The Seventh Circuit also rejected the

bar’s argument that the village’s case was fatally deficient because it

had not adduced any written reports relating specifically to the effects

of serving alcohol in establishments offering nude and seminude

dancing. Again citing precedent from the United States Supreme

Court, it held that it was entirely reasonable for the village to conclude

that barroom nude dancing was likely to produce adverse secondary

effects at the local level even in the absence of specific studies on the

matter. As the New York state legislature noted in connection with

the legislation challenged in Bellanca, “[c]ommon sense indicates that

any form of nudity coupled with alcohol in a public place begets

undesirable behavior.” N.Y. State Legis. Ann. 150 (1977), quoted in

Bellanca, 452 U.S. at 718, 69 L. Ed. 2d at 361, 101 S. Ct. at 2601.

See also Ben’s Bar, 316 F.3d at 726.

-21-

Turning next to the question of whether the village’s ordinance

was narrowly tailored, the court reiterated that the ordinance did not,

in fact, impose any restrictions at all on a dancer’s ability to convey an

erotic message. Rather, it merely prohibited sexually oriented

businesses from serving alcohol to customers while nude or seminude

dancing is going on. That, the court explained, is not a restriction on

erotic expression, but a prohibition of nonexpressive conduct (serving

and consuming alcohol) during the presentation of expressive conduct.

In the court’s view, the first amendment does not entitle a bar, its

dancers or its patrons to have alcohol available while nude or

seminude dancing is taking place. Ben’s Bar, 316 F.3d at 726. The

court cited numerous authorities from other jurisdictions to the same

effect. See, e.g., Department of Alcoholic Beverage Control v.

Alcoholic Beverage Control Appeals Board, 99 Cal. App. 4th 880,

895, 121 Cal. Rptr. 2d 729, 741 (2002) (“The state *** has not

prohibited dancers from performing with the utmost level of erotic

expression. They are simply forbidden to do so in establishments that

serve alcohol, and the Constitution is not thereby offended”).

The court next observed that the village’s ordinance was limited

to adult entertainment establishments and was inapplicable to theaters,

performing art centers and other venues where performances of

serious artistic merit are regularly offered. Ben’s Bar, 316 F.3d at

727. Finally, it noted that the ordinance’s prohibition was no greater

than was essential to furtherance of the village’s substantial interest in

combating the secondary effects resulting from the combination of

nude or seminude dancing and alcohol consumption. That was so, in

the court’s view, “because, as a practical matter, a complete ban of

alcohol on the premises of adult entertainment establishments is the

only way the Village can advance that interest.” (Emphasis in

original.) Ben’s Bar, 316 F.3d at 727. 13

13

Because it believed that alcohol prohibition was, as a practical matter,

the least restrictive means of furthering the village’s interest in combating the

negative secondary effects resulting from the combination of adult

entertainment and alcohol consumption, the court did not undertake a specific

analysis of the alternative standard set forth in step four of its four-part test.

None was necessary, as the result would be the same. Ben’s Bar, 316 F.3d

at 725 n.31.

-22-

In light of the foregoing, the court concluded that the Village’s

ordinance did not violate the first amendment. Wrote the court:

“The regulation has no impact whatsoever on the tavern’s

ability to offer nude or semi-nude dancing to its patrons; it

seeks to regulate alcohol and nude or semi-nude dancing

without prohibiting either. The citizens of the Village of

Somerset may still buy a drink and watch nude or semi-nude

dancing. They are not, however, constitutionally entitled to do

both at the same time and in the same place. Gary, 311 F.3d

at 1338 (holding that there is no generalized right to associate

with other adults in alcohol-purveying establishments with

other adults). The deprivation of alcohol does not prevent the

observer from witnessing nude or semi-nude dancing, or the

dancer from conveying an erotic message. Perhaps a sober

patron will find the performance less tantalizing, and the

dancer might therefore feel less appreciated (not necessarily

from the reduction in ogling and cat calls, but certainly from

any decrease in the amount of tips she might otherwise

receive). And we do not doubt Ben’s Bar’s assertion that its

profit margin will suffer if it is unable to serve alcohol to its

patrons. But the First Amendment rights of each are not

offended when the show goes on without liquor.” Ben’s Bar,

316 F.3d at 728.

The analysis employed by the court in Ben’s Bar, 316 F.3d 702,

was subsequently followed by the Seventh Circuit in Joelner v.

Village of Washington Park, 378 F.3d 613 (7th Cir. 2004). While

decisions of the Seventh Circuit are not binding on this tribunal

(Bowman v. American River Transportation Co., 217 Ill. 2d 75, 91

(2005)), its decision in Ben’s Bar was recently adopted by the United

States Court of Appeals for the Third Circuit in 181 South, Inc. v.

Fischer, 454 F.3d 228 (3d Cir. 2006), and we believe that it

constitutes persuasive authority on the issues presented by this case.

We therefore elect to follow it.

Under the four-part test articulated in Ben’s Bar, section

4–60–140(d) of the Municipal Code of Chicago, the ordinance at issue

in this case, does not offend the first amendment to the United States

Constitution. First, as with the Somerset village ordinance at issue in

Ben’s Bar, section 4–60–140(d) of Chicago’s Municipal Code was

-23-

directed toward the regulation of alcohol sales and consumption in

inappropriate locations, a matter within the City’s general police

powers. See BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 608 (8th

Cir. 2001) (city is entitled under its police power to prohibit the sale

of alcohol in a location that features adult entertainment). Second, the

ordinance does not completely prohibit nude or seminude dancing. It

merely prohibits such performances at establishments licenced to sell

alcohol. Where alcohol is not sold or served, nude and seminude

dancing is not prohibited by the City of Chicago. Venues providing

nude or seminude dancing have operated and continue to operate in

the City in accordance with state law and local ordinances.

We next consider the third step of Ben’s Bar, which specifies that

the challenged regulation must be aimed not at the suppression of

expression, but rather at combating the negative secondary effects

caused by adult entertainment establishments. Resolution of this issue

turns on the predominate concerns motivating the law’s enactment.

Ben’s Bar, 316 F.3d at 723; see Joelner, 378 F.3d at 624; R.V.S.,

L.L.C. v. City of Rockford, 361 F.3d 402, 407-08 (7th Cir. 2004);

G.M. Enterprises v. Town of St. Joseph, 350 F.3d 631, 637 (7th Cir.

2003). In evaluating a municipality’s regulatory motivations, we are

free to take into account 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. See Joelner, 378

F.3d at 624. The inquiry at this stage of the analysis is highly

deferential to the legislative body that enacted the ordinance. See XLP

Corp. v. County of Lake, 359 Ill. App. 3d 239, 246 (2005).

Just as the Somerset village board made legislative findings in

support of the ordinance upheld by the Seventh Circuit in Ben’s Bar,

the Chicago city council detailed its concerns in enacting the

ordinance at issue in this case. The ordinance was part of a package

of ordinances and ordinance amendments adopted in 1993 to establish

“adult uses” within various zoning districts in the City. In the

preamble to those amendments, the Chicago city council explained:

“Experience in the City of Chicago as well as in other

cities has shown that adult uses in certain areas of a city may

lead to increased levels of criminal activity, including but not

limited to prostitution and assault; and

-24-

Merchants in some commercial areas of the City justifiably

are concerned that the location of adult use establishments in

such areas will have a serious negative effect; and

In fact, the experiences of Seattle, Washington, and

Detroit, Michigan, among other cities, have demonstrated that

adult use establishments may degrade the quality of the area

in which they are locate and may have a blighting effect on a

city; and

Adult uses which continued to operate as nonconforming

uses have had a deleterious effect on surrounding

neighborhoods to a much greater extent than many other uses;

and

***

The reasonable regulation of adult uses will provide for the

protection of property values and will protect City residents

and persons who work within the City from the adverse

effects of adult uses, while providing those who desire to

patronize adult use establishments a reasonable opportunity to

do so in areas of the establishments; and

Adult uses should be treated as special uses to enable

individualized consideration of the effects of an adult use on

the surrounding neighborhood ***.”

There is nothing in the record to suggest that these objectives

were pretextual. Thomas Smith, assistant commissioner for zoning for

the City of Chicago’s department of planning and development, was

personally involved in the formulation of the City’s adult use

ordinances and he testified in these proceedings. Echoing many of the

circumstances reported by Officer O’Brien during his testimony, Smith

explained the negative secondary effects adult businesses had caused

in the City in the past, particularly in the Old Town, Rush Street and

South Loop areas. Smith recounted a variety of criminal activities that

were associated with strip clubs and cabarets where liquor was served

and “B girls” plied their trade. Conventioneers were bilked of their

money. Prostitution was rampant. Illegal earnings were collected by

club proprietors and not reported to taxing authorities.

In researching how best to deal with the negative secondary

effects of strip clubs and other adult entertainment establishments,

-25-

Smith’s department consulted groups such as the American Planning

Association and the National Institute of Municipal Law Officers. It

also obtained and reviewed numerous studies conducted in other

major metropolitan areas in addition to those specifically noted by the

city council. Most were prepared by city planning departments in

connection with local police departments. Among them were reports

from the cities of Phoenix, Indianapolis, Minneapolis, St. Paul, and

Los Angeles. Some, including the Minneapolis and St. Paul studies,

took into account the specific relationship between the combination

of alcohol sales and adult uses on the incidence of neighborhood

crime. According to Smith’s testimony, the studies were consistent in

showing that the presence of adult entertainment establishments,

including strip clubs which served liquor, led to higher crime rates.

While we do not know whether the additional studies discussed by

Smith were expressly presented to the city council before it enacted

the legislative package which included section 4–60–140(d) of the

Municipal Code, those studies did inform the recommendations Smith

made to the city council, and the concerns he expressed were, in turn,

reflected in the legislative preamble adopted by the city council. When

one considers the preamble, the text of the ordinance, the historical

context in which the 1993 version of the law was enacted, and the

undisputed fact that fully nude dancing is permitted by the City in

establishments that do not serve alcohol, the notion that section

4–60–140(d) of the Municipal Code represents an effort by the City

to restrict certain viewpoints or modes of expression is completely

untenable. See G.M. Enterprises, 350 F.3d at 638.

In R.V.S., L.L.C., 361 F.3d at 409-10, the court found that the

predominate concerns motivating Rockford to enact a municipal

ordinance regulating “exotic dancing nightclubs” related “to

combating prostitution, crime and other negative externalities”

notwithstanding the fact that the record included testimony by one of

the city’s aldermen, in response to questions regarding the purpose of

the ordinance, that “there were some concerns that some people just

don’t like this type of entertainment.” The Seventh Circuit correctly

declined to give that testimony dispositive effect, noting, among other

things, that “what motivates one legislator to support a statute is not

necessarily what motivates others to enact it. [Citations.]” R.V.S.,

L.L.C., 361 F.3d at 410. The City’s position in this case is

-26-

unencumbered by even that level of uncertainty. In contrast to R.V.S.,

L.L.C., there is nothing at all in this case to suggest, directly or

indirectly, that the City harbored any hostility of any kind toward the

expressive conduct in which the dancers at Pooh Bah’s club were

engaged. Based on the record before us here, combating the negative

secondary effects caused by adult entertainment establishments was

not only the predominate motive for the City’s actions, it was the only

motivation.

