# Petition for Writ of Certiorari — Pooh Bah Enterprises, Inc. v. City of Chicago (No. 06-1614)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0566%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

“ee”

No. 06-___

IN THE

Supreme Court of the United States

POOH BAH ENTERPRISES, INC.., ef al..
Petitioners,
Vv.

CITY OF CHICAGO, ef al.,
Respondents.

On Petition for Writ of Certiorari to the
Supreme Court of Illinois

PETITION FOR WRIT OF CERTIORARI

MICHAEL A. ABRAMSON ROBERT CORN-REVERE
ARNSTEIN & LEHR LLP Counsel of Record

120 South Riverside Plaza DAVIS WRIGHT TREMAINE LLP
Suite 1200 1919 Pennsylvania Avenue, N.W.
Chicago, Illinois 60606 Washington D.C. 20006

(312) 876-7155 (202) 973-4225

DAVID A. EPSTEIN
DAVID A. EPSTFIN, LTD.
30 North LaSalle Street
Suite 2900

Chicago Illinois 60602
(312) 553-1479

Counsel for Petitioners

ABELLA LAE SON ETAL OLEATE TTD LEI: LILLE A OSGI LE NRIOCD OLE.
WiLSON-EPES PRINTING CO .INC — (202) 789-0096 -— WasHINGTON.D C. 20002

QUESTIONS PRESENTED

1. Whether First Amendment strict scrutiny is required to
review the regulation of expressive conduct where the gov-
ernment has not demonstrated that the expression at issue
causes adverse secondary effects?

2. Whether a city ordinance regulating sexually-oriented
expression may be upheld where the trial court found that the
“record is devoid of the existence of even potentially harmful
secondary effects?”

3. Whether a reviewing court is required under the First
and Fourteenth Amendments to remand for further evidence
where it has reversed a mid-trial directed finding of uncon-
stitutionality, and the challenger has not completed its rebut-
tal of the government’s asserted justifications for regulation?

(1)

il
PARTIES TO THE PROCEEDINGS

The petitioners are Pooh Bah Enterprises, Inc., an Illinois
corporation; Ace Ent. Co., Inc., an Illinois corporation; Perry
Mandera, president of Pooh Bah Enterprises, Inc. and of
Ace Ent. Co., Inc.; Lisa D. Sims, Christine E. Hadsall, and
Suzanne Lienquist, entertainers and dancers; and Peter
Abruzzo, Sr.

The respondents are the City of Chicago, an Illinois mu-
nicipal corporation; the License Appeal Commission of the
City of Chicago; and William D. O’Donaghue, Albert D.
McCoy and Irving J. Koppel, Chairman and Commissioners
of the Chicago License Appeal Commission.

RULE 29.6 STATEMENT

Pooh Bah Enterprises, Inc., and Ace Ent. Co., Inc., are
privately held corporations. None of their shares is held by a
publicly traded company.

TABLE OF CONTENTS

Page
SETS TIRING PRESTO cons isccsscaccescsaccsssaccscnsonnstens i
PARTIES TO THE PROCEEDING ................c..scc0000. il
AT RaS PAE PPE TE A GUIAN TE, visnicincsesisenseetnnesenssoneiovennsinnecs ii
RRNA A PRUE RII EAR isdn csekasicccanpnassascinancatesesvasnen Vv
Fe RTE ERO sis icpsansncibdhsanectiuinaiineseneuashwnsdieaenecen
STATEMENT OF JURISDICTION . 0.0.2. eeeeeeeee 2
CONSTITUTIONAL AND STATUTORY
PAD YB EN BEG Ws © AED vccosnecsccsessnncestanpeenssonecionn 2
SLATEMENT OF THE CASE .........c.ccccccccccscssscocassonees
PE a A EE, SR OWS WW cab nsciacic atscenasnsesicnecienaxincennie
REASONS FOR GRANTING THE WRIT .................. 11

I. CERTIORARI SHOULD BE GRANTED TO
RESOLVE AN ISSUE OF NATIONAL
IMPORTANCE THAT HAS DIVIDED THE
CIRCUIT COURTS CONCERNING THE
APPROPRIATE LEVEL OF SCRUTINY IN
EVALUATING CONTENT-CORRELATED
REGULATION OF SEXUALLY-ORIENTED
EE FGe WII sid sins caiscccminsabvnibininicthmnsarintibaiean 11

II. CERTIORARI SHOULD BE GRANTED TO
REVIEW WHETHER REGULATION OF
EROTIC ENTERTAINMENT IS CONSTI-
TUTIONALLY PERMISSIBLE WHEN THE
“RECORD [S DEVOID OF THE EXIS-
TENCE OF EVEN POTENTIALLY HARM-
FUL SECONDARY EFFECTS” AND THE
CHALLENGER IS NOT GIVEN A FULL
OPPORTUNITY TO CHALLENGE THE
GOVERNMENT’S JUSTIFICATION FOR
TR BRE isms comasnniiaiaieieibinisakieneiniees 18

iV
TABLE OF CONTENTS—Continued
Page

A. Review Should Be Granted Where the
Trial Court Found That the Record is
Devoid of Evidence of Harmful Secondary
PN iia coikciccticgiscrnnsaiacgio ai eco iee 19

B. This Court Should Grant Review Where
Appellate Courts Cut Short Petitioners’
Ability to Present Evidence Challenging
the City’s Justifications for the Law............ 21

C. Lower Courts Are Divided on the Nature
and Extent of Proof Necessary to Support
Local Regulation of Sexually Oriented
BRIER iis ss acicscicannicinideianictinndueminaacioinninnke 23

Ie AES sania tists asariacncsiihbiendnininapenicdantaiiinapaellins 26

Vv
TABLE OF AUTHORITIES

CASES Page

Alameda Books, Inc. v. City of Los Angeles,
No. CV 95-7771-DDP (C.D. Cal., May 28,

RIN ich eciastegicencan ach cenihcsmnsslaackeceassa lacuna shine 14
Arkansas Writers’ Project, Inc. v. Ragland, 481

Sak BAe EE sckcesaicicincvnebsantastnbonchanaissinieds 13
Ashcroft v. ACLU, 542 U.S. 656 (2004)................ 1]
Barnes v. Glen Theatre, Inc., 501 U.S. 560

SEE Beiischcinccisamuissdimiintccmninbaaseanccamaans 12, 16, 18, 21
Ben's Bar, Inc. v. Village of Somerset, 316 F.3d

FRR PAE PROD si sa ca cccsanavdnseivbciancblonssanceanis 16, 24-26
Boos v. Barry, 485 U.S. 312 (1988) ...........e eee 15

Cafe 207, Inc. v. St. Johns County, 856 F. Supp.

