Appendix — Pooh Bah Enterprises, Inc. v. City of Chicago (No. 06-1614)

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No. *

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Supreme Court of the Anited States

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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

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APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

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ROBERT CORN-REVERE

(Counsel of Record)

DAVIS WRIGHT TREMAINE LLP

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 973-4225

MICHAEL A. ABRAMSON DAVID A. EPSTEIN

ARNSTEIN & LEHR LLP DAVID A. EPSTEIN, LTD.

120 South Riverside Plaza. 30 North LaSalle Street.

Suite L200 Suite 2900

Chicago, Illinois 60606 Chicago, Illinois 60602

COOALE LAW BRIERE PRINTING Cob seas 225.0

OR CALL COLLECT tere ional

APPENDIX TABLE OF CONTENTS

Page

Opinion of the Supreme Court of Illinois ............... App. 1

Order of the Supreme Court of Illinois Denying

IN iain casisacscehtanbieieniniidyeneribigs seiewnbievediennskene App. 64

Dissent Upon Denial of Rehearing......................... App. 65

Order of the Appellate Court of Illinois.................. App. 92

Partial Judgment Order of the Circuit Court of

SE AE: SIN gin sii rasskotsadiiicuivecicnsnierniouens App. 125

Agreed Consolidation Order of the Circuit Court of

EE I TI i sha cndscesrarecnssvedecsscnssvsnsecantees App. 130

Memorandum Opinion and Order of the Circuit

Court of Cook County, Illinois....................ccceeee App. 133

Journal of the Proceedings of the City Council of

the City of Chicago, Illinois, January 17, 1978 .. App.

155

App. 1

865 N.E.2d 133

Supreme Court of Illinois.

The CITY OF CHICAGO, Appellee,

V.

POOH BAH ENTERPRISES, INC., et al.,

Appellants.

No. 99804.

Oct. 5, 2006.

Dissenting Opinion Upon Denial

of Rehearing March 5, 2007.

JUSTICE KARMEIER delivered the judgment of the

court, with opinion.

Chief Justice Thomas and Justices Freeman, Fitzger-

ald, Kilbride, and Garman concurred in the judgment and

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 bever-

ages from permitting any employee, entertainer or patron

to engage in “any live act, demonstration, dance or exhibi-

tion * * * which exposes to public view * * * [hjis 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

App. 2

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 chal-

lenged licenses had beer. issued to the company in connec-

tion with its operation of a so-called “gentlemen’s club”

located at 1531 North Kingsbury Street in the City of

Chicago.’ The basis for the revocation was that the com-

pany, 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 owner-

ship, 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

' 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.

App. 3

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 owed. Mandera ultimately took over full ownership of

Pooh Bah through an entity he owned called Ace Enter-

tainment.

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.’ For his services, Rizzolo was paid $20,000

per month, plus travel expenses.

* 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

(Continued on following page)

App. 4

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

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 organiza-

tion. 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

* ke (793

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 to organized crime in the Chicago area. See 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.

* 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

(Continued on following page)

App. 5

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 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.

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 pa.t 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.

App. 6

The mix of alcohol sales and nude or seminude danc-

ing 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 fre-

quently 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 enter-

tainment 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 contain-

ing a bar, an elevated stage area, and tables and chairs.‘

Female performers take turns going on stage, where they

“* 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 area 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.

App. 7

remove their clothing while dancing to prerecorded back-

ground 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.

Over the course of an evening, more than 20 women

may perform on stage. During those performances, wait-

resses 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.”

* 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 compensa-

tion 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.

App. 8

Dancers receive tips for providing two basic services: (1)

sitting and talking with customers’ 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.

The dances performed on stage and at customers’

tables are intended to be erotic.’ 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 custom-

ers during table dances. One report included earlobe

nibbling. Dancer Tracey Lynn Sula admitted kissing

customers on the cheek.

* 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.”

" 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 view 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.