In an attempt to refute this conclusion, Pooh Bah argues that the

language used in a prior version of section 4–60–140(d) of the

Municipal Code can be read as evincing an intention by the city

council to reach the content of expression rather than its secondary

effects. That contention is untenable for three reasons. First, unlike the

preamble applicable to the current version of the law, the language

invoked by Pooh Bah, which states that the ordinance “controls the

form of entertainment in places licensed to sell alcoholic beverages”

is not part of the ordinance itself. It is merely a generic description of

the legislation included by the committee on police, fire, personnel,

schools and municipal institution in its recommendation to the city

council that the ordinance be approved. Second, even if the

committee’s views could be imputed to the city council and even if the

language it employed could be read as actually referring to the content

of conduct that is protected, reference to content is not the same as

suppression of content. Sammy’s of Mobile Ltd. v. City of Mobile,

140 F.3d 993, 998 (11th Cir. 1998). Like the present law, the version

of the ordinance invoked by Pooh Bah does not impose any limitations

on nude or seminude dancing. Its effect is simply to ban alcohol sales

where such dancing takes place. Finally, and perhaps most basically,

the prior version of the law is not at issue here. It is the subsequent

1993 version of the ordinance that gave rise to these proceedings, and

the preamble adopted in connection with that ordinance is what

reflects the city council’s motivation in adopting that version of the

law.

Because section 4–60–140(d) of the Chicago Municipal Code thus

satisfies steps two and three of the test set forth in Ben’s Bar, we

proceed to step four, namely, whether the ordinance is designed to

serve a substantial government interest, narrowly tailored, and

reasonable alternative avenues of communication remain available or,

-27-

alternatively, the ordinance furthers an important or substantial

government interest and the restriction on expressive conduct is no

greater than is essential in furtherance of that interest. Ben’s Bar, 316

F.3d at 722. As previously discussed, this inquiry encapsulates the

intermediate standard of review applicable to first amendment

challenges to adult entertainment regulations. Under Ben’s Bar and

the precedent on which it is based, assessing whether an ordinance

serves a substantial government interest under this standard requires

a court to determine whether the municipality has adequately

demonstrated that a connection exists between the speech regulated

by the ordinance and the secondary effects the ordinance was designed

to address. Ben’s Bar, 316 F.3d at 724. In making this determination,

the appropriate focus is not the actual intent of the governmental

body. The government’s actual intent relates to the earlier inquiry

regarding the predominant motivation behind its decision to enact the

law. The question at this stage is whether the government can show

that the regulation serves a current governmental interest. See

Giovani Caradola, Ltd. v. Bason, 303 F.3d 507, 515 (4th Cir. 2002).

The harms to which the law is addressed must be real, not merely

conjectural, and the law must alleviate those harms in a direct and

material way. See Giovani Caradola, Ltd., 303 F.3d at 515, quoting

Satellite Broadcasting & Communications Ass’n v. FCC, 275 F.3d

337, 356 (4th Cir. 2001).

The current governmental interest advanced by the City in support

of section 4–60–140(d) of its Municipal Code is the avoidance of the

negative secondary effects which result from the sale and consumption

of alcohol at adult entertainment establishments. That “[l]iquor and

sex are an explosive combination” (Blue Canary Corp. v. City of

Milwaukee, 251 F.3d 1121, 1124 (7th Cir. 2001) is a proposition so

frequently confirmed by human experience that it can scarcely be

questioned. Nude and topless dancing in bars has “a long history of

spawning deleterious effects,” including “prostitution and the criminal

abuse and exploitation of young women.” Steakhouse, Inc. v. City of

Raleigh, 166 F.3d 634, 637 (4th Cir. 1999). Where alcohol is served

in establishments offering nude or seminude dancing, secondary blight

is frequently reported. Disturbances involving lascivious conduct,

drunkenness, larcenies, assaults and narcotics are common. See, e.g.,

-28-

Steakhouse, Inc., 166 F.3d at 637; California v. LaRue, 409 U.S. at

111, 34 L. Ed. 2d at 347-48, 93 S. Ct. at 393.

The negative effects of combining alcohol with sexual stimulation

was corroborated in this case by Dr. Allen Kodish, a practicing

psychiatrist and member of the faculty at the University of Chicago.

Dr. Kodish, who was called as a witness by the City, testified that

alcohol consumption facilitates sexual and aggressive impulses and

impairs social judgment. When combined with sexual stimulation, it

produces an effect “associated with an increase in violent sexual acting

out, acts of criminal behavior.” Because of this, drinking alcohol while

viewing naked or nearly naked dancers can lead a person to act on

various impulses, including touching, screaming, and engaging in

fights or other risky behavior. While not everyone who drinks alcohol

reacts that way, Kodish explained that the combination of alcohol and

sexual stimulation increases the likelihood that they will. In support of

his conclusions, Kodish discussed a study entitled “The Effects of

Male Social Drinking on Fantasy,” which showed that increased

alcohol intake is associated with increased sexual and aggressive

thoughts.

The City also adduced testimony from Dr. Wesley Skogan, a

professor of political science at Northwestern University and a

member of the University’s Institute for Policy Research. According

to Professor Skogan, research shows that establishments serving

alcohol attract a significant amount of additional crime. Such

establishments create the opportunity for crime by bringing the

potential victim and the criminal together. Victims become more

vulnerable because of alcohol’s debilitating effects, thus creating an

attractive situation for potential offenders. In explaining these

circumstances, Professor Skogan discussed a number of studies and

articles showing the relationship between alcohol consumption and

crime. These studies, which demonstrated that establishments serving

or selling alcohol do exacerbate crime, included “Bars, Blocks and

Crime”; “Bars, Blocks and Crimes Revisited: Linking the Theory of

Routine Activities to the Empiricism of ‘Hot Spots’ ”; a study done

on the City of Garden Grove, California; a report entitled “Additional

Evidence that Taverns Enhance Nearby Crime”; and an article from

the American Journal of Public Health. The Garden Grove study is

particularly noteworthy because it showed that the combination of

-29-

retail alcohol sales and adult uses created a higher incidence of crime

than resulted from retail alcohol sales or adult uses operating in

isolation.

The conclusions reported by Dr. Kodish and Professor Skogan

were consistent with those reached by Thomas Smith, the assistant

commissioner for zoning, whose testimony we discussed earlier in this

opinion. Like Skogan, Smith consulted studies involving the

experience of other municipalities. He also drew on his own

experience as an urban planner and the problems Chicago had

experienced in the past. As we have previously noted, the city also

presented the testimony of veteran city police officer Roger O’Brien,

who described in detail the abundance of criminal activity that

occurred in the late 1970s and early 1980s when strip clubs serving

alcohol proliferated. In addition, the City buttressed its position by

presenting to the circuit court judicial decisions from other

jurisdictions involving attempts to regulate adult entertainment

establishments, including strip clubs serving alcohol, within the

confines of the first amendment.

Based on the foregoing, we believe that the evidentiary record

here, as in Ben’s Bar, fairly supported the rationale proffered by the

City for the ordinance. That, however, does not end our inquiry. If the

party challenging an ordinance can cast doubt on the municipality’s

rationale, either by demonstrating that the evidence adduced by the

municipality does not support the proffered rationale or by furnishing

evidence that disputes the municipality’s factual findings, the burden

will then shift back to the municipality to supplement the record with

evidence renewing support for a theory that justifies the law. World

Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186,

1193 (9th Cir. 2004); G.M. Enterprises, Inc. v. Town of St. Joseph,

350 F.3d 631, 639 (7th Cir. 2003).

In an attempt to trigger such a shift, Pooh Bah asserts that the

City’s evidence is fatally deficient because it did not include a study

dealing specifically with the City of Chicago itself. Such an argument

was specifically considered and rejected in Ben’s Bar. We discussed

the point previously and will state it again here. A municipality need

not conduct new studies or produce evidence independent of that

already generated by other cities before enacting an ordinance

pertaining to the adverse secondary effects of adult entertainment

-30-

establishments so long as whatever evidence the city does rely on is

reasonably believed to be relevant to the problem the city is

attempting to address. Ben’s Bar, 316 F.3d at 725. We note,

moreover, that the City’s position here was supported by its own

historical experience when strip clubs had been permitted to serve

alcohol to patrons in the past. Where actual experience from the

municipality itself buttresses the conclusions reported in studies from

other jurisdictions, those studies may be used by the municipality in

support of its claims regarding negative secondary effects. See XLP

Corp., 359 Ill. App. 3d at 254.

Pooh Bah also challenges the City’s position on the grounds that

the studies upon which the City’s witnesses relied contained scientific

and methodological flaws. Pierre DeVise, a self-employed consultant

retained by Pooh Bah, stated that he was not aware of studies

showing a cause and effect relationship between liquor establishments

featuring seminaked dancers and crime and did not believe that such

a relationship existed. Peter Girandola, an assistant professor of

psychology at the University of Kentucky, opined that there was no

direct, positive relationship between viewing sexual stimuli and sexual

“acting out behavior.” In addition, Rolf Campbell, a planning and

zoning consultant called to testify by Pooh Bah, stated that the

seminude dancing conducted at Pooh Bah’s club had no “negative

impact on the orderly development of the immediately surrounding

properties.”

This testimony by Pooh Bah’s experts was insufficient to trigger

an obligation on the part of the City to supplement the record with

additional evidence in support of its position. Campbell conceded, on

cross-examination, that he had no opinion about the relationship

between land use and crime and had conducted no research regarding

the relationship between either alcohol or sexually oriented businesses

and crime. DeVise actually admitted that a correlation has been shown

to exist between sexually oriented businesses serving alcohol and

increased incidence of crime, while Giranadola confirmed that alcohol

consumption is related to a higher level of aggression. It is true that

the City adduced no information dealing specifically with the potential

secondary effects of permitting liquor to be sold where the dancers

were covered to the extent required by section 4–60–140(d) of

Chicago’s Municipal Code, but no precedent requires the City to

-31-

obtain research targeting the exact activity that it wishes to regulate.

The City is only required to rely on evidence “reasonably believed to

be relevant” to the problem being addressed. The studies upon which

the City relied regarding the secondary effects of alcohol sales and

adult entertainment businesses satisfy that standard. See Gammoh v.

City of La Habra, 395 F.3d 1114, 1133 (9th Cir. 2005).

We further note that the City’s determination regarding the

deleterious secondary effects of allowing adult entertainment

establishments to serve liquor is entitled to a high degree of deference.

“[A]necdotal evidence and reported experience can be as telling as

statistical data and can serve as a legitimate basis for finding negative

secondary effects.” World Wide Video of Washington, Inc. v. City of

Spokane, 227 F. Supp. 2d 1143, 1157 (E.D. Wash. 2002), aff’d, 368

F.3d 1186 (9th Cir. 2004), quoting Stringfellow’s of N.Y., Ltd. v. City

of New York, 91 N.Y.2d 382, 400, 694 N.E.2d 407, 417, 671

N.Y.S.2d 406, 416 (1998) cited with approval in Center for Fair

Public Policy v. Maricopa County, 336 F.3d 1153, 1168 (9th Cir.

2003). The existence of academic studies said to indicate that the

threatened harms are not real will not suffice to cast doubt on the local

government’s experience. See City of Erie v. Pap’s A.M., 529 U.S.

277, 300, 146 L. Ed. 2d 265, 285, 120 S. Ct. 1382, 1397 (2000)

(plurality op.), citing Nixon v. Shrink Missouri Government PAC, 528

U.S. 377, 394, 145 L. Ed. 2d 886, 902, 120 S. Ct. 897, 908 (2000).