641 (M.D. Fla. 1994), aff'd, 66 F.3d 272 (11th

Cir. 1995), cert. denied, 517 U.S. 1156 (1996)... 16
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)... passim
City of Los Angeles v. Alameda Books, Inc., 535

AD RR RAED itive sccceaccianvynninbcasanaieresbienntbovtent passim
City of Renton v. Playtime Theaters, Inc., 475

Re AUG A AD vtasnsdchcakeinectiniiovenitalepehwiiotntwiacend passim
DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th

Ce. RPMI ccscccsskiseuacevdsnssiapseniestouecaniabebecciamnsincks 17
Encore Videos, Inc. v. City of San Antonio, 330

ce RE CE As IF isctisicthdniacrineninasorcenseianns 24
Flanigan’s Enterprises, Inc. v. Fulton County,

Georgia, 242 F.3d 976 (11th Cir. 2001)............ 23-24
Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d

SE UU ES FIIEE Rds dsc bdesnccscshchbenitndnniapaicghonsnch 24
Heideman v. South Salt Lake City, 348 F.3d 1182

OP Noes EE Sracvcnnctsinaciantverdecsbesiccsnbastnaiins 25
Hudson v. Chicago Teachers Union Local No. 1,

TPA Ts EOD eikitaiicsrsniisstenintinacndeioinn 23

Illusions-Dallas Private Club, Inc. v. Steen, 482
Bed ee CIE, RIED ses isniciacakicoticsaniveseeine 16, 17, 24

vi
TABLE OF AUTHORITIES—Continued

Page
Joelner v. Village of Washington Park, 378 F.3d
EF Cas BED Shiai stich srvicnnanerbiicincasiosaiensas 12
Minneapolis Star v. Minnesota Comm’r of Rev-
ONE, DS TESTS CIF civics sncresesssseiarcessnsesss 13

Peek-a-Boo Lounge of Bradenton, Inc. v.
Manatee County, Fla., 337 F.3d 1251 (11th
Cir. 2003), cert. denied, 541 U.S. 988 (2004)... 17
Phillips v. Borough of Keyport, 107 F.3d 164 (3d
Cir. 1997) (en banc), cert. denied, 522 U.S.

ST Bas ida aranaacth cio idctersies nncehictinaeissckekon te 17
R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402

CFU RNEs NOTED Scisikisisiddesuicican sak capedsssacsovabckiniesians seus 13, 25
Ranch House, Inc. v. Amerson, 238 F.3d 1273

EF TI es Ie UD ia isis iicssstnnasonienvspaavncacdadiaeabccrsiess 15
RAV v. City of St. Paul, 505 U.S. 377 (1992)........ 11-13
Speiser v. Randall, 357 U.S. 513 (1958)............... 23
U.S. Sound & Service Inc. v. Township of Brick,

E26 BSG SOs CH CR. EGGT) cescsssciicsvsvcssssvecssccens 16
United States v. Playboy Entertainment Group,

ee Ne MEE sistant aniinenidayiieansonsceraios 11, 15
Virginia v. Black, 538 U.S 343 (2003) ............e00e 13
White River Amusement Pub, Inc. v. Town of

Hartford, 481 F.3d 163 (2d Cir. 2007).............. 17
Young v. American Mini Theatres, Inc., 427 U.S

ra taicas snsipcd plausapuccaaphadantonieneechalvencaaie 12, 16, 18

STATE CASES

G.Q. Gentlemen's Quarters, Inc. v. City of Lake

Ozark, 83 S.W.3d 98 (Mo. 2002) .............eee 15

Restaurant Ventures, LLC v. Lexington-Fayette
Urban County Government, 60 S.W.3d 572
ls IU aa loticdi sada kccboestioesphatincibcinccecscsunasedasenabeces 25

FEDERAL STATUTES
oti a 3: | REDO RSC aOR OO ete 2

Vii
TABLE OF AUTHORITIES—Continued

RULES Page
Municipal Code of Chicago, § 4-60-140(d) .......... passim
CONSTITUTIONAL PROVISIONS
ee I oie ii ccs cha cigisie passim
Fourteenth Amendment ...........................cceceee. 2, 4, 23, 26
SERRE MEE | 4,6
OTHER AUTHORITIES

G. Gunther, Cases and Materials on Constitu-
tional Law 1373 (10th ed. 1980)

IN THE
Supreme Court of the Gnited States

No. 06-___

POOH BAH ENTERPRISES, INC., et al.,

Petitioners,
V.
CITY OF CHICAGO, et al.,
Respondents.

On Petition for Writ of Certiorari to the
Supreme Court of Illinois

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Supreme Court of Illinois (October 5,
2006), reported at 224 IIl.2d 390 (2006), is included in the
Appendix to this Petition, at 1 (hereafter “App.”). The unpub-
lished order of that Court denying rehearing (March 5, 2007)
is included at App. 64. The dissenting opinion of Justice
Freeman to the denial of rehearing, reported at 224 III. 2d 390
(March 5, 2007) is included at App. 65.

Tre unpublished Order of the Appellate Court of Illinois
(September 28, 2004) is included at App. 92.

The Memorandum Order and Opinion of the Circuit Court
of Cook County Iilinois (January 18, 2001) is included at
App. 133.

2
STATEMENT OF JURISDICTION

This Court has jurisdiction to review the decision of the
Supreme Court of Illinois pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

United States Constitution, First Amendment:

“Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging freedom of speech, or of the press; or the
right of the people to peaceably assemble, and to petition
the Government for a redress of grievances.”

United States Constitution, Fourteenth Amendment:

“No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law
* * *”»

Municipal Code of Chicago, § 4-60-140(d):

“No person licensed under this chapter shall permit
any employee, entertainer or patron in any live act,
demonstration, dance or exhibition on licensed premises
which exposes to public view:

(1) His or her genitals, pubic hair, buttocks, perimeum
and anal region or pubic hair region; or

(2) Any device, costume, or covering which gives the
appearance of or simulates the genitals, pubic hair,
buttocks, perineum, anal region or pubic hair re-
gion; or

(3) Any portion of the female breast at or below the
areola thereof.

For purposes of this section, any of the items described in
subsection (d)(1) through (d)(3) shall be considered exposed

3

' to public view if it is uncovered or less than completely and
opaquely covered.”

STATEMENT OF THE CASE

In 1993, Pooh Bah Enterprises, Inc. (“Pooh Bah”) opened a
gentlemen’s club (the “Club’”’) in an industrial area on the
north side of Chicago. Shortly thereafter, the City of Chicago
(the “City”). initiated administrative proceedings against it
to revoke all of its City licenses, including its retail liquor
license. The City charged that Pooh Bah had violated § 4-60-
140(d) of the Chicago Municipal Code (the “Coverage Ordi-
nance”) by permitting various female dancers at the Club to
expose portions of their buttocks and the sides of their breasts
to patrons’ view.

