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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

9
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No. *

Sn The
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

¢

APPENDIX TO
PETITION FOR WRIT OF CERTIORARI

¢

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 rel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0566%3A2. Public record. Not legal advice.