The same is true of disagreement among academic experts. While the

courts will not permit legislative bodies to rely on shoddy data, we

also will not specify the methodological standards to which their

evidence must conform. Gammoh v. City of La Habra, 395 F.3d at

1133. The Chicago city council knows the streets of Chicago better

than we do. See Alameda Books, 535 U.S. at 451-52, 152 L. Ed. 2d

at 691, 122 S. Ct. at 1743. The experience of other jurisdictions and

of the City itself leaves little doubt that the secondary harms to which

section 4–60–140(d) of the Municipal Code are addressed are real and

not merely conjectural.

Because enforcement of section 4–60–140(d) of the Chicago

Municipal Code has been stayed during the pendency of these

proceedings, Pooh Bah’s club has continued to sell alcohol while

presenting seminude dancing. The amount of documented criminal

activity reported during that period has been limited. Contrary to Pooh

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Bah’s view, however, we do not believe that this demonstrates that

the City’s professed concerns are unfounded.

While few in number, the particular incidents which have taken

place at or around the club fall squarely within the type of activity

shown by the evidence to be typical of establishments where alcohol

and adult uses are combined. In addition to the incident discussed

earlier in our opinion involving the customer who exposed himself and

began masturbating in the middle of the club, the record reveals that

police have been summoned to deal with assaults both inside and

outside the club. The record also describes an incident in which a

bartender was caught forging entries on credit card receipts to give

herself higher tips.14

Wholly aside from that, we note again that the City’s historical

experience with strip clubs licensed to sell alcohol by the drink was

substantial. Negative secondary effects were serious and pervasive.

Such widespread effects may not have recurred yet, but neither has the

proliferation of strip clubs serving alcohol. Because of the adult use

ordinances enacted in 1993, which includes the version of section

4–60–140(d) of the Municipal Code at issue in this case, and the

prompt enforcement of section 4–60–140(d) against Pooh Bah, Pooh

Bah is the only establishment in the City where patrons can purchase

and consume alcohol while watching nude or seminude women

perform erotic dances. Perhaps that makes it easier to police. Perhaps

the criminal activity is more difficult to detect. Whatever the

explanation, the absence or apparent absence of crime at Pooh Bah’s

club does not render the ordinance constitutionally suspect. The first

amendment does not require a municipality to ignore its own

experience, the experience of other jurisdictions, and concerns which

the courts have held to be a matter of “common sense” (Ben’s Bar,

316 F.3d at 726) merely because the feared secondary effects have not

yet materialized in connection with a particular adult entertainment

establishment. See SOB, Inc. v. County of Benton, 317 F.3d 856 (8th

Cir. 2003) (public indecency ordinance banning live nude dancing

14

Incidents of prostitution were alleged as well, but it does not appear that

any dancer or patron has yet been charged with prostitution or prostitution-

related offenses.

-33-

upheld against first amendment challenge notwithstanding the

existence of reports showing fewer police calls to the club than to a

local gas station and suggesting that the value of properties near the

club and another adult entertainment establishment had increased

more from 1994 to 2001 than the value of properties near two

businesses that did not feature nude dancing); Artistic Entertainment,

Inc. v. City of Warner Robins, 223 F.3d 1306 (11th Cir. 2000) (that

city council members may have had no specific knowledge about

crime patterns near venue presenting live nude dancing did not render

ordinance prohibiting sale of alcohol there invalid under the first

amendment).

Having thus concluded that the evidentiary record fairly supports

the City’s rationale for section 4–60–140(d) of the Municipal Code

and that Pooh Bah has failed to cast direct doubt on that rationale, we

next consider whether the ordinance is narrowly tailored to the

problem to which it is addressed, namely, the negative secondary

effects associated with the combination of alcohol sales and nude or

semi-nude dancing. In order to satisfy the “narrow tailoring”

requirement, a regulation need not be “ ‘the least restrictive or least

intrusive means of [achieving the stated governmental interest].’ ”

Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006),

quoting Ward v. Rock Against Racism, 491 U.S. 781, 798, 105 L. Ed.

2d 661, 680, 109 S. Ct. 2746, 2757-58 (1989). Rather, the narrow

tailoring requirement is satisfied so long as the substantial

governmental interest which the law is designed to serve would be

achieved less effectively in the law’s absence and the law does not

burden substantially more speech than is necessary to further the

government’s objective. McGuire v. Reilly, 260 F.3d 36, 48 (1st Cir.

2001); Center for Fair Public Policy, 336 F.3d at 1169.

That standard has clearly been satisfied here. Section 4–60–140(d)

of the Municipal Code is tailored precisely to its objective: combating

the negative secondary effects that flow from the combination of nude

or seminude dancing and alcohol sales. 181 South, Inc. v. Fischer, 454

F.3d 228 (3d Cir. 2006) (upholding against first amendment challenge

state regulation forbidding erotic topless dancing in establishments

licensed to sell liquor). There is no question that the City’s goal could

not be achieved as effectively absent the ordinance. Indeed,

prohibiting establishments from offering both alcohol and nude or

-34-

seminude dancing is the only way the City can advance that interest.

See Ben’s Bar, 316 F.3d at 727. In addition, the ordinance goes no

further than is essential to further the City’s objective. Other courts

which have considered similar laws have so held. See 2025 Emery

Highway L.L.C. v. Bibb County, 377 F. Supp. 2d 1310, 1336 (M.D.

Ga. 2005) (requiring performers to “partially cover their breasts,

buttocks, and genitals at venues where alcohol is sold ‘is certainly the

least restriction possible which would still further the [government’s]

interest in controlling the combustible mixture of alcohol and

nudity’ ”), quoting Sammy’s of Mobile Ltd. v. City of Mobile, 140

F.3d at 997; Ben’s Bar, 316 F.3d at 727; Wise Enterprises, Inc. v.

Unified Government of Athens-Clarke Co., 217 F.3d 1360, 1365

(11th Cir. 2000).

Our final inquiry under step four of the test set forth in Ben’s Bar

is whether reasonable alternative avenues of communication remain

available. The answer to that inquiry is unquestionably yes. As in

Ben’s Bar, the ordinance regulates nude and seminude dancing and

the consumption of alcohol, but prohibits neither. The City of Chicago

still offers enumerable opportunities for the sale and consumption of

alcohol by the drink. It also permits venues to offer nude and

seminude dancing, and such establishments operate lawfully in the

City featuring performers who wear even less than the dancers at

Pooh Bah’s club. The only thing the City does not permit is for the

two activities to be combined on the same premises and at the same

time. Such a restriction is within the City’s authority to impose, for

the first amendment does not entitle a bar, its dancers or its patrons to

have alcohol available during a presentation of nude or seminude

dancing. Ben’s Bar, 315 F.3d at 726, 728.

In that regard, we note that the record is utterly devoid of any

testimony suggesting, directly or indirectly, that the availability of

liquor bears in any way on the expressive component of the dancers’

performances. Dancer Rachel Shaw, who testified under her stage

name, Samantha, described her message as fantasy and fun, “the idea

that the customer can have a beautiful stranger take their clothes off

and dance for them and feel special.” Melissa Candelaria, known at

the club as “Malibu,” repeated the fantasy theme. “It’s a fantasy,” she

said, “of being their girl, which you never will, basically.” Candelaria’s

objective included a pragmatic element as well. When dancers are up

-35-

on the main stage, Candelaria testified, “[w]e want to be noticed so

that we can get a table dance when we get off the stage.”

Cynthai Sudheimer, whom Pooh Bah patrons will recognize as

“Christy,” tries to convey the idea that she is “untouchable *** like a

star ***, somebody that is a step above, higher, glamour-type person

that is put up from everybody else.” When asked at trial whether she

had a message which she tries to convey on stage, “Star,” whose

actual name is Sara Jean Levorson, explained that she attempts to

portray “my fantasy, sex appeal *** like having a good time, having

a lot of fun.” For Rhonda Bobo, who performs as “Kori Adams,” the

objective is to communicate to the audience who she is, that she is

comfortable being on stage, that she is “here and available to

entertain,” and that she is “strong, confident, sexy, beautiful.”

Similarly, Vickie Bernal, a/k/a “Lee,” viewed her performances as

relating the message that women are beautiful. She wants her

customers to look not only at her body, but also at her hair and her

face. “I try to have them appreciate the whole me as a beautiful

woman,” she testified, “not just the body.”

We cannot see and Pooh Bah has not suggested any reason why

any of these messages cannot be expressed with equal effectiveness or

viewed by patrons with equal appreciation absent the ability of those

patrons to buy and consume alcohol while the performances are taking

place. In Ben’s Bar, 316 F.3d at 728, the Seventh Circuit postulated

that prohibiting alcohol sales where nude or seminude dancing occurs

may cause performers to suffer a reduction in tips. Based on the

record, we are not sure that is necessarily so in this case. Testimony

by some dancers indicated that they also work or have worked at

different strip clubs where alcohol is not served, and it is not at all

clear that any disparity existed between what they were paid at those

establishments and what they earned at Pooh Bah’s club. The situation

with the club itself is different. Testimony by the club’s owner

suggests that the club’s income would probably fall substantially if it

could not offer alcohol along with nude and seminude dancing. That,

however, is of no consequence. While the first amendment does

require that establishments like the club be given a “reasonable

opportunity” to disseminate protected speech, a “reasonable

opportunity” does not include a concern for economic considerations.

Ben’s Bar, 316 F.3d at 726-27, citing City of Renton v. Playtime

-36-

Theatres, Inc., 475 U.S. 41, 54, 89 L. Ed. 2d 29, 42, 106 S. Ct. 925,

932 (1986).

As an alternative basis for challenging section 14–60–140(d) of

the Chicago Municipal Code, Pooh Bah contends that the ordinance

is overbroad. Overbreadth is a judicially created doctrine which

recognizes an exception to the established principle that a person to

whom a statute may constitutionally be applied will not be heard to

challenge that statute on the ground that it may conceivably be applied

unconstitutionally to others, in other situations not before the court.

Under the doctrine, a party being prosecuted for speech or expressive

conduct may challenge the law on its face if it reaches protected

expression, even when that person’s own activities are not protected

by the first amendment. The reason for this special rule in first

amendment cases is apparent: an overbroad statute might serve to chill

protected speech. A person contemplating protected activity might be

deterred by the fear of prosecution. The doctrine reflects the

conclusion that the possible harm to society in permitting some

unprotected speech to go unpunished is outweighed by the possibility

that protected speech of others may be muted. Bates v. State Bar of

Arizona, 433 U.S. 350, 380, 53 L. Ed. 2d 810, 833-34, 97 S. Ct.

2691, 2707 (1977).

The doctrine’s tolerance is not unbounded. “[T]here comes a point

at which the chilling effect of an overbroad law, significant though it

may be, cannot justify prohibiting all enforcement of that

law–particularly a law that reflects ‘legitimate state interests in

maintaining comprehensive controls over harmful, constitutionally

unprotected conduct.’ ” Virginia v. Hicks, 539 U.S. 113, 119, 156 L.

Ed. 2d 148, 157, 123 S. Ct. 2191, 2197 (2003), quoting Broadrick v.

Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 842, 93 S. Ct. 2908,

2917 (1973). Like most exceptions to established principles, the

doctrine must be carefully tied to the circumstances in which facial

invalidation of a statute is truly warranted. New York v. Ferber, 458

U.S. 747, 769, 73 L. Ed. 2d 1113, 1130, 102 S. Ct. 3348, 3361

(1982). Its concern with “chilling” protected speech attenuates as the

otherwise unprotected behavior that it forbids the state to sanction

moves from pure speech toward conduct and that conduct, even if

expressive, falls within the scope of otherwise valid laws. Los Angeles

Police Department v. United Reporting Publishing Corp., 528 U.S.

-37-

32, 40, 145 L. Ed. 2d 451, 460, 120 S. Ct. 483, 489 (1999), quoting

Ferber, 458 U.S. at 770, 73 L. Ed. 2d at 1131, 102 S. Ct. at 3361,

quoting Broadrick, 413 U.S. at 615, 37 L. Ed. 2d at 842, 93 S. Ct. at

2917.

Because of the wide-reaching effects of striking down a statute on

its face at the 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 employed it with

hesitation, and only as a last resort. New York v. Ferber, 485 U.S. at

769, 73 L. Ed. 2d at 1130, 102 S. Ct. at 3361. Where, as here,

conduct and not merely speech is involved, the overbreadth of the

statute must be not only real, but substantial as well, judged in relation

to the statute’s plainly legitimate sweep. “We will not topple a

statute,” the United States Supreme Court has held, “merely because

we can conceive of a few impermissible applications.” Massachusetts

v. Oakes, 491 U.S. 576, 595, 105 L. Ed. 2d 493, 509, 109 S. Ct.

2633, 2644 (1989). The claimant challenging the law as being

unconstitutionally overbroad bears the burden of demonstrating,

“ ‘from the text of [the law] and from actual fact,’ ” that substantial

overbreadth exists. Virginia v. Hicks, 539 U.S. at 122, 156 L. Ed. 2d

at 159, 123 S. Ct. at 2198, quoting New York State Club Ass’n v. City

of New York, 487 U.S. 1, 14, 101 L. Ed 2d 1, 17, 108 S. Ct. 2225,

2234 (1988).

More than 50 years after its inception, first amendment overbreadth

doctrine remains little understood. R. Fallon, Making Sense of

Overbreadth, 100 Yale L.J. 853 (1991). Courts and litigants sometimes

fail to heed the requirement (see Members of the City Council v.

Taxpayers for Vincent, 466 U.S. 789, 799-800, 80 L. Ed. 2d 772, 783,

104 S. Ct. 2118, 2126 (1984)) that a statute’s overbreadth be both real

and substantial. An example of such a lapse appears in Eggert Group,

L.L.C. v. Town of Harrison, 372 F. Supp. 1123, 1137 (E.D. Wis. 2005).

In invalidating as overbroad an ordinance similar to the one at issue here

prohibiting nude dancing in establishments licensed to serve alcohol, a

federal magistrate accepted the strip club’s contention that the law would

prevent the La Leche League from conducting a demonstration of how

to breast feed properly. Although Dr. Jack Newman, member of the La

Leche League International Health Advisory Council, has been quoted as

stating that“[r]easonable alcohol intake [by nursing mothers] should not

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be discouraged at all” (see www.lalecheleague.org/FAQ/alcohol.html),

we think it unlikely to the point of absurdity that a La Leche League

chapter would consider holding an educational meeting about nursing

techniques for new mothers in a bar, especially considering that mothers

typically bring their new babies and sometimes the babies’ siblings to

those meetings. Moreover, even if a La Leche League meeting were held

in a bar, it is by no means obvious that the women’s breast feeding would

run afoul of the law. Contrary to the magistrate’s apparent belief, the

process of nursing a baby does not necessarily require exposure of the

mother’s breast to public view.

The magistrate in the same case also thought the law was

overbroad because “certain all-female educational demonstrations for

all-female audiences would be prohibited” at establishments licensed

to sell liquor. What the magistrate had in mind here eludes us

completely. Are there women who want to conduct educational

seminars in bars where the program entails exposing their breasts or

genitals or engaging in real or simulated sexual contact, which is the

kind of conduct they would have to undertake to trigger the law’s

prohibitions?15 Perhaps, but no concrete examples were noted or even

hinted at. Rather than being drawn from actual fact, the magistrate’s

example seems completely made up. In our view and under the

standards articulated by the United States Supreme Court, extreme

and unfounded hypotheticals of this kind are wholly inadequate to

establish that a law is overbroad.

With these thoughts in mind, we believe, as the appellate court

did, that Pooh Bah failed to meet its burden of demonstrating that

section 4–60–140(d) of the Chicago Municipal Code suffers from

substantial overbreadth. The club’s contention is that the ordinance

suffers from overbreadth because its prohibitions would apply to nude

15

Considering the type of conduct addressed by the ordinance, the “all-

female” demonstrations for “all-female” audiences described by the

magistrate evoke images of a Roman bacchanalia rather than a serious

educational program. The authority to restrict such “bacchanalian revelries,”

the United States Supreme Court has affirmed, is within the inherent police

power of the state. 44 Liquormart, 517 U.S. at 515, 134 L. Ed. 2d at 735,

116 S. Ct. at 1514.

-39-

and seminude performances at any venue licensed to sell alcohol,

including those which feature legitimate theater and country clubs

where swim meets and water shows take place, and the City has not

shown that the secondary effects to which the ordinance is directed

would flow from such performances. This argument is untenable. As

a preliminary matter, we cannot imagine and Pooh Bah has not

explained what kind of country club water shows it has in mind. If

country clubs are presenting water shows featuring nude or seminude

female performers, and Pooh Bah has presented nothing to

substantiate that such shows have been held or even planned for

Chicago or anywhere else, the incidence of such performances is

surely small. Any overbreadth would therefore be insignificant when

compared to the plainly legitimate reach of the ordinance. The swim

meet hypothetical is also unpersuasive. By its terms, the ordinance

pertains only to “employees,” “entertainers,” or “patrons” engaged in

“live act[s], demonstration[s], dance[s], or exibition[s].” Giving those

terms their plain and commonly understood meaning, the ordinance

could have no possible application to racers in a swimming

competition.16

With respect to the example involving venues offering legitimate

theater, the City observes, as it did below, that under its liquor

licensing ordinances, the “premises” for which it issues licenses consist

of the enclosed location where the alcohol is stored or displayed. That

definition embraces the stage and seating areas at Pooh Bah’s club,

but would not include the stage and seating areas in a normal theater.

The City does not issue licenses that cover stage and seating areas in

such theaters. By local ordinance, the sale of alcohol in theaters is

confined to the lobby area and limited to one hour before the

performance and during the intermission. Section 14–60–140(d) of the

Municipal Code is therefore inapplicable to stage performances at

conventional theaters in the City.

16

While we do not purport to be experts on competitive sports gear, we

further point out something of which anyone who has watched the Summer

Olympics is aware. The outfits typically worn by competitive female

swimmers provide considerably more coverage than the City requires of

strippers who perform where alcohol is served.

-40-

In any event, we note again that the ordinance does not actually

even forbid any speech or expressive conduct. Nude or seminude

dancing is perfectly lawful in the City. This ordinance merely prohibits

such performances from being combined with the sale and

consumption of alcohol. Under the law, the combination of live nude

or seminude dancing and the sale and consumption of alcohol is not

allowed anywhere, regardless of the quality, character, or content of

the performance. In this respect, the expansiveness of the ordinance

is a virtue, rather than a vice, for it is evidence that the ordinance does

not discriminate against a particular message or point of view. See

Hill v. Colorado, 530 U.S. 703, 731, 147 L. Ed. 2d 597, 621, 120 S.

Ct. 2480, 2497 (2000). Moreover, because the first amendment does

not entitle a licensed liquor establishment, its performers or its patrons

to have alcohol available during live nude or seminude performances

(Ben’s Bar, 316 F.3d at 727; Sammy’s of Mobile, 140 F.3d at 999

(“we are unaware of any constitutional right to drink while watching

nude dancing”)), enforcement of the ordinance at other types of

establishments licensed to serve alcohol by the drink would no more

trench on their first amendment rights than it does on the first

amendment rights claimed by Pooh Bah. Like the conduct at issue

here, the conduct at those other establishments would be encompassed

within the ordinance’s legitimate sweep. The ordinance is therefore

not overly broad. Hill v. Colorado, 530 U.S. at 732, 147 L. Ed. 2d at

621, 120 S. Ct. at 2498.17

Pooh Bah next argues that section 14–60–140(d) of the Municipal

Code violates the fourteenth amendment to the United States

Constitution (U.S. Const., amend. XIV) because it is too vague. A

statute can be impermissibly vague for either of two independent

reasons: (1) if it fails to provide people of ordinary intelligence a

reasonable opportunity to understand what conduct it prohibits, or (2)

if it authorizes or even encourages arbitrary and discriminatory

17

By its terms and as applied by the City of Chicago, the ordinance

pertains only to acts, demonstrations, dances, or exhibitions which are “live.”

It therefore has no possible application to movies, television broadcasts or

displays of artwork. Pooh Bah makes no argument to the contrary.

Accordingly, we need not consider such activities in assessing the reach of

the ordinance.

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enforcement. Hill v. Colorado, 530 U.S. at 732, 147 L. Ed. 2d at 621,

120 S. Ct. at 2498.

A party may raise a vagueness challenge by arguing either that a

statute is vague as applied to the facts at hand, or that a statute is void

on its face. The first type of challenge, as its name suggests, evaluates

a statute in the context of the specific circumstances in which it was

applied to the litigant who contests its validity. If the litigant’s own

conduct falls squarely within the statute’s prohibitions, he cannot

complain of the vagueness of the law as applied to others. Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

495, 71 L. Ed. 2d 362, 369, 102 S. Ct. 1186, 1191 (1982).

With respect to the second type of challenge, a statute is normally

not unconstitutional on its face unless it provides no standard of

conduct at all, i.e., the ambiguity is so pervasive that it is incapable of

any valid application. People v. Fabing, 143 Ill. 2d 48, 55 (1991),

quoting Steffel v. Thompson, 415 U.S. 452, 474, 39 L. Ed. 2d 505,

523, 94 S. Ct. 1209, 1223 (1974). Facial challenges to legislation are

generally disfavored. National Endowment for the Arts v. Finley, 524

U.S. 569, 580, 141 L. Ed. 2d 500, 511, 118 S. Ct. 2168, 2175 (1998),

quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 107 L.

Ed. 2d 603, 616, 110 S. Ct. 596, 603 (1990). The courts have held,

however, that when a law threatens to inhibit the exercise of

constitutionally protected rights such as those protected under the first

amendment, the Constitution demands that a more stringent vagueness

test be applied. In such a scenario, a statute is void for vagueness if it

reaches a substantial amount of constitutionally protected conduct.

United States v. Marzook, 383 F. Supp. 2d 1056 (N.D. Ill. 2005).

Because of the requirement that a statute must reach a substantial

amount of constitutionally protected speech, the facial vagueness and

overbreadth analyses are cognate. Record Head Corp. v. Sachen, 682

F.2d 672, 674 (7th Cir. 1982). For reasons discussed in connection

with Pooh Bah’s overbreadth claim, the club failed to establish that

section 14–60–140(d) of the Municipal Code reaches a substantial

amount of speech or expressive conduct protected by the first

amendment. As a result, just as the club cannot assert a valid

overbreadth claim, it likewise cannot attack the ordinance on the

grounds that it is unconstitutionally vague on its face.