Pooh Bah unsuccessfully attempted to enjoin the admin-
istrative proceeding in the circuit court of Cook County based
on its state constitutional attack on the ordinance (the “1993
Case”). The denial of a temporary restraining order was
affirmed by the [Illinois Appellate Court, but the 1993 Case
remained pending during the administrative revocation pro-
ceedings before the City’s Local Liquor Control Commission
(“LLCC”).

The Commissioner ultimately entered an order revoking
Pooh Bah’s Chicago liquor, business and entertainment
licenses based on his finding that the company had violated
§ 4-60-140(d). Pooh Bah appealed to the Chicago License
Appeal Commission, which affirmed.

Pooh Bah sought judicial review of the administrative
findings and revocations in the circuit court of Cook County,
in “re still-pending 1993 Case. Pooh Bah later amended its
complaint to raise First Amendment and other federal law
attacks on the Coverage Ordinance in addition to its state
law claims.

4

The City then promptly removed the 1993 Case to the
United States District Court, which remanded the state law
issues to the Illinois courts, while retaining the federal
constitutional issues. A second removal by the City in 1998
was similarly remanded in 1999. The District Court sub-
sequently dismissed the federal court case.

Shortly thereafter, the City brought a second lawsuit
against Pooh Bah (the “1999 Case), in which the City sought
to enjoin the Club’s business as a “nuisance” under Chicago’s
general nuisance ordinance. (App. 133.) The Illinois Su-
preme Court defines a public nuisance as a “public exhibition
of any kind that tends to the corruption of morals, to a
disturbance of the peace or of the general good order and
welfare of society.” (App. 136.)

The nuisance claim in the 1999 Case was predicated on
renewed allegations of the same violations of § 4-60-140(d)
as were alleged in the 1993 Case, i.e., exposure of prohibited
portions of dancers’ buttocks and breasts. In addition, the
City alleged in the 1999 Case that a dancer had solicited
prostitution at the Club. In defense, Pooh Bah again chal-
lenged the constitutionality of § 4-60-140(d), facially and
as applied to it, under the Illinois and United States
Constitutions.

The 1999 Case went to trial quickly on the City’s pre-
liminary injunction request. After the City rested its case and
Pooh Bah began to present its evidence, the circuit court
granted Pooh Bah’s motion for a directed finding. (App. 127,
139.) The circuit court held that the Coverage Ordinance
contravened the First and Fourteenth amendments to the
United States Constitution and article I, section 4, of the
[Illinois Constitution of 1970 and therefore § 4-60-140(d)
could not serve as a required predicate for a finding that Pooh
Bah’s Club was a public nuisance (under the City nuisance
ordinance). Finding that the City had failed to establish that
operation of the Club created a public nuisance in any way,

5

the circuit court denied the City’s motion for a preliminary
injunction. (App. 136-42, 153.)

The City then rested its entire case in chief in the 1999
Case, including its defense of the Coverage Ordinance. The
parties and the trial court agreed in formal orders: (1) to
consolidate the 1993 and 1999 Cases and their evidentiary
records, (2) to convert the preliminary injunction directed
finding into a final order in both cases, and (3) to stipulate
that both parties would retain the right to complete their
evidence on remand if the directed finding of unconsti-
tutionality of § 4-60-140(d) were later reversed on appeal.
(App. 130) (Consolidation Order); (App. 125) (Partial Judg-
ment Order).

Accordingly, on May 3, 2001, the circuit court entered
judgment in favor of Pooh Bah and against the City on the
public nuisance claims; reversed the order of the Liquor
Appeal Commission affirming the revocation of Pooh Bah’s
Chicago licenses; vacated the revocation of those licenses;
reserved for future consideration various related and sub-
sidiary issues; and made an express finding that there was
no just reason for delaying enforcement or appeal. (App.
125-29.)

The City appealed to the Illinois Appellate Court, which
held that § 4-60-140(d) of the Municipal Code of Chicago
does not violate either the federal or the [llinois Constitution,
and reversed the circuit court’s constitutional rulings. (App.
92-124.) The court of appeals did not reach the merits of
LLCC’s decision to revoke Pooh Bah’s liquor license. (App.
123-24.) The appellate court remanded for further proceed-
ings on remaining undecided issues.

Pooh Bah then sought and was granted review in the
Supreme Court of Illinois. On October 5, 2006, the Supreme
Court of Illinois affirmed the decision of the Appellate Court
as to the constitutionality of § 4-60-140(d) under the IIli-

6

nois Constitution and under the United States Constitution.
(App. 1.) Pooh Bah then sought rehearing, which was denied
on March 5, 2007, over the objection of Justice Freeman.
(App. 64-91.) This petition follows.

STATEMENT OF FACTS

Since 1993, Pooh Bah Enterprises, Inc. (“Pooh Bah’’), has
operated a gentlemen’s club in an industrial area adjacent to a
rail spur and the Chicago River on the north side of Chicago
(the “Club”). The Club presents non-obscene erotic dancing
as entertainment.

From the outset of this litigation, Petitioners raised the
issue whether Pooh Bah and its dancers have a First
Amendment right to present erotic dance performance even
though the dancers’ buttocks and the sides of their breasts are
more scantily clad than the City of Chicago regulations (in
§ 4-60-140(d)) mandate in establishments licensed to sell
alcoholic drinks—or, conversely, whether the City can
regulate the body coverage of sexually-oriented live dance
performers in City-licensed establishments. In particular,
Pooh Bah raised the question whether the City’s regulations
are content-based or content-neutral, and whether the City
had met its burden to show that the regulations were
necessary and effective to combat adverse secondary effects.
The Coverage Ordinance was adopted by the City in 1978
without legislative findings, but with the stated purpose to
“control[{] the form of entertainment” in venues that serve
alcohol. (App. 157.)

In 1992, before adopting the gentlemen’s club entertain-
ment format, Pooh Bah met with the City Zoning Admin-
istrator, the Director of the LLCC, the Director of the Illinois
Liquor Control Commission, and the district police com-
mander, seeking guidance as to what was permissible. Pooh
Bah sought to explain its business plan and to ascertain and
resolve any regulatory issues. The LLCC Director was asked

7

for an opinion concerning the requirements for coverage.
The LLCC declined to give an opinion as to what was
permissible.

At all times, Pooh Bah has maintained all necessary
licenses, including a City liquor license, a City late-hour
license, and a City music and dance license. It also has
obtained two City amusement licenses that permit Pooh Bah
to present stage dancing to its patrons. Because Pooh Bah has
a City tavern license, a person under age 21 cannot enter
unless accompanied by a parent or legal guardian. (RA.
C00407.) The Club occupies a two-level industrial building.
The first floor contains a bar, the main stage and two side
stages, with tables for patrons. (SR. 00165.) The second
floor consists of a large dressing room for the dancers.