App. 9

During both the onstage performances and the table

dances, performers become largely, although not totally,

nude. By the conclusion of a striptease, 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 com-

pletely 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. Evi-

dence 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 the 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

App. 10

police officers indicated that, in person, one could some-

times 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 interact-

ing with customers has remained constant. The combina-

tion 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 semi-

nude 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 proceed-

ings against Pooh Bah to revoke various municipal L-

censes which had been issued to the company, including its

municipal retail liquor license. The basis for the revoca-

tion, as indicated at the outset of this opinion, was that

the company, by and through its agents, had violated

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

App. 11

prohibits establishments licensed to serve alcoholic bever-

ages from permitting any employee, entertainer or patron

to engage in “any live act, demonstration, dance or exhibi-

tion * * * which exposes to public view * * * [hjis 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 4-90-140(d) of the Municipal Code.

Pooh Bah appealed the revocation of its liquor licence

[sic] 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

App. 12

action for declaratory and injunctive relief, which re-

mained pending.”

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,

“lalny premises used for prostitution, illegal

gambling, illegal [drug] trafficking * ** or any

other activity that constitutes a felony, misde-

meanor, 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 allow-

ing 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 areola

in violation of section 4-60-140(d) of the Municipal Code.

* 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 admin-

istrative review has not been challenged and is not at issue in this

appeal.

App. 13

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 Kingsbury 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 por-

tions of the female breast at or below the areola, the

buttocks, the pubic hair regions and portions of the genita-

lia.” The City further alleged that Pooh Bah was in viola-

tion 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.

App. 14

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 mer-

its.” 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 revoca-

tion of Pooh Bah’s municipal licenses; vacated the revoca-

tion of those licenses; reserved for future consideration

various related and subsidiary issues; and made an

* 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.

App. 15

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.” 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." 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

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)).

" 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.

App. 16

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 ordi-

nances 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 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 uv.

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 uv.

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

App. 17

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 Supreme Court adhered to the view that

where, as here, the sale of alcohol is involved, the regula-

tory authority conferred on states by the twenty-first

amendment to the United States Constitution (U.S.

Const., amend. XXI) gave states and their political subdi-

visions 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,

App. 18

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 thé 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 establish-

ments 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 6n first

amendment grounds. During the pendency of this litiga-

tion, 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 de-

livery or use of intoxicating beverages within its

App. 19

borders, ‘the Amendment 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 Establish-

ment 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 Liquor-

mart, 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

App. 20

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 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 Consti-

tution. 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 protec-

tion.” 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 associ-

ated 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

App. 21

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 gov-

ernment’s interest. O’Brien, 391 U.S. at 377, 20 L. Ed. 2d

at 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 citys 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 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 Liquor-

mart and Pap’s A.M., the United States Supreme Court

itself has not specifically addressed the framework which

App. 22

should be followed in analyzing first amendment chal-

lenges 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 Busi-

nesses on the community in reports made avail-

able to the Village Board, and on the holdings

and findings in [numerous Supreme Court,

federal appellate, and state appellate judicial

App. 23

decisions], as well as studies and summaries of

studies conducted in other cities . . . and findings

reported in the Regulation of Adult Entertain-

ment Establishments in St. Croix County, Wis-

consin; 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 con-

tribute to an increased public health risk

through the spread of sexually transmitted dis-

eases.

(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

App. 24

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 judg-

ment, the court of appeals began by dismissing as falla-

cious 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 Supreme Court authority governing adult

entertainment regulations, including 44 Liguormart 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., 5385 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 ordi-

nance 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

App. 25

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 enti-

.-d to rely on that knowledge; and if its infer-

ence. ~opear reasonable, we should not say there

is no bas.~ for its conclusion.” Alameda Books,

535 U.S. at .~'-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 establish-

ments is constitutional if:

“(1) the State is regulating pursuant to a legiti-

mate governmental power [citation]; (2) the regu-

lation 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 ef-

fects caused by adult entertainment establish-

ments [citationj; and (4) the regulation is

designed to serve a substantial government in-

terest, narrowly tailored, and reasonable alter-

native avenues of communication remain

available [citation]; or, alternatively, the regula-

tion furthers an important or substantial gov-

ernment interest and the _ restriction on

expressive conduct is no greater than is essential

in furtherance of that interest. [Citation.]” (Em-

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

App. 26

Step four of this test encapsulates the so-called intermedi-

ate standard of scrutiny. Joelner v. Village of Washington

Park, 378 F.3d 613, 622 (7th Cir. 2004).

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 secon-

dary 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.