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Pooh Bah’s vagueness claim can succeed, if at all, only if the club

can establish that the ordinance is vague as applied. While not clearly

defined, Pooh Bah’s vagueness argument appears to rest on the first

of the two reasons on which vagueness challenges may be based,

namely, that persons of ordinary intelligence could only guess at its

meaning. The particular terms or phrases with which Pooh Bah took

issue below were “buttocks,” “any portion of the female breast at or

below the areola thereof,” “shall be considered exposed to public view

if it is uncovered or is less than completely and opaquely covered,”

and “any device, costume or covering which gives the appearance of

or simulates the genitals, pubic hair, buttocks, perineum, anal region

or pubic hair region.” The appellate court rejected Pooh Bah’s

arguments regarding these provisions, finding that the meaning of the

challenged language was apparent and perfectly intelligible. In our

court, Pooh Bah has narrowed it focus. Its arguments now center on

the meaning of “buttocks,” “any portion of the female breast at or

below the areola thereof,” and “less than completely and opaquely

covered.”

The tests for assessing whether a law is vague are not capable of

mechanistic application. Business regulations, for example, may be

less precise than other forms of legislation because the entities affected

by such regulations are more apt to know where the lines are drawn

and more able to obtain clarification through inquiry or administrative

proceedings. Civil legislation can be vaguer than criminal laws because

the consequences of imprecision are qualitatively less severe. Record

Head Corp. v. Sachen, 682 F.2d at 674. In any context, moreover,

there are limits to the degree of precision attainable by the English

language. The United States Supreme Court has therefore recognized

that “ ‘perfect clarity and precise guidance have never been required

even of regulations that restrict expressive activity.’ ” Anderson v.

Milwaukee County, 433 F.3d 975, 978 (7th Cir. 2006), quoting Ward

v. Rock Against Racism, 491 U.S. 781, 794, 105 L. Ed. 2d 661, 677,

109 S. Ct. 2746, 2755 (1989). We must also remain mindful that when

judging the constitutionality of a rule or statute, common sense cannot

and should not be suspended. Anderson v. Milwaukee County, 433

F.3d 975, 978 (7th Cir. 2006).

The clarity of the term “buttocks” has frequently been addressed

by courts in the context of challenges to laws and regulations

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pertaining to nudity. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d

Cir. 1995); Dodger’s Bar & Grill v. Johnson County Board of County

Commissioners, 32 F.3d 1436, 1444 (10th Cir. 1994); Geaneas v.

Willets, 911 F.2d 579, 586-87 (11th Cir. 1990); Wayside Restaurant,

Inc. v. Virginia Beach, 215 Va. 231, 236, 208 S.E.2d 51, 55 (1974).

These courts have consistently found that the term can be understood

by persons of ordinary intelligence. We see no possible basis for

reaching a contrary conclusion in this case. We likewise see no

grounds for holding that the phrase “less than completely and

opaquely covered” is not sufficiently clear to provide a person of

ordinary intelligence a reasonable opportunity to understand what it

requires. Moreover, and more importantly, even if there might be

some circumstances in which the meaning and applicability of these

terms might be uncertain, such circumstances are not present here.

The T-bars worn by Pooh Bah dancers covered the area between their

buttocks, including the anus, but left the buttocks themselves

completely uncovered. Their conduct thus fell squarely and

unambiguously within the ordinance’s prohibitions. As a result, Pooh

Bah will not be heard to complain that the law is vague as applied to

its dancers.

The same is true of that portion of the ordinance prohibiting the

exposure of “any portion of the female breast at or below the areola

thereof.” Pooh Bah’s policy required only that dancers apply a latex

and makeup covering to their nipples, areolas and triangular areas

extending below the areolas in the frontal portion of each breast.

Evidence was presented that the actual makeup and latex covering did

not even cover that much. From the photographic and video exhibits

included in the record and the testimony of the investigating police

officers, there is no indication of any covering beyond the nipples and

areolas. Even those areas would appear totally nude except for the

fact that their natural color was obscured. Whatever the actual

coverage, however, there is no dispute that it did not extend to the

lateral portions of the breasts below the tops of the areolas. The sides

of the dancers’ breasts were left completely uncovered. Courts

considering similar laws have held that persons of ordinary intelligence

could reasonably be expected to understand that the portion of the

female breast at or below the areola would include the entire portion

of the female breast at or below the areola, including the sides. See

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City of Daytona Beach v. Del Percio, 476 So. 2d 197, 200 (Fla.

1985) (language refers to portion of breast directly or laterally below

the top of the areola); State v. Fantasia Restaurant & Lounge, Inc.,

Nos. 0112001060, 0109002426, 0112000958 cons., slip op. at 10

(Del. Super. Ct. 2004) (term refers to “entire area of the entire breast

below the top of the areola, not simply the strip of flesh the width of

the areola below the top of the areola”). That is precisely how the

ordinance was understood by regulatory authorities in the City, and

we agree that it is how persons of ordinary intelligence would

understand it. Pooh Bah and its dancers therefore cannot complain

that they were not given fair notice that their latex and makeup

practices were insufficient to meet the requirements of section

14–60–140(d) of the Municipal Code. Application of the ordinance to

them does not violate their rights to due process under the fourteenth

amendment.

Pooh Bah’s final contention is that even if section 14–60–140(d)

of the Municipal Code does not contravene the first and fourteenth

amendments to the United States Constitution, we should declare it

invalid under the “freedom of speech” provision of the Illinois

Constitution of 1970 (Ill. Const. 1970, art. I, §4). That provision

guarantees that “[a]ll persons may speak, write and publish freely,

being responsible for the abuse of that liberty.” Ill. Const. 1970, art.

I, §4. The relationship between article I, section 4, of the Illinois

Constitution and the first amendment to the United States

Constitution was discussed by this court in People v. DiGuida, 152 Ill.

2d 104 (1992). After reviewing the history of the provision and the

discussion of its terms at the 1970 Constitutional Convention, we

concluded that the framers recognized that the Illinois Constitution

may provide greater protection to free speech than does its federal

counterpart. People v. DiGuida, 152 Ill. 2d at 121. We therefore

rejected “any contention that free speech rights under the Illinois

Constitution are in all circumstances limited to those afforded by the

Federal Constitution.” People v. DiGuida, 152 Ill. 2d at 122. This,

however, does not end our inquiry.

That article I, section 4, of our constitution may afford greater

protection than the first amendment in some circumstances does not

mean that greater protection is afforded in every context. See Ino Ino,

Inc. v. City of Bellevue, 132 Wash. 2d 103, 115, 937 P.2d 154, 162

-45-

(1997). Construing a state constitutional provision nearly identical to

ours, the Washington Supreme Court noted that the provision, by its

terms, referred only to speaking, writing and publishing. No mention

was made of expressive conduct. The court recognized that the

provision had been found to warrant greater protection than the first

amendment for speech, both spoken and written, in some contexts. In

the absence of language relating to expressive conduct, however, the

court ruled that the text of the state constitution did not justify

extending greater protection to nude and seminude dancing at adult

cabarets than would be afforded by the first amendment. Ino Ino, Inc.

v. City of Bellevue, 132 Wash. 2d at 117, 937 P.2d at 163.

Courts in other jurisdictions applying state constitutional

provisions which are similar (and in some cases nearly identical) to

article I, section 4, of the Illinois Constitution of 1970 have likewise

held that their state constitutions provide no greater protection to

nude or seminude dancing than is conferred by the first amendment.

See Empress Adult Video & Bookstore v. City of Tucson, 204 Ariz.

50, 62, 59 P.3d 814, 826 (App. 2002) (collecting various cases);

Junction 615, Inc. v. Liquor Control Comm’n, 135 Ohio App. 3d 33,

41, 732 N.E.2d 1025, 1031 (1999) (state restriction on public nudity

in liquor establishments upheld on grounds that it “did not restrict

First Amendment rights any more than necessary” and the “free

speech guarantees accorded by the Ohio Constitution are no broader

than the First Amendment”); Ranch House, Inc. v. City of Anniston,

678 So. 2d 745, 746-47 (Ala. 1996) (state constitution’s free speech

protections did not invalidate local ordinance prohibiting nudity or

partial nudity in businesses that sell or dispense alcohol); Knudtson v.

City of Coates, 519 N.W.2d 166, 169-70 (Minn. 1994) (prohibition

against nude dancing in establishments licensed to sell alcohol upheld

against state constitutional challenge); S.J.T., Inc. v. Richmond

County, 263 Ga. 267, 269, 430 S.E.2d 726, 728-29 (1993) (same);

City of Billings v. Laedeke, 247 Mont. 151, 157-58, 805 P.2d 1348,

1352 (1991) (same); City of Daytona Beach v. Del Percio, 476 So.

2d 197, 203-04 (Fla. 1985) (similar).18 Although the Supreme Judicial

18

In Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228, 429

N.E.2d 765, 445 N.Y.S.2d 87 (1981), a case cited by Pooh Bah, New

York’s highest court held, on remand from the United States Supreme Court

-46-

Court of Massachusetts reached a contrary result in Commonwealth

v. Sees, 374 Mass. 532, 373 N.E.2d 1151 (1978), we find the majority

view more persuasive. Consistent with that view, we find no basis for

concluding that article I, section 4, of the Illinois Constitution affords

greater protection to nude and seminude dancing in establishments

licensed to sell alcohol than is provided by the federal constitution.

Pooh Bah’s argument that section 14–60–140(d) of the Chicago

Municipal Code is invalid under article I, section 4, of the Illinois

Constitution is therefore rejected.

Because section 14–60–140(d) of the Municipal Code does not

violate either the United States or the Illinois Constitution, the circuit

court erred in concluding that the ordinance could not serve as the

predicate for revoking Pooh Bah’s liquor license revocation or

enjoining its operation on the grounds that it constituted a public

nuisance. The appellate court therefore acted properly in reversing the

circuit court’s judgment and remanding for further proceedings. The

City urges us to dispense with the remand and enter judgment in its

favor now. This we decline to do. Because the circuit court’s

judgment turned on the constitutionality the ordinance, the circuit

court did not reach the non-constitutional issues raised by Pooh Bah

on administrative review of its liquor license, nor did it fully resolve

the merits of the City’s claim for injunctive relief. We believe that

those matters should be addressed by the circuit court in the first

instance. We will not supplant its function. Our purpose on this

interlocutory appeal was to finally determine the relevant

constitutional questions. That has been done.

Pooh Bah argues that on remand it should be permitted to present

additional evidence on the question of whether the ordinance actually

creates the secondary effects claimed by the City. This argument is

in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 69 L. Ed. 2d

357, 101 S. Ct. 2599 (1981), that a liquor control statute banning topless

dancing in premises licensed to sell alcohol did violate the state constitution’s

guarantee of freedom of expression. In reaching that result, however, the

court specifically noted that it was not reaching the question of whether the

state constitution’s free speech guarantee was broader than the guarantee of

the first amendment to the United States Constitution. Bellanca, 54 N.Y.2d

at 234, 429 N.E.2d at 768, 445 N.Y.S.2d at 90.

-47-

untenable. The sole reason Pooh Bah seeks to present such evidence

is to renew and bolster its contention that the ordinance violates

constitutional standards. For purposes of this appeal, however, the

constitutionality of the ordinance is no longer subject to dispute. Our

holding that the ordinance does not violate the United States or

Illinois constitution is conclusive of the issue and shall be binding on

the parties and on the circuit court on remand.