Pooh Bah’s Club is located in a leased building in a C3-2
commercial-manufacturing zone that permits a nightclub that
sells alcohol and features entertainment. The Club also
complies with Chicago’s 1993 adult use (dispersal) zoning
ordinance.” (SR. C00410.) The Club is in a non-residential
zone. (R. 02848, 02875.) On the west side of Kingsbury
Street, across from the Club, the zoning classification was
M3-4 (heavy manufacturing) and that propertyadjacent to

' (SR. 00417-18.) “SR.” denotes the Petitioner’s citations to six vol-
umes of Supplemental Record submitted to the Appellate Court of Illinois
by agreement of the parties. “R.” denotes the Petitioner’s citations to the
record of proceedings from the Circuit Court of Cook County, Illinois.
“RA” denotes citations to the Record on Appeal submitted by the City
to the Appellate Court of Illinois. Record citations that include a “C”
prefix refer to filings.

? The City’s “adult use” zoning regulations adopted in 1993 are not at
issue in this case. At all times, Pooh Bah has been in compliance with all
City zoning regulations. In 2004, Chicago adopted a new comprehensive
zoning ordinance that altered the designations of its zoning districts.
However, this did not change the zoning treatment of the area where Pooh
Bah is located. For the sake of clarity, where this petition refers to zoning
designations it uses the ones that were in effect from 1955-2004.

8

the Chicago River, was improved with a zinc factory. (/d.)
Adjacent to the Club on the north, south, and east are
manufacturing and commercial uses. To the north are
primarily drink and entertainment venues. (SR. 00406-07; R.
02853, 02875-77.)

Pooh Bah’s entertainment format features several female
entertainers dressed in gowns, dresses or pant suits perform-
ing a dance show to a set of three songs on the main stage.
(R. 158-59.) During the first two songs, the dancers typically
remove some of their clothing so that during the third song
each is wearing a thong covering below the waist and latex
rubber covering portions. of their breasts. (/d.) After the
group stage dances, the dancers are available tor dances that
are performed adjacent to a patron’s table for a tip, usually
$20 per dance. (R. 00160, 00166.)

Pooh Bah’s Club does not present nude entertainment and
has never sought to present total nudity. This litigation has
focused entirely on the City’s claim that the dancers’ buttocks
and the sides of their breasts were not sufficiently covered.
The tnal court found that there was no violation of the
requirements for breast coverage, App. 136-39, but the
Illinois Supreme Court adopted a more expansive construc-
tion of the Coverage Ordinance. (App. 121-23.)

As noted above, this case has a long procedural history.
The appeals that are before this Court stem from two separate
City efforts to enforce the body coverage requirements of § 4-
60-140(d) by shutting down Pooh Bah or by enjoining Pooh
Bah’s business: (1) the 1993 license revocation admin-
istrative action and (2) the 1999 injunction action.

The City has also abandoned several factual claims and
legal theories along the way. The City had initially included
an “obscenity” claim under the Illinois statute, which it
dropped early in the 1993 Case. (R. C1163.) During the tnal
in 1999-2000, the City made strenuous efforts to show that

9

Pooh Bah’s dancers’ breasts were not covered “opaquely” but
that charge was explicitly abandoned mid-trial. In addition,
the City originally alleged that the presence of the Club
depressed property values in the area, but subsequently
dropped this claim.

The 1999 (nuisance) Case went to trial on the City’s pre-
liminary injunction motion. During the incomplete trial, the
trial court heard 15 witnesses for the City before it rested, and
13 witnesses for Pooh Bah, which did not finish presenting its
case when a directed finding was entered that the Coverage
Ordinance is unconstitutional. In a written decision, App.
133, 147, the tnal court concluded, inter alia:

[T]he City has not even come close to demonstrating the
existence of or even the possibility of the existence of
these effects. The Court finds the record devoid of
any proof of the existence of even potentially harmful
secondary effects.

The 1999 trial covered two main issues: (1) the con-
stitutionality of the City’s Coverage Ordinance and (2) the
City’s charge that a Club dancer had solicited two undercover
police officers for prostitution. (R. C00003.) After hearing
testimony from, among others, the officers and the accused
dancer (a computer-studies masters degree candidate at
DePaul University), the trial judge rejected the City’s
solicitation claim, and concluded that “undercover police

officers . . . tried to entrap the dancers in attempt to show
prostitution and solicitation. According to the clear evidence
presented . . ., the dancers were not interested. The police

tried using video cameras in their neckties—James Bond
style—to show violations. That failed too.” (App. 142.) The
City did not appeal this issue.

The City appealed the constitutional rulings and the Illinois
Appellate Court reversed the trial court. The appellate panel
held that intermediate scrutiny was the appropriate First
Amendment standard of review. (App. 109-11.) The Appel-

10

late Court found it “entirely reasonable and rational for the
City to conclude that combining alcohol with nudity produces
adverse secondary effects . . . even in the absence of specific
studies on the matter.” (App. 112-14.) Nevertheless, it
remanded the matter for further determinations by the tnal
court. (App. 122-24.)

The Illinois Supreme Court affirmed, and rejected Pooh
Bah’s claim that it should be permitted to introduce additional
evidence on remand on the secondary effects issues. Instead,
the Court held that “the constitutionality of the ordinance is
no longer subject to dispute.” (App. 63.) Applying inter-
mediate scrutiny review, the court stated “that liquor and sex
are an explosive combination is a proposition so frequently
confirmed by human experience that it can scarcely be
questioned.” (App. 37) (citations omitted) Notwithstanding
the findings of the trial court, the Illinois Supreme Court
concluded “that the evidentiary record . . . supported the
proffered rationale for the ordinance.” (App. 27.)

Justice Freeman dissented from the court’s denial of
rehearing. In contrast to his earlier vote to affirm the
appellate court, Justice Freeman wrote that the City had not
shown that the Coverage Ordinance has a content-neutral
purpose, and that the appellate courts had upheld the law
based solely on anecdotal evidence of supposed primary
effects of the combination of alcohol and live erotic enter-
tainment. (App. 65-66, 68.) Additionally, he disagreed with
the majority because the court failed to give weight to the
circuit court’s finding that the record was devoid of proof of
adverse secondary effects, and had cut off Pooh Bah’s right to
present evidence challenging the City’s justifications. (App.
71-77.)