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

more rigorous standard will apply. The regulation will have to with-

stand 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.

App. 27

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 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 prof-

fered 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

App. 28

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 connec-

tion with the legislation challenged in Bellanca, “[clommon

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.

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

App. 29

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 estab-

lishments 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 prem-

ises 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."

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

'* 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 combina-

tion 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.

ae

Bat:

eae”,

App. 30

dancing to its patrons; it seeks to regulate alco-

hol and nude or semi-nude dancing without pro-

hibiting either. The citizens of the Village of

Somerset may still buy a drink and watch nude

or semi-nude dancing. They are not, however, con-

stitutionally 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 asso-

ciate with other adults in alcohol-purveying estab-

lishments with other adults). The deprivation of

alcohol does not prevent the observer from wit-

nessing nude or semi-nude dancing, or the

dancer from conveying an erotic message. Per-

haps 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 pa-

trons. 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.

App. 31

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

directed toward the regulation of alcohol sales and con-

sumption 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 suci performances at estab-

lishments licenced [sic] to sell alcohol. Where alcohol is not

sold or served, nude and seminude dancing is not prohib-

ited 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 ordi-

nances.

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 entertain-

ment 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 municipal-

itys 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

App. 32

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 Til. 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 cer-

tain areas of a city may lead to increased levels

of criminal activity, including but not limited to

prostitution and assault; and

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, Washing-

ton, and Detroit, Michigan, among other cities,

have demonstrated that adult use establish-

ments may degrade the quality of the area in

which they are located and may have a blighting

effect on a city; and

Adult uses which continued to operate as

nonconforming uses have had a deleterious effect

App. 33

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 patron-

ize adult use establishments a reasonable cppor-

tunity to do so in areas of the establishments;

and

Adult uses should be treated as special uses

to enable individualized consideration of the ef-

fects 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 depart-

ment of planning and development, was personally in-

volved in the formulation of the Citys 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 secon-

dary 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 activi-

ties 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.

App. 34

In researching how best to deal with the negative

secondary effects of strip clubs and other adult entertain-

ment establishments, 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 spe-

cifically 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 estab-

lishments 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 expres-

sion is completely untenable. See G.M. Enterprises, 350

F.3d at 638.

App. 35

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 unen-

cumbered by even that level of uncertainty. In contrast to

R.V.S., L.L.C., there is nothing at all in this case to sug-

gest, 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 estab-

lishments 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 conten-

tion 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

App. 36

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 recom-

mendation to the city council that the ordinance be ap-

proved. 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 Lid. 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, alterna-

tively, 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 chal-

lenges to adult entertainment regulations. Under Ben’s

Bar and the precedent on which it is based, assessing

App. 37

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 pre-

dominant 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 Carandola, 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 Carandola, 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 “[lliquor 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 cam scarcely be questioned. Nude and topless

dancing in bars has “a long history of spawning deleteri-

ous 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

App. 38

seminude dancing, secondary blight is frequently reported.

Disturbances involving lascivious conduct, drunkenness,

larcenies, assaults and narcotics are common. See, ¢.g.,

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

USS. 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 establish-

ments create the opportunity for crime by bringing the

potential victim and the criminal together. Victims become

App. 39

more vulnerable because of alcohol’s debilitating effects,

thus creating an attractive situation for potential offend-

ers. 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 retail alcohol sales and

adult uses created a higher incidence of crime than re-

sulted 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 experi-

ence 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 abun-

dance of criminal activity that occurred in the late 1970s

and early 1980s when strip clubs serving alcohol prolifer-

ated. In addition, the City buttressed its position by

presenting to the circuit court judicial decisions from

other jurisdictions involving attempts to regulate adult

App. 40

entertainment establishments, including strip clubs

serving alcohol, within the confines of the first amend-

ment,

Based on the foregoing, we believe that the eviden-

tiary 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 ration-

ale, 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 consid-

ered 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 inde-

pendent of that already generated by other cities before

enacting an ordinance pertaining to the adverse secondary

effects of adult entertainment establishments so long as

whatever evidence the city does rely on is reasonably

believed to be relevant to the problem the city is attempt-

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

over, 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

App. 41

actual experience from the municipality itself buttresses

the conclusions reported in studies from other jurisdic-

tions, 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 rela-

tionship between viewing sexual stimuli and sexual

“acting out behavior.” In addition, Rolf Campbell, a plan-

ning 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 supple-

ment 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 inci-

dence of crime, while Giranadola confirmed that alcohol

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

App. 42

true that the City adduced no information dealing specifi-

cally with the potential secondary effects of permitting

liquor to be sold where the dancers wre covered to the

extent required by section 4-60-140(d) of Chicago’s Mu-

nicipal Code, but no precedent requires the City to 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 regard-

ing the secondary effects of alcohol sales and adult enter-

tainment 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 regard-

ing 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 11438, 1157 (E.D. Wash.