For the foregoing reasons, the judgment of the appellate court,

reversing the judgment of the circuit court and remanding the cause,

is affirmed.

Appellate court judgment affirmed.

JUSTICE BURKE took no part in the consideration or decision

of this case.

Dissent Upon Denial of Rehearing

JUSTICE FREEMAN, dissenting:

I initially joined the majority opinion in this case. I believe,

however, that many of the points raised by Pooh Bah in its petition for

rehearing merits this court’s further consideration. Specifically, I am

concerned, as noted by Pooh Bah in its rehearing petition, that this

court’s opinion “ignores” several substantive first amendment issues,

violates the “constitutionally required procedures for intermediate

scrutiny *** resulting in a denial of due process to Pooh Bah,” and

contains “errors, omissions and distortions of the record.” Because I

believe that this case deserves further reflection, and because this

court has not seen fit to use rehearing as a means of addressing these

points, I can no longer join the majority in its opinion. Accordingly, I

dissent from the court’s denial of rehearing in this cause.

First, as Pooh Bah notes in its petition for rehearing, the court’s

opinion in the matter at bar completely overlooks Pooh Bah’s

argument that strict scrutiny analysis should be applied to section

4–60–140(d) of the Chicago Municipal Code (the “coverage

ordinance”). In its written submissions to this court, Pooh Bah

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strongly relied upon two decisions from the United States Supreme

Court in support of its assertion that strict scrutiny is applicable to the

ordinance at issue in this case: United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803, 146 L. Ed. 2d 865, 120 S. Ct. 1878

(2000), and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L.

Ed. 2d 403, 122 S. Ct. 1389 (2002). Pooh Bah asserted that the

challenged ordinance is content-related, on the basis that the law

applies solely to erotic entertainment and because its effect and

purpose is to limit erotic expression by regulating the body coverage

on erotic performers. According to Pooh Bah, the City’s justification

for the ordinance rests in part on the alleged primary effect of the

erotic expression on the audience, i.e., that the combination of alcohol

and seminude dancing prompts viewing-and-drinking patrons to

commit crime or become victims of crime when they leave the club.

Pooh Bah noted that this is the direct opposite of a content-neutral

justification. Therefore, Pooh Bah reasoned, because the challenged

ordinance was not sought to be justified solely by content-neutral

reasons–but also by the putative primary effects of the combination of

alcohol and erotic dancing on the viewers–the City’s proffered

justification requires strict scrutiny review.

As stated, in support of this proposition, Pooh Bah relied upon the

Playboy and Ashcroft decisions, in which the United States Supreme

Court struck down on first amendment grounds federal statutes which

attempted to regulate sexually oriented cable television programming

and child pornography. See Playboy, 529 U.S. at 826-27, 146 L. Ed.

2d at 887-88, 120 S. Ct. at 1893 (provision of the Telecommunication

Act which attempted to prevent “signal bleed” by requiring cable

operators either to scramble sexually explicit channels in full or limit

programming on such channels to certain hours violated first

amendment); Ashcroft, 535 U.S. at 258, 152 L. Ed. 2d at 426, 122 S.

Ct. at 1406 (certain provisions of the Child Pornography Prevention

Act of 1996–including a ban on virtual child pornography–found to

violate the first amendment). In both instances, the Court concluded

that the challenged statutes were subject to strict scrutiny analysis

because they had a content-related intent or purpose. Playboy, 529

U.S. at 811-13, 146 L. Ed. 2d at 878-79, 120 S. Ct. at 1885-86;

Ashcroft, 535 U.S. at 253-54, 152 L. Ed. 2d at 422-23, 122 S. Ct. at

1403. In its petition for rehearing before this court, Pooh Bah

-49-

contends that this court’s opinion should, at the very least,

“distinguish Playboy and Ashcroft and explain why non-obscene

Gentlemen’s Clubs in Illinois get less constitutional protection than

graphic sexual activities shown on cable TV or than child molesters

under the First Amendment.” I agree.

The opinion of this court overlooks both of these recent United

States Supreme Court free speech cases on which the defendants

strongly rely for their strict scrutiny argument. Rather than directly

address a central argument debated at length by the parties in this case

and engage in a thoughtful analysis of these contentions, the court

simply relegates this important debate to a brief footnote in the

opinion. In footnote 12 of this court’s opinion (slip op. at 20 n.12),

this court notes, in passing, that “Pooh Bah argues that the strict

scrutiny standard should govern this case.” The footnote further states

that “[f]or the reasons set forth later in this opinion, Pooh Bah is

incorrect.” This is the extent of the discussion the court provides with

respect to the strict scrutiny argument raised in this appeal. The court

rejects Pooh Bah’s strict scrutiny argument without further direct

analysis or explanation, despite the fact that, in its written submissions

to this court, the City justified its challenged ordinance, in part, on the

basis of the claimed effect of the expression–erotic seminaked

dancing–on the club’s patrons, in support of the theory that the

patrons then are more likely to commit or be victims of crime.

Accordingly, by virtue of this argument, the City itself has invited

application of the line of cases culminating in the Playboy and

Ashcroft decisions, which apply the higher strict scrutiny standard to

laws directed at the impact of speech on its listeners or watchers.

Furthermore, the court rejects Pooh Bah’s assertions that strict

scrutiny applies in this case despite the fact that in its opinion the court

itself resorts to anecdotal evidence of the supposed primary effects of

the combination of alcohol and live seminaked dancing on its viewers,

noting, e.g., the “customer who exposed himself and began

masturbating in the middle of the club.” Slip op. at 33. In addition, the

court discusses the testimony of the City’s expert, Dr. Kodish, which

focused upon the psychiatric effects on males resulting from the

combination of alcohol and sexual stimulation. According to Dr.

Kodish, this combination produces an effect “ ‘associated with an

increase in violent sexual acting out, acts of criminal behavior.’ ” Slip

-50-

op. at 29. Because this court justifies the City’s coverage ordinance

in part by the supposed effects of the regulated conduct on its

audience, this court’s own analysis triggers a discussion of whether

strict scrutiny review is applicable in this case.

The court sidesteps any discussion of strict scrutiny review by

relying heavily upon the decision of the United States Court of

Appeals for the Seventh Circuit in Ben’s Bar, Inc. v. Village of

Somerset, 316 F.3d 702 (7th Cir. 2003). That decision applies an

intermediate scrutiny analysis to the review of a local ordinance

regulating “sexually oriented businesses,” without detailed

consideration as to whether or not strict scrutiny is triggered by the

challenged law or the justification advanced for that law. However, I

note that, in Ben’s Bar, the applicable level of scrutiny was not at

issue and that the parties agreed that intermediate scrutiny was the

applicable standard for first amendment review. No party in that case

advocated for strict scrutiny analysis, and, therefore, it was

appropriate for the court in that case not to address the issue of which

standard of review applied. In contrast, in the matter before us, Pooh

Bah has vigorously argued from the moment it filed its petition for

leave to appeal with this court that strict scrutiny review applies. This

court’s opinion, therefore, should address Pooh Bah’s arguments with

respect to the application of strict scrutiny analysis and either

distinguish or apply the Ashcroft and Playboy decisions–two decisions

which remain conspicuously absent from this court’s opinion. In its

opinion, this court evades the strict scrutiny argument and

automatically applies intermediate scrutiny simply because a

governmental body claims that the purpose of the challenged

ordinance is to attack alleged negative secondary effects.

I am deeply troubled by the court’s out-of-hand dismissal of Pooh

Bah’s strict scrutiny argument for several additional reasons. First,

such conduct on the part of this court denies the parties to this action

the reassurance that we have carefully considered and deliberated their

arguments. What message does this court send to litigants when it

does not even bother to address the central arguments raised in their

appeals, especially when they are issues of constitutional magnitude?

I venture to say that it creates the perception that this court has

predetermined the outcome of the appeal and does not deem it

necessary to bother with arguments that may cut in the opposite

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direction. In addition, by failing to address and fully analyze an issue

such as whether strict scrutiny applies to the ordinance challenged in

this case, this court fails to provide the bench and bar with the

guidance needed to deal with similar issues in future cases. Indeed, the

legal community “rel[ies] on our opinions to map the evolving course

of law.” People v. Jung, 192 Ill. 2d 1, 17 (2000) (McMorrow, J.,

specially concurring, joined by Miller and Freeman, JJ.). This court

has utterly failed to carry out this mission in the instant cause.

In its petition for rehearing, Pooh Bah also takes issue with this

court with respect to several aspects of its intermediate scrutiny

review of the City’s coverage ordinance. In its opinion, the court uses

the following test from the Ben’s Bar decision to determine whether

the challenged coverage ordinance withstands intermediate scrutiny

review. Under this test, a challenged law is constitutional if:

“ ‘(1) the State is regulating pursuant to a legitimate

governmental power [citation]; (2) the regulation does not

completely prohibit adult entertainment [citation]; (3) the

regulation is aimed not at the suppression of expression, but

rather at combating the negative secondary effects caused by

adult entertainment establishments [citation]; and (4) the

regulation is designed to serve a substantial government

interest, narrowly tailored, and reasonable alternative avenues

of communication remain available [citation]; 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. [Citation.]’

(Emphasis in original.) Ben’s Bar, 316 F.3d at 722.” Slip op.

at 19-20.

I agree with my colleagues that the weight of precedent requires

this court to uphold the City’s coverage ordinance against a facial

challenge of its constitutionality. It is well settled that local

governments can ban nudity itself, including partial nudity such as

topless entertainment. See, e.g., Barnes v. Glen Theatre, Inc., 501

U.S. 560, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991). I am satisfied

that the coverage ordinance falls within the ambit of decisions that

have upheld government regulations of sexually oriented businesses

against facial challenges based upon secondary-effects justifications.

-52-

However, Pooh Bah argues on rehearing that this court in its

opinion has completely overlooked its argument that the City’s

coverage ordinance is violative of the first amendment as applied to

Pooh Bah’s specific factual situation. I agree with Pooh Bah, and

disagree with the court’s conclusion that the first amendment analysis

is appropriately ended in this case with its holding that the coverage

ordinance withstands a facial challenge. The court declines to fully

address Pooh Bah’s as-applied challenge to this ordinance and

disregards the incompleteness of the proceedings below with respect

to that challenge.

The first of Pooh Bah’s specific points in its petition for rehearing

with respect to this court’s intermediate scrutiny analysis is its

contention that this court’s opinion violates “the constitutionally

required procedures for intermediate scrutiny review,” thereby

“resulting in a denial of due process to Pooh Bah.” Pooh Bah takes

issue with this court’s denying it an opportunity to complete its attack

on the City’s secondary-effects justification for the challenged

ordinance on remand. Pooh Bah notes that this court denies it this

opportunity not only despite the fact that the circuit court had entered

a directed verdict in Pooh Bah’s favor finding that the ordinance was

unconstitutional after the City had rested its case in chief and before

Pooh Bah had completed presentation of its own evidence in rebuttal,

but also despite the fact that the circuit court specifically reserved to

Pooh Bah the right to present additional evidence in the event that the

court’s decision was subsequently overturned on appeal.

The record reflects that the circuit court ruled in Pooh Bah’s favor

and against the City on January 18, 2001. On that date, the circuit

court judge filed a very detailed memorandum opinion and order.