11
REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO
RESOLVE AN ISSUE OF NATIONAL IMPOR-
TANCE THAT HAS DIVIDED THE CIRCUIT
COURTS CONCERNING THE APPROPRIATE
LEVEL OF SCRUTINY IN EVALUATING
CONTENT-CORRELATED REGULATION OF
SEXUALLY-ORIENTED EXPRESSION

This Court has held consistently that when government
regulation of sexually-oriented speech is predicated on the
content of expression, it must be subjected to strict First
Amendment scrutiny. United States v. Playboy Entertain-
ment Group, 529 U.S. 803, 811, 814-815 (2000) (Where
“[t]he overriding justification for the regulation is concern for
the effect of the subject matter on . . . viewers, [a regulation]
is not ‘justified without reference to the content of the
regulated speech’” and must satisfy. strict scrutiny.); Ashcroft
v. ACLU, 542 U.S. 656, 660 (2004) (“the Constitution
demands that content-based restrictions on speech be pre-
sumed invalid”’).

The basic constitutional principle applies equally to efforts
to regulate expressive conduct, RAV v. City of St. Paul,
505 U.S. 377, 382 (1992), including adult entertainment and
erotic dancing, where the regulation is content-based. See,
e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425, 434 (2002) (“If the regulation were content-based, it
would be considered presumptively invalid and subject to
strict scrutiny.”); City of Erie v. Pap’s A.M., 529 U.S. 277,
289 (2000) (“If the government’s interest is related to the
content of expression . . . then the regulation falls outside the
scope of the O’Brien test and must be justified under a more
demanding standard.”); City of Renton v. Playtime Theaters,
Inc., 475 U.S. 41, 46-47 (1986) (“regulations enacted for the
purpose of restraining speech on the basis of its content pre-
sumptively violate the First Amendment”).

12

As a “specific exception” to this bedrock rule, this Court
has subjected regulations of expressive conduct only to
intermediate constitutional scrutiny where they were adopted
not to restrict speech but to combat content-neutral “secon-
dary effects” of expression. RAV v. St. Paul, 505 U.S. at 394.
This exception has been articulated most frequently in the
context of adult entertainment regulations and zoning re-
strictions. See, e.g., Young v. American Mini Theatres, Inc.,
427 U.S 50 (1976); City of Renton, 475 U.S. at 47; Alameda
Books, Inc., 535 U.S. at 434; Pap’s A.M., 529 U.S. at 289;
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).

While the “secondary effects” exception is well estab-
lished, it is neither well understood nor consistently applied.
As this Court observed in Renton, ordinances that treat
“theatres that specialize in adult films differently from other
kinds of theatres” do not “fit neatly into either the ‘content-
based’ or the ‘content-neutral’ category.” Renton, 475 U.S.
at 47. More recently, several Justices have begun to question
the shorthand designation of such ordinances as “content-
neutral.” Alameda Books, 535 U.S. at 448 (Kennedy, J.,
concurring) (“The Court appears to recognize that the
designation was something of a fiction” that “is perhaps more
confusing than helpful.”); id. at 457 (Souter, J., dissenting)
(“It would in fact make sense to give this kind of zoning
regulation a First Amendment label of its own” such as
“content correlated.”). See Joelner v. Village of Washington
Park, 378 F.3d 613, 621 (7th Cir. 2004) (“‘content neutrality’
is a concept easily and oft confused”).

Because of this doctrinal ambiguity, it often is difficult to
determipe when a “content correlated” restriction on expres-
sive speech may be subject only to intermediate scrutiny as
opposed to strict scrutiny. In cases involving such laws, the
First Amendment does not permit the government to presume
that expressive conduct falls into a “proscribable category.”

13

RAV y. St. Paul, 505 U.S. at 394; Virginia v. Black, 538 U.S
343, 365-366 (2003). To the contrary, the presumption runs
the other way. The First Amendment requires reviewing
courts to be skeptical of any attempts to discriminate between
speakers or messages based on content. See Minneapolis Star
v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592-593
(1980); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.
221, 230 (1987). This Court has held emphatically that the
government bears the burden of proof, regardless of the level
of scrutiny. Black, 538 U.S. at 367 (presumption that cross
burning 1s “intended to intimidate” is “unconstitutional on its
face” because “[t]he First Amendment does not permit such a
short cut.”’).

Specifically with regard to adult entertainment, this Court
has held that the government “bears the burden of proving
evidence that supports a link between . . . such operations and
asserted secondary effects.” Alameda Books, 535 U.S. at 437
(plurality op.); id. at 449 (Kennedy, J., concurring) (“a city
must advance some basis to show that its regulation has the
purpose and effect of suppressing secondary effects, while
leaving the quantity and accessibility of speech substantially
intact”) (emphasis added). See also R.V.S., L.L.C. v. City of
Rockford, 361 F.3d 402, 408 (7th Cir. 2004) (“cnly after
confirming that a zoning ordinances’s purpose is to combat
the secondary effects of speech do we employ Renton’s
intermediate scrutiny test’).

This Court has not yet clarified when a government that
has failed to meet its burden of proof with respect to sec-
ondary effects necessarily must satisfy strict scrutiny to sup-
port a content-based regulation of speech. For example, the
district court in Alameda Books subjected the Los Angeles
ordinance at issue there to strict scrutiny after the city failed
to substantiate its “content-neutral” justifiations, but the court
of appeals affirmed on different grounds, and the issue was
not presented to this Court. Alameda Books, 535 U.S. at 433.

14

See Alameda Books, Inc. v. City of Los Angeles, No. CV 95-
7771-DDP (C.D. Cal., May 28, 1998) (“the City’s failure to
demonstrate a genuine issue of fact as to the content-neutral
justification . . . requires analysis of the ordinance as a
presumptively invalid prior restraint’). As a consequence,
lower courts lack meaningful guidance for when they must
apply strict scrutiny in cases involving sexually-oriented
expressive conduct.

In this case, for example, the Illinois Supreme Court
upheld the Chicago ordinance under intermediate scrutiny.
(App. 25-30, 36.) It did so despite the fact that the city
council offered no contemporaneous legislative findings for
the Coverage Ordinance to support the 1999 claim that it was
intended to combat secondary effects, and notwithstanding
legislative history that suggested that the purpose underlying
the ordinance was content-based. See Journal of the Chicago
City Council, January 17, 1978, at 722 (Report of the Com-
mittee on Police, Fire and Personnel, recommending the
approval of the coverage ordinance because it “controls the
form of entertainment” in liquor venues). (App. 157.) The
Illinois Supreme Court cited the preamble to the later-enacted
1993 zoning ordinance as a statement of legislative purpose,
App. 35, 36, but as Justice Freeman observed, “[t]he findings
on which this court’s opinion relies focus on the City’s
justification for enacting the [1993] zoning restrictions, rather
than for the earlier-enacted coverage ordinance.” (App. 79)
(Freeman, J. dissenting) (emphasis in original).