2002), aff’d, 368 F.3d 1186 (9th Cir. 2004), quoting String-

fellow’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 ».

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

App. 43

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 con-

tinued to sell alcohol while presenting seminude dancing.

The amount of documented criminal activity reported

during that period has been limited. Contrary to Pooh

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

strates 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 com-

bined. 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.”

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

appear that any dancer or patron has yet been charged with prostitu-

tion or prostitution-related offenses.

App. 44

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 experi-

ence, 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 estab-

lishment. See SOB, Inc. v. County of Benton, 317 F.3d 856

(8th Cir. 2003) (public indecency ordinance banning live

nude dancing 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

App. 45

had no specific knowledge about crime patterns near

venue presenting live nude dancing did not render ordi-

nance 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 de-

signed 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 amend-

ment challenge state regulation forbidding erotic topless

dancing in establishments licensed to sell liquor). There

App. 46

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

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 ordi-

nance regulates nude and seminude dancing and the

consumption of alcohol, but prohibits neither. The City of

Chicago still offers innumerable 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

App. 47

not entitle a bar, its dancers or its patrons to have alcohol

available during a presentation of nude or seminude

dancing. Ben’s Bar, 316 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.” Cande-

laria’s objective included a pragmatic element as well.

When dancers are up on the main stage, Candelaria

testified, “[wle 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 commu-

nicate to the audience who she is, that she is comfortable

being onstage, that she is “here and available to enter-

tain,” and that she is “strong, confident, sexy, beautiful.”

Similarly, Vickie Bernal, a/k/a “Lee,” viewed her perform-

ances as relating the message that women are beautiful.

App. 48

She wants her customers to look not only at her body, but

also at her hair and her face. “I try to have them appreci-

ate 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 postu-

lated that prohibiting alcohol sales where nude or semi-

nude 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 pro-

tected speech, a “reasonable opportunity” does not include

a concern for economic considerations. Ben’s Bar, 316 F.3d

at 726-27, citing Civy of Rencon v. Playtime Theatres, Inc.,

475 U.S. 41, 54, 89 L. Ed. zi 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

App. 49

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 con-

ceivably 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 expres-

sion, 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 conclu-

sion 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 prohibit-

ing all enforcement of that law — particularly a law that

reflects ‘legitimate state interests in maintaining compre-

hensive controls over harmful, constitutionally unpro-

tected 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

na

App. 50

(1982). Its concern with “chilling” protected speech at-

tenuates 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. 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 hesita-

tion, and only as a last resort. New York v. Ferber, 458 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 applica-

tions.” 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).

App. 51

More than 50 years after its inception, first amend-

ment 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 “[rJeasonable alcohol

intake [by nursing mothers] should not 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

App. 52

demonstrations for all-female audiences would be prohib-

ited” 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?” 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 over-

breadth. The club’s contention is that the ordinance suffers

from overbreadth because its prohibitions would apply to

nude 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.

* 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.

App. 53

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 insig-

nificant when compared to the plainly legitimate reach of

the ordinance. The swim meet hypothetical is also unper-

suasive. By its terms, the ordimance pertains only to

“employees,” “entertainers,” or “patrons” engaged in “live

act{s}, demonstration|s}, dancefs], or exibition{s}.” Giving

these terms their plain and commonly understood mean-

racers in a swimming competition.“

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 ordi-

nance, the sale of alcohol in theaters is confined to the

lobby area and limited to one hour before the performance

“ 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.

App. 54

and during the intermission. Section 14-60-140(d) of the

Municipal Code is therefore inapplicable to stage perform-

ances at conventional theaters in the City.