However, on May 3, 2001, the circuit court judge–with the agreement

of the parties–amended the January 18, 2001, memorandum opinion

and order nunc pro tunc by entering a series of three additional orders.

One order entered on May 3, 2001, was entitled “Partial Judgment

Order,” and this order notes that the cases had been before the circuit

court on “Pooh Bah’s motions for directed findings and for judgment

at the conclusion of the City’s case-in-chief.” The order further

recounts that the parties had entered into a “stipulation submitting the

cases for a ruling on the current record,” and that the circuit court’s

ruling on Pooh Bah’s directed verdict motion was “subject to

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reservations by all parties of their respective rights to present

additional evidence if these motions are not finally dispositive.” The

order incorporates the circuit court’s prior January 18, 2001,

memorandum opinion and order, as well as prior rulings it rendered

on August 21, 2000, and for the reasons stated in those prior

decisions, granted Pooh Bah’s motion for directed finding and for

judgment against the City. In the May 3 order, the circuit court

explicitly “retain[ed] jurisdiction,” inter alia, “over the remaining trial

of these matters, if any of the judgments herein shall be reversed or

vacated.” The court’s order also stated that “Pooh Bah has reserved

its right to present additional evidence in opposition to Counts I-V

and in support of its affirmative defenses and amended counterclaims

in No. 99 CH 9682, and in support of its claims in No. 93 CH 4559,

if the judgments in this order are not affirmed in a final and non-

appealable order.”

Thus, the record reflects that the circuit court entered judgment

for Pooh Bah against the City on a motion for entry of a directed

verdict and not on a final record at the end of trial. Pooh Bah was

midstream in its defense case and was not finished in attacking the

City’s prima facie case in justification of the coverage ordinance when

the circuit court ruled on Pooh Bah’s already pending motion for

directed verdict. Based upon this procedural posture, the circuit court

explicitly reserved the “right” of Pooh Bah to present additional

evidence on remand in the event of a reversal and did not limit the

scope of such evidence. In its opinion, this court mentions the entry

of the May 3, 2001, orders in passing (slip op. at 11), but does so in

a general and vague manner, except for specifically noting in footnote

9 of the opinion that one of the agreed orders “reserved to the City the

right to present additional evidence regarding the amount of fines that

could be imposed by Pooh Bah in the event the City prevailed on the

merits.” Slip op. at 11 n.9. I question why this court feels compelled

to set forth with specificity that the circuit court order provides that

the City may present additional evidence with respect to the fines to

be levied against Pooh Bah on remand, but remains completely silent

with respect to the fact that the order also granted to Pooh Bah “its

right to present additional evidence” regarding issues which were cut

short by the court as a result of its grant of Pooh Bah’s motion for

directed verdict. I attach the circuit court’s May 3, 2001, “Partial

-54-

Judgment Order” as an appendix to this dissenting opinion as the best

evidence of the intent of the parties and the circuit court with respect

to this issue.

In addition, I note that the intermediate scrutiny analysis of the

validity of the City’s secondary-effects justification in support of the

coverage ordinance is a fact-based assessment, as the United States

Supreme Court has repeatedly noted, particularly in its most recent

decisions. See City of Erie v. Pap’s A.M., 529 U.S. 277, 146 L. Ed.

2d 265, 120 S. Ct. 1382 (2000); City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425, 152 L. Ed. 2d 670, 122 S. Ct. 1728

(2002); see also R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402 (7th

Cir. 2004). In Alameda Books, the Court described the proper

analytical framework for this inquiry:

“We held [in City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986)] 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. [Citations.] This is not to say that a municipality can

get away with shoddy data or reasoning. The municipality’s

evidence must fairly support the municipality’s rationale for its

ordinance. If plaintiffs fail to cast direct doubt on this

rationale, either by demonstrating that the municipality’s

evidence does not support its rationale or by furnishing

evidence that disputes the municipality’s factual findings, the

municipality meets the standard set forth in Renton. If

plaintiffs succeed in casting doubt on a municipality’s rationale

in either manner, the burden shifts back to the municipality to

supplement the record with evidence renewing support for a

theory that justifies its ordinance.” Alameda Books, 535 U.S.

at 438-39, 152 L. Ed. 2d at 683, 122 S. Ct. at 1736.

In their opinion, my colleagues do not address this three-part

evidentiary procedure set forth by the United States Supreme Court,

which requires: (1) justification for the ordinance by the government;

(2) challenge and dispute of the ordinance by the challenger; and (3)

rebuttal by the government. Instead, they take Pooh Bah to task for

requesting that this court recognize its right–under the Alameda

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decision and the May 3, 2001, circuit court order–to complete

presentation of its evidence at trial:

“The sole reason Pooh Bah seeks to present [additional

evidence on the question of whether the ordinance actually

creates the secondary effects claimed by the City] is to renew

and bolster its contention that the ordinance violates

constitutional standards. For purposes of this appeal, however,

the constitutionally of the ordinance is no longer subject to

dispute. Our holding that the ordinance does not violate the

United States or Illinois constitution is conclusive of the issue

and shall be binding on the parties and on the circuit court on

remand.” Slip op. at 48.

I disagree. This court’s opinion fails to explain why, since the circuit

court judge’s directed findings on a half-completed record are now

reversed, the rebuttal cases of both the challengers and the

government should be cut off, not only despite the fact that the

constitutional procedures mandated for intermediate scrutiny review

require that both sides have these opportunities, but also despite the

fact that the circuit court’s May 3, 2001, order explicitly reserved to

Pooh Bah this right in light of the procedural posture of the case at the

time that order was entered.19

In addition, this court’s opinion reverses a fact-based decision of

the trial court and, in doing so, reweighs the sufficiency and credibility

of the City’s “justification” evidence to conclude that the City has

adequately established that the coverage ordinance was enacted to

combat secondary effects. As a general matter, it is not for this court,

19

As Pooh Bah states in its petition for rehearing:

“[T]he opinion prematurely makes a ‘final’ determination of the

constitutionality of the coverage ordinance on the fact-sensitive

intermediate scrutiny review–even though the most that can

properly be determined on appeal on that review (by reversing the

trial judge’s findings) is that the City made a prima facie case to

justify the ordinance. Particularly on the as-applied challenge, the

case was not over. But the opinion improperly cuts off the attack

on the City’s proferred secondary effects justifications, thus barring

this litigant from ever finishing its constitutional attack on the

ordinance.” (Emphasis in original.)

-56-

as a court of review, to substitute its judgment for that of the trial

court on issues of fact, as the trial court judge is in the best position

to observe the conduct and demeanor of the parties and the witnesses.

Best v. Best, 223 Ill. 2d 342, 350-51 (2006). This court’s actions are

particularly troubling in this case, in light of the following excerpt

from the memorandum opinion and order of the circuit court, written

after a parade of witnesses were called by the City in support of its

secondary-effects justification: “The court finds the record devoid of

any proof of the existence of even potentially harmful secondary

effects. Indeed, it finds that the City was successful in merely positing

the possibility that those secondary effects could hypothetically exist.”

Unless this court can say with 100% certainty that, as a matter of

law, there is no possible further evidence that may cast any doubt on

the City’s two main theories of justification–patron-generated crime

and outside-generated crime–or that might refute those theories, this

case should be allowed to play out in the trial court on remand, like

any other case where a directed finding is reversed. The court’s

opinion leads to the conclusion that the majority is unfairly holding

Pooh Bah to an unprecedented and heretofore-not-announced

standard that mandates a proffer of evidence on appeal to obtain a

remand after reversal of a directed finding.

In addition, Pooh Bah also asserts on rehearing that the opinion

filed by this court overlooks, as part of its intermediate scrutiny

analysis, the issue of multiple, overlapping and cumulative legislative

remedies in this case. As the court notes in its opinion, the challenged

coverage ordinance was passed by the Chicago city council in 1978.

Subsequently, in 1993 the city council passed an anticoncentration

adult use zoning ordinance which adopted location and dispersion

regulations for adult uses in the city, and which was enacted to

combat the same perceived problem as allegedly targeted by the

coverage ordinance: the so-called secondary effects of liquor-serving

adult-dancing venues.

As early as in its petition for leave to appeal filed with this court,

Pooh Bah raised the validity of these overlapping regulations as a

central issue for this court’s review, and noted that its club complies

with the requirements of the later-enacted adult use ordinance. In its

petition for leave to appeal, Pooh Bah questioned whether, in the

specific factual context of this case, the City must show whether the

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coverage ordinance has, or will have, some substantial impact on the

targeted secondary effects above and beyond that provided by the

subsequent adult use zoning ordinance. Pooh Bah made the point that,

if this query is answered in the negative, there is a danger that

restrictions on free speech and expression can cumulate, “with the

latest legislative ‘solution’ piled on top of yesterday’s solution, and on

and on without genuine judicial review of their individual

justifications–or lack of justification.” The significance of the interplay

between these regulatory remedies as applied to Pooh Bah was one of

the reasons that this court accepted this appeal for review. However,

in its opinion, the court has failed to address this issue, which is

relevant in determining the validity of the City’s secondary-effects

justification.

Along these lines, Pooh Bah also asserts that this court improperly

overlooked in its opinion that, as a result of the City’s 1993 enactment

of the adult use zoning ordinance, Pooh Bah’s club is legally mandated

to be physically isolated from any other adult venues. According to

Pooh Bah’s rehearing petition, the court’s opinion “ignores the

industrial, non-residential character (and associated limited pedestrian

traffic patterns) of the Club’s area,” facts which, in Pooh Bah’s view,

are “especially pertinent to the as-applied challenge, which the court

does not take up in its opinion.”

In my view, the facts concerning the physical isolation of Pooh

Bah’s club are relevant to two issues. First is the general

“justification” for the coverage ordinance with respect to incidents of

crime in the vicinity of the club generated from outside sources. The

City and most of the case law relies heavily on this justification. In

addition, this argument was supported by the various “studies” from

other cities that the City’s expert witnesses described in the circuit

court. Pooh Bah, however, countered that most or all of that evidence

is based on concentrations of adult businesses or concentrations of

liquor establishments. If so, then the absence of concentration in this

case is a factor that undermines the relevance of those studies. Indeed,

this is one of the obvious disputes in this case that is appropriate for

further evidence on remand.

Second, the physical isolation of the club is relevant to Pooh Bah’s

as-applied challenge to the coverage ordinance based on the later-

enacted adult zoning ordinance, which, as stated, mandates physical

-58-

separation between adult establishments and which, Pooh Bah claims,

has solved any crime-in-the-vicinity problem (based upon the absence

of crime in the area). Pooh Bah asserts that this state of affairs

requires from the City some additional or different justification for the

coverage ordinance beyond the usual anticrime justification. It is my

view that the coverage ordinance of the 1970s may be archaic and

unnecessary by virtue of the City’s own superseding adult use zoning

legislation. The City’s burden of justifying the older coverage

ordinance under the immediate scrutiny analysis should include the

burden of demonstrating the marginal need for the older law in

addition to the anticoncentration efforts in the newer zoning law.

These are points which are completely overlooked by the court in its

opinion, and which would be appropriate for further consideration.