Evaluating the City’s proffer of post-enactment evidence of
secondary effects, the trial court below held that the record
was “devoid of any proof of the existence of even potentially
harmful secondary effects.” (App. 76.) Nevertheless, the
appellate courts disregarded this finding, concluding instead
that “it can scarcely be questioned” that “liquor and sex are
an explosive combination.” (App. at 37.) (citations omitted)

15

Justice Freeman examined this rationale and reasoned that
the majority’s conclusion should have triggered analysis “of
whether strict scrutiny review is applicable in this case”
because the decision rested on “anecdotal evidence of the
supposed primary effects of the combination of alcohol and
live seminaked dancing on its viewers.” (App. 68) (Freeman,
J. dissenting) (emphasis in original). Compare Playboy
Entertainment Group, 529 U.S. at 811 (“The overriding jus-
tification for the regulation is concern for the effect of the
subject matter on young viewers. . . . This is the essence of
content-based regulation.”); Pap’s A.M., 529 U.S. at 291
(Erie did not “attempt to regulate the primary effects . . ., i.e.,
the effect on the audience of watching nude dancing in its
ordinance”); Boos v. Barry, 485 U.S. 312, 321 (1988) (“[t]he
emotive impact of speech on is audience is not a ‘secondary
effect’”). However, the Illinois Supreme Court majority dis-
missed this argument regarding the appropriate level of
scrutiny in a cursory footnote. (App. 26)

The decision below in this case illustrates how a general
lack of guidance has spawned a conflict among lower courts,
including the federal circuit courts, about how to analyze the
appropriate level of scrutiny and the nature of the evidence
courts should examine. For example, unlike the Illinois
Supreme Court in this case, the Eleventh Circuit rejected the
argument that reviewing courts “should simply assume that
the legislature’s purpose was to combat the negative impact
on health, safety, and welfare allegedly caused by venues that
provide nude dancing.” Ranch House, Inc. v. Amerson, 238
F.3d 1273, 1282-83 (11th Cir. 2001). See also G.Q. Gen-
tlemen’s Quarters, Inc. v. City of Lake Ozark, 83 S.W.3d 98,
102-103 (Mo. 2002) (court was unwilling “to presume that
the City enacted [a regulation of erotic dancing where liquor
1s served] to prevent negative secondary effects,” and
therefore concluded that “the City had the heavy burden of
justifying the ordinance under strict scrutiny”). Similarly, the
Third Circuit rejected the application of Renton to a content-

16

based adult use zoning restriction and applied strict scrutiny
after finding that “a regulation that singles out non-obscene
sexually explicit material because of its impact on minors is
not content-neutral.” U.S. Sound & Service Inc. v. Township
of Brick, 126 F.3d 555, 559 (3d Cir. 1997) (“[t]he impact
of protected speech on minors is a direct, rather than a
secondary, effect”).

By contrast, other circuits have adopted intermediate
scrutiny as the presumptive standard of review for otherwise
content-based regulations of erotic expression. In ///usions-
Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 309 (Sth Cir.
2007), the Fifth Circuit held such a regulation content neutral
even though the regulation itself “references content” and
“even without a legislative record to suggest a purpose
unrelated to speech.” It used intermediate scrutiny to review
an ordinance that prohibited sexually oriented businesses
from obtaining or renewing licenses to serve alcohol, even
though the court also found that “there simply is no evidence”
to support a link “between the combination of alcohol service
and erotic dancing and negative secondary effects.” Jd. at
310, 313 (emphasis in original). Similarly, in a case cited by
the Illinois Supreme Court below as its principal authority,
the Seventh Circuit found that “state regulations prohibiting
the sale or consumption of alcohol on the premises of adult
entertainment establishments must be analyzed in light of
American Mini Theatres and Barnes, as modified by their
respective progeny.” Ben's Bar, Inc. v. Village of Somerset,
316 F.3d 702, 712 (7th Cir 2003) (emphasis added). See also
Cafe 207, Inc. v. St. Johns County, 856 F. Supp. 641, 644 n.3
(M.D. Fla. 1994), aff'd, 66 F.3d 272, 273 (11th Cir. 1995)
(per curiam), cert. denied, 517 U.S. 1156 (1996) (inter-
mediate scrutiny applies to ordinance limiting adult enter-
tainment even if it is “specifically aimed” at the expressive
activity of a particular individual).

17

The circuit courts also are divided on the related question
of whether a municipality can use post-enactment evidence
alone to satisfy Renton’s burden to show the predominant
purpose of a “content correlated” ordinance is to combat
secondary effects. See, e.g., White River Amusement Pub,
Inc. v. Town of Hartford, 481 F.3d 163, 171 (2d Cir. 2007)
(requiring “pre-enactment evidence” and collecting circuit
cases discussing this requirement); Peek-a-Boo Lounge of
Bradenton, Inc. v. Manatee County, Fla., 337 F.3d 1251,
1268 (11th Cir. 2003) (“this Court has consistently inter-
preted Renton to require pre-enactment evidence”), cert.
denied, 541 U.S. 988 (2004). But see Illusions-Dallas
Private Club, Inc., 482 F.3d at 310 (no pre-enactment record
is required for “content-neutral” treatment); Phillips v.
Borough of Keyport, 107 F.3d 164, 178-179 (3d Cir. 1997)
(en banc) (“[W]e believe that insistence on the creation of a
legislative record is an unwarranted intrusion into the internal
affairs of the legislative branch of governments.”), cert.
denied, 522 U.S. 932 (1997); DiMa Corp. v. Town of Hallie,
185 F.3d 823, 829-30 (7th Cir. 1999) (“[A] municipality may
make a record for summary judgment or at trial with evidence
that it may not have had when it enacted its ordinance.”), cert.
denied, 529 U.S. 1067 (2000).

In sum, this Court’s guidance is sorely needed on a
question that goes to the heart of the First Amendment’s
prohibition of content-based regulation of protected expres-
sion. This is a critical issue, both because of the significant
number of cases in federal and state courts involving the
regulation of adult entertainment, and because content-based
regulations with assertedly neutral purposes may be used as
“a covert attack on speech” unless there are adequate
safeguards. Alameda Books, 535 U.S. at 447 (Kennedy, J.,
concurring). Accordingly, this Court should grant review.