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 expansive-

ness of the ordinance is a virtue, rather than a vice, for it

is ewndence that the ordimanmce does not discriminate

against a particular message or point of wew. See Hill o

Colorado, 530 U.S. 708, 731, 147 L. Ed. 2d 597, 621, 120

S.Ct. 2480, 2497 (2000) Moreover, because the first

amendment does not entitle a hcensed hquor establish-

ment, its performers or its patrons to have alcohol avail-

able 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 io 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

App. 55

therefore not overly broad. Hill v. Colorado, 530 U.S. at

732, 147 L. Ed. 2d at 621, 120 S. Ct. at 2498.”

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 discrimi-

natory enforcement. Hil! vu. Colorade, 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 woid on its face. The first type of

challenge, as its name suggests, evaluates a statute im 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

" 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.

App. 56

is so pervasive that it is incapable of any valid application.

People v. Fabing, 1432 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 608, 616, 110

S. Ct. 596, 603 (1990). The courts have held, however, that

when a law threatens to inhibit the exercise of constitu-

tionally protected mghts such as those protected under the

first amendment, the Constitution demands that a more

stringent waguemess test be applied. In such a scenario, a

statute is void for vwagweness if it reaches a substantial

amount of comstitutienaly 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 onstitutionally protected speech,

the facial vagueness and overbreadth analyses are cog-

nate. Record Head Corp. uv Sachen, 682 F.2d 672, 674 (7th

Cir. 1982). For reasons discussed in connection with Pooh

Bah’s overbreadth claim, ‘he 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.

Pooh Bah’s vaguenessclaim 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

App. 57

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 regula-

tions are more apt to know where the lines are drawn and

more able to obtain clarification through inquiry or admin-

istrative 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 lan-

guage. 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,

App. 58

109 S. Ct. 2746, 2755 (1989). We must also remain mindful

that when judging the constitutionality of a rule or stat-

ute, 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 pertaining to nudity. See Giano uv.

Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995); Dodger’s Bar

& Grill v. Johnson County Board of County Commission-

ers, 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 intelli-

gence 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 but-

tocks, 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

App. 59

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 intelli-

gence 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 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

App. 60

their rights to due process under the fourteenth amend-

ment.

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 review-

ing the history of the provision and the discussion of its

terms at the 1970 Constitutional Convention, we con-

cluded that the framers recognized that the Illinois Con-

stitution may provide greater protection to free speech

than does its federal counterpart. People v. DiGuida, 152

Ili. 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 Il. 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 (1997).

Construing a state constitutional provision nearly identi-

cal 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

App. 61

conduct. The court recognized that the provision had been

found to warrant greater protection than the first amend-

ment for speech, both spoken and written, in some con-

texts. 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 constitu-

tional 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 amend-

ment. 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

App. 62

vu. Laedeke, 247 Mont. 151, 157-58, 805 P.2d 1348, 1352

(1991) (s ; City of Daytona Beach v. Del Percio, 476

So. 2d 197, 203-04 (Fla. 1985) (similar). Although the

Supreme Judicial 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 Constitu-

tion 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 Constitu-

tion 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

* 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 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.

App. 63

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 of 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 permit-

ted to present additional evidence on the question of

whether the ordinance actually creates the secondary

effects claimed by the City. This argument is 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 ordi-

nance does not violate the United States or Illinois consti-

tutions 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 appel-

late court, reversing the judgment of the circuit court and

remanding the cause, is affirmed.

Appellate court judgment affirmed.

. USTICE BURKE took no part in the consideration or

decision of this case.

App. 64

SUPREME COURT OF ILLINOIS

Springfield, Illinois, March 5, 2007

THE FOLLOWING CASES ON THE REHEARING

DOCKET WERE DISPOSED OF AS INDICATED:

No. 99804 -— City of Chicago, appellee, v. Pooh Bah

Enterprises, Inc., et al., appellants. Appeal,

Appellate Court, First District.

Petition for rehearing denied.

Burke, J., took no part.

Freeman, J., dissenting upon denial of

rehearing.

Dissent attached.