In a related argument, Pooh Bah asserts in its petition for

rehearing that this court engaged in “clear and plain error” in its

consideration of the intermediate scrutiny issues by incorrectly citing

the legislative history and preambles of the City’s 1993 adult use

zoning ordinance as if that were the legislative history and original city

council intent of the challenged coverage ordinance, which was

enacted 15 years earlier. See slip op. at 24-26. I agree. The findings

on which this court’s opinion relies focus on the City’s justification for

enacting the zoning restrictions, rather than for the earlier-enacted

coverage ordinance. As Pooh Bah states in its rehearing petition, “the

opinion erroneously treats the City’s announced policies supporting

its 1993 adult use zoning remedy (which were not addressed to liquor

venues) as if it were the original expressed intention for the 1978

‘coverage’ requirements–which had no preamble or announced

intentions other than the Committee Report, which the opinion

disregards.” (Emphasis in original.)

In sum, with respect to this court’s treatment of the intermediate

scrutiny issues in this appeal, I agree with Pooh Bah that it is

untenable precedent to reserve a directed finding and then not allow

the former winner to finish presenting its evidence on remand,

especially on an appeal from an injunction hearing without full

discovery. As Pooh Bah validly points out in its rehearing petition:

“Why would any Illinois lawyer now move for (or accept) a

directed verdict or finding–which is now a waiver of the right

to present the rest of his/her case if the appellate courts

-59-

disagree with the trial judge? When, as here, the reviewing

courts reweigh the evidence with nary a mention of the

deferential manifest weight or clear error standards, there is a

palpable sense of arbitrariness that will constrain Illinois

litigants to make an entire record–even when the trial judge

finds more hearings unnecessary.” (Emphases in original.)

The precedent set by this court’s refusal to allow completion of

evidence on the intermediate scrutiny first amendment issues following

the reversal of a directed finding undermines the integrity of the

directed-verdict procedure, and strongly discourages Illinois litigants

from employing this judicial time-saving device for fear of losing their

rights to complete their record if their directed verdict is upset on

appeal. The fact that this litigation has a protracted history should be

of no moment in this consideration, and is not a reason to short-circuit

our own well-settled laws of civil procedure.

As a final matter, Pooh Bah contends in its petition for rehearing

that this court’s opinion contains “errors, omissions and distortions of

the record” which serve to inject “irrelevant,” “misleading,” and

“consistently one-sided” information into this case. I agree with Pooh

Bah that these points merit further consideration by this court.

First, at page 33 of the slip opinion, the court discusses the

evidence presented by the City in the circuit court with respect to the

historical negative secondary effects caused by strip clubs licensed to

sell alcohol in the Rush Street area of Chicago during the late 1970s

and early 1980s. Testimony in the circuit court indicated that during

that time period, strippers and waitresses associated with those Rush

Street establishments accounted for a large number of the prostitution

arrests in that geographic area, and, this court states, “[n]egative

secondary effects were serious and pervasive.” This court then turns

to the present state of affairs and observes that, with respect to Pooh

Bah’s club, “[s]uch widespread effects may not have recurred yet.”

(Emphasis added.) This court also notes in footnote 14 on the same

page of the slip opinion that although the City in this litigation had

initially alleged that incidents of prostitution occurred at Pooh Bah’s

club, “it does not appear that any dancer or patron has yet been

charged with prostitution or prostitution-related offenses.” (Emphasis

added.)

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The insertion of the word “yet” into these statements amounts to

an unjustified judicial forecast that, even though the historic negative

secondary effects associated with strip clubs selling alcohol have not

been proven with respect to Pooh Bah’s club, and, even though the

City failed to establish that incidents of prostitution occurred at or

could be connected to the club, they simply have not “yet” occurred

and will likely appear in the future. This is particularly inappropriate

in light of the litigation below where the City attempted to prove

solicitation and/or prostitution and failed completely in establishing its

case. In his memorandum opinion and order, the circuit court judge

below–who had the opportunity to assess the demeanor and credibility

of the witnesses who testified on behalf of the City–described the

failings in the City’s evidence as follows:

“Undercover police officers *** tried to entrap the dancers in

an attempt to show prostitution and solicitation. According to

the clear evidence presented at the trial, the dancers were not

interested. The police tried using video cameras planted in

their neckties–James Bond style–to show violations. That

failed too. The simplest thing that could have been done by the

City would have been to produce residents who were affected

by the existence of [the Club]. None were brought forth. At

least five police officers, a minimum of five assistant

corporation counsels and the latest in modern technology were

used to present a case that was totally devoid of proof.”

The circuit court judge further wrote that “the City did not produce

any neighbors–either commercial or residential owners or

tenants–who complained about the existence of or the effects of [the

Club]. No Testimony was offered by the City that [the Club] operated

in a manner which unreasonably interferes with the health, safety,

peace, comfort of convenience of the general public.”

Accordingly, the record affirmatively refutes the allegation of the

City that there was solicitation and/or prostitution in–or associated

with–Pooh Bah’s club. It is blatantly improper for this court on review

to intimate that it is only a matter of time before the historical negative

secondary effects, including prostitution, occur–despite the fact that

the record in this case is completely devoid of such evidence. This

court unjustly places its imprimatur in a published opinion on the

-61-

suggestion that Pooh Bah’s club has in the past and/or will in the

future be connected to these types of illegal and undesirable activities.

In addition, Pooh Bah also states in its petition for rehearing that

this court has selectively reached outside the record to inject “facts”

into its opinion which are not only “irrelevant, defamatory and

consistently one-sided,” but also which occurred subsequent to the

proceedings in the circuit court below, in an effort to support its ruling

in favor of the City and against Pooh Bah. According to Pooh Bah’s

rehearing petition:

“[T]he Court has expended extraordinary sua sponte effort to

inject irrelevant and tertiary references to other’s criminal

conduct and associations, as well as baseless accusations of

‘prostitution’ to taint the Club and its ownership. This is not

only completely unnecessary to the decision in this case, but

misrepresents the facts and relationships involved. It is also

unfair. Pooh Bah has no opportunity here or on remand (under

the current order) to present rebuttal evidence. *** Such guilt

by association has no place in a judicial opinion.”

I agree.

In its rehearing petition, Pooh Bah points to the information

contained within footnotes 2 and 3 of this court’s opinion as being

particularly egregious. Both of these footnotes contain outside-the-

record information which is blatantly unfair to defendants and

irrelevant to this court’s decision. For example, footnote 2 maligns Joe

Pascente–one of four assistant managers at the Club–as the son of a

convicted defrauder, and impliedly paints him with that same brush.

As far as this record reflects, Joe Pascente has not been convicted of

any crime, and is not “associated” with any other criminals. In

addition, the statement in the footnote that the Chicago police

department “fired [him] for failing to disclose that he was a subject of

an FBI investigation into insurance fraud involving his father” is

improper. The record below reflects that Joe Pascente denied that he

was ever a subject of an FBI investigation, there is no judicial finding

on this issue, and there is no evidence in this record–nor any cited in

the challenged footnotes–to confirm that he was such a subject. The

City’s police personnel file (on which the City attorney said that she

based her accusation during the hearings in the circuit court) is not

contained in this record. Nevertheless, this court’s footnote treats that

-62-

hearsay allegation as a fact in a published opinion, with respect to a

person who has not been convicted of any wrongdoing. This is

improper and sets a disturbing precedent.

In addition, with respect to Joe’s father, Fred Pascente, the record

reflects that he was a retired Chicago police detective who was an

employee of the Club, but had no management authority. Footnote 2,

however, insinuates that Fred Pascente was running the Club, and that

there is an association between the Club and nefarious criminals

because Fred Pascente is now listed in the Nevada Gaming

Commission’s “Black Book.” I note that this listing occurred

subsequent to the conclusion of the protracted litigation below, and

that this information was drawn by this court from sources outside the

record on appeal.

Similar concerns exist with respect to footnote 3 in the opinion. In

this footnote, the court has provided a detailed resume of the legal

problems faced by Fred Rizzolo which apparently have occurred

subsequent to his involvement with the Club, and which have been

gleaned, once again, from sources outside the record on appeal. The

record in this case reflects that in 1995 the Club’s owner, Perry

Mandera, entered into management and licensing agreements with

Rizzolo, who owned a Las Vegas strip club known as the “Crazy

Horse Too.” Mandera stated that he wanted to license the nationally

recognized “Crazy Horse Too” name for his Chicago Club because it

would be a name known to Chicago conventioneers and, therefore,

work as a benefit to the business. As this court’s opinion notes, the

Club operated under the “Crazy Horse Too” name until 2003.

Footnote 3 of the court’s opinion, however, focuses on Rizzolo’s

legal difficulties in 2006 with respect to the operation of his Las Vegas

club, with no indication that any difficulties arose with respect to his

association with Mandera’s Chicago Club, or that this played any part

in the proceedings below. Because the City did not allege criminal

infiltration of Pooh Bah’s business, Pooh Bah had no reason to rebut

such claimed associations in the circuit court below, as they were first

emphasized in this opinion on appeal.

As a court of review, it is our role to examine the record below

and review the validity of the judgments below. It is not our role to

supplement the record on appeal. Will litigants now expect that in

every case this court will comb the Internet or other outside-the-

-63-

record sources of information–whether reliable or not–to gather up-

to-the-minute information irrelevant to the disposition of the legal

issues in their case on appeal, but prurient enough to include as

tantalizing side-pieces of information contained within the footnotes

of this court’s opinions? After the opinion filed in the matter at bar,

they would be justified in so believing.

It is unclear to me why, at the very least, this particular portion of

Pooh Bah’s petition for rehearing has not generated any type of

response from my colleagues in the majority. Do they not agree that

such errors, omissions and distortions of the record in this case

warrant a correction?

Because I am troubled by the points raised by Pooh Bah in its

petition for rehearing, I believe that this matter merits further

reflection by this court on rehearing. Accordingly, I respectfully

dissent from the denial of rehearing in this cause.

-64-

APPENDIX

N THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DMSION

CITY OF CHICAGO, an Illinou municipal corporation, . )

Plaintiff-Counterdefendanh 1

1 No. 99 CH 9682

V. 1

1

POOH BAH ENTERPRISES,INC, an Illinois corporation, )

and PERRY MANDERA,

1

Defendan~ounterplaintiffs. 1

POOH BAH ENTERPRISES, INC.,an Illinob corporation; )

ACE ENTERTAINMENT CO., NC., an Illinois corporation; )

PERRY MANDERA, Pooh Bab president and Ace

Entertainment Co., Inc president; LISA D. SUMS,

CHRISTEN E. HADSALL, and SUSAN L LJENQUIST, 1

entertainen and dancers; and PETER ABRUZZO, )

1

Plaintif& )

1

v. No. 93 CH 4559

CITY OF CRICAGO, an Illinois municipal corporation;

RICHARD M. DALEY. in his ofEcid caeacitv u Mayor of )

thecity of Chicago; *STON MARD~S,i h i s offteid . )

capaci& ~1~ i r e c i oof

r the Mayor's License Commission; 1

LICENSE APPEAL COMMISSION WILLIAM D.

O~DONACINE, ch-m; ALBERT D. MCCOY md 1

IRVING J. KOPPEL,Commlrsionerr, 1

1

Defend8nta. 1

C

-

- - - - - - - - - - - - -

- - - -

These cases are before the court on Pooh Bah's motions for directed findings a 6f

judgment at the conclusion of the City's case-in-chief on the City's Counts I-VinN0. 99 CH 9682

.- - i n-i o n pooh i ah's

This text is long and has been trimmed here. Open the source document for the complete record.