18

Il. CERTIORARI SHOULD BE GRANTED TO
REVIEW WHETHER REGULATION OF
EROTIC ENTERTAINMENT IS CONSTITU-
TIONALLY PERMISSIBLE WHEN THE
“RECORD IS DEVOID OF THE EXISTENCE
OF EVEN POTENTIALLY HARMFUL SEC-
ONDARY EFFECTS” AND THE CHALLENGER
IS NOT GIVEN A FULL OPPORTUNITY TO
CHALLENGE THE GOVERNMENT’S JUSTI-
FICATION FOR THE LAW

This Court has upheld the constitutionality of local
ordinances regulating adult entertainment in a number of
cases, e.g., Alameda Books, Inc., 535 U.S. 425 (zoning, anti-
concentration); Pap’s A.M., 529 U.S. 277 (nudity); Barnes,
501 U.S. 560 (nudity); Renton, 475 U.S. 41 (zoning); Young,
427 U.S. 50 (zoning), but these decisions have not produced a
clear body of law. But while Renton produced a majority
opinion, subsequent cases that have attempted to apply its
teachings have resulted in sharply conflicting pluralities. See,
e.g., Barnes, 501 U.S. at 562 (three Justice plurality); Pap’s
A.M., 529 U.S. at 282 (four Justice plurality). See also
Young, 427 U.S. at 52 (four Justice plurality). The cases have
focused on the legislative justifications proffered and the
evidence presented to support the conclusion that the reg-
ulation was necessary and effective to combat adverse
secondary effects.

Most recently, this Court has sought to clarify that when a
challenger succeeds in casting doubt upon a city’s justi-
fication for such an ordinance, the burden of proof shifts back
to the government. Alameda Books, 535 U.S. at 439. Se id.
at 453 (Kennedy, J., concurring) (“If these assumptions can
be proved unsound at trial, then the ordinance might not
withstand intermediate scrutiny.”). However, it has not yet
explained the point at which there is sufficient “doubt” about
the government’s asserted rationale to require it to present

19

additional evidence, or whether a reviewing court may cut
short a challenger’s ability to present evidence questioning
the proffered reasons for the law. Because there is significant
disagreement among the lower courts on these issues, this
Court should grant review in this case.

A. Review Should Be Granted Where the Trial
Court Found That the Record is Devoid of
Evidence of Harmful Secondary Effects

It is the City’s burden to demonstrate that a proposed
regulation of expressive conduct is intended to combat ad-
verse secondary effects. Typically, local governments are
permitted to point to a wide variety of materials to support
such a claim, including the text of the ordinance, legislative
findings or preamble, or any studies or findings about which
the legislators were aware. Alameda Books, 535 U.S. at 438.
However, local governments are not permitted to get away
with “shoddy data” to support such laws, and where a
challenger succeeds in casting doubt about the justifications
for the law, the government must provide credible evidence to
support the law. /d. at 439.

This case presents the issue of whether a City regulation of
expression may be upheld when a trial court finds that there is
no evidence of harmful secondary effects emanating from the
regulated expressive activity (after the government rested its
case). (App. 147.) There was no statement of purpose for the
1978 Coverage Ordinance—apart from the description that it
was designed to control the “form of entertainment” where
alcohol is sold—and no legislative findings. Instead, the
[llinois Supreme Court pointed to legislation adopted 15 years
later, i.e., the preamble of “a package of ordinances and
ordinance amendments adopted in 1993 to establish ‘adult
uses’ within various zoning districts in the City” as support-
ing the existence of secondary effects. (App. 32.) But see
App. 77 (Freeman, J., dissenting) (1993 zoning ordinance

20

“adopted location and dispersion regulations for adult uses in
the city”).

None of this Court’s prior cases directly address this situ-
ation. For example, in City of Erie v. Pap’s A.M., the plur-
ality opinion accepted the city’s rationale that the regulation
of nude dancing was necessary to prevent adverse secondary
effects, but acknowledged that “Kandyland has never
challenged the city council’s findings or cast any specific
doubt on the validity of those findings.” Pap’s A.M., 529
U.S. at 284. Likewise, in Alameda Books, the plurality
opinion focused on a study done by the city as a basis for
justifying a zoning restriction on the location of adult en-
tertainment establishments. However, according to the plur-
ality neither the challenger nor the dissenting opinions offered
data or competing theories to undermine the study upon
which the city relied. Alameda Books, 535 U.S. at 437. Still,
the case was remanded for further evidence on these fact-
ual issues.

This case thus poses the threshold question of whether a
city ordinance may be upheld where the trial court has held
that the record is “devoid of any proof of the existence of
even potentially harmful secondary effects.” (App. 76.) In
addition, both Illinois reviewing courts below upheld the
ordinance without requiring any evidence that the additional
covering of the buttocks (or sides of breasts) required by the
Chicago ordinance would have the slightest effect on sec-
ondary effects or that there had been any adverse secondary
effects in the many years that the Club operated.

In this case, the government’s justifications unraveled
throughout the course of the litigation. The City initially
claimed lower property values and community deterioration
as adverse secondary effects to be targeted by the Coverage
Ordinance, but later abandoned any claim that such effects
were at all “associated” with the gentlemen’s club. No evi-
dence was presented to support the City’s claims regarding

21

lower property values. It also argued that the ordinance was
necessary to combat crime—prostitution in particular—but
the City could not show an increase in such activity in the
vicinity of the Club. The City also failed in its attempt to use
undercover police to entrap the dancers. (App. 142.) Given
the City’s evidentiary failures and shifting rationales, this
case places in bold relief the question left open in Alameda
Books: What must a challenger do to “cast doubt” upon a
city’s assertions that a law is needed to combat adverse
secondary effects?

The absence of the targeted secondary effects presents
fundamental questions of First Amendment jurisprudence that
the Court has not clearly addressed, and on which it has not
provided guidance to the lower courts. Clarification of the
government’s burden, and of the effect of rebutting evidence
on these threshold points by a challenger would provide
valuable guidance to the lower courts as well as to local
governments and the erotic entertainment industry. This is an
especially pervasive issue throughout the country in light of
the decades of local regulation of adult enterprises, especially
the “adult zoning” ordinances adopted following Renton and
the regulation of erotic dancing after Barnes.

B. This Court Should Grant Review Where
Appellate Courts Cut Short Petitioners’ Ability
to Present Evidence Challenging the City’s
Justifications for the Law

This case also presents an important procedural question of
First Amendment litigation: whether reviewing courts can
rule in favor of the government—and “finally” uphold a law
regulating expression—without allowing completion of the
trial. This issue is acute in a case like this, where the IIlinois
reviewing courts refused to allow the challenger to complete
its evidentiary attack on the government’s prima facie
justification (taking those courts’ rulings to be, in effect, a

22

finding that the City made out a prima facie case for the
ordinance).

The trial court in this case granted Pooh Bah’s motion for a
directed finding before Pooh Bah completed presenting its
case. The directed finding order was “subject to reservations
by all parties of their respective rights to present additional
evidence if these motions are not finally dispositive.” (App.
126.) Reversing the trial court’s conclusion on an incomplete
record, the Illinois reviewing courts upheld the constitu-
tionality of the challenged ordinance without allowing Pooh
Bah a full opportunity to rebut the City’s evidence. (App.
63.) At the very least, Pooh Bah should have been able to
finish presenting its evidence before the fact-related issues
were “finally” decided against it.