—_—_——

App. 65

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 opin-

ion “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 over-

looks 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 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 Stares v. Play-

boy 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

(202). Pooh Bah asserted that the challenged ordinance is

content-relates, on the basis that the law applies solely to

erotic entertainment and because its effect and purpose is

App. 66

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 justificatior. 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 pro-

gramming 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 amend-

ment). In both instances, the Court concluded that the

challenged statute were subject to strict scrutiny analysis

because they had a content-related intent or purpose. Play-

boy, 529 U.S. at 811-13, 146 L. Ed. 2d at 878-79, 120 S. Ct.

App. 67

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 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 moles-

ters under the First Amendment”! 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 argu-

ment 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

“Iflor 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 submis-

sions to this court, the City justified its challenged ordi-

nance, 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

App. 68

scrutiny standard to laws directed at the impact of speech

on its isteners 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 combina-

tion 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 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 Cit.

2003). That decision applies an intermediate scrutiny

analysis to the review of a local ordinance regulating

“sexually oriented businesses,” without detailed considera-

tion 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

App. 69

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 govern-

mental 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 dis-

missal 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 argu-

ments. What message does this court send to litigants

when it does not even bother to address the central argu-

ments 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

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 similiar issues in future cases. Indeed, the legal

community “rel[ies] on our opinions to map the evolving

App. 70

course of law.” People v. Jung, 192 Ill. 2d 1, 17 (2000)

(McMorrow, J., specially concurring, joined by Miller and

Freeman, 3J.). 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 ordi-

nance. In its opinion, the court uses the following test from

the Ben’s Bar decision to determine whether the chal-

lenged coverage ordinance withstands intermediate

scrutiny review. Under this test, a challenged law is

constitutional if:

“*“1) the State is regulating pursuant to a le-

gitimate governmental power [citation]; (2) the

regulation does not completely prohibit adult en-

tertainment [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, nar-

rowly tailored, and reasonable alternative ave-

nues of communication remain available

[citation]; or, alternatively, the regulation fur-

thers 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 prece-

dent requires this court to uphold the City’s coverage ordi-

nance 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.

App. 71

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.

However, Pooh Bah argues on rehearing that this

court in its opinion has completely overlooked its argu-

ment 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 incom-

pleteness 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 unconsti-

tutional 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

App. 72

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 judg-

ment 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 reservations

by all parties of their respective rights to present addi-

tional 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,

App. 73

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 Citys 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 foot-

note 9 of the opinion that one of the agreed orders “re-

served 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 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.

App. 74

In addition, I note that the intermediate scrutiny

analysis of the validity of the City’s secondary-effects justifi-

cation in support of the coverage ordinance is a fact-based

assessment, as the United States Supreme Court hag re-

peatedly 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. 1882 (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 evi-

dence that is ‘reasonably believed to be relevant’

for demonstrating a ¢onnection between speech

and a substantial, independent government in-

terest. [Citations.] This is not to say that a mu-

nicipality can get away with shoddy data or

reasoning. The municipality's evidence must fairly

support the municipality’s rationale for its ordi-

nance. If plaintiffs fail to cast direct doubt on this

rationale, either by demonstrating that the mu-

nicipality’s evidence does not support its rationale

or by furnishing evidence that disputes the mu-

nicipality’s factual findings, the municipality meets

the standard set forth in Renton. If plaintiffs suc-

ceed in casting doubt on a municipality’s rationale

in either manner, the burden shifts back to the

municipality to supplement the record with evi-

dence 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

App. 75

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 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 [ad-

ditional 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 constitu-

tional 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.’

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

(Continued on following page)

App. 76

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 estab-

lished that the coverage ordinance was enacted to combat

secondary effects. As a general matter, it is not for this

court, 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 secon-

dary 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

intermediate scrutiny review-even though the most that can

properly be determined on appeal on that review (by revers-

ing 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 preferred secon-

dary effects justifications, thus barring this litigant from

ever finishing its constitutional attack on the ordinance.”

(Emphasis in original)

App. 77

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 overlap-

ping 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 ease, the City must show

whether the 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

App. 78

restrictions on free speech and expression can cumulate,

“with the latest legislative ‘solution’ piled on top of yester-

day’s solution, and on and on without genuine judicial

review of their individual justifications — or lack of justifi-

cation.” The significance of the interplay between these

regulatory remcdies 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 #@f 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

' go, then the absence of concentration in this case is a

App. 79

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 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 ir its peti-

tion for rehearing that this court engaged in “clear and

plain error” in its consideration of the intermediate scru-

tiny 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

at

~

App. 80

Pooh Bah states in its rehearing petition, “the opinion

erroneously treats the City’s announced policies support-

ing 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 disre-

gards.” (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 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 stan-

dards, 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 origi-

nal.)