In Alameda Books, the Court remanded the case for a tnal
for the City to prove the adverse secondary effects that it
asserted. Justice Kennedy, concurring in the judgment,
concluded by noting that if the City’s “assumptions can be
proved unsound at trial, then the ordinance might not with-
stand intermediate scrutiny.” 535 U.S. at 453. Here, how-
ever, thescourt below cut off petitioner’s right to present
additional evidence and simply decreed that “the constitu-
tionality of the ordinance is no longer subject to dispute.”
(App. 63.)

Given its unfinished evidentiary record, this case presents a
far more onerous judicial treatment of First Amendment
rights than this Court has previously confronted in dealing —
with issues concerning adult entertainment. May an appellate
court uphold a regulation of the amount of covering worn by
dancers when a trial court finds that there is no evidence
whatsoever of any harms and without remanding for com-
pletion of the trial? Im Alameda Books, the plurality opinion
stressed that the secondary effects doctrine does not mean
“that a municipality can get away with shoddy data or
reasoning. The municipality’s evidence must fairly support

23

the municipality’s rationale for its ordinance.” Jd. at 438-39.
But if challengers cannot present their rebuttal of a munic-
ipality’s evidence, then municipal regulation will win by
default even if its justification is shoddy or presumptive.

In addition to the First Amendment problem set forth in
Alameda Books, the denial of Pooh Bah’s right to present its
remaining evidence on the secondary effects issues raises a
serious due process question under the Fourteenth Amend-
ment. As this Court has made clear, such due process
questions raised in First Amendment cases “assume an impor-
tance fully as great as the validity of the substantive rule of
law to be applied.” Speiser v. Randall, 357 U.S. 513, 520
(1958). See Hudson v. Chicago Teachers Union Local No. 1,
475 U.S. 292, 303 n.12 (1986) (“[P]rocedural safeguards
often have a special bite in the First Amendment context.”)
(quoting G. Gunther, CASES AND MATERIALS ON CONSTITU-
TIONAL LAW 1373 (10th ed. 1980)). Accordingly, this Court
should grant review of this important question.

C. Lower Courts Are Divided on the Nature and
Extent of Proof Necessary to Support Local
Regulation of Sexualiy Oriented Businesses

This case presents an issue of national importance because
cities across the country have laws regulating adult enter-
tainment establishments. As a consequence, review would
provide essential guidance and clarification as to the type of
regulations that are permissible and the amount of evidence
required to sustain them. Such guidance is needed because a
significant split in the lower courts has developed on exactly
these issues.

Some lower courts have invalidated adult entertainment
regulations when there is no evidence to support them. For
instance in Flanigan’s Enterprises, Inc. v. Fulton County,
Georgia, 242 F.3d 976, 985 (11th Cir. 2001), the court noted
that there must be “some factual basis for the claim that

24

[adult] entertainment in establishments serving alcoholic
beverages results in increased criminal activity.” (quoting
Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (1 1th Cir.
1982)). The court invalidated the local ordinance and con-
cluded: “Defendants may not ban nude dancing in establish-
ments licensed to sell liquor without any factual basis to
support the claim that these establishments are connected
with negative secondary effects.” 242 F.3d at 987.

The Eleventh Circuit’s approach as articulated in Flani-
gan’s Enterprises is directly in conflict with that of the
Seventh Circuit in Ben’s Bar, which was the principal
authority upon which the Supreme Court of Illinois relied.
(App. 22-48.) See Ben’s Bar, 316 F.3d at 726. The Eleventh
Circuit struck down a regulation of nudity in an adult
entertainment establishment because of the lack of evidence
of harmful secondary effects, Flanigan’s Enterprises, Inc.,
242 F.3d at 985-87, while the Seventh Circuit upheld such a
regulation despite the absence of any evidence of harmful
secondary effects emanating from erotic dancing. Ben’s Bar,
316 F.3d at 726. The Illinois Supreme Court wholly em-
braced the Seventh Circuit’s analysis. (App. 30.)

Contrary to the decision below, other courts have invali-
dated ordinances because of the lack of proof of harmful
secondary effects. The Fifth Circuit recently overturned a
district court’s ruling upholding a regulation of alcohol
service at an erotic dancing club and stressed that “there
simply is no evidence, and the State has not met the minimal
evidentiary burden placed upon it.” ///usions-Dallas Private
Club, Inc. v. Steen, 482 F.3d at 313 (emphasis in original). In
another case, the Fifth Circuit similarly invalidated a zoning
ordinance regulating adult entertainment and concluded
“[b]ecause there is no such evidence in the record, we must
strike down the zoning provision of the Ordinance.” Encore
Videos, Inc. v. City of San Antonio, 330 F.3d 288, 295 (Sth
Cir. 2003).

25

In sharp contrast, other courts, like the Seventh Circuit in
Ben’s Bar and Illinois appellate courts in this case, have
upheld ordinances regulating adult entertainment without
requiring proof of harmful secondary effects. See, e.g.,
Heideman v. South Salt Lake City, 348 F.3d 1182 (10th Cir.
2003); Restaurant Ventures, LLC v. Lexington-Fayette Urban
County Government, 60 S.W.3d 572 (Ky. 2001).

Even within some reviewing courts, there have been
marked inconsistencies between panels as to the required
evidentiary burdens. The Seventh Circuit, which guided the
Illinois courts’ decision below, is a prime example. In R.V.S.,
L.L.C. v City of Rockford, 361 F.3d 402 the court invalidated
Rockford’s adult zoning ordinance for lack of justifying
evidence and noted that the regulation of exotic dancers
“targets speech itself.” Jd. at 414. In contrast, in Ben’s Bar,
316 F.3d 702, the Seventh Circuit upheld an hours of
operation ordinance on the bare presumption that there would
be adverse secondary effects where exotic dancing and
alcohol are combined. Jd. at 725-726. The starkly in-
consistent treatment of the evidentiary burdens in such
cases, even within the same circuit, cries out for this Court’s
guidance.

26
CONCLUSION

This Court should grant review to clarify these First and
Fourteenth Amendment issues that constantly recur through-
out the country and that have produced significant splits of
judicial opinion. For the foregoing reasons, Petitioners
respectfully request that this Court grant review of this case.

Respectfully submitted,
MICHAEL A. ABRAMSON ROBERT CORN-REVERE
ARNSTEIN & LEHR LLP Counsel of Record
120 South Riverside Plaza DAVIS WRIGHT TREMAINE LLP
Suite 1200 1919 Pennsylvania Avenue, N.W.
Chicago, Illinois 60606 Washington D.C. 20006
(312) 876-7155 (202) 973-4225

sy DAVID A. EPSTEIN

DAVID A. EPSTEIN, LTD.

30 North LaSalle Street

Suite 2900

Chicago Illinois 60602
(312) 553-1479

Counsel for Petitioners

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0566%3A1. Public record. Not legal advice.