The precedent set by this court’s refusal to allow comple-

tion of evidence on the intermediate scrutiny first amend-

ment 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

App. 81

rights to complete their record if their directed verdict is

upset on appeal. The fact that this litigation has a pro-

tracted history should be of no moment in this considera-

tion, 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, omis-

sions 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 dis-

cusses 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 associ-

ated with those Rush Street establishments accounted for

a large number of the prostitution arrests in that geo-

graphic area, and, this court states, “[njegative 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.)

App. 82

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 eee 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 in-

terested. 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 mini-

mum of five assistant corporation counsels and

the latest in modern technology were used to pre-

sent 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

App. 83

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 nega-

tive 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 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 activi-

ties.

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 associa-

tions, as well as baseless accusations of ‘prostitu-

tion’ to taint the Club and its ownership. This is

not only completely unnecessary to the decision in

this case, but misrepresents the facts and relation-

ships involved. It is also unfair. Pooh Bah has no

opportunity here or on remand (under the current

order) to present rebuttal evidence. ** * Such

App. 84

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 depart-

ment “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

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 prece-

dent.

In addition, with respect to Joe’s father, Fred Pas-

cente, the record reflects that he was a retired Chicago

App. 85

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

Me 8 Fred Pascente is now listed in the Nevada Gam-

ingommission’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 lega! 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 agree-

ments 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, how-

ever, 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

App. 86

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 ap-

peal. Will litigants now expect that in every case this court

will comb the Internet or other outside-the-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 particu-

lar 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 correc-

tion?

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.

App. 87

APPENDIX

IN THE CIRCUIT COURT OF COOK COUNTY,

ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

CITY OF CHICAGO, an Illinois municipal corporation,

Plaintiff-Counterdefendant,

V.

POOH BAH ENTERPRISES, INC.,

an Illinois corporation, and PERRY MANDERA,

Defendants-Counterplaintiffs.

No. 99 CH 9682

POOH BAH ENTERPRISES, INC., an Illinois

corporation; ACE ENTERTAINMENT CO., INC.,

an Illinois corporation; PERRY MANDERA, Pooh Bah

president and Ace Entertainment Co., Inc. president; LISA

D. SIMS, CHRISTEN E. HADSALL, and

SUSAN L. LJENQUIST, entertainers and dancers;

and PETER ABRUZZO, Plaintiffs,

Vv.

CITY OF CHICAGO, an Illinois municipal corporation;

RICHARD M. DALEY, in his official capacity as Mayor of

the City of Chicago; WINSTON MARDIS, in his official

capacity as Director of the Mayor’s License Commission;

LICENSE APPEAL COMMISSION; WILLIAM D.

U'DONAGHUE, Chairman; ALBERT D. McCOY and

IRVING J. KOPPEL, Commissioners, Defendants.

No. 93 CH 4559

App. 88

PARTIAL JUDGMENT ORDER’

(May 1, 2001)

These cases are before the court on Pooh Bah’s mo-

tions for directed findings and for judgment at the conclu-

sion of the City’s case-in-chief on the City’s Counts I-V in

No. 99 CH 9682 and on Pooh Bah’s Counts VI and VII in

No. 93 CH 4559, and.on the parties’ stipulation submitting

the cases for a ruling on the current record, along with the

record on administrative review, subject to reservations by

all parties of their respective rights to present additional

evidence if these motions are not finally dispositive; and

the court, being fully advised in the premises, does now

FIND:

1. The City has rested on its following claims and

defenses, which are ripe for a ruling on Pooh Bah’s

motions for directed findings and for judgment:

(a) Counts I-III of its complaint in No. 99 CH

9682 (seeking injunctive relief);

(b) the liability issues in Counts IV and V of its

complaint in No. 99 CH 9682 (seeking fines); and

(c) its defense against Pooh Bah’s facial consti-

tutional attack on § 4-60-140(d) of the Chicago

Municipal Code;

2.

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